BLAW Cheatsheet Final - Notes to be taken into exam PDF

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ACC v Coles: signs advertised “fresh bread” but bought pre-prepared dough and baked on spot. Misleading conduct, goods have particular history, implied representation of bread baked entirely on day of sale. Concerned about freshness and when bread was baked. ACC v TPG: promoted internet with unlimited download data limit for $29.99/month. Conditions in small font, only available at said price if bundled with home phone (+30/month) setup and deposit payable. TPG paid substantial pecuniary penalty. Alcatel Australia Ltd v Scarcella: (universal term, good faith) A. leased building and need to pay for any work required by the government. S. asked local authority to inspect for fire safety and Alcatel needed to pay. There was no breach of duty because Scarcella seeking a fire safety inspection was not unreasonable. Allcard v Skinner: (undue influence, effect of delay in seeking relief) Allcard gave away all her property when she joined a religious order. After she left, five years later she wanted to property back. It was too late to avoid the transaction. Associated Newspapers Ltd v Banks: (condition, breach, remedy, termination of performance) Ass N. agreed to publish cartoonist Bancks on the front page of the newspaper. But it appeared on page 3. The term was essential (condition) so Bancks is justified in terminating further performance. ANZ Ltd v Ateliers: (implied authority) ACEC appointed Helios as its agent in Aus. H. paid cheques into its own account but not all money was forwarded to ACEC. H. went into liquidation. Helios had no express authority to pay the cheques into its own account. Australian Knitting Mills Ltd v Grant: (s19 implied conditions as to quality/fitness) G purchase underwear manufactured by Aus KM and developed rash. Aus KM did not breach the condition requiring goods sold to be of merchantable quality. Baldry v Marshall: (s19 suitable for buyer’s purpose, implied term: sale by trade name) M. told B. he wanted a fast and comfortable car suitable for touring. The car turned out to be unsuitable. There was an implied term requiring the car to be suitable for the buyer’s purpose, regardless of the use of the trade name to describe the goods. Balfour v Balfour: (agreements b/w family) Mr B promised to pay his wife £30 per month. They divorced and Ms B tried to enforce payment. The agreement was not legally enforceable because the parties did not intend it to have legal consequences. Baltic Shipping v Dillon: (breach, damages for distress/disappointment) D. booked for a cruise and the ship sank. D. suffered from disappointment and distress. Dillon was entitled to damages for stress and disappointment. Barton v Armstrong: (duress, threats of physical harm) B. purchased shares in a company from A. A had threatened the life and safety of himself and his family but B also had business reasons for buying the shares. Threats were sufficient for the contract to be set aside as void. Bertram, Armstrong & Co v Godfray: (agent’s duty to follow instructions) G instruct BAC to sell his stock when it reached 85% or above. BAC thought the price would rise higher but it dropped. The agent had no discretion to wait for a higher price. Bettini v Gye: (warranty, no termination for non-fundamental breaches) A singer Bettini was contracted to sing for Gye. A term was that Bettini arrive six days before the first engagement and attend rehearsals, Bettini arrived late. The term was a warranty not a condition and Gye was not entitled to terminate further performance. BP Refinery v Hastings Shire Council: (terms implied ad hoc) Hastings entered into an agreement with BP Refinery granting company the right to pay lower than normal municipal rates on refinery site. After restructuring, refinery sites transferred to subsidiary company, BP Australia. Council charged full municipal rates. Council said was implied term, agreement would come to an end if BP Refinery ceased to occupy the site. No such term was implied ad hoc into the contract. Brinkibon Ltd v Stahag Stahlwarenhandelsgesellschaft: (accept by fax-when received) Someone in London and someone in Vienna offered and accepted a contract. The acceptance took effect when the telex was received in Vienna. Burger King Corporation v HJ: (universal term, good faith, dishonest use of contractual power) BKC exercised its contractual powers, impossible for HJ to perform its franchise obligations. BKC then gave HJ notice that it was terminating HJ’s franchise rights. BKC owed a duty of good faith to HJ and had breached that duty. Butcher v Lachlan Elder: (misleading conduct) L had small print on brochure disclaiming responsibility. B relied on information without checking, wanted to avoid the contract after realising information was inaccurate. L. had not engaged in conduct that breached s52. Carlill v Carbolic Smoke Ball Co: (Intention to be legally bound) (exchange of consideration) (offer available to anyone) (acceptance of offer by conduct) Company offered to pay £100 to who purchased the smoke ball but