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ACCC v Coles Supermarkets (2014) 317 ALR 73 chapter 11, p. 247 Instore signage contained signage containing phrases such as ‘baked today, sold today’ and ‘freshly baked’; The ACCC allege that such statements represented that the products had been entirely backed that day. Coles sold products partially baked elsewhere and then snap frozen with the baking process completed by Coles Conduct was misleading Consumers would pay attention to claims about freshness etc --- if simply said 'fresh', might be puffery; but definite statement be made, 'baked today, sold today' - misleading

ACCC v TPG Internet Pty Ltd (2013) 250 CLR 640 chapter 11, p. 246 In a series of radio, television and newspaper advertisements TPG o

(very prominently) promoted a very cheap unlimited data ADSL 2 plan

o

(far less prominently) disclosed that the cheap plan was only available to those who bundled with homeline with TPG

The ACCC brought proceedings alleging that the advertising was misleading The provision protects consumers from being drawn into “the marketing web”

Alcatel Australia Ltd v Sarcella (1998) 44 NSWLR 349 chapter 6, p. 133 AA leases a building fron S for 50 yrs; A should maintain the building and pay for any work required by authority; after some yrs, S asked for a inspection; then the local authority ordered that the stairwell in the building be insulated against fire; A refused to pay and argued that S had caused the local authority to impose unreasonable safety requirement a duty of good faith may be implied; the fire safety inspection was not unreasonable and there was no breach of the duty

Allcard v Skinner (1887) 36 Ch D 145 chapter 10, p. 225 A joined religious order and took a vow of poverty; A donated her property to the religious order she had joined; When A left the order, she sought to recover the money she had donated; She claimed she was entitled to recover the money as it had been paid as a result of undue influence A presumption of influence arose from the nature of the relationship: devotee/religious adviser Ordinarily it would be for S to prove an absence of undue influence However, this case was resolved on the basis that even if a right to set the contract aside had arisen, it would have been lost as A took too long to exercise the right

Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 chapter 6, p. 115; chapter 9, p. 197 B agreed to produce a weekly full-page drawing for AN, AN agreed to pay B a salary and publish the drawing on the front page; however, later, the drawing appeared on oage 3 for some reasons; B decided to terminate the contract the term was an essential one --- a condition; B was therefore justified in terminating further performance of the contract

Australia & New Zealand Bank Ltd v Ateliers de Constructions Electriques de Charleroi [1966] 1 NSWR 19; [1967] 1 AC 86 chapter 13, p. 377 ACEC manufactured electrical equipment; ACEC appointed Helios, an Australian company, as its agent in Australia; Helios was given certain express powers:obtain import licences, receive the goods, pay customs duty, arrange insurance and transport, supervise installation and make arrangements for payment An Australian customer sent a cheque to Helios, payable to ACEC; Helios paid the cheque into its account and then transferred the money to ACEC (this happened on more than one occasion) When Helios went into liquidation, some of the money had not been paid to ACEC Although Helios lacked actual authority, the authority to do so was implied by necessity (ACEC did not have an Australian bank account)

Baldry v Marshall [1926] 1KB 260 chapter 7, p. 151 B purchased a Bugatti car from M, a car dealer; B argued that the car was not fit for purpose; M argued that there was no term obliging him to deliver goods suitable for M’s purposes because the car was bought under its trade name The mere fact that goods are described by trade name does not necessarily exclude the implied term It was clear on the fact that the buyer had relied on the seller to supply auitable goods, and this gave rise to an implied term requiring the car to be suitable for the buyer's purpose, regardless of the use of the trade name

Balfour v Balfour [1919[ 2 KB 571 Chapter 5, p. 76 keyword: contract; formation; intention to be legally bound; agreements between spouses Ms Balfour was unwell and remained in England; Mr Balfour promised to pay her 30 each month; later they separated and divorced; Ms B wanted the promise to pay maintenance when married persons enter into domestic agreements --- NOT legally enforceable

Baltic Shipping Co v Dillon (1993) 176 CLR 344 chapter 9, p. 194 Mrs D was a passenger on a cruise ship who sought recovery of her fare when the cruise ship sank on the tenth day of a fourteen day cruise as a result of the breach of the carrier’s duty to take

reasonable care; the company eventually admitted liability for breach of contract, but disputed D’s claim for damages based on distress and disappointment The general rule is that a plaintiff cannot claim contractual damages for disappointment, distress or injured feelings However they were payable in this instance as D had contracted for a trip meant to provide pleasure, relaxation and entertainment

