Contract: Cases and Materials Laws2202 Week 1 Introduction PDF

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Notes for Week 1: Nyuk....

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LAWS2202 Week 1 INTRODUCTION Lectures    

Tuesdays and Thursdays at 10am or 11am Natalie Skead – Introduction, Illegitimate Pressure, Undue Influence, Unconscionable Dealing, Wives’ Special Equity Nyuk Nahan – Fiduciaries, Breach of Confidence Leon Firios – Estoppel

Tutorials     

Fortnightly, starting week 2 (week 3 for me) Natalie Skead, Heidi Thavaseelan, Leon Firios, Nyuk Nahan Must attend allocated group 10% tutorial participation No laptops in tutorials

Assessment  

10% tutorial participation 45% take home exam: o Fiduciary duties and Remedies, and Breach of Confidence and Remedies o 2500 words and 6 pages o Released 9am Thursday, 2 May, due Tuesday, 7 May.

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45% end of semester exam: o Case analysis exercise o 2hours 10mins o Introduction, estoppel, illegitimate pressure, undue influence, unconscionable dealing, wives’ special equity, remedies o Closed book

Research workshops      

Compulsory hands-on research workshop Law library level 2 computer lab/training room Weeks 11 and 12 – Monday, 13 May to Thursday, 23 May. Sign up for a workshop via OLCR by 1 May. Attendance at a research workshop is compulsory. Students who do not attend a research workshop cannot successfully complete this unit Compulsory online quiz available from week 11 – Monday 13 May Must successfully complete the quiz by 5pm, Friday, 24 May with a minimum score of 8/10 to complete this unit

Materials  

Unit reader - $18 from Co-op Dal Pont Equity and Trusts in Australia 5th ed Lawbook Co, 2011 – available from Co-op

Earl of Oxford’s case: The case why there is a Chancery is that men’s actions are so diverse and infinite, that it is impossible to make any general law which may aptly meet with every particular act and not fail in some circumstances… The Office of the Chancellor is to correct men’s consciences for frauds, breach of trusts, wrongs and oppressions, of what nature soever they be, and to soften and mollify the extremity of the law. Advantages of the chancery courts    

Provided more expansive procedures and rules of evidence Recognised new causes of action and extended existing but inadequate common law causes of action Provided a range of new and inventive remedies to ensure the most appropriate remedy for each case Concerned with and protected the weak and vulnerable

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 463 per Young J …it is clearly recognised that [in Equity] many situations are now dealt with by settled principles… However, it does not mean that when unconscionable situations exist in modern society which do not have an exact counterpart in history, that this Court just shrugs its shoulders and says that as no historical example can be pointed to as a precedent the court does not interfere. This Court still continues both in private and commercial disputes to function as a court of conscience.

Equity means fairness Equity arose to fill the gaps that were left when the common law fell short of the ideal, failed to recognise certain rights or remedies that the common law was prepared to give. Equity intends to improve the common law, supplement and not replace – gloss on the common law. Equity cannot exist without the common law, it is there because of the common law and is there to supplement the common law The reason equity developed was to do what the common law could not do, so then what are the advantages of equity?    

Common law had limited procedures and strict rules of evidence Therefore equity provided more expansive procedures and less strict rules of evidence The common law had become increasingly rigid and inflexible Equity recognised new causes of action and extended existing but inadequate common law causes of action, good example in the area of duress. o Parties enter a contract because of some threat applied to them o Common law did recognise defence of pressure, but limited in scope of threats that could constitute a defence o Threats to a person/persons and property only

Equity recognised other forms of threats may also be intolerable and a basis of escaping contracts o Considers threats to divorce of spouse, threat to report a loved one to the authority o Equity taking a common law notion and extending it to more scenarios Common law only offers damages in compensation, but there may be circumstances where the plaintiff does not want money compensation Provided a range of new and inventive remedies to ensure the most appropriate remedy for each case Different types of claims attract different kinds of remedies Good lawyers think about remedies first What is the remedy I want to achieve here? Thus what cause of action do I need to rely on to get there? Equity concerned with and protected the weak and vulnerable; exploited and disadvantaged; the empathy of equity o Minors, young people o Individuals as opposed to corporations o The poor/financially disadvantaged o

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The elderly Racial minorities Women, particularly married – doctrines continue today; the wives special equity – doctrine developed in early 1900s. Huge influence in banking law and banking practices in Australia and England. o Disabled and sick/injured people Are they appropriate in 2013? Should the doctrine still be recognised and applied? Or should it adapt and be modified? Consider these questions. o o o

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Common injunction prevented P from enforcing the order of the King’s Court of common law order. Equitable jurisdiction – Courts of Chancery reversing King’s Court in 1615. Earl of Oxfords case. Did equity have the authority and jurisdiction to overrule the King’s Court, King James I found in favour in equity. When there is a conjunction with common law and equity, equity prevails. This victory had a long lasting effect. Notions based on good conscious, not be unconscionable Although equity is based on set documents and principles, some judges rule what they seem to find fair and doesn’t follow precedent and principle – problems arise when judges do not agree on decisions – that is why it is important to follow precedent and doctrines Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 at 463 per Young J …it is clearly recognised that [in Equity] many situations are now dealt with by settled principles… However, it does not mean that when unconscionable situations exist in modern society which do not have an exact counterpart in history, that this Court just shrugs its shoulders and says that as no historical example can be pointed to as a precedent the court does not interfere. THIS court still continues both in private and commercial disputes to function as a court of conscience....