still caught influenza. Company deposited the money to a bank account but refused to pay Carlill. The promise was intended to be legally binding because they even deposited the money into a bank. Causer v Browne: (express terms in non-contractual doc) C took his wife’s dress to B for dry cleaning. The docket said “no responsibility is accepted for loss or injury to articles through any cause whatsoever”. The dress was damaged and C tried to claim damages from Browne. The statement had not become a term of the contract because it did not appear to be a contractual document. Cehave NV v Bremer Handelsgesellschaft: (innominate term, termination of performance) B sold a quantity of citrus pellets to C that were supposed to be in good condition. C had no right to reject the goods and terminate performance because the pellets could still be used as animal feed. Codelfa v State Rail Authority of NSW: (terms implied ad hoc, frustration) Codelfa agreed to build two tunnels in Sydney for the State Rail Authority. The high levels of noise disturbed local residents, placing limits on the hours Codelfa could work. Codelfa claimed extra payment from the State Rail Authority. There was no term implied that the State Rail Authority would pay extra costs associated with the limited construction hours. Cohen v Cohen: (agreements b/w family) Mr Cohen promised to pay his wife £100 a year as dress allowance. When the parties separated Ms Cohen claimed her spouse owed her unpaid dress allowance. The agreement was not inferred to be legally enforceable. Commercial Bank of Australia Ltd v Amadio: (unconscionable dealing) Amadio’s parents agreed to provide security for his loan. Amadio’s company failed and the bank sought to enforce the mortgage against his parents. The mortgage was set aside on grounds of unconscionable dealing as the bank did not explain the risks. Concrete Constructions (NSW) Pty Ltd v Nelson: (misleading conduct, meaning of “in trade/commerce) The foreman of CC gave misleading information to an employee. As a result Nelson was injured and wished to claim damages. Giving information was not part of the company’s commercial or trading activities. Connor v Stainton: (breach: substantial performance) Connor refused to pay Stainton because posts he put up were more than 12 feet apart. Stainton claimed by adding dropper between the posts, the fence would be the same. Stainton hadn’t substantially performed the contract and was not entitled to claim the agreed payment. Coulls v Bagot’s Executor & Trustee Co Ltd: (privity of contract-rights of 3rd party) Coulls gave O’Neil the right to dig up a stone and O’Neil promised to pay royalties which was also payable to Coull’s wife. O’Neil owed no contractual obligations to Doris Coulls because she was not a party to the contract. Donoghue v Stevenson: (tort, negligence, duty of care-tort of negligence) Donoghue’s drink contained the remains of a snail and she became ill. She sued Stevenson, the manufacturer, for damages in Negligence. Stevenson owed Donoghue a duty of care. Dougan v Ley: (remedies for breach, specific performance, damages not an adequate remedy) Dougan sold a cab with an operating license to Ley but then changed his mind. Ley sued for specific performance. Ley was entitled to specific performance because taxi licences were limited and not readily available. Ermogenous v Greek Orthodox Community of SA Inc: (intention to be bound) Ermogenous came to Aus as an archbishop for 23 years where he was paid a salary. When he left the Community refused to pay him accumulated leave. It was intended to be legally binding because agreements with a minister of religion can be legally binding. Esso Petroleum Co Ltd v Commissioners of Customs and Excise: (agreements commercial context): Esso promised to give motorists a free coin when purchasing petrol. The coins were produced in quantity for general sale so were subject to a purchase tax. Since the terms of promotion were intended to be legally binding, the coins were subject to the purchase tax. Expo Aluminium v WR Pateman: (s19 suitable for buyer’s purpose) Expo told Pateman, a window manufacturer, “there is nothing between this job and the South Pole”, which means the house will be exposed to wind and rain. Windows were found to leak. Expo had implied the conditions the windows would be vulnerable to wind and rain, this implied term had been breached by supplying windows that leaked. Finch Motors Ltd v Quin: (hidden defect) Ms Quin bought a car she wanted to use to tow a boat. The car overheated because of a defective radiator. Ms Quin was entitled to reject the car because the car was unsuitable for towing. Fitzgerald v FJ Leonhardt: (illegal contract, effect of penalties and prohibition) Fitzgerald was meant to obtain permits before Leonhardt started work but did not. Fitzgerald refused to pay him in the absence of permits because the contract was performed illegally and therefore unenforceable. The contract was enforceable because the Water Act penalised such conduct but did not prohibit it. Freeman & Lockyer v Buckhurst: (no actual authority, but apparent authority) Two businessmen formed a company to acquire and resell a piece of land. There was no managing director appointed. Kapoor hired Freeman & Lockyer but when they claimed payment there was a dispute about Kapoor’s authority. Kapoor was acting as the managing director and the company was not allowed to deny

