Harvey v Facey 1893

"""will you sell me a bumper hall pen?""

""lowest price 900 pounds"""

Tallerman & Co Pty Ltd v Nathan's Merchandise (1957)

* Carlill v Carbolic Smoke Ball Co (1893)

intention

An offer must contain quid pro quo (this for that) in order to be binding; there cannot be a reward or conditional gift

Whether conduct amounts to an offer is to be calculated case by case

Australian Woollen Mills Pty Ltd v Cth (1954)

There was no consideration in the Cth's woolly situation

1) Fisher v Bell                2) Boots Cash Chemists' Case

I offer you to offer me drugs and boots, fish and bells

Goodwin's v Gurrey (Aus. case) - Courts less technical in determining if shop breached statute. See s35(2) ACL: corporations that advertise g/s for supply at a specified price must "offer such goods or services for supply" at said price for a reasonable time in reasonable quantities. Wallace v Brodribb: Spender J "offer to supply" should be given ordinary meaning, don't bother differentiating between offer and invitation to treat.

AGC v McWhirter

Def gonna sell, lol jk no

Ontario v Ron Engineering & Construction Eastern

You're going to stick with this, Ontario ('aren't you')

Harvela Investments v Royal Trust Co of Canada

" we bind ourselves to accept the highest offer"

* Blackpool and Flyde Aero Club v Blackpool Borough Council

we must do a Borough (thorough) job considering those tenders

Hughes Aircraft Systems International v Airservices Australia

Hughes (who's) responsible for this poor process?

Oriolo v Wolfram 2011

not any different

Stevenson v Maclean

I was just asking a question, not making a counter offer, calm down!

Carlill v Carbolic Smoke Ball Co (1893)

Acceptance & Consideration

AGC v McWhirter

SOGA 1896 (Qld) s 59

Termination of offer must be communicated properly (Byrne v Von Tienhovan), no good just being like nah man

Until (MC) Hammer, "You can't buy this"

Fitness First v Chong

* Toll v Alphapharm - unless misrepresentation

* Empirnall Holdings v Machon Paull 

Affirmed by Kriketos v Livschitz [2009] in NSWCA

 benefits + knowledge +  opportunity to reject

R v Clarke

Suspect didnt know about reward and turned someone else in, but when he found out about reward he tried to claim it. 

Entores v Miles Far East

To the Far East in a flash

Reese Bros Plastics v Hamon-Sobelco Aust Ld

Faxing your Bro Reese from Australia

* Butler Machine v Ex-Cell-O Corp [1979] 

Ex-Cellioramos!; contract wizard duel

"- Offer can be revoked anytime before acceptance.

- Revocation must be communicated to offeree.

- Letter of revocation effective on receipt (not posting)."

Byrne v Van Tienhoven (1880)

Not until the fat lady sings

Dickinson v Dodds (1876)

Reliable Dick, not Direct Dick

Dickinson v Dodds (1876)

Firm Dick's not a binding Dick

Walford v Miles [1992]

No competition around for many Miles

"Unilateral contract in performance progress cannot be withdrawn (unless some degree of notoriety?)

Implied promise not to revoke after performance commenced"

"Unilateral offer must be withdrawn with same notoriety.

Not self evidently unjust to allow revocation. Consider:

1. Knowledge offeree has commenced performance?

2. Offeree may know of risk of revocation?

3. ""Commencement"" is unclear - could be unjust.

4. Act may be of benefit to both (here) or only detriment of offeree.

5. Offeree not bound to continue; offeror does not know.

6. May be evidence of an intent."

* Mobil Oil Aus v Wellcome (1998)

KRCBDCI

"Ben know det continuing in-tent commences risk"

British Steel v Cleveland Bridge [1984]

D must pay for preparatory work because he was unjustly enriched from it.

