BLAW cheat sheet PDF

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Contracts Contractual capacity Adults of sound mind Artificial persons (e.g. company) Minors for essentials Reduced capacity Minors Mentally impaired Insolvent Under the influence Formation 1. Legally binding intention 2. Deed or Consideration (informal) 3. Sufficient agreement/ consensus a. Offer – promissory b. Acceptance i. ii.

iii.

Without conditions In an acceptable form To person who offer was made to

Doctrine of Privity Only parties that have rights or duties in contract can enforce it. Unless equitable interest e.g. insurance, or agent or principle Legislative process HOO -> Bill listed fpr 1st read -> house grants permission -> Long title read (no debate) ->Minister speech -> Debate -> Motion -> Second read -> Committee -> Motion -> 3rd read HOR -> Repeat Final stages; royal assent, published in government gazzett, act commences as law Deafault commercement; 28 days from royal assent (FILL) Interpreting legislation Literal approach; give words ordinary and natural meaning Special meaning; defined in the act, overrides other meanings Golden rule; avoid absurdity – rare Purpose approach; based on in/extrinsic evidence give meaning that supports purpose of the act Case/ General Law Common law and equity Judges make general law by applying existing law with the doctorine of precident Declare an unwritten rule from natural/custom for the first time Interpret / give meanings to existing law Extend established rule ot new situation

Doctrine of precedent Let decision stand if; material facts in both cases similar (cannot be reasonably distinguished), previous decision from superior court in same hierarchy. Only binding; both conditions met, otherwise persuasive only

Contracts Terms Promises intended to be legally binding Excludes; Puffs; Insensire statement to excite/ engauge Opinions; personal Representations; Statement of fact, not a term unless intended to be legally binding Parole Evidence Rule Wholly written terms are proven by written contracts only, unless evidence of rectification, resolution or partly only written Excusing performance Initial impossibility Supervening impossibility/ frustration Parties didn’t assume risk, party isn’t responsible for impossibility

Types of breach 1. Non- performance a. Termination 2. Partial performance a.

3.

Substantial performance a. Damages only (treat as breach of

4.

Late performance a. Depends if timing conditional Anticipatory breach Innominate terms

warranty)

5. 6.

a.

7.

Defective performance

a.

Hidden defects

Ratification; can give retrospective authority A’s liability; if P undisclosed and A within authority then A and P, if not then A misleading conduct

Terms in a contract Agreed (express or implied) or law New terms require new contract Terms implied adhoc Officious bystander test Obviousness of intention Business efficacy- to prevent superflucious Reasonable and equitable – clear and unambiguous Agreed in express terms Terms implied by law Universal terms Implied into all contracts unless it contracticts express terms 1. To cooperate and do what is neccisary for both parties to benefit from the contract 2. To act in occoradance with good faith (use powers honestly and reasonably) Generic terms Terms implied into specific types of contracts Contract remedies Plantiff entitled to specific which they want, discharge outstanding obligations Common law: damagers, termination Equity; specific performance , injunctions Statutory and agreed Damages – compensatory not punitive Loss; to claim plaintiff must have tried to mitigate Direct; fair and foreseeable as naturally arising Consequential; reasonably contemplated by both parties as result of breach Wasted expences -> distress and disappointment (entr) Termination Terminate defendants right to perform Plaintif must communicate unambiguously Specific performance Actual performance, not given when damagers will r adequate, creates hardship, requires goodwill or supervision. Injunction; stop breach or prevent breach ACL remidies; reasonably foreseeable Vitiating Factors Duress, mistakes, undue influence, unconciousable dealing, misleading conduct, illegality Void vs voidable – Ab initio (created initially but set aside), restores positions if within reasonable time Duress -> Harm towards self or family only (voidable) Undue influence -> relationships, voidable Presumed- doctor/patient, parent/child, solicitor/client, preist/believer General; husb/wife, principle/agent, dentist, banker/client, employer/employee Specific – particular transaction Mistake; Mutual; different mistakes, if not substantial agreement, void Bilateral; Same mistake, if conditional on assumption of quantity/ identity voidable, elsewise valid Unilateral; 1 party mistaken, still valid unless not consiousable, voidable, eg, one party knew/hid Unconciousable dealing; no equality of bargaining power (disability or disadvantage, voidable); evident stronger party takes unfair advantage Misleading conduct; if deliberate/ negligent then voidable

Procedure in civil case Purpose of trail -> exchange pleadings (plaintiff and defendant) -> Proving facts -> Ascertaining law -> Decision

Lower house

Upper House

CTH

House of reps

Senate

State

Legislative assembly SA and TAS – house of assembly Legislative assembly

Legislative council QLD – unicameral, no upper house

Self governing (ACT, NT, NI)

Serious breach of condition, else warranty

Torts Trespass = property from interference, Assault & Battery = violence or threats of violence, Private Nuisance= right of enjoyment of ones property, Deceit = against being misled, Defamation = personal rep, Negligence = against careless conduct causing harm Negligence; ‘but for’ test Recognised – property owners/ occupants/entrants, road users, manufacturers/ consumers, contuactual fiduciary, authorities/public

Ratio decidendi; binding part of precedent, legal principle or reason applied to material facts to arrive at decision. Obiter Dicta; (surrounding words/ explanation), historical perspective

State (other)

If condition; reflect and terminate + damages. If warranty damages only

Importance of Terms Condition vs Warranty or innominate terms approach Condition; of fundamental importance, apparent to promisor Warranty: less important

CTH

Full court/ federal court

States

Court of appeal (Full court of supreme court – SA and Tas)

Ter

Court of appeal (Fed court of AU – NI)

Court of criminal appeal (NSW and TAS only) Court of crim appeal (NT only)

Federal court of AU/ Family court Supreme court

Supreme court

Fed. Circuit court

Magistrates court

District court (Tas and Viccounty court)

Magistrates (local court – NSW) Magistrates court (Court of petty sessions-NI)...