MNoonan2009 Commercial Transactions Module 5-performance and
remedies Winter Session 2009
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MNoonan2009 This presentation and Copyright therein is the
property of Maureen Noonan and is prepared for the benefit of
students enrolled in the Commercial Transactions course conducted
by the Law Extension Committee and is available for their
individual study. Any other use or reproduction, including
reproduction by those students for sale without consent is
prohibited.
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MNoonan2009 This module We will cover performance of the
contract including remedies for common non- performance events.
e.g. what happens if the buyer does not accept? Seller does not
deliver? An instalment is unsatisfactory? Then we will look at
remedies when goods or services are unsatisfactory or
defective.
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MNoonan2009 PERFORMANCE OF THE CONTRACT
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 30,31 Duties of
seller and buyer 30. It is the duty of the seller to deliver the
goods, and of the buyer to accept and pay for them, in accordance
with the terms of the contract of sale. Payment and delivery are
concurrent conditions 31. Unless otherwise agreed, delivery of the
goods and payment of the price are concurrent conditions, that is
to say, the seller must be ready and willing to give possession of
the goods to the buyer in exchange for the price, and the buyer
must be ready and willing to pay the price in exchange for
possession of the goods.
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 32-Rules as to
delivery 32. (1) Whether it is for the buyer to take possession of
the goods, or for the seller to send them to the buyer, is a
question depending in each case on the contract express or implied
between the parties. Apart from any such contract express or
implied, the place of delivery is the seller's place of business if
the seller has one, and if not, the seller's residence: Provided
that if the contract be for the sale of specific goods which to the
knowledge of the parties when the contract is made are in some
other place, then that place is the place of delivery. (2) Where
under the contract of sale the seller is bound to send the goods to
the buyer, but no time for sending them is fixed, the seller is
bound to send them within a reasonable time. (3) Where the goods at
the time of sale are in the possession of a third person, there is
no delivery by seller to buyer unless and until the third person
acknowledges to the buyer that the third person holds the goods on
the buyer's behalf. Provided that nothing in this section shall
affect the operation of the issue or transfer of any document of
title to goods. (4) Demand or tender of delivery may be treated as
ineffectual unless made at a reasonable hour. What is a reasonable
hour is a question of fact. (5) Unless otherwise agreed, the
expenses of and incidental to putting the goods into a deliverable
state must be borne by the seller.
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 33- Delivery of
wrong quantity or mixed goods 33. (1) Where the seller delivers to
the buyer a quantity of goods less than the seller contracted to
sell, the buyer may reject them, but if the buyer accepts the goods
so delivered the buyer must pay for them at the contract rate. (2)
Where the seller delivers to the buyer a quantity of goods larger
than the seller contracted to sell, the buyer may accept the goods
included in the contract and reject the rest, or the buyer may
reject the whole. If the buyer accepts the whole of the goods so
delivered the buyer must pay for them at the contract rate. (3)
Where the seller delivers to the buyer the goods the seller
contracted to sell mixed with goods of a different description not
included in the contract, the buyer may accept the goods which are
in accordance with the contract and reject the rest, or the buyer
may reject the whole. (4) The provisions of this section are
subject to any usage of trade, special agreement, or course of
dealing between the parties.
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 34-Instalment
deliveries 34. (1) Unless otherwise agreed, the buyer of goods is
not bound to accept delivery thereof by instalments. (2) Where
there is a contract for the sale of goods to be delivered by stated
instalments which are to be separately paid for, and the seller
makes defective deliveries in respect of one or more instalments,
or the buyer neglects or refuses to take delivery of or pay for one
or more instalments, it is a question in each case depending on the
terms of the contract and the circumstances of the case whether the
breach of contract is a repudiation of the whole contract or
whether it is a severable breach giving rise to a claim for
compensation but not to a right to treat the whole contract as
repudiated.
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MNoonan2009 HAMMER AND BARROW V. COCA COLA (1962) NZLR 723
Hammer, a yo yo manufacturer contracted to sell 200,000 yo yos for
a marketing campaign 85,000 /200,000 sent to bottling company
Payment by regular monthly statement of account 80% yo yos
delivered were defective-would not run down string High probability
future deliveries would be defective Further deliveries refused
Hammer sued for non-acceptance Could CC refuse the remainder of the
deliveries? See Maple Flock Co v. Universal Furniture Products
(Wembley) Ltd (1934)1 KB 148 for rights of buyer to refuse to
accept delivery Ratio quantitatively which breach bears to contract
as a whole The degree of probability or improbability that breach
will be repeated Whether acts and conduct evince an intention no
longer to be bound to be decided in general in objective way by
reference to relation of default to purpose of contract Whole
history of this matter was unsatisfactory. Notwithstanding
complaints and requests for replacement, nothing done to correct
problems Marketing campaign involved prestige of CC as between
itself, its bottling companies, retailers and public CC justified
in rescinding contract
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MNoonan2009 Delivery by instalments How do we decide if the
buyer is entitled to treat the contract as repudiated? Apply the
factors in Maple Flock Ratio quantitatively of breach to contract
as a whole? 80% of 80,000 out of 200,000 Degree of probability
breach will be repeated? Early failure to produce yo yos of
appearance required, failure to run down string freely, nothing
done quickly or eventually at all Whether acts etc evidence an
intention not to be bound an objective test to be determined by
considering the Relation of default to purpose of whole contract?
Usual situation exacerbated by the importance of advertising
campaign, work and expense put into it, efforts to fix it, suitable
replacements could not be found easily or quickly elsewhere. Coca
Cola justified in rescinding rather than risking further
unsatisfactory deliveries.
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MNoonan2009 Delivery by instalments What is the situation if
the buyer is not entitled to treat the whole contract as repudiated
because small percentage of deliveries problematic and likelihood
of future deliveries being defective is low? We can treat it as a
severable breach using s. 34(2) and claim damages for that breach.
Note that s. 34(2) only applies if each instalment is to be
separately paid for. If payment is on completion of all of them,
still apply terms of contract, the Maple Flock criteria as to right
of repudiation, (if not covered in express terms..e.g. no more than
3% problem items) and claim damage for loss without using 34(2) and
without terminating whole contract.
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 35- Delivery to
carrier 35. (1) Where in pursuance of a contract of sale the seller
is authorised or required to send the goods to the buyer, delivery
of the goods to a carrier, whether named by the buyer or not, for
the purpose of transmission to the buyer, is prima facie deemed to
be a delivery of the goods to the buyer. (2) Unless otherwise
authorised by the buyer, the seller must make such contract with
the carrier on behalf of the buyer as may be reasonable, having
regard to the nature of the goods and the other circumstances of
the case. If the seller omit so to do, and the goods are lost or
damaged in course of transit, the buyer may decline to treat the
delivery to the carrier as a delivery to the buyer, or may hold the
seller responsible in damages. (3) Unless otherwise agreed, where
goods are sent by the seller to the buyer by a route involving sea
transit under circumstances in which it is usual to insure, the
seller must give such notice to the buyer as may enable the buyer
to insure them during their sea transit, and if the seller fails to
do so, the goods shall be deemed to be at the seller's risk during
such sea transit.
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 36- Risk where
goods delivered at distant place 36. Where the seller of goods
agrees to deliver them at the seller's own risk at a place other
than that where they are when sold, the buyer must nevertheless,
unless otherwise agreed, take any risk of deterioration in the
goods necessarily incident to the course of transit.
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 37-Buyer's
right of examining the goods 37. (1) Where goods are delivered to
the buyer which the buyer has not previously examined, the buyer is
not deemed to have accepted them unless and until the buyer has had
a reasonable opportunity of examining them for the purpose of
ascertaining whether they are in conformity with the contract. (2)
Unless otherwise agreed, when the seller tenders delivery of the
goods to the buyer, the seller is bound on request to afford the
buyer a reasonable opportunity of examining the goods for the
purpose of ascertaining whether they are in conformity with the
contract.
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 38-Acceptance
38. (1) The buyer is deemed to have accepted the goods when the
buyer intimates to the seller that the buyer has accepted them, or,
subject to section 37, when the goods have been delivered to the
buyer and the buyer does any act in relation to them which is
inconsistent with the ownership of the seller, or when after the
lapse of a reasonable time the buyer retains the goods without
intimating to the seller that the buyer has rejected them. (2) The
buyer's acceptance of the goods as referred to in subsection (1)
does not preclude rescission of the contract for an innocent
misrepresentation, unless the acts constituting acceptance amount
to affirmation of the contract.
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MNoonan2009 HAMMER AND BARROW V. COCA COLA (1962) NZLR 723 See
text extract Had CC lost the right to reject because it had
accepted the yo yos? (a) Had it intimated acceptance? No. (b) Done
an act inconsistent with ownership seller? (c) Retention without
rejection for reasonable time? Hammer argued yes to (b) and (c).
Court found that bottlers received yoyos as agent for CC. H not
acting as agent for buyer, but as sellers when delivering to that
agent. CC still had right to examine and reject. Delay reasonable
in present case and circumstances. Some yoyos accepted. In that
case, CC entitled to set up in diminution of price, claim for
breach of warranty. Note discussion of appropriate damages-price v.
unsound value.
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 39-Buyers not
bound to return rejected goods 39. Unless otherwise agreed, where
goods are delivered to the buyer and the buyer refuses to accept
them, having the right so to do, the buyer is not bound to return
them to the seller, but it is sufficient if the buyer intimates to
the seller that the buyer refuses to accept them.