Barton v Armstrong [1973] 2 NSWLR 598; [1975] 2 All ER 465 chapter 10, p. 222 B alleged that A (and others) had coerced him into entering a contract to sell certain companies by threatening to have him murdered; the trial judge made a finding of fact that B took these threats seriously and was justified in doing so; the trial judge also made a finding of fact that there were compelling business reasons why Barton executed the deed It was sufficient to set aside the contract as void ---duress

Bell Group N.V. (in liquidation) v Western Australia; W.A. Glendinning & Associates Pty Ltd v Western Australia; Maranoa Transport Pty Ltd (in liq) v Western Australia [2016] HCA 21 chapter 2 keywords: constitutional law; inconsistency between Commonwealth and state law; application of section 109 The Bell Act was inconsistent with federal tax legislation and was therefore invalid the Bell Act ignored and contracted the tax liabilities which had already accurued for each company under federal tax legislation

Bertram, Armstrong & Co v Godfray (1830) 12 ER 364 chapter 13, p. 382 G purchased stock through BA; Later, G instructed BA to sell the stock when its market price ‘reached 85% or above that price’; When the stock reached 85%, BA failed to sell immediately (because they expected further rises); the price then dropped below 85% and stayed low G sued to recover consequential loss Specific instructions were given and are to be followed – BA had no discretion --- Thus BA was liable for G’s consequential loss

Bettini v Gye (1876) 1 QBD 183 chapter 6, p. 116 B contracted to sing for Gye; it was a term that B arrive six days before the first engagement and attend rehearsals; being ill, B missed the four days of rehearsals ; Gye wanted to terminate the contract the term eas a warranty, not a condition; Gye was not entitled to terminate the contract in response to the breach of warranty

BP Refinery Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 chapter 6, p. 122 HSC entered into an agreement with BP granting the company the right to pay lower municipal rates; BP underwent a restructure and the refinery site was transferred to a subsidiary (BP Australia); HSC charged BP Australia the full municipal rates on the site; HSC argued it was an implied term of the agreement that it should come to an end should BP Refinery cease to occupy the site itself No such term was implied ad hoc: not reasonable and equitable; not necessary to give business efficacy; not obvious that it ‘goes without saying’; not capable of clear expression

Brinkibon Ltd v Sthalwharenhandelsgesellschaft [1983] 2 AC 34 chapter 5, p. 98 Brinkibon offered to purchase steel from Stahag; acceptance by telex The acceptance took effect when the telex was received

Buckenara v Hawthorn Football Club Ltd [1988] VR 39 chapter 9, p. 210 B was contracted to play football for HFC; B promised not to play for other clubs while contracted to HFC; When it seemed that B intended to play for another team, HFC sought an injunction preventing him from doing so An injunction will not be granted if it has the indirect effect of enforcing the contractual promise that a court would not enforce by way of an order of specific performance (ie if it forces B to play for HFC) ---that is to say if the injuction indirectly force B to play for club, THEN it will not be granted -- cannot issue that B should play for the club Injunction could be issued – ording B not to play for any other club that was in competition with HFC – he could earn a living in other ways

Burger King Corp v Hungry Jack's Pty Ltd [2001] NSWCA 187 chapter 6, p. 134 BK decided to force HJ to sell out of its franchising rights; BK excercised certain of its contractual powers in a way that made it impossible for HJ to perform its franchise obligations: BK refused to approve new sub-franchise outlets that HJ was obliged to open each yr; BK then gave HJ notice that it was terminating HJ's rights a duty of good faith was implied --- the duty had been breached by the refusal to approve the subfranchise outlets

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 chapter 11, p.250 LE, a real estate agent, published a brochure advertising a property. This brochure contained a survey diagram that had been provided by the vendor’s solicitors. This diagram was inaccurate

The brochure also contained the following statement: “All information contained herein is gathered from sources we believe to be reliable. However we cannot guarantee it’s [sic] accuracy and interested persons should rely on their own enquiries” Although in small print, the disclaimer was legible; the agent only passed on info; disclaimed any belief in the truth or falsity of that info not misleading

Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 chapter 5, p. 75, 86, 96 keywords: contract; information; intention to be legally bound published advertisement in a newspaper; reward 100 to anyone who purchased and used the smoke balls but nevertheless caught influenza; the company deposited 1000 in a bank account from which to pay the rewards; Carlill purchased and used but got influenza; The promise was intended to be contractually binding; this ad was unlike other ads because money deposited--promised payments--intented to be legally BINDING the act of buying and using the somke ball provided the necessary CONSIDERATION to make the promise to pay the reward enforceable an offer made to 'the world at large' is capable of ACCEPTANCE by any member of the public who learns of it

Causer v Browne [1952] VLR 1 chapter 6, p. 120 dry cleaning; a docket on which a statement was printed: no responsibility is accepted for loss or injury to articles through any cause whatsoever; C did not read and the statement was not drawn to his attention; the dress was stained in this circumstance, the term had not become a term of the contract --- the document was only an identifying docket used to collect the goods the result would be different if causer's attention had been drawn to the fact that the docket contained contractual terms

Cehave NV v Bremer Handelsgesellschaft mbH [1976] QB 44; [1975] 3 All ER 739 chapter 8, p. 176; chapter 9, p. 197 B sold citrus pellets to C; the contract required the pellets to be shipped 'in good condition'; B shipped pellets that were not in good condition but were still good enough to use for animal feed, which is how C intended Innominate terms -- warranty although there was a breach that pellets were not in good condition, C had no right to reject the delivery (obliged to accept and pay for them)

Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 chapter 6, p. 124; chapter 8, p. 179

when constructing, both parties believed that the construction could continue 24 hrs a day; high levels of noise disturbed local residents- an injunction placing limits on hours; having to do the work more slowly would cost CC extra money; CC claimed extra payment from SRA no such term was implied both parties believed that nothing could prevent the construction from continuing 24 hrs a day -not intended to include a term in the contract regarding extra costs; the necessity for implied terms must be inferred from the expressly agreed terms and not from any extrinsic evidence the performance as originally agreed had beome frustrated -- the unforseen injunction made performance in a way that was fundamentally different

Cohen v Cohen [1929] 42 CLR 91 chapter 5, p. 76, keywords: contrac; formation; intention to be legally bound; agreements between spouses before marriage Mr Cohen promised to pay her 100 a year as a dress allowance; quarterly instalments of 25; the money was paid until 1920; in 1923 the parties separated; Ms cohen claimed that Mr C owed her 278 (unpaid instalment) WASN'T legally binding because they were engaged to be married

Commercial Bank of Australia v Amadio (1983) 151 CLR 447 chapter 10, p. 227 A's company faced financial difficulties; the bank would give A an overdraft if the mortgage was provided; A asked his parents to provide the mortgage; they believed his business was sucessful; A told them their liability was little; he neither explained the document nor made sure they understood the content; his business ruined the mortgage should be set aside as void: The parents were in a position of special disadvantage – their son had been dishonest, they had a limited capacity to read and understand the documents themselves; they were reliant on their son and in need to assistance from the bank The bank was put on notice of these circumstances – it should have ensured that the document was properly explained to the As

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 chapter 11, p. 252 N, a CC employee, was injured when he fell down a shaft on one of CC’s construction sites; N fell because a foreman told N a grate at the entrance to a shaft was secure and it (the grate) was not N sought damages for breach of what is now s 18 of the ACL CC argued that, while misleading, the conduct did not breach s 18 as it did not occur ‘in trade or commerce’ The conduct at hand, internal communications between employees (not related to customers) was held not to occur ‘in trade or commerce’

Connor v Stainton (1924) 27 WALR 72 chapter 8, p. 172

S agreed to erect a fence for C – the fence was to be three miles long with posts 12 feet apart; Many of the posts were found to be more than 12 feet apart (in some cases up to 18 feet apart); When S claimed payment, C refused on the basis that S had not complied with the contract A failure to render substantial performance --- S had not substantially completed the contract and was not therefore entitled to claim the agreed payment

