Torts and Contracts II

General objective of an award of contract damages was articulated by Park B in Robinson v Harman (1848) 1 Exch 850 at 855

"The rule of the common law is that, where a party sustains loss by reason of a breach of contract, he is so far as money can do it, to be placed in the same situation with respect to damages, as if the contract had been performed.'

St Helen's Smelting Co v Tipping (1865) 11 ER 1483

During the industrial revolution, the plaintiff bought a property in a neighbourhood with manufacturing plants The defendant owned a copper-melting business in the area Fumes from the defendant's factory damaged trees on the plaintiff's property Issue: Did the damage to the plaintiff's trees constitute private nuisance? And in deciding whether an interference amounts to an actionable nuisance, is the locality always relevant? Held, he established that there was material physical damage to his trees from the fumes from the D's factory decrease in the value of his property. Here, locality, being primarily industrial, did not turn out to be the main consideration because the plaintiff suffered material physical damage. Regard must be had to 'the personal inconvenience and interference with ones enjoyment, ones quiet, ones personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must depend greatly on the circumstances of the place where the thing complained of actually occurs.'[1486] Lord Westbury LC 'the whole neighbourhood where these copper smelting works were carried on, is a neighbourhood more or less devoted to manufacturing purposes of a similar kind, and thus, inasmuch as this copper smelting is carried on in what the appellant contends is a fit place, it may be carried on with impunity, although the result may be the utter destruction, or the very considerable diminution of the value of the plaintiff's property' cannot carry this consequence, that a trade may be carried on in a particular locality, the consequence of which trade may be injury and destruction to the neighbouring property.' [1487] If on the other hand, only personal damage, unlikely he would have succeeded, due to the industrial nature of the neighbourhood. No one factor will be determinative Material loss v merely causes personal discomfort or inconvenience when considering locality.

Action on the case for Damage to Reversionary Interest

If goods are destroyed or damaged, the reversionary owner may be able to sue in an action on the case without having actual possession or an immediate right to possession. Examples - lessors for a fixed period, such as finance companies with cars leased on hire-purchase Fault based - intentional or negligent Only applies where actual permanent damage to, or destruction of, the goods: Mears v London & South Western Railway Co - not where the goods have been replaced or repaired by the D. 'Permanent damage' means that, at the time of the owner's action, the damage to the goods has not been repaired.

Armory v Delamirie (1722) 93 ER 664

A chimney sweep found a jewel while he was sweeping a chimney for his master He kept the jewel and took it to a goldsmith to have valued The goldsmith took the jewel out of its setting and offered the chimney sweep three halfpence for it The chimney sweep refused the offer; the goldsmith refused to give him back the jewel, and later sold it. Issue: Who had the better right to the jewel - the chimney sweep or the goldsmith? Who wasn't a party. Clearly the true owner could not be found, and the employer was not a party, just between chimney sweep and goldsmith Held, although neither parties were the true owner, the chimney owner had a stronger title, which he could protect by an action in conversion. Assume the jewel is of the best quality - had to pay damages based on the highest price possible for a jewel of that kind. 'unless the defendant did produce the jewel, and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of their damages' by Pratt CJ.

Trespass to Goods

A direct unlawful interference with goods in another's possession: eg Hutchins v Maughan - requires directness, all trespasses need an initial direct impact - this case involved a D who layed poisonous baits on land without fences. P's gods ate the bait and died - did the poisioning of the dogs constitute trespass to goods. Held, not trespass to goods bc injury was consequential to the D's act in laying the bait, not directly occasioned by it. For the plaintiff to prove that direct impact. Examples - taking, destroying, damaging, consuming or merely using goods Fault based - intentional or negligent, no dishonest intent is required, can result from an innocent mistake, not strict liability, some fault on part of the D. Title to sue: actual possession - at the date of the trespass - protecting possession not ownership. Exceptions? See Penfolds Wines v Elliott (Dixon J) - Actionable per se - no need for actual damage, but if there is actual damage then basic principles of tort compensation apply (put plaintiff in position had the tort not been committed): Butler v Egg Marketing Board - see remedies.

Misrepresentation at common law

A false statement of a present fact which is intended to induce entry into a contract and which has that effect - ie reliance by one party Person who made the statement is the 'representor'; person to whom it was made is the 'representee' Misrepresentation may be innocent (acted honestly), or may be accompanied by fault - fraudulent (knew it was false) or negligent (in breach of DOC)

Alati v Kruger (1955) 94 CLR 216

Sale of a fruit business by Alati to Kruger The contract of sale was induced by a fraudulent misrepresentation (most egregious misrepresentation) regarding the weekly earnings Kruger sought to rescind the contract on the basis of this vitiating factor The business subsequently deteriorated, Kruger made a loss and eventually had to close down the business and left the premises before judgement was given Issue: Had Kruger lost his right to rescind given his conduct in relation to the deterioration of the business? Ie were the parties able to be restored to pre-contractual positions. Kruger needed to get his purchase money back with interest and Alati, the seller, had to get the business back, which had significantly deteriorated - how were they going to be restored? Dixon, Kitto, Webb and Taylor JJ: 'it is necessary here to apply the doctrines of equity and equity has always regarded as valid the disaffirmance of a contract induced by fraud even though precise restitutio in integrum is not possible if the situation is such that by the exercise of its powers including the power to take accounts of profits and to direct inquiries as to allowances proper to be made for deterioration, it can do what is practically just between the parties and by so doing restore them substantially to the status quo.' Reasoned that while the business had deteriorated since Kruger had been in possession, had remained in substance and financial adjustments could be made to restore the parties to their pre-contractual position. The court noted that the position might have been different if K had acted unconscientiously and abandoned the business completely, causing complete loss of goodwill, but the court held that this was not in fact what happened in the case. Only restored to substantial starting positions. Rescission is only possible if the parties can be placed in their original positions. Precise restitution is not needed, and the court can use its power to impose terms to do substantial justice