liability. Garcia v National Australia Bank Ltd: (unconscionable dealing) Garcia asked his wife to provide security and assured her there was no real risk. The bank did not explain the extent of her liability and when Garcia’s business failed, wished to enforce the mortgage. The mortgage should be set aside as void on grounds of unconscionable dealing. Garry Rogers Motors Pty Ltd v Subaru Pty Ltd: (unconscionable conduct) GRM was an authorised dealer of Subaru. Subaru wanted to terminate GRM’s appointment as a dealer. There was no unconscionable conduct in breach of s51. Government of Newfoundland v The Newfoundland Railway Co: (divisible contract)The government would grant the company 25,000 acres of land on the completion of each five-mile section. The project stopped after 35 miles. The company was entitled to the land for each of the seven completed sections. Great Peace Shipping Ltd v Tsavliris: (mistake, conditionality agreement, regarding quality) Tsavliris sent a tug to tow her to safety but it would take 5-6 days. He then contracted the Great Peace for assistance but was further than he and its owners thought. The contract was not void in common law nor voidable in equity, as it was still close enough to perform the task. Hadley v Baxendale: (breach, consequential loss) Hadley asked Baxendale to take something to a manufacturer. Baxendale took too long and Hadley claimed damages to compensate for the loss of profits caused by delay. Hadley was not entitled to such damages as Baxendale didn’t know how urgent it was. Handbury v Nolan: (representation of term, express term) cow was pregnant and sold for $3k but was infertile. The pregnancy test result is an expressly agreed term. Hawkins v Clayton: (tort of negligence – duty of care, liability of professionals) Mrs Brasier asked Clayton to prepare a will and she named Hawkins as executor. When Brasier died Clayton knew but did not contact Hawkins until six years later. By that time the house had fallen into disrepair and was worth much less. Clayton was liable in Negligence. Henthorn v Fraser: (accept by post-when posted) Fraser was selling houses to Henthorn and offered Henthorn 14 days to accept the offer. Henthorn posted a letter of acceptance but another buyer offered Fraser a higher price. Fraser attempted to withdraw his offer. Acceptance of the offer was effective as soon as the letter of acceptance was posted. Hochester v De la Tour: (anticipatory breach, repudiation De la Tour engaged Hochster to accompany him on a trip, three weeks before the trip De la Tour said he no longer needed Hochster. Hochster was entitled to sue De la Tour for breach of contract. Hoenig v Isaacs: (breach-substantial performance) Hoenig was contracted to paint Isaac’s apartment and supply some furniture for $750. It cost $55 to have another workman to rectify the defects. Isaacs only paid $400 to Hoenig. Issac was only entitled to deduct the actual cost of the necessary repairs ($55). Hole v Hocking: (tort of negligence-liable for physical harm) The plaintiff was a passenger in a car and suffered injuries. The plaintiff suffered a brain haemorrhage but it was going to occur at some point anyway. The plaintiff was not entitled to damages for harm that he would have suffered regardless of the driver’s negligence. Holland v Wiltshire: (breach: late performance, termination of performance) Wiltshire sold land and the agreement required payment to be made on January 14th 1952. Holland failed the meet the extension. Wiltshire was entitled to terminate further performance of the sale, resell the land to a third party and claim losses from Holland. Imbree v McNeilly: (tort of negligence- breach of duty of care-determining standard of care) Imbree allowed a 16 year old unlicensed driver to driver on a gravel road. The car lost control and Imbree was left paralysed he sued McNeilly for negligence. Drivers of motorists owe a duty of care to all road users; however in this case, Imbree also contributed to his injuries and the responsibility is apportioned between the parties. JC Williamson Ltd v Lukey & Mulholland: (remedy for breach, specific performance) Williamson granted Lukey to sell sweets in his theatre. Then Williamson also allowed another person to sell sweets in the theatre. Lukey sued asking for specific performance of his exclusive right but would not be ordered because it cannot be guaranteed without ongoing supervision of the courts. Johnson v Buttress: (undue influence) Buttress relied on Johnson as she cooked his meals and gave him advice. After he died he transferred ownership of his house to her. His son asked the court to set aside as void the transfer of the house. The transfer was voidable on grounds of undue influence, and no independent advice. Koompahtoo v Sanpine: (innominate term, depends