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MNoonan2009 PERFORMANCE OF THE CONTRACT SOGA s. 40- Liability
of buyer neglecting/refusing delivery 40. When the seller is ready
and willing to deliver the goods and requests the buyer to take
delivery, and the buyer does not within a reasonable time after
such request take delivery of the goods, the buyer is liable to the
seller for any loss occasioned by the buyer's neglect or refusal to
take delivery, and also for a reasonable charge for the care and
custody of the goods: Provided that nothing in this section shall
affect the rights of the seller where the neglect or refusal of the
buyer to take delivery amounts to a repudiation of the
contract.
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MNoonan2009 REMEDIES OF UNPAID SELLER (2) MEANING OF UNPAID
SELLER = S.41 AGAINST THE GOODS LIEN Ownership passed (no lien over
your own goods) Seller still in possession Or lawfully recovers
possession No possession, no lien Ascertained goods only Right can
be lost s.45(1), s.49 WITHHOLDING DELIVERY Buyer defaults Ownership
has not passed STOP GOODS IN TRANSIT When are goods in transit? S.
47(1) Available when buyer becomes insolvent Meaning of insolvent
Revests possession and revives lien Retake actual possession or
notice to carrier RIGHT OF RESALE Goods are perishable Notice to
buyer after exercise lien or stoppage Expressly reserved right
s.50(3) Ward
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MNoonan2009 RIGHTS OF UNPAID SELLER AGAINST GOODS SOGA s.
41-Unpaid seller defined 41. (1) The seller of goods is deemed to
be an ``unpaid seller'' within the meaning of this Act: (a)when the
whole of the price has not been paid or tendered; (b)when a bill of
exchange or other negotiable instrument has been received as
conditional payment, and the condition on which it was received has
not been fulfilled by reason of the dishonour of the instrument or
otherwise. (2) In this Part the term ``seller'' includes any person
who is in the position of a seller, as for instance, an agent of
the seller to whom the bill of lading has been endorsed, or a
consignor or agent who has paid or is directly responsible for the
price.
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MNoonan2009 RIGHTS OF UNPAID SELLER AGAINST GOODS SOGA s. 42-
Unpaid seller's rights 42. (1) Subject to the provisions of this
Act and of any statute in that behalf, notwithstanding that the
property in the goods may have passed to the buyer, the unpaid
seller of goods as such has by implication of law: (a)a lien on the
goods for the price while the seller is in possession of them;
(b)in case of the insolvency of the buyer a right of stopping the
goods in transitu after the seller has parted with the possession
of them; (c)a right of resale as limited by this Act. (2) Where the
property in goods has not passed to the buyer the unpaid seller has
in addition to the seller's other remedies a right of withholding
delivery similar to and co extensive with the seller's rights of
lien and stoppage in transitu where the property has passed to the
buyer.
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MNoonan2009 RIGHTS OF UNPAID SELLER AGAINST GOODS SOGA ss.
43,44-Sellers lien and part delivery 43. (1) Subject to the
provisions of this Act the unpaid seller of goods who is in
possession of them is entitled to retain possession of them until
payment or tender of the price in the following cases, namely:
(a)where the goods have been sold without any stipulation as to
credit; (b)where the goods have been sold on credit but the term of
credit has expired; (c)where the buyer becomes insolvent. (2) The
seller may exercise the seller's right of lien notwithstanding that
the seller is in possession of the goods as agent or bailee for the
buyer. 44. Where an unpaid seller has made part delivery of the
goods, the seller may exercise the seller's right of lien on the
remainder, unless such part delivery has been made under such
circumstances as to show an agreement to waive the lien.
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MNoonan2009 RIGHTS OF UNPAID SELLER AGAINST GOODS SOGA s.
45-Termination of lien 45. (1) The unpaid seller of goods loses the
seller's lien thereon: (a)when the seller delivers the goods to a
carrier or other bailee for the purpose of transmission to the
buyer without reserving the right of disposal of the goods; (b)when
the buyer or the buyer's agent lawfully obtains possession of the
goods; (c)by waiver thereof. (2) The unpaid seller of goods having
a lien thereon does not lose the seller's lien by reason only that
the seller has obtained judgment for the price of the goods.
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MNoonan2009 RIGHTS OF UNPAID SELLER AGAINST GOODS SOGA s.
46-Right of stoppage in transitu 46. Subject to the provisions of
this Act, when the buyer of goods becomes insolvent, the unpaid
seller who has parted with the possession of the goods has the
right of stopping them in transitu, that is to say, the seller may
resume possession of the goods as long as they are in course of
transit, and may retain them until payment or tender of the
price.
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MNoonan2009 RIGHTS OF UNPAID SELLER AGAINST GOODS SOGA s.
47-Duration of transit 47. (1) Goods are deemed to be in course of
transit from the time when they are delivered to a carrier by land
or water or other bailee for the purpose of transmission to the
buyer until the buyer or the buyer's agent in that behalf takes
delivery of them from the carrier or other bailee.(2) If the buyer
or the buyer's agent...obtains delivery of the goods before their
arrival at the appointed destination, the transit is at an end.(3)
If after the arrival of the goods at the appointed destination the
carrier or other bailee acknowledges to the buyer or the buyer's
agent that the carrier or other bailee holds the goods on the
buyer's behalf and continues in possession of them as bailee for
the buyer or the buyer's agent, the transit is at an end, and it is
immaterial that a further destination for the goods may have been
indicated by the buyer.(4) If the goods are rejected by the buyer,
and the carrier or other bailee continues in possession of them,
the transit is not deemed to be at an end, even if the seller has
refused to receive them back.(5) When goods are delivered to a ship
chartered by the buyer, it is a question depending on the
circumstances of the particular case whether they are in the
possession of the master as a carrier or as agent to the buyer.(6)
Where the carrier or other bailee wrongfully refuses to deliver the
goods to the buyer or the buyer's agent in that behalf, the transit
is deemed to be at an end.(7) Where part delivery of the goods has
been made to the buyer or the buyer's agent... the remainder of the
goods may be stopped in transitu, unless the part delivery has been
made under such circumstances as to show an agreement to give up
possession of the whole of the goods.
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MNoonan2009 RIGHTS OF UNPAID SELLER AGAINST GOODS SOGA s.
48-How stoppage in transitu effected 48. (1) The unpaid seller may
exercise the seller's right of stoppage in transitu either by
taking actual possession of the goods or by giving notice of the
seller's claim to the carrier or other bailee in whose possession
the goods are. The notice may be given either to the person in
actual possession of the goods or to the person's principal. In the
latter case the notice to be effectual must be given at such time
and under such circumstances that the principal, by the exercise of
reasonable diligence, may communicate it to the principal's servant
or agent in time to prevent a delivery to the buyer. (2) When
notice of stoppage in transitu is given by the seller to the
carrier or other bailee in possession of the goods, the carrier or
other bailee must redeliver the goods to or according to the
directions of the seller. The expenses of the redelivery must be
borne by the seller.
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MNoonan2009 JOHANN PLISCHKE U. SOHNE V. ALLISON BROS (1936) 2
ALL ER 1009 Plischke agreed to sell linen to Napier Term of
contract Free house, London Shipped from Germany to England On
arrival on 14.1, placed in warehouse By Allison on instructions
Napier Napier entered arrangement with creditors Plischke
discovered this and On 18.1, Plischke ordered Allison not to
deliver to Napier Allison refused 1. GOODS STOPPED IN TRANSIT? 2.
HAD TRANSIT ENDED? 3. MEANING OF FREE HOUSE, LONDON Branson J Free
house means goods to be delivered to them and does not exclude
right to indicate goods should be delivered some other place
Allisons acted as agent for Purchaser not Seller Transit ended when
goods collected by Allisons for Napier Even if wrong, SGA s.
45(2)=NSWSGAs.47(2) determines the matter
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MNoonan2009 RIGHTS OF UNPAID SELLER AGAINST GOODS SOGA s. 49-
Effect of subsale or pledge by buyer 49. Subject to the provisions
of this Act, the unpaid seller's right of lien or stoppage in
transitu is not affected by any sale or other disposition of the
goods which the buyer may have made unless the seller has assented
thereto: Provided that where a document of title to goods has been
lawfully transferred to any person as buyer or owner of the goods,
and that person transfers the document to a person who takes the
document in good faith and for valuable consideration, then if such
last mentioned transfer was by way of sale the unpaid seller's
right of lien or stoppage in transitu is defeated, and if such last
mentioned transfer was by way of pledge or other disposition for
value the unpaid seller's right of lien or stoppage in transitu can
only be exercised subject to the rights of the transferee.
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MNoonan2009 RIGHTS OF UNPAID SELLER AGAINST GOODS SOGA s. 50-
Sale not generally rescinded by lien or stoppage in transitu 50.
(1) Subject to the provisions of this section, a contract of sale
is not rescinded by the mere exercise by an unpaid seller of the
seller's right of lien or stoppage in transitu. (2) Where an unpaid
seller who has exercised the seller's right of lien or stoppage in
transitu resells the goods, the buyer acquires a good title thereto
as against the original buyer. (3) Where the goods are of a
perishable nature, or where the unpaid seller gives notice to the
buyer of the seller's intention to resell, and the buyer does not
within a reasonable time pay or tender the price, the unpaid seller
may resell the goods and recover from the original buyer damages
for any loss occasioned by the buyer's breach of contract. (4)
Where the seller expressly reserves a right of resale in case the
buyer should make default, and on the buyer making default resells
the goods, the original contract of sale is thereby rescinded, but
without prejudice to any claim the seller may have for
damages.