ALC Remedies - Damages

ACL s236 provides a statutory right to damages for loss or damage caused by misleading or deceptive conduct Elements Suffering loss or damage is essential - nominal damages cannot be awarded Causation - Claimant must be able to prove that the misleading or deceptive conduct in fact contributed to the decision to enter into the contract - look at CL for guidance - the but for test applies - establishing that they relied on the representation and relied on the result: Henville v Walker Measure of loss - generally tortious measure of damages, ie object of placing the plaintiff in the position had the tort not been committed: HC in Marks v GIO Australia Holdings 'there is nothing in s 236 which suggests...that the amount that may be recovered under s 82(1)...should be limited by drawing some analogy with the law of contract, tort or equit able remedies...the fact that the section may be applied to widely differing contraventions of the Act, some of which can be seen as inviting analogies with torts such as deceit, or with equity but others of which find no ready analogies in the CL or equity, shows that it is wrong to limit the apparently clear words of the Act by reference to one or other of these analogies.' [38] (McHugh, Hayne and Callinan JJ.--> in that case, the appellants failed to establish that they had suffered any loss of damage and were, thus, not entitled to any remedy under s 82 of the Act - entitlement to remedy under s 87 does not depend on proof of actual loss or damage, may be granted if a person is 'likely to suffer' loss or damage - ie a real chance or possibility, not simply more likely than not. [505]. Compensatory only - no exemplary/punitive damages - usually involves some speculation Damages may be awarded alongside some other remedy

Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185

All eggs producers in Victoria were required by legislation to deliver eggs to the Egg Marketing Board (EMB), which became the property of the EMB When the eggs were sold, EMB kept 10% of the price for themselves In breach of the legislative requirements, Mr B sold his eggs directly to the public The EMB successfully sued Mr B for conversion for selling 'their' eggs Issue: What remedy was available? Held, compensatory damages was the appropriate measure of damages,...most cases of conversion, putting the plaintiff in the same position, would be the full value of the goods, eg the eggs here, but because the EMB had only kept 10% usually, the court said that EMB cant get the full value of the eggs, can only get the value of your interest, ie the 10% because that is all they would have got would the tort not been committed. Manzies J 'damages should be assessed not on the basis of the value of the eggs at the time of the coversion, but upon the actual loss sustained by the respondent because the appellants converted the respondent's eggs instead of delivering them in accordance with the Act' [192]. The principle that an injured party should receive the sum of compensatory damages which will put the injured party in the same position as if the tort had not been committed, applies to an action for conversion.

Statutory liability for misleading or deceptive conduct

Broader than misrepresentation at common law - may include acts, omissions, statements or silence: also extends to pre-contractual and post-contractual conduct (CF CL pre-contractual only) See Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd generally a failure to disclose will not be misleading under s18 unless the circumstances are such as to give rise to a reasonable expectation of disclosure: See Demagogue Pty Ltd v Ramensky : purchase of off-the plan unit - certain info regarding property - misleading/deceptive bc there was a failure to disclose, in circumstances where there was a reasonable expectation of disclosure. Overall the approach is cautions and the proviso does not require the party to volunteer information which would be of assistance to the other party - policy considerations similar to CL. Test - reasonable expectation of disclosure. Must silence be deliberate? Gummow J in Demagogue: 'turns on the construction on the definition of conduct in s(2) - words refuse and refrain - reinforced by the words' - issue not quite resolved by the HC. Not clear whether other than inadvertently, ...level of deliberateness Also Black CJ in Demagogue - re determining whether conduct is misleading or deceptive 'the q is whether in the light of all the relevant circumstances constituted by acts, omissions, statements or silence, there has been conduct which is or is likely to be misleading or deceptive.' Includes spoken and written statements: See Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd :

The Winkfield [1902] P 42

Collision of two ships, The Mexican and The Winkfield The Mexican was carrying large quantity of parcels and letters which were lost at sea following the collision. As a result, the parcels and letters were never delivered Postmaster General sued The Winkfield for destroying the goods , Winkfield challenged their title to sue bc they didn't own the letters or the parcels, the owners had given them to the postmaster, the owners were the bailor, the Mexican was a sub-bailee Issue: Did the Postmaster General have title to sue? Yes because they had prior possession of the goods sufficient to sue someone with prior possession?? Collins MR: 'in an action against a stranger for loss of goods caused by his negligence, the bailee in possession can recover the value of the goods, although he would have had a good answer to an action by the bailor for damages for the loss of the thing bailed.'[54] '[T]he root principle...is that as against a wrongdoer, possession is title...As between bailee and stranger possession gives title - that is, not a limited interest, but absolute and complete ownership, and [the bailee] is entitled to receive back a complete equivalent for the whole loss or deterioration of the thing itself.' postmaster able to recover the value, however, postmaster general not allowed to keep the proceeds, had to hand them over to those who owned the goods (parcels and letters). 'what he has received above his own interest he has received to the use of his bailor' [61].

Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) 42 FCR 470

Contract between Accounting Systems and Castle Douglas under which A assigned copyright interests in computer software to CD Contract contained a warranty from A that it was the rightful owner of the copyright assigned CD then granted CCH a licence to use the software It transpired that A was not the rightful copyright owner Issue: Was the warranty in the contract between A and CD misleading, such that CCH was entitled to be compensated for the money spent on a licence from CD? Lockhart and Gummow JJ[470], it was misleading - the ACL s 4(2)(a) provides significant support to the proposition that the making of a statement as to the existing state of affairs, if false, may be engaging in misleading or deceptive conduct, where that statement is embodied as a provision of the contract. 'where contravention of s 52 is linked with a claim for damages under s 82 and the representation complained of was a contractual warranty, it may be necessary to consider whether the measure of damages that would be recoverable under s 82 would differ from that available at common law for breach of the warranty.[506]

Fouldes v Willoughby (1841) 151 ER 1153

D managed a ferry. P paid his fare and came on with two horses An argument ensued between P and D about the horses and D asked P to take them off the ferry. P refused, so D took the horses off the ferry and put them ashore The horses wandered off and were taken by an inn keeper Issue: Did the D interfere with the horses and assert dominion over them amounting to conversion? There was no conversion, all the D was doing was getting the horses off his ferry, not asserting possession of them, not for his own use or some other persons. 'It is a proposition familiar to all lawyers, that a simple asportation of a chattel, without any intention of making any further use of it, although it may be a sufficient foundation for an action of trespass, is not sufficient to establish a conversion.' Held at 1155-6, Lord Abinger CB 'there might...be ground for maintaining an action of trespass because the D may have had no right to meddle with the horses at all; but it is clear that he did not do so for the purpose of taking them away from the plaintiff, or of exercising any right over them, either for himself or for any other person.' (ie not taken for his own or someone else's use, merely to remove them from his ferry) Held, 'in order to constitute a conversion, it is necessary either that the party taking the goods should intend some use to be made of them, by himself or by those for whom he acts, or that, owing to his act, the goods are destroyed or consumed, to the prejudice of the lawful owner.' [1165]. Might have been different if he drove them off the river such that they drowned that would have been destruction of goods.

Reg Glass Pty Ltd v Rivers Locking System Pty Ltd (1968) 129 CLR 516

Facts: Defendant contracted to supply a 'rear single door' at the plaintiff's shop premises. purpose of door was to prevent burglaries, but thieves broke in, forcing door out of position and stole a large quantity of stock. Held (3-2): the contract contained an implied term that the defendant's door would provide 'reasonable protection' which was breached. once breach is established and it appears that the claimed loss flows from this breach, it will be presumed that it does - but it remains open for the defendant to negative causation.

AMEV-UDC Finance v Austin HCA

Facts: after the lessee (Austin) defaulted under a hire-purchase agreement with AMEV, the latter terminated and repossessed the equipment AND claimed, via a term in the contract, all remaining instalments due. Held: the payment was 'penal' b/c the lessor did not have to account for the proceeds of sale and no rebate was given for accelerated payment of future instalments. Mason and Wilson JJ: whether a clause is penal depends on whether it is extravagant, exorbiant or unconscionable, which is determined by: 1. degree of disproportion between the liquidated sum and likely loss- are the LDs out fo all proportion to be the greatest likely loss to arise from breach? 2. The nature of the relationship b/w the parties - unconscionability of enforcing the term.

Disclaimers and Exclusion Clauses under the ALC

Generally, clauses that exclude or limit liability for misleading or deceptive conduct under the ACL are ineffective as they would subvert the legislative policy that underpins the ACL - not possible to contract out of liability under s 18 Despite the impermissibility of 'contracting out', a disclaimer is relevant to the question of liability under s 18 insofar as it may lead to the conclusion that the impugned conduct was not, when viewed as a whole, misleading or deceptive Disclaimer - disclaiming responsibility for any representation. Exclusion clause - no right to damages or right to rescind the contract. See eg, Butcher v Lachlan Elder Realty Pty Ltd - 'All information contained herein is gathered from sources we believe to be reliable. However, we cannot guarantee its accuracy and interested parties should rely on their own inquiries.' court found when taken with nature of parties and transaction there was no misleading or deceptive conduct in the brochure.

North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd (The Atlantic Baron) [1979] 1 QB 705

Hyundai agreed to build a tanker for North Ocean Shipping. The contract price was fixed in USD and to be paid in instalments H provided a letter of credit in favour of NOS to secure repayment in case H defaulted under the contract After the first instalment was paid, the USD depreciated 10% and H refused to finish vessel unless NOS paid 10% more than the original price NOS insisted that H provide something of value in return for the price increase. Under the variation agreement with the 10% price increase, H increased letter of credit by the same 10% margin (ie consideration) H delivered the tanker to NOS, who later claimed the extra 10% paid Issue: Was NOS entitled to rescind the variation agreement for economic duress? Held, yes, the agreement to pay the extra 10% was made under duress entitled to rescind. Reasoned that 1. The demand and threat not to perform the contract were wrongful - no contractual obligation. 2 charter of ship - no choice to refuse demand - time pressure 3. If hadn't agreed to re-negotiation, breached its contract serious impact on its commercial reputation. The mere fact that ...showing one parties rescind original contract, does not necessarily mean they can rescind for duress - here the commercial reputation at risk because of their agreement to deliver the ship became paramount. Unfortunately for NOS, there right to rescind was lost because H delivered the tanker - only 8 months later that NOS claimed the extra 10% - they had affirmed the contract by failing to protest when they made their final payment, affirmation provides a bar to rescission. Where variation to a contract effected by economic duress, the contract can be rescinded and amounts paid under the contract can be recovered as restitution.

Consequences of vitiating factors - void vs voidable

If a vitiating factor is established, it may render the contract (and gifts) void or voidable, although generally the court will treat such a contract as voidable. Where a contract is held to be void, it was a nullity from the very beginning and no legal title can pass under it - the law applies the maxim nemo dat quod non habet (you can't give what you don't have) Where a contract is voidable, it exists until it is rescinded at the election of the aggrieved party - title can pass, though upon rescission title may revert back to the original owner. Connection between vitiating factors and rescission - when a party has been a victim of conduct that qualifies as a vf, the conduct is usually voidable at the request of the victim or the aggrieved party and the remedy available is typically rescission.