on severity, right to terminate performance) The council and Sanpine developed an area of land for residential purposes. The contract required Sanpine to keep proper books of account but failed to do so. Termination of the joint venture is justified because the consequences of breach went to the root of the contract and deprived the council of a substantial part of the benefit. Koufos v C Czarnikow Ltd: (damages for immediate loss, breach) Koufos’s ship took too long to deliver sugar and the price of sugar dropped significantly. Damages could be claimed to compensate for the loss caused by the drop in price. L’Estrange v F Graucob Ltd: (assent to express terms in signed doc) Graucob Ltd sold a cigarette vending machine to L’Estrange. L’Estrange signed the document without reading it, the machine proved to be unsatisfactory. L’Estrange was bound by the terms of the document she had signed. Leaf v International Galleries: (bilateral mistake) Leaf offered to buy a painting. Both Lead and the seller believed it was the work of a famous artist. Leaf wanted to make the sale void. The mistake did not justify setting the contract aside as void as there was no objective unconditional agreement. Lindner v Murdock’s Garage: (illegal contract, restraint of trade) Murdock employed Linder but the contract contained terms that restrained Lindner from working for two towns for a year. It was unreasonable and therefore unenforceable. Lintrose v King: (duties of agent, good faith, conflict of interest) Lintrose wanted to sell some strata title units. It appointed John Hopkins & Co to find a buyer. King also appointed Hopkins as his agent. Hopkins advised King to buy one of the units. King was entitled to avoid the contract. Lumley v Wagner: (specific performance, remedy for breach, injunction) Wagner contracted to sing in Lumley’s theatre and would not perform anywhere else. Performance of both of these promises would not be enforced because it is difficult to ensure that the performance will be properly carried out. Maritime National Fish Ltd v Ocean Trawlers Ltd: (frustration, fault) The government issued only three licences to Maritime National and company had five boats needing licences. They asked Ocean Trawlers who made the boats to take back a boat, claiming the contract had been frustrated by the lack of licence. Maritime National was not entitled to rely on frustration as it was Maritime National’s own decision not to allocate one of their licences to that boat. Masters v Cameron: (conditional agreement) Cameron agreed to sell her farm for £17,500. In the document it stated: “this agreement is made subject to the preparation of a formal contract of sale”. There was no intention to be legally bound until a formal contract was prepared and signed. McRae v Commonwealth Disposals Commission: (damages for wasted expenses, breach) McRae bid for an oil tanker but it never existed. McRae claimed damages of both price & expenses from searching for it. McRae was entitled to claim the wasted expenses. McWilliam’s Wines v McDonald’s: (misleading conduct) McWilliam’s Wines advertised wine under the name Big Mac. McDonalds claimed the use of the name “Big Mac” was misleading and consumers might think it is a McDonalds product. McWilliams conduct was not likely to be the cause of any confusion. Merritt v Merritt: (agreement b/w family) When they split up, Ms Merritt agreed to finish paying off the loan on the house and Mr Merritt would transfer the house to her. He signed a letter but later on refused to transfer the house. It was intended to be legally enforceable because the goodwill between married persons has broken down. Moorhead v Brennan (t/as Primavera Press): (ad hoc-implied terms) Author Moorhead entered into a contract with Brennan, Brennan had the exclusive right to produce and sell the book and to license other publishers to do so. An overseas publisher offered to publish the book without Brennan’s explanatory introduction. Brennan refused to allow the book to be published and Moorhead lost money. It was implied ad hoc that Brennan would not obstruct opportunities for Moorhead so Moorhead was justified in terminating her contract with Brennan. Musumeci v Winadell Pty Ltd: (practical benefit as consideration) W leased a shop to M and another competing retailer. M’s business declined and W agreed to a 30% reduction in rent. In the end W argued the new lease was not legally binding. It is legally binding because consideration (practical benefit of keeping Musumeci as a tenant and the mall full) was received. North Ocean v Hyundai: (duress, threats of economic harm) Hyundai built a tanker for North Ocean Shipping. After the contract there was a 10% devaluation of the US dollar so it is not longer profitable for Hyundai. NOS then agreed to pay additional sum demanded by Hyundai. Unlawful threats of economic harm amounted to duress. Oscar Chess Ltd v Williams: (terms and representation rather than binding promise) William traded in a car that he believed was a 1948 model. The used car dealer discovered it was a 1939 model and sued Williams. The statement regar...