Coulls v Bagot's Executor & Trustee Co Ltd (1967) 119 CLR 460 chapter 5, p. 104 contract between Mr. Collus and O'Neil Construction; the contract authorised to pay the royalities to Mrs. Collus; Mr. C died but the contract was not terminated, the royalities would continue to be payable did Mrs. C have a legally enforceable right to the payment of the royalties? NO, she wasn't signed as a party of the contract

Donoghue v Stevenson [1932] AC 562 chapter 12, p. 287 D bought a bottle of ginger beer that had been manufactured by S; when she poured some of the ginger beer into a glass (having already consumed some before pouring), D noticed remnants of a decomposed snail in the bottle; D claimed that consumption of the drink made her physically ill and that she suffered shock from seeing the remains of the snail S owed D a duty of care --- S had knowledge that a failure to take care could result in injury to the ultimate consumer

Dougan v Ley (1946) 71 CLR 142 chapter 9, p. 209 D sold a taxi, together with its operating licence, to L; D had a change of mind and refused to perform the contract The courts will not order specific performance where damages are an adequate remedy; damages are an adequate remedy where ordinary goods are purchased as they can be purchased elsewhere; Specific performance will be ordered if the goods are unique or have a special or particular value Specific performance would be ordered here --Taxi licences are limited and not readily available on the market – the award of damages would be inadequate

Ermogenous v Greek Orthodox Community of SA Inc [2002] 209 CLR 95 chapter 5, p. 79 keywords: contract; formation; intention to be legally bound; relevant factors Ermogenous was invited to be the head of this community; he accepted the offer and was paid a salary ; at the end of the appointment, the community refused to pay him for the accumulated leave which was in the contract of employment BINDING--legally enforceable

Esso Petroleum Co Ltd v Commissioners of customs and excise [1976] 1 ALL ER 117 chapter 5, p. 80 keywords: contract, formation, intention to be legally bound, commercial agreements commemorative coins to promote sales of petrol; give a free coin evey four gallons of petrol purchased; the coins were subject to purchase tax? commertial promotion -- legally bound

Expo Aluminium (NSW) Pty Ltd v WR Pateman Pty Ltd [1990] ASC 55978 chapter 7, p. 150 E asked W to supply aluminium windows; E told W ‘there is nothing between this house and the north pole’ (an informal way of saying that the house would be exposed to strong winds and rain; The windows W installed leaked E argued that s 19(1) implied a term that the goods would be suitable for purpose this implied term had been breached --- the buyer indicated the purpose for which the goods were needed; the buyer relied on the seller

Finch Motors v Quinn (No 2) [1980] 2 NZLR 519 (p.202) chapter 9, p. 202 Q bought a car from F. She wanted to use the car to tow a boat. The car was sold as suitable for that purpose; Before purchase, Q’s husband took the car for a test drive; The car had a defective radiator which overheated when towing the boat; Q sought to terminate the contract and obtain a refund Q was entitled to reject the car -- Defect was serious and made the car unsuitable for its purpose It did not matter that the car had been test driven as the defect was latent

Fitzgerald v FJ Leonhardt (1997) 189 CLR 215 chapter 10, p. 238 F (owner) engaged FJL to drill some bores on his property; F was supposed to get the permission, no permits had been issued for the bores to be drilled; FJL drilled seven bores; F failed to pay FJL, he claimed the contract was illegal without permission and was therefore unenforeceable; Section 56(1) of the Water Act 1992 provided that ‘a person shall not, unless authorised by or under this Act, cause, suffer or permit a bore to be drilled, constructed … or sealed off’ (penalty $5,000) The legislation expressly prohibited conduct contemplated by the contract but not the act of contracting itself the contract was enforeable despite the lack of permits, because although the Act penalised such conduct it did not prohibit it

Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 chapter 13, p. 375&379 K and H formed a company, called Buckhurst Park Properties; K undertook managerial acts, in particular, employing F&L to do work for the company; When F&L requested payment, BPP contested K’s authority to bind; K had not been appointed general manager (in fact nobody had been appointed to that position) K had no actual authority – there was no evidence of a company resolution granting him such authority NOTE: K had apparent authority

Garcia v National Australia Bank Ltd (1988) 194 CLR 395 chapter 10, p. 228 G wanted to borrow money from NAB; He asked his wife to provide the security by executing a mortgage in favour of the NAB over a house she own...