Laybutt v Amoco (1974)

Meaningless butt

Scammell v Ouston (1941)

Uncertain stuff could be a scam

Whitlock v Brew

Shell; "on such reasonable terms as commonly govern such a lease"

Hillas v Arcos (1932)

Growing trees on Hill(as)

Ormwave Pty Ltd v Smith [2007]

Captain Cook Cruises; previous history

May & Butcher v R [1934]

The Butcher May not have the prices to be agreed from time to time

Foley v Classique Coaches (1934)

3 years history; price to be agreed from time to time

Timmerman v Nervina [1983]

Is Nirvana an option?

Hall v Busst (1960)

An example of a court at the opposite end of the spectrum to Hillas v Arcos.

Land price formula = price + improvements - deficiencies 

Sudbrook v Eggleton [1983]

Court appoint valuer - machinery.

Coal Cliff v Sijehama (1991)

Agreement to agree - language uncertain

Aiton Australia Pty Ltd v Transfield (1999)

Dispute resolution procedure

* Strzelecki Holdings v Cable Sands [2010]

Express good faith - 5 factors

1. IMMEDIATELY BOUND: LATER WRITTEN RECORD - agreement already made and later document simply records the agreement (therefore document doesn't really matter) eg. MOU.

2. COMPLETE AGREEMENT: PERFORMANCE CONDITIONAL ON LATER DOCUMENT - parties are immediately bound by the valid contract but some part of it (eg. payment), only gets triggered when condition occurs (eg. bank approves loan). It is a contract but the condition impacts performance.

3. NO AGREEMENT WITHOUT FORMAL DOCUMENT - requires a formal document for contract to be binding.

**This class later added!  

4. BINDING NOW; LATER SUPERSEDE - parties are bound now but contemplate a later document that will supersede initial agreement by agreement on such a later document.

1. CBA v Dean (1983)
2. Niesmann v Collingridge (1921)
3. Masters v Cameron (1954)
4. Anaconda Nickel v Tarmoola (2000)

Jones v Padavatton (1969)

Ermogenous v Greek Orthodox Community of SA Inc: .... Justices thought it was wrong to presume legal intentions. Therefore: a person who claims that a k has been made bears the onus of establishing the elements of formation. Taudros v Taurdos talks about how textbooks are out of date on the issue of presumption

Banque Brussels Lambert SA v Australian National Industries (1989)

upheld by Gate Gourmet Australia v Gate Gourmet Holding (2004)

"ensure, gurantee"

Balfour v Balfour (1912 KB)

approved in obiter by HCA in Magill v Magill (2006)

Merritt v Merritt

• Family Law Act 1975 (Cth) s 90B (agreements before marriage)
• s90C (agreements during marriage)
• s90D (agreements after marriage)
• Act details ways in which agreements between spouses may be binding (usually if k signed with legal advice)

Merritt v Merritt (1970)

payback's a bitch

Jones v Padavatton (1969)

Ermogenous: Court would have to look at relationship from a neutral point, not 'honourable' mummy-daughter viewpoint

1) Todd v Nichol (1975)

2) Wakeling v Ripley (1951)

I got Todd (told) that if I came to Australia Nichol would look after me

* Riches v Hogben (1986)

From the UK to Riches

Roufos v Brewster

In Roufos there was "intermitted hostility" and the setting was "commercial, rather than social or domestic". What if it was a loving family agreement?

Brewster's bruise truck

To determine the intention of governments:

1) was an authority set up to make payments? 

2) was the scheme announced by those able to bind the crown?

3) does the crown have a commercial interest in being bound?

4) has the Cth expressly reserved the right to vary its terms? 

Australian Woollen Mills v Cth

Placer Developments Ltd v Cth: legal language, commercial character, appropriated funds enough to "rescue" the agreement "from the unenforceability which a purely political arrangement has, and to give it a commercial character"

"1 pound a year is good consideration

Also, consideration is not the 'will'/will of the party but the actual cost"

Australian Woollen Mills v Commonwealth

Beaton v McDivitt

Coull's v Bagot's Executor 

husband owns business not wife. only husband can give consideration

Pao On v Lau Yiu Long

past consideration

"Consideration just has to be of some value to party

the court will not enquire into the adequacy (value) of the considerationmust however, be sufficient to the terms "

Chappell v Nestle

Candy Bars

Popiw v Popiw

Wife basher and dirty deeds

CATEGORIES OF EXISTING DUTY CASES

Category 1: An existing duty which is owed as a matter of law.