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MNoonan2009 REMEDIES OF UNPAID SELLER (1 ) MEANING OF UNPAID
SELLER = S.41 AGAINST THE BUYER SUE FOR PRICE 1. Ownership has
passed Ordinary debt s. 51(1) 2. Ownership has not passed, but
specified payment day s. 51(2) DAMAGES FOR NON-ACCEPTANCE Ownership
has not passed s.52(1) Seller can resell Measure of damages s.52(2)
Loss directly and naturally resulting in ordinary course Charter
Presumption of difference Ward in contract/market prices s.52(3)
Inappropriate if no available market (Lazenby)
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MNoonan2009 ACTIONS FOR BREACH OF THE CONTRACT SOGA -s.
51-Action for price 51. (1) Where under a contract of sale the
property in the goods has passed to the buyer, and the buyer
wrongfully neglects or refuses to pay for the goods according to
the terms of the contract, the seller may maintain an action
against the buyer for the price of the goods. (2) Where under a
contract of sale the price is payable on a day certain irrespective
of delivery, and the buyer wrongfully neglects or refuses to pay
such price, the seller may maintain an action for the price,
although the property in the goods has not passed and the goods
have not been appropriated to the contract.
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MNoonan2009 CONSOLIDATED RUTILE V. CHINA WEAL (1998) QSC 170
CRL and China Weal entered into contract for sale of 3,000 metric
tonnes of zircon sand to be shipped in bulk July-Dec 1997. Agreed
price AUD 700/tonne FOB Brisbane converted to USD price Jan 15 1997
using Hedge Settlement rate for day. Title passed on payment.
Terms...If the buyer revises the shipping schedulethe Seller may
invoice the Buyer for the appropriate tonnage of Zircon Sand not
shipped as per the originally agreed schedule.payment becomes due
28 days after the invoice date.Could CRL sue for price? s. 50(2)
The provision in the contract enabling CRL to invoice should the
shipping schedule be revised and, if it does so, require payment in
28 days, does not establish a day certain. The day is uncertain,
governed by the decision of CRL whether and when to invoice.
Accordingly, CRL has no entitlement under s. 50(2) of the Sale of
Goods Act to sue for price. Is s. 50(2) Exhaustive of rights? No,
SGA expressly saves the rules of common law. After examination of
term.clear that parties intended that all of the zircon was to be
shipped by 31/12/9797 and if not, because company had revised
shipping schedule, CRL entitled to be paid before loading the
zircon. . Once the parties agreed that payment was to be made 28
days after invoice.the conclusion seems inevitable that they agreed
that CRL could thereby sue for the price
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MNoonan2009 ACTIONS FOR BREACH OF THE CONTRACT SOGA -s.
52-Damages for non-acceptance 52. (1) Where the buyer wrongfully
neglects or refuses to accept and pay for the goods, the seller may
maintain an action against the buyer for damages for non
acceptance. (2) The measure of damages is the estimated loss
directly and naturally resulting in the ordinary course of events
from the buyer's breach of contract. (3) Where there is an
available market for the goods in question, the measure of damages
is prima facie to be ascertained by the difference between the
contract price and the market or current price at the time or times
when the goods ought to have been accepted, or if no time was fixed
for acceptance, then at the time of the refusal to accept.
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MNoonan2009 CHARTER V. SULLIVAN (1957) 2 QB 117 Sullivan agreed
to buy Hillman from Charter Profit 97 pound 17 shillings Sullivan
pulled out Week later Charter sold to Wigley for same price TRUE
MEASURE OF DAMAGES? Nominal damages? (difference between contract
and market) Loss of profit + (directly and naturally resulting in
ordinary course) Jenkins LJ Consideration of facts resulting in
rejection of PF measure in favour of direct and natural loss.
Plaintiff did not prove loss of profit Could sell all Hillmans he
could get his hands on Judge concluded fixed profits same as they
would have been if Sullivan carried out his contract.
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MNoonan2009 WARD V. BIGNALL (1967) 1 QB 534 Bignall agreed to
buy 2 cars from Ward Paid 25, went off to get 825 Changed his mind.
Warning that Ward would resell Ward sold one, not the other Sued
for price Diplock LJ. Measure of damages? 1. Unpaid sellers
lien=price 2. Damages for non acceptance =difference between
contract and market s.50 Sale of one car was election to rescind
contract. Damages for non-acceptance appropriate
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MNoonan2009 LAZENBY GARAGES V. WRIGHT (1976) 1 WLR 459 Lazenby
bought second hand car for 1,325 Wright agreed to buy it for 1,670
He pulled out Lazenby resold for 1,770 Lazenby sued Wright for
damages Lost sale of another car to the second purchaser Lord
Denning MR Loss of profit on sale of another car? No market for
second hand cars Prima facie measure did not apply (difference
between contract and market) Therefore loss directly and naturally
in ordinary course What would parties contemplate as natural
consequence Buyer could not have contemplated that dealer would
sell one car less He would contemplate possible loss on resale No
loss on resale; no damage
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MNoonan2009 LEDGER V. CLEVELAND NOMINEES PTY LTD (2001) WASCA
269 Decision examining 48(2) WASOGA=NSWs51(2) Cleveland entered
into an agreement with Ledger to sell a Porsche, but refused
delivery. Cleveland claimed the price. Ledger appealed, claiming it
was only entitled to damages as the preconditions of 48(2) were not
met. Was the price payable on a day certain, irrespective of
delivery? Normally, only remedy is damages under SOGA. Statutory
exceptions in s.48 only two cases where one can sue for price. The
contract contemplated that delivery would take place prior to the
payment on or before 1 June 1997 (a date not made of the essence)
then payment was not stipulated for irrespective of delivery. To
construe the time provision as operating irrespective of delivery
would be to construe it as creating an exception it does not
express from the normal rule that delivery of the goods and payment
of the price are concurrent conditions(s.28). There is nothing in
the agreement to pay a debt unconditioned by any right of
performance by the other party. Appeal by Ledger was successful and
case remitted for new trial as to appropriate damages.
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MNoonan2009 LEDGER V. CLEVELAND NOMINEES PTY LTD - the Letter
Mr. K.F.Ledger 6 February 1995 C/- Chellingworth Porsche 252
Aberdeen Street,Northbridge WA 6005 Dear Kim, Re: Porsche 944 Turbo
Racing Car Referring to our recent discussions regarding the 944
Turbo Racing Porsche I confirm our understanding as follows:- You
will purchase the entire car for the amount of $75,000. The
purchase includes the parts set out on the attached list of
inventory.The purchase price is payable on or before the 1st June
1997.Until the payment of the purchase price has been completed the
vehicle will not be raced in any local or interstate event and you
will insure the vehicle with the insurance company noting my
interest as unpaid vendor. Title to the vehicle will at all times
remain with me until full payment of the purchase price has been
received by me. You will transport the vehicle and the inventory
from its current location at Wespeed to your Aberdeen Street
premises and hold same in safe keeping for me pending the
completion of the payment of the purchase price. You will at your
expense prepare the vehicle to qualify as a Group A Porsche Cup
race car. Yours faithfully,Cleveland Nominees Pty Ltd Clive Hartz
signature I confirm my agreement to purchase the vehicle on the
above conditions K.F.Ledger signature
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MNoonan2009 SHEARSON LEHMAN HUTTON INC V MACLAINE WATSON &
Co Ltd(No2) Text & (1990) 3 All ER 723 Correct measure of
damages? S. 52(3) or (2)? M agreed to buy tin from S but failed to
accept it. Common ground there was a market on date at which
damages should be assessed. Was it an available market? What was
the correct measure of damages? 52(3) difference between contract
prices and market price or 52(2) difference between contract prices
and prices at which they sold the tin plus carrying costs
(financing, warehousing and insurance) the cost of swapping certain
quantities of standard tin for high grade tin, or vice versa and
cost of buying new tin, all as part of their selling strategy.
Discussion and review of cases as to what is an available market.
Situation very common in commodity markets.where there was a market
for tin, but as a practical matter, not possible to sell such a
large quantity (7,755 tonnes) on one day. It would have had to have
been filtered out over a few days. Decision: There was an available
market despite the practical issues and to overcome the problems,
assume sale proceeded over a number of days. If 52(3) applies,
52(2) not relevant. To determine actual price, a fairly wide range
was decided ($3,000-$4,000/tonne) and then a price within that
range chosen ($3,400).
Slide 40
MNoonan2009 REMEDIES OF THE BUYER 1. DAMAGES FOR NON-DELIVERY
S.53 SOGA 2. DAMAGES FOR DELAY IN DELIVERY Note obligation to
minimise loss 3. SPECIFIC PERFORMANCE Exceptional remedy Dougan v.
Ley Only granted where damages inadequate 4. RETURN OF PRICE Moneys
had and received for total failure consideration 5. DAMAGES FOR
BREACH OF CONDITION/ WARRANTY SOGA ss.54,55 Bostock TPA
Slide 41
MNoonan2009 ACTIONS FOR BREACH OF THE CONTRACT SOGA -s.
53-Damages for non-delivery 53. (1) Where the seller wrongfully
neglects or refuses to deliver the goods to the buyer, the buyer
may maintain an action against the seller for damages for non
delivery. (2) The measure of damages is the estimated loss directly
and naturally resulting in the ordinary course of events from the
seller's breach of contract. (3) Where there is an available market
for the goods in question, the measure of damages is prima facie to
be ascertained by the difference between the contract price and the
market or current price of the goods at the time or times when they
ought to have been delivered, or if no time was fixed, then at the
time of the refusal to deliver.
