Week 1 and 2

Doctrine of Precedent

Courts are bound to follow decisions of those superior to it

Ratio Decidendi

The court's reasoning for its decision.

Obiter Dicta

Comments made by a judge not essential to the decision.

Parliament

Makes laws

Executive

Administers laws (creates delegated legislation)

Judiciary

interprets and applies laws

Subordinate or delegated legalization

Made by competent authority with the power to make regulations within defined scope

A contract is binding if it has all 5 elements

Offer, acceptance, consideration, intention to create legal relations, capacity.

Offer

Clear indication of willingness to enter into contract without further negotiation upon acceptance and is in a form of a "promise"

What is offer not

Puffer or sales talk, invitation to treat or supply of information response to an enquiry.

Acceptance

Final and unqualified expression of agreement and cannot be revoked once communicated.

What is acceptance not

A counter offer, A request for further information or "Battle of the forms"

Electronic Transactions ACT 2000

It is "capable of being retrieved" in email

"Battle of the forms"

trading of terms between parties

Consideration

The price or value paid/exchanged for the promise

Deed

One party promises something without requiring 'consideration' from the other party

Intention to create legal relations

Parties must intend to form a legal contract.

Letters of intent (LOI)

Formal contract not ready to be signed however work needs to commence

Capacity

Both parties have legal capacity to enter into a contract.

Void Contract

No legal effect from the start

Voidable Contract

Remains valid until party effected ends the contract

Unenforceable

Valid but cannot be enforced due to technical error

Mistake

Common (both parties made same error), mutual (parties have different understandings) and Unilateral (one person is mistaken, other party knows and wants to take advantage)

Unconscionable Conduct

Special disadvantage and cannot make a proper judgement, exploiting weaker party

Misrepresentation

A false statement made by one party to another intended to induce them to sign the contract.

Duress

An express or implied threat of harm

Undue Influence

Parties are in pre-existing relationship where one party has controlling influence over the other.

Illegality

Illegal as formed and as performed

Doctrine of Privity

Only parties to the contract can sue or be sued under it

Contract Law Principles

Interpretation, discharge and Remedies on breach

Interpretation

Meaning of words and express or implied terms

Order of precedence

which documents forming the contract apply first

Parole Evidence Rule

Oral evidence and subsequent conduct does not override written contract

Ticket Cases

whether T&Cs printed on a ticket, receipt or sign are legally binding on a consumer

Discharge

By performance, mutual agreement or release, operation of the law, exercise of a right to terminate, frustration and rescission (equity)

Novation (mutual agreement)

replace original contract with new one

Exercise of a right to terminate

Breach of a condition, intermediate term, expressly set out in the contract or there is repudiation

Frustration automatically terminated:

Supervening event, not caused by either party, contract did not address the supervening event and unjust to compel other party to proceed

Equity principles

Specific performance, injunction, rescission, quantum meruit and estoppel

Remedies

Common law, equity and contractual

Damages (common law remedy)

monetary compensation to place plaintiff in the position they would have been in if the contract were performed

Types of loss (damages)

General (direct loss), nominal (actual loss not suffered), exemplary (actual loss suffered + amount beyond loss) and special damages

Liquidated damages

Contract pre-agrees a fixed sum

Unliquidated damages

Amount not fixed in contract

Step in rights (contractual)

Client step in and take over the works and can use contractor’s subcontractors, equipment, facilities etc

Ipso facto

When 1 party goes insolvent, the other party is unable to use insolvency alone as a reason to terminate the contract

Specific performance (equity)

Court order requiring performance of contractual obligations

Injunction (equity)

Court ordering someone to do or not to do something

Recission (equity)

Parties must be restored to their pre-contractual positions

Quantum Meruit (equity)

Pay for the work already done (situation where no valid contract to pay for it)

Estoppel (equity)

Prevents a party from contradicting a previous statement if someone else relied on it to their detriment

Consumer Law (ACL)

Unfair contract terms, misleading and deceptive conduct, unconscionable conduct and statutory warranties

Unfair contract terms (ACL)

Standard form contracts for G&S, land or small businesses cannot contain unfair terms e.g. uncompensated termination or litigation restrictions

Implied statutory warranties (ACL)

Automatically imply statutory guarantees for consumer transactions e.g. acceptable quality, fit for purpose and due care

Misleading and deceptive conduct

Including silence or honest mistakes is prohibited if relied upon and causes loss

Unconscionable conduct (ACL)

Businesses are prohibited from exploiting a party’s disadvantage or using commercial bullying

Tort law principles

Negligence, trespass to land, private nuisance, occupiers liability

Tort

Civil wrong committed against a person in society

Elements of negligence (tort)

duty of care to plaintiff, breach of duty, damage/loss suffered, no connection between actions by defendant and damage done to plaintiff with no applicable defenses

Defenses for negligence

Contributory negligence (plaintiff failed to take reasonable care for their own safety which contributed to circumstance) or voluntary assumption of risk (plaintiff voluntary assumes the risk of injury)

Trespass to land (tort)

Occurs when a defendant voluntarily and directly interferes with a plaintiff’s exclusive possession of land regardless of fault or actual damage

Private Nuisance (tort)

Protects a person’s use and enjoyment of land against non-physical interference including noise, dust or subsidence

Occupier’s liability (tort)

Occupier’s owe a duty of care to entrants to their premises whether or not they are lawful or unlawful entrants

Person conducting a business of Undertaking (PCBU) - WHS

Primary duty to ensure safe systems of work, appropriate supervision, training and risk management processes