Category 2: Existing Contractual duties to a 3rd party

Category 3: Existing contractual duty to promisor, asking for more

Category 4: Existing contractual duty to promisee, hoping to pay less

1a.) Collens v Godefroy

1b.) Glaskbrook v Glamorgan County Council

2. Pao On

3a.) Stilk v Myrick 1809

3b.) Hartley v Ponsoby"

3c.) Musumeci v Windadell

4. Pinnel's case

North Ocean Shipping v Hyundai Construction

need more money for ship

Words or conduct preventing a person from going back on a promise or representation, where P has acted in reliance and it would be inequitable to allow D to go back on the promise.

First application in Australia - REJECTION OF NO DETRIMENTAL RELIANCE FOUND IN UK. In Aus the plaintiff must have acted to their detriment

Je Maintiendrai v Quaglia (WA) 1980

No repayment of past rent

Affirmed by HCA in Legione v Hateley 1983

Representer estopped from exercising contractual rights (terminating contract) because a relying party was led to believe they would not be enforced.

Legione v Hateley 1983

THIS PRINCIPLE WAS ONLY EXPRESSED BY MASON AND DEANE JJ AND IS NOT CONSISTENT WITH LATER CASES

Promissory estoppel can apply even if no pre-existing contract = using estoppel as a sword not a shield.

"Brennan J: to establish an equitable estoppel P must prove:

(1) Assumption

(2) Induced Assumption

(3) Reliance

(4) Knowledge/Intention

(5) Detriment

(6) D fails to act to avoid detriment/Unconscionability"

Estoppel remedies available:

2nd Promise: Nicholson J (Full Court) from Primary Judge: the sum which puts P in the position as though he owned the house on land which it was situated - but monetary?

- No order to transfer property as family issues, other son in house.

3rd Promise: Award monetary sum to represent value of equitable claim to Promised Lot (with interest, whole property value, no subdivision)

- Valuation flexible (plus lost profits for 12yrs on Lot and rent of house, left detail for judge when matter remitted)"

Promissory estoppel is not enforced as a contract, but is an equitable restraint on the enforcement of the promisor's rights.

- Promisee does not have positive rights to recover deposit that they would have if the pre-contractual promise was enforced.

* Saleh v Romanous 2010

Contrary to Hoyts v Spencer

1) knowledge of parties;

2) time of statement;

3) importance of statement;

4) frequency of statement;

5) content of statement (precision and commitment);

6) reliance;

7) Relationship to 'written' contract - was intention to have whole agreement in one document?

1) L'Estrange v Graucob [1934];

2) Toll v Alphapharm (2004)

Curtis v Chemical Cleaning & Dyeing [1951]

Beads and sequins for Curtis.

Hill v Wright [1971]

Delivery receipt not Wright

Petellin v Cullen [1975]

Saunders v Anglia Building Soc. [1971]

Savage v Blakney [1970]

What's your opinion on the speed of the boat?

Ross v Allis Chalmers (1987)

30 acre experience

Thorne v Borthwick (1956)

The temperature of the oil doesn't matter.

Equuscorp Pty Ltd v Glengallan Investments (2004)

A written document on horses.

County Securities v Challenger Group (2008)

Written document not complete and Secur(ities)

Skyrise Consultants v Metroland [2011]

2 idential skyrise(s)

Entire contract clauses shows an intention that document contains all terms, but it's effectiveness is subject to factors such as:

1) an argument that parties intended for the agreement to be part oral, part written;

2) if the contract was affected by misrepresentation;

3) 'rectification' of document cannot be prevented;

4) implied terms still operate;

5) clause can't exclude liability in consumer contracts ie. ACL;

5) if contract was later varied orally;

6) contract subject to promissory estoppel in negotiations.