Slide 42
MNoonan2009 ACTIONS FOR BREACH OF THE CONTRACT SOGA -s. 54-
Remedy for breach of warranty 54. (1) Where there is a breach of
warranty by the seller, or where the buyer elects or is compelled
to treat any breach of a condition on the part of the seller as a
breach of warranty, the buyer is not by reason only of such breach
of warranty entitled to reject the goods, but the buyer may: (a)
set up against the seller the breach of warranty in diminution or
extinction of the price; or (b) maintain an action against the
seller for damages for the breach of warranty. (2) The measure of
damages for breach of warranty is the estimated loss directly and
naturally resulting in the ordinary course of events from the
breach of warranty. (3) In the case of breach of warranty of
quality such loss is prima facie the difference between the value
of the goods at the time of delivery to the buyer and the value
they would have had if they had answered to the warranty. (4) The
fact that the buyer has set up the breach of warranty in diminution
or extinction of the price does not prevent the buyer from
maintaining an action for the same breach of warranty if the buyer
has suffered further damage.
Slide 43
MNoonan2009 ACTIONS FOR BREACH OF THE CONTRACT SOGA -s.
55-Interest and special damages SOGA-s.56-Saving of proceedings in
Equity 55. Nothing in this Act shall affect the right of the buyer
or seller to recover interest or special damages in any case where
by law interest or special damages may be recoverable, or to
recover money paid where the consideration for the payment of it
has failed. 56. Nothing in this Act shall affect any remedy in
equity of the buyer or the seller in respect of any breach of a
contract of sale or any breach of warranty.
Slide 44
MNoonan2009 WHERRY V. WATSON (1991) ASC 56-048 1. Watson
advertised Bentley for sale 2. Wherry said he wanted to buy 3.
Deposit of 3,000 and balance in 2 weeks 4. Wherry gave cheque 5.
Mistakenly dishonoured by bank 6. Watson immediately advised deal
off 7. Wherry sued for specific performance Priestly JA Agreement
made Seller within s.51 Unpaid seller within s. 41 Not restricted
to rights in s. 42 On facts, deposit a term of contract Dishonour
was breach of an essential term Watson entitled to rescind Action
taken effectively did so
Slide 45
MNoonan2009 DOUGAN V. LEY (1946) 71 CLR 42 Dougan agreed to
sell taxi Plus registration and licence He pulled out Sued by Ley,
the purchaser. For specific performance Specific performance
available? Dixon J Sale of chattel only? Valuable privilege -
limited number licences Substantial proportion price for licence
not chattel Not article of unusual beauty, rarity, distinction
Similar to railway shares limited in number and not available on
stock exchange Within the scope of specific performance
Slide 46
MNoonan2009 BOSTOCK AND CO V. NICHOLSON AND SONS (1904) 1 KB
725 Bostock agreed to buy sulphuric acid commercially free of
arsenic Did not disclose purpose---- to make brewing sugars Sugars
sold to brewers who made beer People who drank beer became ill or
died Not commercially free from arsenic. Damages recoverable? 1.
Price paid for acid 2. Value of material used to make glucose and
invert 3. Loss of goodwill as manufacturers 4. Damages brewer
entitled to claim against them. Bruce J Contract for the sale of
goods within SGA Implied condition goods should correspond with
description Goods accepted. Breach of condition = breach of
warranty Measure of damages for breach of warranty is estimated
loss directly and naturally resulting in the ordinary course of
events from breach. Use of acid in food well-recognised and
ordinary 1 and 2 are damages naturally resulting in ordinary course
Not limited by SGA where interest or special damages available
under rest of law Damages 3 not recoverable because did not flow
from act of defendant. Flowed from act of Plaintiff in selling
poisonous glucose to brewer Damages 4 not recoverable because
separate and distinct collateral contract with third person
uncommunicated to wrong-doer No special circumstances entitling
plaintiff to special damages under s. 55
Slide 47
MNoonan2009 McWilliams Wines P/L v. Liaweena (NSW) P/L [1988]
ASC 55-695 SCNSW See text extract Liaweena sold superior corks to
McWilliams. They were contaminated with TCA. Bottles sealed with
these corks unsaleable because of corky smell and taste. Found to
be unfit for purpose and of unmerchantable quality. Measure of
damages? Liaweena said s. 54 (3)maximum was purchase
pricedifference between value of corks and value if they satisfied
implied conditions. McWilliams said s. 55profits it would have made
on sale of wine recoverable because within reasonable contemplation
of parties at time of contract, as probable result of breach. The
court agreed with McWilliams.
Slide 48
MNoonan2009 Auction sales SOGA s. 60 60. In the case of a sale
by auction: (1)where goods are put up for sale by auction in lots,
each lot is prima facie deemed to be the subject of a separate
contract of sale; (2)a sale by auction is complete when the
auctioneer announces its completion by the fall of the hammer or in
other customary manner: until such announcement is made any bidder
may retract his or her bid; (3)where a sale by auction is not
notified in the conditions of sale to be subject to a right to bid
on behalf of the seller, it shall not be lawful for the seller to
bid or to employ any person to bid at the sale, or for the
auctioneer knowingly to take any bid from the seller or any such
person: any sale contravening this rule may be treated as
fraudulent by the buyer; (4)a sale by auction may be notified in
the conditions of sale to be subject to a reserved price, and a
right to bid may also be reserved expressly by or on behalf of the
seller; (5)where a right to bid is expressly reserved, but not
otherwise, the seller, or any one person on the seller's behalf,
may bid at the auction.
Slide 49
MNoonan2009 Breach of contract-
condition/warranty-express/implied Rejection, Rescission,
Repossession, sue for Price/Damages Rights against
manufacturers/importers SOGA-join to action TPA-statutory remedies
Tort Unfair Conduct False, Misleading, Deceptive,
Unconscionable/Unfair Other potential remedies Equitable, Bailment,
Recharacterisation,Tort Remedies for problem goods and services:
What and how?
Slide 50
MNoonan2009 REMEDIES UNDERSTAND THE FACTS UNDERSTAND LEGAL
RELATIONSHIPS AND TRANSACTONS Parties Relationships between
parties? Any special relationships and duties? Dates & sequence
of events Items in dispute Goods or services or other?
Sale/Supply/other Domestic? International? Consumer transaction?
Meaning of terms Contracts-express terms?-implied terms? Conduct
impacting on arrangements IDENTIFY LEGAL ISSUES Contract-express
and implied terms Tort-negligence, misrepresentation Statute-SOGA,
Vienna,TPA,Factors Bailment,CCC,RIGA Equity-fiduciary
Other-criminal, IDENTIFY APPROPRIATE REMEDIES Rescission Damages in
contract or tort Injunction and other equitable TPA remedies
including damages, injunction and other orders
Slide 51
MNoonan2009 Product and service liability FACTS LAW REMEDIES
Goods/services Consumer sale? Action in contract unsatisfactory
Formation of contract -breach Rescission/Damages Express terms
Equitable Implied?SOGA, TPA Div 2,2A TPA Orders TPA s. 52
misleading,deceptive IT general law Intnl sale? Vienna Convention
Fines ACCC Financial Services? ASIC Act Tort Goods defective
causing loss, injury TPA VA manufacturer liability TPA remedies
Defendant taken Unconscionable provisions TPA remedies advantage of
51AA, 51AB, 51AC TPA serious inequality Contracts Review Act harsh
agreement Consumer Credit Act Misleading/Untruthful representation
Tort/s. 52,53 TPA Damages, TPA remedies Change in possession
without transfer of title Bailment? Damages
Slide 52
MNoonan2009 TPA s.75A Rescission of contracts (1) Where: a
corporation supplies goods to a consumer in the course of a
business; (b) there is a breach of a Div 2 implied condition
consumer is entitled to rescind by: (c) signed notice in writing
served on the corporation or causing the goods to be returned with
particulars of the breach. (2)... the purported rescission has no
effect if:(a) the notice is not served or the goods are not
returned within a reasonable time or after delivery but before
notice served:(i)goods were disposed of by the consumer, lost, were
destroyed otherwise than by reason of a defect in the goods;(ii)
the consumer caused goods to become unmerchantable or failed to
take reasonable steps to prevent goods from becoming
unmerchantable; or (iii)the goods were damaged by abnormal use;
(3)Where contract rescinded (a)if property in the goods had passed
to the consumer before the notice of rescission was served, or the
goods were returned to, the corporationthe property in the goods
re-vests in the corporation upon the service of the notice or the
return of the goods; and (b)the consumer may recover from the
corporation, as a debt, the amount or value of any consideration
paid or provided by him or her for the goods. (4) The right of
rescission is in addition to, and not any other right or remedy
under TPA or other Act. Note: No equivalent in ASIC act as terms
implied are warranties
Slide 53
MNoonan2009 TPA s. 80 Injunctions Subject to subsections (1A),
(1AAA) and (1B) where, on the application of the Commission or any
other person, the Court is satisfied that a person has engaged, or
is proposing to engage in conduct that constitutes or would
constitute: a contravention of any of Part IV, IVA, IVB, VC,section
75AU or 75YA attempting to contravene; aiding, abetting,
counselling or procuring a person to contravene inducing, or
attempting to induce, whether by threats, promises or otherwise, a
person to contravene; being in any way, directly or indirectly,
knowingly concerned in, or party to, the contravention by a person
of such a provision; or conspiring with others to contravene such a
provision the Court may grant an injunction in such terms as the
Court determines to be appropriate.
