LAW 1503 Lecture Notes - Lecture 9: Tabcorp Holdings, Clean Hands, Australia And New Zealand Banking Group
23 May 2018
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CONTRACTUAL REMEDIES
Self Help
• Withholding performance until c* performed
Termination
• No need to go to court, unless other party dispute
Enforcement
Injunction
Order to constrain D from doing something. More common.
Action for Debt
Used to recover sums due under a c*
Benefits
1. less elements for plaintiff to establish
2. Burden on D to prove why they don't have to make payment
3. No need for plaintiff to mitigate loss
Order to recover money owed by D to P.
STEP 1: Establish that the valid contract imposes an
obligation to pay
STEP 2: Prove that money is owed and not paid, no need to
prove loss (Westralian Farmers v Commonwealth Agricultural
Service Engineers)
Specific
Performance
Rare, often granted for land. Order to compel D to perform their
promise.
Court may decide to grant the remedy because:
• Damages are not an adequate remedy
• There are no continuing obligations involved which would
require the court's supervision
• The obligation is not one of personal service
• There is no unreasonable delay in seeking relief
• The plaintiff is willing/ able to perform their own obligations
• The plaintiff has clean hands
• No hardship on D
Limitation- Defence of laches (delay)
DAMAGES
Step 1: Ensure that a contract exists (may be clear or not)
Step 1.1: Cause of action: Breach of contract (may be clear or not)
Step 1.2: Remedy sought: Damages
Step 1.3: Legal issue: Can A successfully claim damages for breach of contract?
Step 2: A BoC entitles the injured party to damages which are compensatory and
aim to, in so far as money can do it, place them in the same situation, with respect to
damages, as if the contract had been performed Robinson v Harman; Tabcorp Holdings
Ltd v Bowen Investments Pty Ltd .
find more resources at oneclass.com
find more resources at oneclass.com
• state the situation the plaintiff would be in if the contract were performed. Contrast
this to the plaintiff's actual situation in consequence of the contract not having been
performed.
Step 3: Plaintiff must have suffered actual and substantial loss as a result of the
defendant's breach or damages will be nominal (Robinson v Harman).
• Note: Damages must be assessed, no matter how difficult loss is to quantify
(Chaplin v Hicks [1911] 2 KB 786- beauty contest case)
Expectation Loss
non-
acceptance
When a buyer wrongfully refuses to pay for
goods, the seller may claim damages for the
estimated loss directly and naturally resulting
from the buyer's breach of contract. Measured
by market value at time (Sale of Goods Act
(SA) 1895 ss 49(1),(2),(3)
•
Undelivered
goods
Additional cost of buying replacement goods
(Sale of Goods Act 1895 (SA) s 50)
Defective
Goods
Compare value of goods as promised and
supplied (Sale of Goods Act 1895 (SA) s 52)
Rectification
of
uncompleted
Work
Damages for uncompleted work- cost of having
someone else complete it or rectify any
defects, unless that cost would be
unreasonable
• Contrast the condition the work should be
in with how it is
o Reasonable to demolish and rebuild
house despite excessive cost
Bellgrove v Eldridge
o Unreasonable to award. Pool
shallower than C* required. But still
safe and able to be used Ruxley
Electronics and Construction Ltd v
Forsyth
o P renovated without permission
required under C*- awarded cost of
restoring the premises to the
condition in which they would have
been if the C* wasn’t breached
Tabcorp Holdings v Bowen
Investments
Profit of past
event
Profit expected minus profit made (may fall
under reliance loss- ie when a b
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Self help: withholding performance until c* performed. Termination: no need to go to court, unless other party dispute. Action for debt used to recover sums due under a c* Benefits: less elements for plaintiff to establish, burden on d to prove why they don"t have to make payment, no need for plaintiff to mitigate loss. Order to recover money owed by d to p. Step 1: establish that the valid contract imposes an obligation to pay. Step 2: prove that money is owed and not paid, no need to prove loss (westralian farmers v commonwealth agricultural. Order to compel d to perform their promise. Step 1: ensure that a contract exists (may be clear or not) Step 1. 1: cause of action: breach of contract (may be clear or not) Ltd v bowen investments pty ltd : state the situation the plaintiff would be in if the contract were performed.