Nemeth v Bayswater Road [1988]

**Not referred to as decisive by the HCA; just another factor that may persuade court that document was decisive.

50 planes crash in Bayswater 

Van Den Esschert v Chappell (1960)

White ants in the Chappell

Hoyt's v Spencer (1919)

Cinemas Contradictory Collateral Contract (4 C's)

When dealing with the incorporation of terms, consider:

1) nature of referring document;

2) access to incorporated document;

3) identification of applicable terms;

4) time of incorporation;

5) nature of clause - is it unusual?

Chapelton v Barry Council [1940]

Deck chair receipt

Oceanic Sun Line v Fay (1988)

Baltic Shipping v Dillon (1991)

Olly v Marlborough Court Hotel [1949]

Olly's hotel door

Thornton v Shoe Lane Parking [1971]

Unusual Shoe Lane

Oceanic Sun Line v Fay (1988)

Ticket not part of Fay's Greek contract.

Baltic Shipping v Dillon (1991)

Baltic's declining unusually 

4 types of implied terms:

1) custom Hutton v Warren (1836)

2) fact/specific Moorcock 1889 

3) law/generic Liverpool CC v Irwin 

4) universal MacKay v Dick (1881)

Codelfa v State Rail Authority

unreasonably loud Codelfa

Implying a law by Custom:

1) the custom must be a question of fact, not law

2) it is "so well known and acquiesced in that everyone making a k in that situation can reasonably be presumed to have imported that term into the k"

3) it is not contrary to express terms of k

4) the plaintiff may be bound notwithstanding their actual knowledge of it

Con-Stan Industries v Norwich Winterthur Insurance (Australia)

I Con-Stan (Can't Stand) liquidation

f.a.c.k.!

1) reasonable and equitable

2) necessary for business efficacy (k otherwise ineffective)

3) so obvious it "goes without saying"

4) capable of clear expression

5) not in contradiction to express K terms

BP Refinery (Westernport) v Hastings Shire Council

Approved by HCA in Byrne v Australian Airlines Ltd (1995) 185 CLR 411

Informal K, reasonableness or efficacy is (probably) enough for an implied term. Hawkins v Clayton (approved by HCA in Byrne v Australian Airlines. Obviousness still important (McHugh & Gummow)

Shirlaw v Souther Foundries (1926)

Recently: Gwan Investments v Outback Health Screenings

If parties were asked of the implied term during the making of the K both would just yell "of course"

1) applicable to a definable class of K

Scally v Southern Health and Social Services Board (1992 AC)

2) Term must be suitable for it to be recognised as implied in all K of that class

Liverpool City Council v Irwin, Byrne v Australia Airlines, UWA v Gray

Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002)

Implied good faith in performance - ACT Cross Country Club v Candy (2010)... IN QUEENSLAND: Laurelmont v Stockdale & Leggo - a case where there was a duty of good faith within a K

GUARANTEED BY ACL PART 3-2, DIV 1 s51

SOGA 1896 (Qld) s15 a)

51 - 'fifty one' - 'trust me, I'm the only one'

15a - 'fifteen A' - 'I'm selling it today'

GUARANTEED BY ACL PART 3-2, DIV 1 s52

SOGA 1896 (Qld) s15 b)

52 - 'fifty two' - 'this belongs only to you'

15b - 'fifteen bee' - 'don't mind me'

GUARANTEED BY ACL PART 3-2, DIV 1 s53

SOGA 1896 (Qld) s15 c)

53 - 'fifty three' - 'wait I thought this was free'

15c - 'fifteen cee' - 'wait I thought this was free'

Lockhart v Osman (1981)

GUARANTEED BY ACL PART 3-2, DIV 1 s56

SOGA 1896 (Qld) s16

56 - 'fifty-six' - Osman and liers are dicks

16 - 'sixteen' - 'I didn't know that's what that means'

No implied condition of quality except when

a) purpose described

b) description given

Grant v Australian Knitting Mills (1936)