Slide 54
MNoonan2009 TPA s. 80 injunctive power s. 80 is statutory
remedy-not confined by normal equitable principles. See ICI
Australia Operations Pty Ltd v. Trade Practices Commission (1992)
38 FCR 248, Gummow J,- noted some useful points of difference.
Parties entitled to seek injunction under s. 80 broadened to any
person. s. 80 extends not only to contraventions, attempted
contraventions, but also to those who have aided, abetted,
counselled or procured a contravention; induced or attempted to
induce a person to contravene a provision; have in any way directly
or indirectly been knowingly concerned in or a party to the
contravention; or, have conspired with others to contravene a
provision. s. 80(3) will allow the court to rescind or vary an
injunction. s.79(4) indicates that an injunction is available for
consumer protection provision in Pt V-a departure from the
traditional attitude to use of injunctions only in aid of the
criminal law. s. 80(6) and (7) represent changes to the usual
practice of giving an undertaking as to damages as the price for
the grant of an injunction. s. 80(4) and (5) allow the court to
grant an injunction whether or not it appears that the person will
continue to engage in the conduct. At general law, normally not
so.
Slide 55
MNoonan2009 TPA s. 80 injunctive power 3 limits. The power is
confined by the scope, purpose, section of TPA. There must be
sufficient connection between the contravention and the injunction
granted. A Constitutional limitation requires that an injunction be
related to the case the subject of the proceedings.
Slide 56
MNoonan2009 TPA - s. 82-Actions for damages A person who
suffers loss or damage by conduct of another person that was done
in contravention of a provision of Part IV, (restrictive practices)
IVA (unconscionable) IVB (industry codes) or V (Div 1, including
52,53) or s.51AC (unconscionable conduct in business transactions)
may (subject to 87AB-professional standard limits re s.52, part
VIA- proportionate liability where not intended or fraudulent and
Part VIB limits re death or personal injury) recover the amount of
the loss or damage by action against that other person or against
any person involved in the contravention. Note that Part V Division
2A impose direct obligation on manufacturer to compensate. And, to
indemnify seller, see 74H. Also direct obligation in VA. In
addition, there may be an action for breach of contract...breach of
a term implied by Division V Part 2 (implied conditions and
warranties 69-72,74), and/or tort.
Slide 57
MNoonan2009 TPA s. 82 damages power Loss or damage essential.
Loss commercial opportunity may be loss with present value. Only
compensation for actual loss or damage; not potential or likely
damage. Must suffer loss or damage by the conduct of another that
constitutes a contravention of Pr IV or V. by has been interpreted
to mean by reason of or as a result of-i.e. caused by the conduct.
s. 82 not restricted to loss of which the conduct was the sole
cause-sufficient it was a cause. No express provisions in s. 82
providing guidance to the court in assessing the amount of loss or
damage sufferedmeasure approximates those recoverable in tort
usually. However, also recognised that it is a statutory remedy and
no justification for confining it in this way. Exemplary damages
are punitive rather than compensatory and are therefore not
recoverable under s. 82. Aggravated damages may be recoverable.
E.g. injury to feelings caused by insult or humiliation. s.87 does
not operate to take away or modify a right created by s. 82.
Slide 58
MNoonan2009 TPA s. 87 orders Without limiting the generality of
section 80, where, in a proceeding instituted under, or for an
offence against, this Part, the Court finds that a person who is a
party to the proceeding has suffered, or is likely to suffer, loss
or damage by conduct of another person that was engaged in (whether
before or after the commencement of this subsection) in
contravention of a provision of Part IV, IVA, IVB or V, the Court
may, whether or not it grants an injunction under s. 80 or makes an
order under s. 80A or 82, make such order or orders as it thinks
appropriate against the person who engaged in the conduct or a
person who was involved in the contravention (including all or any
of the orders mentioned in subsection (2) of this section)if the
court considers that the order or orders concerned will compensate
the first-mentioned person in whole or in part for the loss or
damage or will prevent or reduce the loss or damage. Note
difference with s. 82..has suffered and 87is likely to suffer.
Slide 59
MNoonan2009 TPA s.87 range of orders (2) The orders referred to
in subsection (1) and (1A) are: --an order declaring the whole or
any part of a contract..or of a collateral arrangement.to be void
--an order varying such a contract or arrangement --an order
refusing to enforce any or all of the provisions of.. a contract
--an order directing the person .to refund money or return
property. --an order directing the person ..to pay to the person
who suffered the loss or damage the amount of the loss or damage
--an order directing the person..at his or her own expense to
repair or provide parts for, goods --an order directing the person
..at his or her own expense, to supply specified services --an
order in relation to an instrument creating or transferring an
interest in land, directing the person..to execute an instrument
thatvariesor terminates or otherwise affects.of the first mentioned
instrument.
Slide 60
MNoonan2009 TPA s. 87 orders power Wide discretion given to the
court Order must be directed to compensating for loss or damage
suffered. Some technical limits. One example. Not applicable to
apprehended conduct giving rise to apprehended loss or damage. E.g.
does not permit injunctive relief unless such relief could prevent
or reduce loss or damage flowing from past conduct. A discretionary
remedy and thus a court will be reluctant to make orders where
damages are adequate to compensate. Not limited by remedies
available at common law. e.g. a right to rescind for breach or
misrepresentation. Orders may be made against parties to contract
OR third parties.
Slide 61
MNoonan2009 METALCORP RECYCLERS P / L V.METALMANUFACTURERS L
Second slide-2003 NSWCA 213 Metalcorp sued MML for misleading or
deceptive conduct in breach of s. 52 TPAin failing to inform it
during the 9am conversation, after inspection, that it believed the
copper was stolen and that it would probably not pay. In the normal
course of events, (common law nemo dat rule) Metalcorp could not
have expected to recover anything because it could not give good
title. CA (Handley JA, Hodgson JA, Gzell J; : A finding of
misleading conduct is open where the conduct, word or deed conveys
a misleading impression.The misrepresentation was conveyed by
silence. Silence is to be assessed as a circumstancehave regard to
all relevant circumstances; in particular the commercial
relationship between the parties and their procedures. The conduct
took place during a critical conversation. The critical
conversation took place against the background of the longstanding
business relationshipwhich had generated A substantial degree of
mutual trust. The established course of business involved
inspection and notification of complaints. In the circumstances,
when the only complaint was short delivery, this was a
representation that this was the only problem. MML was running no
commercial risk, but knew that Metalcorp was about to take delivery
of copper which might be stolen without having any idea of the risk
it was running. Damages were recoverable because its loss was
suffered by MMLs misleading conduct and Metalcorp had acted in
reliance upon it.
Slide 62
MNoonan2009 METALCORP RECYCLERS P / L V.METALMANUFACTURERS L
2003 NSWCA 213 Metalcorp sold 77 tonnes of scrap copper cathode to
MML. The companies had been doing business together for 10 years.
The copper had been stolen from Western Mining (WMC) by persons
unknown but had been acquired in good faith by Metalcorp from a
third party with whom it had previously dealt.WMC informed MML
about the theft and its suspicion that the copper had been stolen.
MML inspected the copper after delivery, noticed that less than
promised had been delivered and saw evidence it had been
manufactured by WMC. MML passed this info to WMC by fax at 8.51am
on Feb 2, 2001.The established arrangements between Metalcorp and
MML were that deliveries by Metalcorp were quarantined until
inspected and accepted and there was a procedure for disputes as to
quality. During a telephone conversation between Metalcorp and MML
about 9am on Feb 2, 2001 MML said that it had inspected the copper
and asked about the short delivery. Metalcorp advised that it had
received all the copper available. MML believed the copper stolen
but said nothing about its belief, the theft WMC had advised it
about, or the evidence it had found on inspection and had passed on
to WMC. Metalcorp believed that, as a result of the 9am
conversation, MML had accepted the copper and intended to pay for
it. At 11.30am that day, it gave a cheque to the company which
supplied it. MML refused to pay. Metalcorp was unable to recover
the money it paid the supplier.
Slide 63
MNoonan2009 ACCC Action for Misleading & Deceptive Claims
(taking from the news December 4, 2003) Australias biggest chain of
impotence clinics was ordered to repay unsatisfied customers and
publish six weeks of corrective newspapers advertisements after the
Federal Court declared it engaged in misleading or deceptive
advertising. Newspaper advertisements and promotional material
contained many misleading and deceptive statements including that
results were guaranteed, no needles were used (when they were
regularly prescribed), Doctors were more experienced than claimed
and refunds would be provided if a treatment was ineffective (when
refunds were not paid to all dissatisfied patients). Patients
typically were given fixed term contracts costing up to $2,300 a
year and supplied with a nasal spray containing Apomorphine, a drug
used to treat Parkinsons.
Slide 64
MNoonan2009 Holmac Sales Pty Ltd, trading as Dewlands Fruit
Juice Products (taken from the news) Holmac Sales imported and
distributed Dewlands Fruit Juice Products to outlets across
Australia. The Dewlands products were marketed as 100% fruit juice
range. ACCC concerned that composition was misrepresented. In
particular, illustrations and representations on packaging created
an overall impression that the juices were 100% of one kind. Many
actually contained a blend of different fruit juices.Vitamin C
added. Holmac provided ACCC with a court enforceable undertaking
about future behaviour -correcting the packaging,publishing a
corrective notice and implementing and maintaining a Trade
Practices Compliance Program.
