Remedies - Flowchart PDF

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Was there a K? Was there a breach of the K?

Response to Breach = Remedies

Judicial Remedies

Self Help Remedies

EQUITABLE DAMAGES Cancellation

Settlement

COMMON LAW DAMAGES -Primary remedy for breach of K

Agreed Remedies in K -Exclusions -Limitations -Liquidated damages

EXPECTATION (primary measure) -Putting the innocent party in the position he expected to be in had the K been performed -Protects the performance interest Barry v Davies Limitation Ruxley Electronics La Grouw

1. MEASURE OF DAMAGES

RELIANCE -Putting innocent party in position he would have been had the K never been entered into Anglia Television Limitation Bad Bargain – Ti Leaf

RESTITUTIONARY -Act as compensation for other party’s loss – generally not available A.G V Blake A.G for Eng. & Wales -If required are available

RIGHT TO ELECT? NZ – Possibly – Ti Leaf

WHICH ONE? EXPECTATION – Protects performance interest St Martins Property Corp. -party who has contracted for the works has suffered loss because he did not receive the performance bargained for (3rd parties) Tabcorp Holdings Ltd Bowen had a legitimate interest in upholding the K – It matters what the parties contracted for- performance interest

2. LIMITS ON DAMAGES i) Victim can’t end up in a superior position C & P Haulage -didn’t lose anything from breach J & B Caldwell Replacement of chattels would create betterment ii) Victim can’t get double recovery Bloxham v Robinson Can only get one or the other expectation iii) Damages for mental distress etc. Jarvis v Swan Tours Can claim mental distress if K is for personal enjoyment, cannot for commercial K. Bloxham v Robinson Dissenting – should look at foreseeability rather than private/commercial Hames v Gray DC Dun iv) No exemplary/ punitive damages -Whiten v Pilot Insurance -Paper Reclaim Ltd

Injunction

3. PROVING LOSS i) Onus of proof on plaintiff Amman Aviation Except -Bad bargain – Ti Leaf -Betterment – J & B Caldwell ii) Standard of proof – Mallet v McMonagle -Onus on plaintiff to prove on a balance of probabilities Loss of a chanceChaplin v Hicks Markholm Construction Have to prove a substantial chance Benton v Miller Unlikely for very low chances – Less 10% iii) Date of Assessement -at the date of breach Except – McElroy Milne The Golden Victory iv) remoteness of damage – Foreseeability Hadley v Baxendale Two Limbs Victoria Laundry McElroy Milne The Achilleas

Performance

4. INNOCENT PARTY’S ROLEi) Mitigation Walop no.3 Whether suffering increase by failure to mitigate is a fact not law Sullivan v Darkin Up to D to prove reasonable steps weren’t taken ii) Contributory Negligence/ apportionment of loss...