TCN Channel Nine v Anning (2002) 54 NSWLR 333

Mr A was the lessee of a motor cycle race track. He had approximately 70,000 old tyres stored on his property The Environmental Protection Authority conducted a raid of his property during an event A journalist and camera crew from a Channel 9 investigative program entered the property with the EPA inspectors and filmed Mr A, he asked them to leave The recordings were subsequently made public Issue: Were the acts of the journalist (filming) and camera crew authorised? NSWCA - acts were unauthorised - the journalists and camera crew had entered the land for the purposes of filming the raid, outside of an implied licence that an ordinary person has to enter the property. Authority to enter someone's land does not extend to entry for the purposes of unauthorised conduct [349]. Re damages: recovery for consequential loss can be recovered for harm that is intended or that is the natural and probable consequence of the tortious act [352]... 'Humiliation, injured feelings and affront to dignity may be a natural and probable consequence of intrusion by the media on private property aggravated damages...'mental trauma...does not flow 'naturally and probably' from a trespass to land committed in the way the appellant acted' [354].

Petelin v Cullen (1975) 132 CLR 355 - non est factum - it is not my deed

Mr Petelin granted Mr Cullin an option to purchase land C did not exercise option in time. C's agent asked for a short extension and offered $50 P signed a document, which he believed to be a receipt for the $50. It was, in fact, a document extending the time for the exercise of the option. C later exercised the option within this extended time - under this new agreement. P spoke little English and could not read English. C's agent was aware of P's limited understanding of English Issue: Did the principle of non est factum operate to render the document void? HC held, doctrine of non est factum was made out because P was illiterate, Cullens agent knew of and exploited and knew of this, and thirdly, fundamental difference - receipt for 50 was actually an extension of the option. Held, the document must be radically different from what the person though they were signing. The signing must not have been careless. Available to those who through no fault of their own are incapable of understanding the nature of the document.

Taylor v Johnson

Ms Johnson granted an option to Mr Taylor to purchase 10 acres of land. Price - $15k total - was specified in the option When J executed the option, she believed that the price was $15k per acre ($150k total) At the time of contract, land value estimated to be $50k, but land might increase in value to $195k after rezoning - so not an unreasonable belief, bargain. T actually knew correct price. Appears to have known that J was probably mistaken as to price. He took steps to inhibit J's discovery of correct price - avoided mentioning it, pretended not to have a copy of the option agreement - actively preventing her from discovering her mistake - didn't induce the error (ie misrepresentation) she was mistaken and once he was aware she then took steps to prevent her being aware of this. Issue: Could the contract be rescinded for unilateral mistake? Yes, each of the elements (identified in rules above) were met. Held, contract voidable where there is a mistake as to contractual terms: 1. Written contract. 2. One party under a serious mistake about a fundamental term, 3. Other party aware of the mistake, 4. Some form of unconscionable conduct.

Chairman, National Crime Authority v Flack (1998) 156 ALR 501

National Crime Authority searched Mrs Flack's house in Glebe, looking for drugs they thought her son might have acquired and stored in the house NCA found a locked briefcase in a cupboard with $433K in cash Mrs F said she had never seen it before NCA confiscated the briefcase but could not prove the money was the proceeds of crime from her son Mrs F sued in conversion and detinue for the return of the briefcase and the money - wrongful detention. Issue: Who had the better claim to the money? Flack or NCA? Held, where something is found inside private residential property presumption that the occupier intends to exercise control over those goods, even if they were not aware of them, thus treated as being in possession of the goods. As occupier, superior title to the NCA entitled to keep her money. Heerey J at 509 'the rights of an owner/occupier of premises where goods are found will prevail over the rights of a finder, irrespective of the existence of the goods on the part of the owner/occupier and irrespective of an acceptance on the part of the owner/occupier of the obligation to exercise dominion over the goods so long as it can be shown that the owner/occupier manifested an intention to exercise control over the premises in which the goods are and all items in those premises' 'where the goods are found in a private residence, a finder cannot assert a better title than the owner on the basis that the owner/occupier had no knowledge of the existence of the goods' Anecdotally, she blew the money gambling on the pokies, and Glen ended up in prison because later convicted of a murder in prison.