Slide 65
MNoonan2009 Taken from the news Harris Scarfe Admits to
Misleading Consumers November 4, 2004 Sometimes, complaints can
lead to an ACCC investigation and an operator ceasing conduct
and/or fines apart from private remedies. In its catalogue HS
claimed consumers would save $x on items such as boots, shoes,
handbags, cutlery and perfume if they purchased during the
promotion; after which prices would revert to the after sale price.
When it came to the after sale price, certain items did not revert
to that price or were not sold in any significant quantities
because there was little or no stock. Customers complained and the
ACCC believed the representations breached s. 52 and 53(e).The
courts have made it clear in previous litigation by the ACCC that
when a business tells consumers they will receive price savings,
those consumers will expect that the price offered is less than the
price they would have paid at that same business before the
promotion began. ACCC Chairman Graeme Samuel.
Slide 66
MNoonan2009 Misleading signs The ACCC has nominated certain
signs as misleading-as implying no right to refund or compensation,
or no rights in relation to services being rendered with due are
and skill. See their website for their publications.
www.accc.gov.au No refunds No refunds after 7 days We will exchange
or repair or give credit notes but we do not refund.No
responsibility for loss or damage Goods left for repair at your own
risk All care but no responsibility Warranties are limited to our
warranties expressed here Goods must be returned in the original
packaging
Slide 67
MNoonan2009 Unconscionable conduct TPA s.51AA Statutory
enactment of unwritten law e.g. Commercial Bank v. Amardio (1983)
151 CLR,447 and ACCC v. Berbatis(2003) 197 ALR 153 TPA s.51AB
Prohibition of unconscionable conduct in consumer type transactions
TPA s.51AC Prohibition of unconscionable conduct connected to small
business See also CCC and Contracts Review Act
Slide 68
MNoonan2009 TRADE PRACTICES ACT 1974 ----s.51AA Unconscionable
Conduct within the meaning of the unwritten law of the States and
Territories (1) A corporation must not, in trade or commerce,
engage in conduct that is unconscionable within the meaning of the
unwritten law, from time to time, of the States and Territories.
(2) This section does not apply to conduct that is prohibited by
section 51AB or 51AC.
Slide 69
MNoonan2009 Unconscionability CG Berbatis Holdings Pty Ltd v.
ACCC (2001) FCA 757 A shopping centre landlord acted unconscionably
in refusing to agree to the grant of a lease of a shop to
prospective purchasers of a business, unless the vendor release the
landlord from litigation in the Commercial Tribunal of WA. A full
court reversed the conclusion because it drew a distinction between
an opportunistic approach to strike a hard bargain and acting
unconscionably. It concluded the fact that the lease was due to
expire was not appropriately characterised as a special
disadvantage. In upholding the full court, the majority of the High
Court gave a narrow interpretation of the term unconscionability.
They focussed on the difference between the notion of a special
disability which they felt would attract protection and a hard
bargain which the Court felt was a commercial reality and not the
concern of the Court. See decision for discussion of what is
unconscionable. Note current movement to strengthen unfair
concept.
Slide 70
MNoonan2009 TRADE PRACTICES ACT 1974 s.51AB Unconscionable
Conduct (1) A corporation shall not, in trade or commerce, in
connection with the supply or possible supply of goods or services
to a person, engage in conduct that is, in all the circumstances,
unconscionable. (2) Without in any way limiting the matters to
which the Court may have regard .the Court may have regard to: (see
separate slide) (3) A corporation shall not be taken.. to engage in
unconscionable conduct...by reason only that the corporation
institutes legal proceedings... (4)..(a) the Court shall not have
regard to any circumstances that were not reasonably forseeable at
the time of the alleged contravention; and (b) the Court may have
regard to conduct engaged in, or circumstances existing, before the
commencement of this section.(5) A reference in this section to
goods or services is a reference to goods or services of a kind
ordinarily acquired for personal, domestic or household use or
consumption.(6)...does not include a reference to the supply or
possible supply of goods for the purpose of re- supply or for the
purpose of using them up or transforming them in trade or commerce.
(7) Section 51A applies for the purposes of this section in the
same way as it applies for the purposes of Division 1 of Part
V.
Slide 71
MNoonan2009 TPA s. 51AB-court may have regard to cont. a) the
relative strengths of the bargaining positions of the corporation
and the consumer; (b) whether, as a result of conduct engaged in by
the corporation, the consumer was required to comply with
conditions that were not reasonably necessary for the protection of
the legitimate interests of the corporation; (c) whether the
consumer was able to understand any documents relating to the
supply or possible supply of the goods or services; (d) whether any
undue influence or pressure was exerted on, or any unfair tactics
were used against, the consumer or a person acting on behalf of the
consumer by the corporation or a person acting on behalf of the
corporation in relation to the supply or possible supply of the
goods or services; and (e) the amount for which, and the
circumstances under which, the consumer could have acquired
identical or equivalent goods or services from a person other than
the corporation.
Slide 72
MNoonan2009 Unconscionable ACCC v. Lux Pty Ltd Scope of s.51 AB
An agent of Lux came to the Standings residence to service an old
vacuum cleaner. Mrs. S was home alone. The agent examined the
vacuum cleaner and told her that it would blow up. He then
demonstrated a new vacuum cleaner and Mrs. S agreed to purchase it.
The ACCC alleged contravention of s.51AB and undue harassment and
coercion in contravention of s.60.Nicholson J. The word
unconscionable... bears its ordinary meaning of showing no regard
for conscience, irreconcilable with what is right or reasonable.
Mrs.. S substantially illiterate and did not understand commercial
matters in any depth. Should have been apparent. She had trouble
filling out the form. She was not offered the opportunity of
independent advice, nor were the terms explained to her. The court
granted a declaration that Lux had engaged in unconscionable
conduct. ACCC press release: Businesses and sales agents have a
responsibility to ensure that they do not take unfair advantage of
vulnerable consumers.
Slide 73
MNoonan2009 TPA s.51AC Unconscionable Conduct-Business
Transactions 1) A corporation must not, in trade or commerce, in
connection with:(a) the supply or possible supply of goods or
services to a person (other than a listed public company); or (b)
the acquisition or possible acquisition of goods or services from a
person (other than a listed public company); engage in conduct that
is, in all the circumstances, unconscionable. (2) A person must
not, in trade or commerce, in connection with: (a) the supply or
possible supply of goods or services to a corporation (other than a
listed public company);or(b) the acquisition or possible
acquisition of goods or services from a corporation (other than a
listed public company);engage in conduct that is, in all the
circumstances, unconscionable. (3) Without in any way limiting the
matters to which the Court may have regard for the purpose of
determining whether a corporation or a person (the supplier ) has
contravened subsection (1) or (2) in connection with the supply or
possible supply of goods or services to a person or a corporation
(the business consumer ),the Court may have regard to:(see separate
slide)
Slide 74
MNoonan2009 TPA s. 51AC-court may have regard to for both
business consumers and small business suppliers (a) relative
strengths of the bargaining positions (b) conditions that were not
reasonably necessary for the protection of the legitimate interests
of the supplier; and (c) whether the business consumer able to
understand documents (d) whether any undue influence or pressure or
unfair tactics (e) the amount for which, and the circumstances
under which, the business consumer could have acquired identical or
equivalent goods or services from a person other than the supplier;
and (f) the extent to which the supplier's conduct consistent with
the supplier's conduct in similar transactions (g) the requirements
of any applicable industry code; and (h) the requirements of any
other industry code, (i) the extent to which the supplier
unreasonably failed to disclose (i) any intended conduct of the
supplier that might affect the interests of the business
consumer;and(ii)risks arising (being risks that the supplier should
have foreseen would not be apparent to the business consumer); and
(j) the extent to which the supplier was willing to negotiate (k)
extent to which supplier & business consumer acted in good
faith.
Slide 75
MNoonan2009 High risk situations for unconscionable conduct See
ACCC small business guide to unconscionable conduct available at
www.accc.gov.au When you do not completely understand the
transaction-read documents, insist on disclosure and plain language
and obtain independent advice. When you have no real opportunity to
bargain-but distinguish unfair from unconscionable When a contract
is excessively one-sided-little or no benefit to the other. When a
business imposes differing terms, prices on similar businesses.
When a business uses its position of power to impose unreasonable
terms or conditions, or to extract an unreasonable deal-look for
best deal amongst competitors, try to negotiate, if you are being
treated differently, find out why, use an independent mediator to
negotiate, be prepared to walk away When you are dependent on a
single purchaser or supplier
Slide 76
MNoonan2009 Proportionate Liability & Contributory
Negligence Clerp 9 introduced reforms theoretically aimed at
improving the availability and affordability of professional
indemnity insurance and to limit the deep pockets syndrome. Damages
for economic loss or property damage arising from s.52 of the TPA
reduced if part of loss caused by claimants failure to take
reasonable care. To extent Court thinks just and reasonable having
regard to claimants share in the responsibility of the loss (s.82
(1B)).
Slide 77
MNoonan2009 Proportionate Liability v. Joint & Several
Liability Joint and Several Liability means where the acts or
omissions of a number of persons have contributed to loss or
damage. The full amount of the loss or damage can be recovered from
any one of them irrespective of the extent of that persons degree
of fault or responsibility (there may be a right of contribution by
one defendant against the others but this is a separate action).
This leads to the deep pocket syndrome. Under a proportionate
liability system, liability for loss or damage is apportioned
between parties according to the share of responsibility for the
loss or damage.
Slide 78
MNoonan2009 Proportionate Liability & Contributory
Negligence New Part VIA relating to Proportionate Liability.
