Lecture notes - 13 remedies for breach PDF

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13 Remedies for Breach...

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13 REMEDIES FOR BREACH Reading: Paterson, Robertson, and Duke Textbook Chs 26-30 13.1

The Measure of Damages – General

Reading: Paterson, Robertson, and Duke Textbook Ch 26 and 27 .11 Compensatory Damages Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64; 1992) 66 ALJR 123 Facts:  Held:  Johnson v Perez (1988) 166 CLR 351 at 355-6 per Mason C.J An award of damages involves two issues The kind of losses, which are compensable: Remoteness.  The amount of compensation payable: Measure. .12 Expectation Damages Compensation for a successful plaintiff is generally calculated upon the basis of the gains expected from completion of the defendant's performance. Proof of loss, supporting a claim for expectation damages is on the plaintiff. Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 .13 Reliance Damages Reliance damages are compensation for a loss or expense incurred in reliance on the promised performance. The onus is on the defendant to disprove reliance damages claimed by a plaintiff. .14 Damages for Loss of a Chance Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 13.2 LIMITATIONS ON THE AWARD OF DAMAGES Causation Remoteness of Damage — The Rule in Hadley v Baxendale The plaintiff's loss or damages, even if caused by the defendant's breach, must not be too remote. Mitigation of Damage The plaintiff must take steps to minimise their loss from a breach by the defendant. Limitation Relating to Specific Types of Claim (a) Disappointment, distress and loss of reputation *Baltic Shipping v Dillon (1993) 176 CLR 344; PR&D [12.75] Compare - UNIDROIT Principles of International Commercial Contracts, 2010 (UPICC)

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(b) Contributory negligence (c ) Late payment of money (d) Alternative methods of performance Sykes (Wessex) v Fine Fare [1967] Lloyd’s Rep 53 13.3 SPECIFIC PERFORMANCE AND INJUNCTIONS Nature of Equitable Remedies Discretionary and not “as of right”; “in personam”; equitable factors Specific Performance -Discretionary factors Supervision where performance requires Constant Curial Supervision; Want of Mutuality; Delay in seeking Relief; Conduct of the Plaintiff Falling Short of the Standards Required by Equity; Absence of Readiness and Willingness; Hardship; Unfairness; and, Specific Performance Would Be Futile or Impossible. Injunctions - Discretionary factors Adequacy of Common Law damages; Effect of Injunction akin to ordering Specific Performance; Futility Types of injunctions -Interlocutory or Perpetual; Quia Timet; Ex parte or inter partes; Mareva and Prohibitory or Mandatory Damages in Equity: Lord Cairns Act “In all cases in which the Court of Chancery has jurisdiction to entertain an application ... for the specific performance of any covenant, contract, or agreement, it shall be lawful for the same court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such ... specific performance, and such damages may be assessed in such manner as the court shall direct.” Chancery Amendments Act 1858, s2: Two Steps – jurisdiction and discretion (Susceptible to a Grant and Capable of grant): 13.4 LIMITATIONS OF ACTIONS Barring of actions by the passage of time. Claims must be pursued in court within prescribed time “limitation’ periods. In equity, the doctrine of laches applies also. Limitation Act (Tas) 1974 13.5 RESCISSION Paterson, Robertson and Duke Textbook Ch 39 The innocent party has a right to rescind the contract ab initio (from the beginning). Rescission must be overt (by words or conduct). A valid rescission annuls the contract and causes any property passed or vested by reason of the contract to re-vest in the pre-contract owner. Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 at 110-116; PR&D [39.45] Coastal Estates Pty Ltd v Melevende [1965] VR 433; PR&D [39.70]

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