Penfolds Wines v Elliott (1946) 74 CLR 204

PW was a winemaker with branded glass wine bottles with the indentation: 'This property belongs to Penfolds Wines' PW retained ownership of the bottles, so that it could collect and use them again - happened during WWII when there was a shortage of glass in Australia. Under this arrangement, the purchaser of the wine could keep the bottle until the wine was consumed E was licensee of a hotel in NSW. He would sell bulk wine to his customers by filling bottles that they brought to his hotel - would sell the bulk wine through the bottles they brought to the hotel E's brother brought in two empty Penfolds wine bottles, E filled them with bulk wine, and then attempted to sell them to a third party ...there was a spy who notified Penfold, who sued Elliot Issues: Did Penfolds have title to sue for trespass or conversion? Had to rely on an immediate right to possession, that was sufficient for conversion, but was not sufficient for trespass but Had Elliott committed a trespass? Dixon and Latham JJ- the exception to general rule is where the bailee holds the goods as servant, agent or bailor at will, then the ..may sue the bailor at will, may sue for the trespass done to the bailee who has possession. So they had title to sue for trespass as well as conversion. Which judge thought yes? Latham CJ: [215] 'the normal use of a bottle is as a container, and the use of it for this purpose is a trespass if, as in this case, it is not authorised by a person in possession or entitled to immediate possession.'...'for a taking to trespass it must not merely be an unlawful act but an unlawful act against the party from whom possession is taken...if goods belonging to A, and B being unlawfully possessed of them transfers them to C, the taking of them by C, though it may give a good cause of action in trover, is not a trespass.' Which judges thought he had not? Majority including Dixon, because brother who had possession simply gave the bottles to Elliot, he didn't directly engage with them or use them. Dixon J, at 224, 'Trespass is a wrong to possession. But, on the part of the respondent, there was never any invasion of possession' Had Elliott committed conversion? Which judges thought yes? Majority said there was conversion, including Latham, the whole point of the bottle is to be filled, inconsistent with the right of Penfold as the true owner, he was treating the bottle as his own. Latham CJ [218] 'a taking of the bottles without any intention to exercise permanent or temporary dominion over them, though it might be a trespass, would not be a conversion; but the actual use of the bottles for the benefit of the defendant and his brother was a conversion.'.... 'the defendant in the present case handled and used the plaintiff's bottles for the purpose of exercising what he regarded as his right to use them for containing any liquid that he chose to put into them and to keep them for that purpose until he delivered them to his customers.' Which judges thought he had not? Dixon J, they had not proved conversion, not trespass either. Merely filling up the bottles could not be a conversion because no intention could be attributed to Elliot for asserting any title to the bottles. 'the re-delivery of the bottles to the persons who left them could not amount to a conversion..because, though involving a transfer of possession, its purpose was not to confer any right over the property in the bottles, but merely to return or restore them to the person who had left them there to be filled.' [229] What remedy did Penfolds want? Did they get it? Wanted an injunction - a prohibitory one, to prevent Elliot from using their bottles with his bulk wine. Didn't get it bc there was no evidence of systematic or substantial dealing of the bottles with Elliot. Only got nominal damages bc it was only the cost of those two bottles that would put them into the position they would have been in had the tort not been committed, but established the fact that others couldn't use their bottles - so that was a success.

Reinhold v NSW Lotteries No 2

Proportionate liability regime, s 34(1)(a) can apply not just to a claim for breach of a duty to exercise reasonable care, but also to a claim founded upon a breach of a strict duty, which happens to be breached negligently. Doesn't matter what the nature of the duty is - strict or reasonable care, can still apply provided it can be shown that as a matter of fact, there was negligence in the breach. P bought a lottery ticket, found the ticket didn't have any numbers on it, clark said there was a mistake, contracted state lotteries, and intended to have that ticket cancelled and reissued the P with a fresh ticket. What they thought they had achieved was that the bad ticket had been cancelled. He watched the lottery, though he had won $2 million, they fed the ticket into the system, and the machine says it was not a valid ticket. P brings proceedings against the newsagent and State Lotteries. Lawyers didn't know what to make of this claim or how to plead it. the parties do not seem to have narrowed down the key issue well. seems that all things were put into issue, had to work out the key questions of the case. Q was whether the proportionate liability regime could apply - capable of applying notwithstanding, breach of a strict contractual duty, provided the duty was breached negligently. • Held: (1) A person =concurrent wrongdoer if a court made findings about loss or damage and about acts or omissions which "caused" that loss or damage-->only after those findings were made, --> possible to identify each person whose acts or omissions "caused" the "loss or damage"([19]) • (2) the claim = one "arising from a failure to take reasonable care" if a court determines that at the end of a trial , regardless of what might have been prayed or pleaded in an initiating process. ([22], [30]) • (3) While a case needed to be pleaded and proved by one or more defendants so as to engage the statutory provisions of Pt 4 of the CLA, should the court's findings determine the relevant conditions for the application of that Part had been met, the provisions had to be applied as they were compulsory. ([32]) • (4) resort to equitable principles was not to be sanctioned as the consequences of the operation of that provision could only ever be those produced by the application of the statutory criterion directing attention to the responsibility of the several wrongdoers. ([43]) • (5) financial strength or profitability of a wrongdoer, its situation or status, or its attitude in terms of remorse or lack of it are not relevant to the assessment of apportionment pursuant to s 35(1)(a) of the CLA, though the fact that one wrongdoer had profited from the wrongdoing and had retained the profit was relevant to such assessment as -->the issue of responsibility with which that provision was concerned. ([57], [61]) • (6) In determining what was just in apportioning damage or loss pursuant to s 35(1)(a) of the CLA a comparison had to be made of each concurrent wrongdoer's degree of departure from the standard of care of the reasonable man as regards that party's conduct (the blameworthy issue), and the relative importance of each such party's acts in causing the loss or damage (the causative potency issue). ([60])

Bailments: interference with goods

Relationship that is established when an owner of goods hands over possession of the goods to another - eg loaned, leased or repaired Creates a bailor-bailee relationship - the owner of the goods is the bailor and the possessor of the goods is the bailee, third person = a sub-bailee All bailees have actual possession and the title to sue third parties that this brings: The Winkfield: Whether or not the bailor has title to sue will depend on the nature of the bailment, three types: Bailments for a term - for a set period of time Bailments subject to a condition - bailment for a purpose Bailments at will - could be for reward or gratuitous *see notes for more on the distinctions between these categories

Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83

Sale of a restaurant business by Henjo Investments to Collins Marrickville H represented that the restaurant was 'licensed' to seat 128 people While the premises seated 128 people, it was only licensed to seat 84 people C instructed solicitor to check licensing but solicitor did not do so. Solicitor would have discovered the problem if had checked Issue: Had H engaged in misleading or deceptive conduct by failing to disclose the limitation on seating capacity contained in the license? Held, the showing of the care to Mr James and Mr Collins was not conveying two discrete items of information; but was a clear statement in the circumstances that the deli was a restaurant licenced to seat 128 people' [556] They had failed to disclose the true position - had been silent with respect to the limitations of the seating capacity. The buyers failure to investigate does not prevent the conduct from being misleading. The representation made 'need not be the sole inducement. It is sufficient so long as it plays some part even if only a minor part in contributing to the formation of the contract. Lockhart J: 'there is no need or warrant to search for other words to replace those in the section itself...// 'silence would be misleading where, on the facts, there was a duty to disclose the relevant information. The remedies under s 237 are in the courts discretion, but it may seek guidance in general law principles.