Applies to an apportionable claim - for damages for economic loss
or property damage arising from a breach of s.52 TPA where more
than one concurrent wrong-doer. s.87 CD - Proportionate
Liability
Slide 79
MNoonan2009 PROPORTIONATE LIABILITY PROFESSIONAL INDEMNITY
INSURANCE Proportionate liability and professional indemnity
insurance. Proportionate Liability and Professional Standards
legislation intended to operate on a consistent basis with a common
goal of placing downward pressure on the cost of professional
liability insurance. See the Professional Standards Act 1994 (NSW).
The purpose is focus on minimising claims against professionals by
improving professional standards, requiring risk management
strategies, compulsory insurance cover, ongoing professional
education and appropriate complaints and disciplinary mechanisms,
in return for limited liability. (Explanatory memorandum to Bill
2003.)
Slide 80
MNoonan2009 The Personal Injuries & Death Act (2004)
(Commonwealth)-TPA amendments A personal injury claim under the TPA
was, until these amendments generally considered easier than under
Common Law. TPA claim not subject to Common Law Personal Injury
Principles. It did not require proof of intention, recklessness,
negligence or dishonesty, nor was it limited by the NSW Civil
Liability Act. The TPA Amendment introduces shorter, stricter time
limits for filing TPA claims regarding personal injury and death
under Parts IVA (unconsionable conduct) and V-Div. 1A and Div. 2A
and VA (product liability).Limitation of damages for non-economic
loss to $250,000 (and only that in extreme cases), capping damages
for loss of earning capacity twice average full-time weekly
earnings. Note different potential damages if litigant who suffers
injury makes a claim both under Part VA (defective product)-see
limits above and s. 52-.82,or 87 damages possible. Now 2 different
limitation periods to remember. See also new definitions for
Personal Injury, Non-Economic Loss, Personal Injury Damages, Date
of Discoverability (of a claim), Long-Stop Period.
Slide 81
MNoonan2009 Exclusion/Limitation Clauses An express term of the
Contract How does it interact with and effect rest of express terms
and implied terms? First, work out what the potential liability is
and then see how the clause affects that.
Slide 82
MNoonan2009 Sale of Goods Exclusion Clauses - Non-Consumer
Sales Contracting out can be done by a global provision or
specifically. Key terms implied by SOGA that parties may wish to
negative are: - Stipulations that time of payment are not deemed to
be time of the essence; - Implied condition that they have the
right to sell; - Implied warranty as to quiet possession; - Implied
warranty that goods are free from encumbrance; - Implied condition
that equipment corresponds with description; - Risk passes when
property passes; - Delivery of the equipment and payment of the
price are concurrent conditions; - Place of delivery; - Implied
condition as to quality/fitness; and - Delivery obligations of
Buyer.
Slide 83
MNoonan2009 CONSUMER SALES SOGA s. 62 Definition and s. 63 Onus
of proof 62. In this Part, ``consumer sale'' means a sale of goods
(other than a sale by auction) by a seller in the course of a
business where the goods: (a)are of a kind commonly bought for
private use or consumption; and (b)are sold to a person who does
not buy or hold himself or herself out as buying them in the course
of a business. 63. In any proceedings arising out of a contract for
a consumer sale, the onus of proving that the sale is not a
consumer sale lies upon the party so contending.
Slide 84
MNoonan2009 CONSUMER SALES SOGA s. 64 Conditions, warranties,
exclusion void 64. (1) Any provision in, or applying to, a contract
for a consumer sale and purporting to exclude or restrict the
operation of all or any of the provisions of sections 18, 19 and 20
(section 19 (4) excepted) or any liability of the seller for a
breach of a condition or warranty implied by any provision of those
sections is void. (2) An express warranty or condition in a
contract for a consumer sale does not negative a condition as to
merchantable quality implied by this Act. (3) Without limiting the
meaning of the expression ``merchantable quality'', goods of any
kind which are the subject of a contract for a consumer sale are
not of merchantable quality if they are not as fit for the purpose
or purposes for which goods of that kind are commonly bought as is
reasonable to expect having regard to their price, to any
description applied to them by the seller and to all other
circumstances. (4) In a contract for a consumer sale there is no
implied condition that the goods are of merchantable quality as
regards defects brought to the buyer's notice before the contract
was entered into.
Slide 85
MNoonan2009 SOGA 64 ORDERS AGAINST A MANUFACTURER ( 5) Where,
in proceedings arising out of a contract for a consumer sale (not
being a consumer sale of second hand goods), it appears to the
court that the goods, at the time of delivery to the buyer, were
not. of merchantable quality, the court may add the manufacturer .
as a party to the proceedings and, if of the opinion that the
defect should be remedied by the manufacturer, may make against the
manufacturer either: (a)an order requiring the manufacturer to pay
to the buyer an amount equal to the estimated cost of remedying the
defect; or (b)(b) an order requiring the manufacturer to remedy,
within such time as may be specified in the order, the defect and,
in default of compliance with that order, require the manufacturer
to pay to the buyer an amount equal to the estimated cost of
remedying the defect, and may make such other ancillary orders
against the manufacturer as to the court seem proper. (6) In
subsection (5), ``manufacturer'',... includes a person who resides
or carries on business in the Commonwealth and who received those
goods from outside the Commonwealth otherwise than from a person
who resides or carries on business in the Commonwealth..
Slide 86
MNoonan2009 Trade Practices Act s. 68 (1) Any term of a
contract (including a term that is not set out in the contract but
is incorporated in the contract by another term of the contract)
that purports to exclude, restrict or modify or has the effect of
excluding, restricting or modifying; (a) the application of all or
any of the provisions of this Division; (b) the exercise of a right
conferred by such a provision; (c) any liability of the corporation
for breach of a condition or warranty implied by such a provision;
or (d) the application of section 75A is void. (2) A term of a
contract shall not be taken to exclude, restrict or modify the
application of a provision of this Division or the application of
section 75A unless the term does so expressly or is inconsistent
with that provision or section.
Slide 87
MNoonan2009 Clauses likely to infringe s. 68 See ACCC
Information Circular 32 This warranty is given in lieu of all other
conditions and warranties, express or implied which might otherwise
be binding on the company The company accepts no responsibility for
loss or damage through any cause whatsoever All care but no
responsibility No refunds This one year warranty is specifically in
lieu of all other express warranties on the part of the company,
and no person including any dealer, agent or representative of the
company is authorised to make any representation or warranty
concerning the company on behalf of the company, except to refer
the purchaser to this warranty.
Slide 88
MNoonan2009 Relationship between ss. 68, 52 Term of contract
that purports to exclude, restrict or modify the application of Div
2 may not only be void under s. 68, but may also be misleading and
contrary to s. 52 SeeTrade Practices Commission v. Radio World Pty
Ltd (1989) 16 IPR 407, where a no refund sign found to be
misleading under ss 52 and 53(g)
Slide 89
MNoonan2009 TPA s. 68A-certain limits possible (1) Subject to
this section, (fair and reasonable limit in (2),(3)) a term of a
contract for the supply by a corporation of goods or services other
than goods or services of a kind ordinarily acquired for personal,
domestic or household use or consumption is not void under section
68 by reason only that the term limits the liability of the
corporation for a breach of a condition or warranty (other than a
condition or warranty implied by section 69) to: (a) in the case of
goods, any one or more of the following: (i) the replacement of the
goods or the supply of equivalent goods; (ii) the repair of the
goods;(iii) the payment of the cost of replacing the goods or of
acquiring equivalent goods;(iv) the payment of the cost of having
the goods repaired; or (b) in the case of services; (i) the
supplying of the services again; or (ii) the payment of the cost of
having the services supplied again.
Slide 90
MNoonan2009 TPA 68B-limit possible- recreational services (1) A
term of a contract for the supply by a corporation of recreational
services is not void under section 68 by reason only that the term
excludes restricts or modifies or has the effect of excluding,
restricting or modifying (a) the application of section 74, (b) or
the exercise of a right conferred by s. 74 (c) any liability of the
corporation for a breach of warranty implied by s. 74 so long as
(d) the exclusion restriction or modification is limited to
liability for death or personal injury Inserted in 2002 to arrest
increase in public liability insurance premiums. See also VIA re
proportionate liability for misleading and deceptive conduct, VIB
limits for death and personal injury.
Slide 91
MNoonan2009 TPA s.68 & 68A Qantas Airways Ltd v. Aravco
Limited (1996) HCA 12 Does s.68 of the TPA void a contractual term
which required Aravco to indemnify Qantas against all liabilities
incurred by Qantas arising out of or in any way connected with the
performance of services by Qantas to Aravco? Qantas entered into
contract with Aravco to perform services to an aircraft. As a
result of Qantas negligence the aircraft suffered damage. The owner
(BAT Industries Plc) sued Qantas, Qantas admitted liability but
sought indemnity under Clause 4 in its contract with Aravco. Aravco
pleaded s.74 warranty that services be rendered with due care and
skill. And that s.68 made void the indemnity clause. Qantas did not
dispute that s.74 implied a warranty. Nor did it dispute that it
had breached that warranty. But it contends that Aravco did not sue
it for breach of warranty nor contend in its cross-claim that it
was a defense to the claim under the indemnity. If it did, because
of the limits to the costs of the services being supplied again,
the damages would be less than $5,000.
Slide 92
MNoonan2009 TPA s.68 & 68A Qantas Airways Ltd v. Aravco
Limited (1996) HCA 12 Cont. Qantas contended that the indemnity did
not purport to exclude, restrict or modify the s.74 warranty.