QUALITY GUARANTEED BY ACL PART 3-2, DIV 1 s54, FIT-FOR PURPOSE GUARANTEED BY s55

SOGA 1896 (Qld) s17

55 - 'fifty five' - 'as we decribed',

17 - 'seventeen' - 'now lies are just mean'

ACL PART 3-2, DIV 1 s57

57 - 'fifty seven' - 'that model looks like heaven'

ACL PART 3-2, DIV 1 s58

58 - 'fifty eight' - 'Come on be a mate'

ACL PART 3-2, DIV 1 s59

59 - 'fifty nine' - 'please fixy mine'

ACL PART 3-2, DIV 1 s60

60 - 'sixty' - 'sexty skills'

ACL PART 3-2, DIV 1 s61

61 - 'sixty one' - 'fitness is fun'

ACL PART 3-2, DIV 1 s62

62 - 'sixty two' - 'here's one for you'

For interpretations to admit evidence,

a) the issue/expression "must be susceptible of more than one meaning"

b) cannot take account of later conduct to interpret what term meant when agreed

Reardon Smith v Hansen Tangen

exactly same design, different ship= deal with it

Lord Hoffman summarises developments, but main principle:

 the circumstances surrounding the transaction are relevant because the meaning of the language will typically be shaped by the contest in which is used

Investors Compensation Scheme v West Bromwich Building Society

1) Ascertain meaning of document to reasonable person with background knowledge of parties at time

2) Background is 'factural matrix': "" anything which would have affected the way in which the language of the document would have been understood by a reasonable person.

3) Law excludes previous negotiations and subjective intent

4) Meaning of words= dictionaries. Meaning of document= what parties reasonably understood them to mean

5) Natural and ordinary meaning is commonsense view that people do not make linguistic mistakes, especially in formal documents.

ABC v Australian Performing Rights Association

Gibbs J:  if language is open to 2 constructions, choose one that avoids result which is capricious, unreasonable, inconvenient or unjust, even if not the most obvious or grammatically accurate.

Tillman v Knutsford

ice isn't political

* Darlington Futures v Delco 1968

ordinary meaning applied in: 

Selected Seeds v QBEMM 2010

contra proferentum applied in:

Wallis Son & Wells v Pratt & Haymes 1911

"Exemption clause includes liability for negligence if:

(1) express reference to exclusion of negligence

(2) not express, but clear and expansive enough to cover negligence, e.g. ""howsoever caused"" or ""under no circumstances""

(3) expansive words can cover negligence + other basis, liability to apply to other basis"

"Rule of Law Denning Doctrine of ""fundamental breach"" rejected in England.

Exemption clause is a 'Question of Construction'."

"Never doctrine of ""fundamental breach"" destroying an exemption clause.

- Construe language that the parties used, read in context and with any necessary implications based on their presumed intention."

ACL Part 3-2 Division 1 s.64

64 - 'it's the kind of protection you'd hope for'

ACL Part 3-2 Division 1 s.64A

64A - 'You'll have to protect your goods another way'

ACL Part 3-2 Division 1 s.64A(3) & (4)

64A 3 & 4 - 'the supplier is being an A to me and the poor'

ACL Part 2-3 Division 1 s.23(3)

23(3) - 'I swear, it's for me and only me'

ACL Part 2-3 Division 1 s.23(1)b

23(1)b - 'Can't be a standard form wannabe'

ACL Part 2-3 Division 1 s.27

27 - "This sounds like business suppression!!"

ACL Part 2-3 Division 1 s.28

28 - "boats and shit we don't tolerate"

ACL Part 2-3 Division 1 s.24(1)

(4) - D must prove otherwise

24(1) - "come on D, those terms are good for no one"

ACL Part 2-3 Division 1 s.24(2)

24(2) - "Courts can't just consider what ever they want to"

QFT v Abbey National [2009] *UK case

ACL Part 2-3 Division 1 s.26

26 - "we can't stop your banks from being dicks"