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592

Sale of expensive waterfront property Marketing brochure produced by the real estate agent contained a diagram with dimensions and the boundaries, including the high water mark, which was inaccurate Mr B, the purchaser, inspected the property with a builder and designer. He intended to reconfigure the backyard Following the sale, Mr B discovered that because the high water mark was inaccurate, the backyard could not be reconfigured as planned Issue: Had the real estate agent engaged in misleading or deceptive conduct? Majority of HC held that given the nature of the parties, the nature of the terms actions, the conduct was not misleading or deceptive in the circumstances. Majority characterised Butcher as an intelligent, shrewd self-reliant business person who could be assumed to respond the representation in a reasonable manner. On the other hand, the real-estate agent, was a small business with few staff and they didn't hold itself out as possessing the means for independently verifying details of the property. The transaction involved very expensive property and Butcher was assisted throughout because he had his professional advisors with him. not misleading or deceptive by the realestate agency. Held, the importance and brevity of the information contained in the brochure given to prospective purchasers of land meant that the reasonable person in the position of the purchaser would have paid close attention to the details of the brochure and read it in its entirety.

LJP Investments v Howard Chia Investments (1989) 24 NSWLR 490

The defendant was developing its commercial property in Sydney The defendant asked the plaintiff if it could erect scaffolding over the plaintiff's land The plaintiff would only grant permission in return for payment The defendant refused to pay and erected scaffolding at 4.5m above the ground and 1.5m into the airspace above the plaintiff's property Issue: Did the incursion of the scaffolding into the airspace above the plaintiff's property constitute trespass? Held, it did amount to trespass, scaffolding was a trespass - plaintiff entitled to an injunction ordering it to be taken off the land - the relevant test is not whether the incursion actually interferes with the occupiers use of the land at the time, but if it is of a nature and height that may interfere with the land. Hodgson J 'the defendant had acted with reckless disregard of the plaintiff's rights, and it would not be oppressive to grant the injunction because the defendant had deliberately placed itself in its present situation. [494]. 'a trespass occurred only if the incursion was at a height which may interfere with the ordinary use of the land, or is into airspace which is necessary for the ordinary use and enjoyment of the land and structures upon it [495]. The plaintiff is prima facie entitled to an injunction....the defendant knowingly put itself in a position where it needed to use the plaintiff's land in order to carry out a commercial development, and the law establishing what the defendant did was a trespass was reasonably clear, so that the defendant has not been taken by surprise in this regard.' [496-7]. 'where one landowner is seeking to effect a commercial development of his land which is more profitable or less expensive if use can be made of the land of an adjoining owner, it is not unreasonable for that adjoining owner to require payment which bears some relationship to the financial gain or saving which the developing landowner achieves by use of the adjoining land.' [497]. NB re damages - market value approach for damages where the D makes monetary gain - see PQ.

Raffles v Wichelhaus (1864) 2 H & C 906

The parties made an agreement to buy and sell cotton from a ship called 'The Peerless' which was departing from Bombay There were actually two ships named 'The Peerless' departing from Bombay - one in October, the other in December. The parties thought they were talking about the same ship, but they were each referring to different ships. The contract did not clearly identify either ship When the cotton arrived on the December ship, the Purchaser refused to accept it, arguing that he had been ready to receive cotton arriving on the October ship Issue: Was there a mutual mistake? Court held, no reasoning provided, 'no contract, it turned out the parties failed to meet the certainty requirement of contract formation but the effect of that was of mutual mistake. Objectively there was not one party who had the right understanding of the bargain. No contract.'

Koufos v C Czarnikow Ltd (The Heron II) [1969] 1 AC 350 (HOL) - degree of likelihood required

· A chartered ship arrived late by which time the market price of sugar had dropped, so the charters (who were shipping sugar) claimed the difference between the rice they actually obtained by selling the sugar and the price they would have obtained had the sugar arrived on time. · The difference was recoverable even though owners did not know that the charterers intended to sell the sugar immediately upon arrival · Held - Lord Reid: 1. The relevant question is whether the defendant, with the information he had available. "should, or the reasonable man in his position would" have realised that the particular kind of loss was not unlikely to result from the breach. · Held - Lord Upjohn: For a reasonable person in the breach party's position, the particular loss must be a serious possibility or a real danger is a result of the breach.