Because Aravco could still bring proceedings for breach of the
warranty. The High Court supported Qantas. The s.74 warranty was
not relevant to the claim that Qantas made against Aravco under the
indemnity. But obtaining the indemnity did not affect Qantas
liability to Aravco for breach of the warranty implied by s.74.
Aravco could have answered the claim for indemnity with a
cross-claim based on the s.74 warranty. No doubt Qantas would have
pleaded Clause 7 by way of a limit. Aravco would then have relied
on s.68A (2), and contend that it was not fair or reasonable for
Qantas to rely upon it. However Aravco did not cross-claim for
damages for breach of the warranty.
Slide 93
MNoonan2009 Qantas Airways Ltd v. Aravco Ltd - Clauses Clause
4: The operator agrees regardless on any negligence on the part of
Qantas to release, hold harmless and indemnify Qantas from and
against all liabilities, claims, damages, losses, costs and
expenses of whatever nature howsoever occurring which may accrue
against or be suffered by Qantas arising out of or in any way
connected with the performance of the said services unless caused
by wilful misconduct on the part of Qantas or any of its servants
or agents acting within the scope of their employment. Clause 7:
Stated that pursuant to s.68A of the TPA, this clause applies in
respect of any goods and services not of a kind ordinarily acquired
for personal, domestic or household use or consumption. Liability
is limited in the case of services to supplying the services again
or the payment of the cost of having the services supplied
again.
Slide 94
MNoonan2009 Toll (FCGT) Pty Ltd v.Alphapharm Pty Ltd Signing
terms and conditions-evidence of intent to be bound Effect of a
signature in determining whether parties had entered into a
contract and whether an indemnity and exemption clauses were
included in that contract. In deciding the facts that a party has
signed a document which purports to be a contractual or part of a
contractual arrangementis a powerful indication of intention to be
bound by it at a later point of achieving finalitybecause of well
known cultural practices about the use of one signature as a token
of assent - especially so in a commercial context. Facts and
circumstances may show it was not. These facts and circumstances
include: - reasonable notice of clause and brought to attention; -
s.52 of the TPA, Misleading and Deceptive Conduct - where there is
a series of documents, which ones or parts are intended to be part
of the Agreement. - doctrine of mistake - Contracts Review Act -
Unconscionable Conduct TPA
Slide 95
MNoonan2009 International Sale of Goods (Import to Australia)
Ginza Pte Ltd v. Vista Corporation Pty Ltd (2003) WASC 11 Ginza,
Singaporean Co supplied contact lens solution (goods) to Vista, a
wholesaler, in Australia. Part of action concerned a similar
transaction with Kontack. Ginza sued for invoiced cost of goods.
Or, if liable,Vienna Convention displaces SOGA and liability
limitedto reduced price of batches actually tested and found not
sterile. Vista claimed breach of warranty in extinction of price
plus damages. (Note s.52SOGA and Articles 50 & 74 Vienna) Vista
pleaded express term of agreement that goods be manufactured
according to requirements of Australian Therapeutic Goods
Administration (TGA) and be sterile and claimed breach of implied
terms as to merchantable quality and fitness for the purpose, under
either SOGA (WA) s.14 or Vienna Convention. Also, in the
alternative, negligence.
Slide 96
MNoonan2009 Was there an agreement? Yes Breach of express
terms? Yes, not manufactured in accordance with requirements of
TGA; nor were a number of tested batches sterilegross
contamination.fact of no customer complaints not relevant. Breach
of implied terms? Yes, not fit for the purpose. What were they?
Does the Vienna Convention displace the SOGA? Yes, because to
extent of inconsistency Convention prevails. See Article 35-seller
must deliver goods of quantity, quality and description and goods
do not conform if not fit for the purpose ordinarily used or
expressly or impliedly made known. Article 45 for remedies (rights
in Articles 46-52) and damages Articles 74-77. Article 50, buyer
may reduce price in same proportion as value of goods actually
delivered had at time of delivery bears to value conforming goods.
Article 74 damages is sum equal to loss, including loss of profit
as consequence of breach..not to exceed foreseeable loss. Can rely
on both. In accordance with Art 50, price reduced to zero. Is
liability limited under Vienna as claimed? No, problem so
widespread so bad that all goods deemed non-conforming, not just
part. What is the correct measure of damages? Same whether measured
in contract or tort. Heads of damage claimed by Vista: The invoiced
costs of recalled goods. Yes The lost profit margin on resale of
goods to retailers Yes, but Kontack rather than Vista. Note
discussion of calculation re commission.The direct costs of
recalling goods. Yes. Lost reputation, goodwill and future sales.
No, because no guarantee of continuity of supply, small market
share, depended on personal relationships, other problems which
lead to receivership. Lack of evidence. If there is no agreement,
is Ginza liable in negligence? Yes, owed duty of care to
manufacture in accordance with requirements of TGA and to be
sterile. Ginza(2)
Slide 97
MNoonan2009 Appropriate remedies (see text) Clyde Industries P/
L v. Golden West Refining Corp An illustration of a case where it
was not possible to imply fitness for purpose because there was not
reliance on skill and judgement, but another remedy was available
pursuant to TPA ss 52 and 82. Golden West refined gold using a
process involving hydrochloric acid. It was important that there
was not any fluorine in the acid as glass vessels and condensers
were used. Daly Laboratories supplied acid to Golden from CSBP, but
needed ore than they could supply. So it turned to Ajax, a division
of Clyde. When Golden used the Ajax acid, condensers and vessels
were damaged and $62,132.46 worth of solution containing gold was
lost. Trial judge found no reliance for the purpose of implying
term of fitness for purpose. Golden did not rely on Daly
representation that Ajax acid was same as CSFB acid and did not
contain fluorine because executives of Golden knew from their own
experience that Ajax acid might contain some fluorine. So, this
representation did not cause the damage and so no s.82 damages
available for breach of s. 52. However, they did rely on the
technical data sheet put out by Clyde that the acid may contain up
to, but not more than, approximately 100ppm fluorine. At that
level, it would not cause damage.
Slide 98
MNoonan2009 Situations where remedy in contract may not be
available due to effective exclusion clause. Milford Astor P/L v.
Machinery Developments Ltd [2003] NSWSC 301 Milford sold 20
printing machines, (print labels on vacuum packed meat as part of
bagging process) but only partly paid. They sued for the balance.
Machinery cross claimed for breach of implied termsmachines not fit
for the purpose and misleading and deceptive conduct. Exemption
clause in contract formed part of contract and wide enough to
exclude implied terms. Luckily for Machinery, it was not necessary
in case to go into that because s. 52 TPA provided a remedy.
Machinery had been mislead and would not have entered into the
contract had it known the true position.
Slide 99
MNoonan2009 The assignment Q Summer 08/09 -Exam Q marking Sept
07 Understood QTPA,SOGA 2 Answered Q 2 (a) TPA re Pools S
71,72,damages if supplier, 74B and 74D and statutory remedy if
manufacturer only Defences Damages Outcome and Cases in support of
argument 9 (b) Pools re others-TPA, SOGA, Vienna Convention
Potential outcomes and cases in support of argument 9 Reasoning 2
Other- Services or goods? Were rovings the cause of the problem?
Negligence. 1 TOTAL 25
Slide 100
MNoonan2009 The assignment Q when an exam question (Sept 2007)
ISSUES ARISING FROM ANSWERS: Confusion between unsatisfactory goods
(Part V Division 2A) and defective goods provisions. Part VA). Some
students mistakenly believed that defective related to quality
rather than as definedgoods not as safe as could be expected When
looking at part (b) many students overlooked the fact that Pools
was not a consumer, and applied consumer only provisions anyway. In
some cases, there was a perception that the Vienna Convention had
not been incorporated into NSW law. It prevails over SOGA or TPA if
there is a conflict. One student even said that international
conventions did not apply in NSW. Some misconceptions e.g. a belief
that a claimant would utilize s. 71 if a consumer and Division 2A
if not. Confusion between action in contract based on implied
terms, and a breach of s.52 particularly as to remedies such as
access to TPA ss 80,82 and 87 Only one student queried whether the
rovings were the cause of the problem Some students believed that
ss 74 B and 74D implied terms into a contract; when clearly there
is no contract between a consumer and a manufacturer unless the
manufacturer is also the supplier.
Slide 101
MNoonan2009 Assignment Q Winter 09-Exam Q March 09 Marking
Scheme Understood Q Sale of perishable goods 2 Answered the Q 2 If
International Contract-agency, bailment, Vienna
Convention(35,45,50) 9 Local C-unpaid seller, title, risk, product
liability, ability to offset, SOGA 9 Reasoning 2 Other: e.g. s. 52
TPA, Bailment, ADR possibilities ways problem could have been
avoided 1 TOTAL 25
Slide 102
MNoonan2009 Assignment Q Winter 09- Exam Q March 09 Tips for
answering this assignment question: Students are expected to
undertake some research when preparing answers to assignments-in
this case, the Vienna convention remedies of a buyer/seller. See
Examiners comments on LPAB site Students should be aware that their
examiner sometimes uses cases (both NSW and elsewhere) for
inspiration for facts for examination questions. As the complexity
of real situations is sometimes inappropriate for exams and
assignments, facts are usually not identical to such cases.
Sometimes they are taken from other jurisdictions, so the result in
NSW may be different. In other words, students should be cautious
when applying any of them. For this question, students may find
Hannaford (trading as Torrens Valley Orchards) v. Australian
Farmlink Pty Ltd (2008) FCA 1591 useful.