BLAW10001 Final: REMEDIES FOR BREACH OF CONTRACT
BLAW CH 9 – REMEDIES FOR BREACH OF CONTRACT
TYPES OF REMEDIES FOR BREACH OF CONTRACT:
• Common law remedies
o Damages to compensate for loss
o Terminating the right to perform
• Equitable remedies
o Specific performance
o Injunctions
• Agreed remedies
o Agreed terms of the contract regarding remedies
CHOOSING A REMEDY:
• Party suing is entitled to specify what particular remedy they want
• Can sue for a combination of remedies
COMMON LAW REMEDIES
DAMAGES
• Standard remedy for breach of serious term
• Involves awarding money paid by defendant → plaintiff
• Damages not punitive → they compensate for loss caused by breach
• Aim to put plaintiff in same position as if contract had been performed properly
• SEE: Radford v de Froberville (1978); Tabcorp Holdings v Bowen (2009)
• Damages can be claimed to compensate for 2 types of loss:
o Direct loss
▪ Loss that can be reasonably considered foreseeable arising from the breach itself
▪ SEE: Koufos v C Czarnikow (1969)
o Consequential loss
▪ Remote loss contemplated by both parties to be the probable result of breach at
time of contract formation
▪ SEE: Hadley v Baxendale; McRae v Cth; Baltic Shipping Co v Dillion
• Mitigation of loss:
o Plaintiff must do everything reasonable to minimise losses from breach
o Plaitiff aot lai losses if those losses oulde ee aoided by taking reasonable
steps to avoid them
TERMINATION OF
PERFORMANCE
• Teiatio eas to ed defedats ight to pefo otatual oligatios
• The contract itself remains in existence & unperformed obligations exist
o These obligations discharged by payment of damages
• Plaintiff seeking to terminate performance must be able to prove:
o Less than substantial performance of a condition OR;
o A serious breach of an innominate term
• The termination remedy allows plaintiff to:
o Reject unsatisfactory performance AND/OR
o Put an end to any future performance of contract
▪ SEE: Associated Newspapers; Cehave v Bremer; Finch Motors
• Aggrieved party most choose to terminate & if not, right to terminate ends
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