Trespass to Land Remedies

Trespass is actionable per se - why? Plenty v Dillon - court can still award more than simply nominal damages because the purpose of an action for trespass for land is to compensate plaintiff, and also of vindicating the plaintiff's right ot the exclusive occupation of his or her land. In the case, d's were police officers who entered plaintiff's land without a warrant in order to serve a summons. HC said it is fundamental that a person can prevent somebody from entering his or her property. No authority for anyone to enter without permission. Plaintiff was entitled to general compensatory damages. General compensatory damages How is loss quantified? Reinstatement of property damage or decrease in value of property: Parramatta City Council v Lutz - court will consider what is reasonable in the particular circumstances. LJP Investment v Howard - damages were assessed by determining the market value of the defendant using the plaintiff's airspace to construct the building - damages should reflect the price that the parties would have reasonably negotiated - another approach of how loss can be quantified. Aggravated damages - for 'humiliation, injured feelings and affront to dignity': TCN Channel Nine Pty v Anning - awarded them to Anning as a result of Channel Nine's filming that was made public. Exemplary damages - can be awarded 'to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights' - where the court is trying to make an example of the defendant to others: XL Petroleum (NSW) v Caltex Oil - Caltex had mistakenly believed that underground tanks they had still belonged to them, but they didn't, Caltex sent plumbers to drill holes in them. Sued for trespass to land trespass, awarding exemplary damages of $150000. NSW v Ibbot - HC also awarded exemplary damages against police officers. In Australia, exemplary damages are used with a lot of restraint. Often only where the trespass is accompanied by some sort of violent behaviour. Injunction - 'equitable' remedy to restrain continuance of the trespass. Typically where damages would be inadequate. See denapoli v new beach apartments.

Esanda Finance Corp v Plessnig (1989) HCA

· Facts: Hire purchase agreement where E advanced $44,000 to enable P to acquire a prime mover - total rent payable to E in 36 instalments. P failed to pay 3 consecutive instalments. E terminated and repossessed the vehicle claiming $12,877 = total amount of rent repayable + expenses of termination (1. Amount received from selling the machinery + 2. The deposit and instalments paid + 3. A rebate of a portion of the term charges calculated according to the contract's terms. · Held (unanimously): The possibility that the sum payable might exceed the lessor's loss (mere possibility of unfairness lurking in the formula) s ok because not out of all proportion. The clause was valid and enforceable b/c there was a genuine attempt to account for the benefits accruing to the lessor due to the contract's early termination. 1. Brennan J noted the possibility that upholding such clauses for non-repudiatory breaches was inconsistent with the animating principle in Shevill. 2. Held

Remoteness in Contract

a) The governing principle is said to come from Haldey v Baxendale (1854) 9 Ex 34, where Alderson B held that losses are recoverable if they fall within either the: i. First limb ('general damages'): arising naturally, that is, according to the usual course of things, from breach; or ii. Second limb ('special damages'): such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of breach.

Expectation v Reliance

a) Traditional view is that there are two different types of 'interest' that a contract damages award can uphold i. Expectation interest: the profit or benefit which the plaintiff expected to derive from the contract. i. Reparation - for balance sheet deterioration; OR ii. A monetary substitute for the performance denied by breach ii. Reliance interest: the plaintiff's expenditure in preparation for performance of the contract i. Properly called a claim for 'wasted expenditure' b) Subject to some limited exceptions which we all explore today, damages awards in contract are typically assessed by reference to the plaintiff's expectation interest (contrast the position for an estoppel). i. It is often also possible to seek compensation for consequential loss - provided it is not too remote. c) A typical damages award will involve compensation for 'direct' loss on an expectation bases + compensation for additional consequential loss not precluded by any relevant limiting principles (e.g. remoteness, mitigation). d) A simple example of the expectation interest: P has a contract with D for the purchase of 100 shares in Company X for $5 per share. Shares in Company X are trading at $10 per share. P's expectation interest can be valued at $500. This is the profit P expects to derive from the transaction. e) A simple example of wasted expenditure (reliance interest): P has a contract with D under which P will build a retaining wall for D for a specified sum. In preparation for performance, P purchases $2000 worth of building materials. P's reliance interest can be valued at $2000.

The Andrews Decision: Andrews v ANZ Banking Group Ltd [2012] HCA 30

i. Facts: 30,000+ class action against ANZ in respect of certain account fees charged to customers e.g. late payment fees for credit cards; non payment feed; honour fees; dishonour fees; over limit fees). ii. Issue: where such fees activated by breach? If not could the penalties doctrine be extended to events other than breach? iii. Held: Yes, the equitable penalties doctrine has not been abolished and it applies to events other than breach. The essence of a penalty clause is a punishment for non-observance of a contractual stipulation (in terrorem of breach). iv. Our current conception of the action for breach of contract is relatively modern - in the medieval and early modern period, plaintiffs were reliant on the forms of action i.e. writs in order to bring civil claims. v. A penalty is in the nature of punishment for non-observance of a contractual stipulation. vi. TEST: i. A stipulation prima facie imposes a penalty on a party if, as a matter of substance, it is collateral to a primary stipulation in favour of a second party and that collateral stipulation, upon the failure of the primary stipulation, imposes on the first part an additional detriment, the penalty, to the benefit of the second party. Importantly the primary stipulation may be the occurrence of non-occurrence of an event that need not be the payment of money.

· ACL s 4: Misrepresentations as to the future

o 'where a representation is made as to a future matter, without reasonable grounds, it is taken to be misleading' (s 4(1)(a) and (b). o unless the representor adduces evidence to the contrary, it is deemed not to have had reasonable grounds for such a representation (s 4(2)). · s 4 greatly benefits the representee because it reduces the burden on a person who alleges that a representation as to a future matter contravened the ACL - very good for the plaintiff · s 4 does not deal with opinions as to present matters, so have to fall back on common law techniques. Although HC is becoming increasingly critical of the common law techniques - ultimate q under the ACL is whether or not they were misled or deceived.

s 18 Elements: 'in trade or commerce' (threshold q)

o Must be trading or commercial in nature and not merely incidental to trade or commerce o Includes commercial dealings by businesses, but not necessarily their internal affairs: Concrete Constructions (NSW) Pty Ltd v Nelson - not just internal communications · Includes the sale of a business/property or assets used for a business activity - excludes business assets for a home even if its publicly advertised -but real-estate agent covered: Bevanere Pty Ltd v Lubidineuse · May include fundraising activities of a charity: E v Australian Red Cross Society patient administered with HIV blood sued the red cross - based on misleading implied representation - patient not successful because the gratuitous supply of blood not trade or commerce, but other activities of the red cross, such as fundraising could be. · S 18 used to challenge all kinds of commercial conduct - false or deceptive advertising, and cases which me would think of as belonging to intellectual property. When would it not apply? Where the representee has been induced into a contract outside of the commercial or consumer contracts - ie not in trade or commerce.

