Note: At the start say Presuming all the elements of a valid contract are satisfied

Transcription

1 Note: At the start say Presuming all the elements of a valid contract are satisfied Remedies: SELF HELP: Withholding Performance: One simply does not perform their part of the contract. Termination: Considered elsewhere Advance Payments: Retain deposit in event of breach ENFORCEMENT: Specific Performance: order that a contract be fulfilled Discretionary (equitable remedy) Not granted where: o Damages are adequate o Contract involves continuing obligations. o Force someone against their wish: JC Williamson v Lukey and Mulholland o Enforced performance would cause hardship to the defendant: Jericho v Guglielman o Obligations are personal in nature Note: more generally granted for property contracts, otherwise rarely; except where extremely rare or unique items are in question. Injunction: order to restrain a breach Discretionary Granted most often to enforce negative stipulations: A leaves B to work for C B s competitor; B seeks to injunct A. Action for Debt: recovery of an owed sum under contract Benefits: o Actionable per se i.e simply need show that Defendant owes P money, (no need to prove loss) and court will order that D pays o Monetary obligations easier to enforce Elements: 1. Has an amount to be paid been stipulated? 2. Has the right to that amount accrued? Has the party performed? i. Substantial performance (Bolton)? ii. Are obligations divisible (Steele v Tardiani)?

2 Thus, action cannot be brought until certain dates have arrived or passed. Note: recovery possible for substantial performance (Bolton v Mahdeva). If done under a contract where no particular price has been specified, then action to recover reasonable remuneration for the performance is rendered quantum meruit. (Interfoto Picture Library v Stiletto Visual Programmes Restitution: recovery of gains-based : Pavey & Matthews v Paul Quantum Meruit: recovery of a reasonable sum for services provided General Rules: o Cannot recover for partial performance of entire obligation (Cutter v Powell) o Cannot reallocate risks under contract (Lumbers v Cook: B cannot bring an action against A if B was not contracted to do work.) Exceptions: o Has the performer Substantially Performed? (Bolton v Mahadeva) (note: only after an attempted Action for Debt) o Has there been free acceptance of the benefit? (Sumpter v Hedges: must have had reasonable opportunity to reject the benefit) o Has or can a new contract be implied? (Steele v Tardiani) o Has full performance been wrongly prevented? (Sopov v Kane Constructions) o If so: Recipient must pay reasonable sum. Note: contract price does not cap amount recoverable. Quantum Valeba(n)t: recovery for goods delivered Has B freely accepted the value of materials provided by A? If so: They must pay a reasonable sum Sumpter v Hedges.

3 Action for money had and received: o Elements: Must be more than unjustly enriched. o When? Mistake (in fact or in law; if latter consult Mistake below)? Total Failure of Consideration? Money paid under a terminated contract. Baltic Shipping v Dillon: can only claim if amount divisible. o o Deposits: unrecoverable. (see But consider facts in Luu v Sovereign Developments 10% was seen as a penalty, but only because asked for a very small payment as a deposit, and then if they forfeited, had to pay the balance up to 10% as a deposit. But court deemed 1 st payment was deposit, and then rest was penalty.

4 Direct Loss COMPENSATION: refer to big notes for details Consequential Loss Nature Variable(s) Remedy Authority Arising directly from None: unaffected by Expectation Robinson v Harman breach. remoteness. Damages Arising additionally Causation test: but for. Expectation Victoria Laundry... from breach Remoteness test: Damages (indirect). Hadley v Baxendale. Reliance Loss Wasted expenditure. Applies (specifically) where expectation unascertainable (Robinson does not apply). Loss of Chance Liquidated Damages Clause Rectification Lost opportunity to obtain a benefit. Clause genuinely estimating the sum of in the event of breach. Compensation for incomplete work. Speculative: only a chance of benefit, so only percentage of that benefit awarded. If untruthful, amount it is a penalty clause, and unenforceable. Supervening events preclude rectification. Reliance Expectation Award specified Costs of completion McRae v Commonwealth Disposal Commission Commonwealth v Amann Aviation Dunlop v New Garage Westpoint V Choclate Factory = General rule Loss of Bargain Awarded unless unreasonable and unnecessary Loss incurred from a terminated contract Robinson v Harman test Expectation Bellgrove v Eldridge = was reasonable Ruxley v Forsyth = unreasonable Sunbird Place v Money ACL Remedies Gains-based (restituionary ) Non-pecuniary loss (Exemplary not applicable) Victim of misleading or deceptive conduct Where the breacher is benefitted by a breach, the wronged party may claim. Loss a direct consequence of physical injury that is a direct consequence of breachs amount of loss or damage Quantum meruit/valebat/action for debt Remoteness test: Haldey v Baxendale Compensatory ; all orders (ss ). Disgorgement of profits Non-pecuniary ACL ss Attorney-General (Vic) v Blake Baltic Shipping v Dillon

5 Limitations: Causation: but for test. must discover a causal link. Just need to show P wouldn t of suffered the additional loss but for D s breach Remoteness: Hadley v Baxendale a loss is not too remote if it is either: 1 st limb kind of loss arising naturally according to the usual course of things i.e loss isn t too remote and would expect naturally 2 nd limb OR loss reasonably contemplated by parties at time of contract, as a probable result of this kind of breach. HvB was endorsed by HC in European Bank v Evans Contributory Negligence: Reductions made as per Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA). Mitigation: No obligation to mitigate (The Alecos M [1991]) Reasonable steps not taken result in reduction of award. Where mitigation increases, these are recoverable (Simonius Vischer & Co v Holt & Thompson). Where mitigation succeeds, these avoided losses are unrecoverable (British Westinghouse v Underground Electric). Assessment: Generally, upon date of breach can vary. Action must be brought within six years of that date s35 Supreme Court Act (1935) (SA). Interest can be awarded by the court as per Supreme Court Act (1935) (SA). Punitive Cannot be awarded for breach of contract, as are purely compensatory (unlike torts) Hospitality Group v Aru Interest on Judgment sum Judge will add a % to to reflect time value of money.