Trespass to land - scope

· 'A direct unauthorized or unlawful interference with land in the possession of another person': Southport Corp v Esso Petroleum Co - 3 elements: direct interference, unauthorised or unlawful and land (includes things that are fixed to that land, and things under the ground and above). · Examples? Entering someones property without their permission. · Fault? The relevant interference must have been intentional or negligent

Trespass to land element 3: Land

· 'Land' - what is included and what is not? Beyond the land - anything that is fixed to the surface, · Depth below? underground trespass o '[A] person has substantial control over land underneath his or her soil for a considerable depth': Di Napoli v New Beach Apartments for the ordinary use and enjoyment of the land. In this case there was a building construction and defendants placed anchors in the soil underneath the neighbours land - trespass had to be removed...Yound CJ held 'where a person seeks to develop their land by utilising neighbouring land for their convenience without consent...then the court will grant an injunction to restrain it' [65401] o How far does this extend? See Bocardo SA v Star Energy UK Onshore Ltd Does intrusion into a sub-soil even if it doesn't interfere into the plaintiff's ordinary land. The defendant drilled under the land to a pipeline for the purpose of extracting petroleum and natural gas - without permission, depth of more than 800ft below the ground. Issue - whether pipelines were too deep to trespass. Held, trespass and the fact that there were substances at a depth that could be reached by human activity sufficient to raise the q of who was the owner [987 - lord hope DP] - only plausible owner is the registered owner of the land above - extend to an area that the occupier could potentially develop herself. The D in this case was a private entity - drilled without statutory authorisation or permission. If it was a public work, eg the Westconnect motorway in Sydney - if statutory authority - may be a potential defence. · Airspace above? aerial trespass o Examples? o '[T]he rights of an owner in the air space above his land [extend] to such height as is necessary for the ordinary use and enjoyment of his land and the structures upon it': Bernstein v Skyviews (Griffiths J) - Bernstein wealthy media owner, had a country estate, sky news tried to take photos of the property and sell it to him - action in trespass to land - no trespass because one-off event - single flight, and also, they were flying above the height that was necessary for the ordinary use and enjoyment of that land. Need to balance the rights of an owner against the rights of the public in using the airspace - restricting the right s to as is necessary, but above that height, no greater right than any other member of the public. o Must an incursion interfere with the plaintiff's actual use of the land? See LJP Investments v Howard Chia Investments - concerned with the potential use of the land rather than the actual use. o Civil Liability Act 2002 (NSW) s 72: (1) 'No action lies in respect of trespass or nuisance, by reason only of the flight ..of an aircraft over any property at a height above the ground that is reasonable...so long as the Air Navigation Regulations are complied with' - trespass or nuisance by aircraft - use this for aerial trespass. In NSW, overflight by an aircraft, at a reasonable height, in accordance with regulations, is not a trespass.

Private Nuisance: Title to Sue

· 'Ordinarily ... a person can only sue in private nuisance if he has the right to exclusive possession of the land affected ... a mere licensee on the land has no right to sue': Hunter v Canary Wharf Ltd (Lord Goff) - must be the legal occupier or owner in possession. · E.g., family members who reside with the person in possession of land are mere licensees and have no title to sue (Hunter v Canary Wharf Ltd) there were 690 plaintiffs, who sued the D in nuisance on basis that the d had built an office building that had interfered with reception. Some P's were tenants, others were family members that didn't have any property rights in the building - held - mere licencees. Oldham v Lawson the plaintiff's were a husband and wife who lived together in a house owned by the wife. Were experiencing noise from neighbours - sued them; held, only wife had title to sue, bc husband was a mere licencee. · Consider whether this differs from title to sue for trespass to land - both require actual and exclusive possession, but for private nuisance, the P must be the legal occupier of the land in order to sue. In trespass, anyone who has exclusive possession is treated as having a right to possession, even if they have wrongfully taken possession of it (Newington v Windeyer - plaintiff's succeeded in the action regarding the Grove property that they had maintained even though they didn't own or leased it. For private nuisance, that would not have been the case.)

Newington v Windeyer (1985) 3 NSWLR 555

· 'The Grove' was an open space of land in Woollahra · There was no registered owner · The plaintiffs' houses faced onto The Grove · They maintained The Grove for 50 years · Miss N's property backed onto The Grove - former model turned property developer · She put a gate on her property for access - made it look like it was her land · Argued that any entry through the gate into the grove constituted trespass. · Issue: Did this constitute trespass? Given there was no owner. · Held, any entry by her or her exists did constitute a trespass, even though there was no owner. McHugh JA: 'as long as a person does not abandon possession, possession for less than twelve years enables him to exclude from the land any person who does not have a better title [563]...the evidence proved that the respondents had engaged in many acts of ownership over 50 years. They employed a gardener, used it as a common garden, residents held birthdays and weddings there they were in possession. [564]. · The title to sue, the plaintiff must be in possession of the land. Trespass to land is a wrong to possession, not ownership. what about a tenant? See Rogrigues v Ufton

Conversion of Goods

· A deliberate exercise of dominion (control) over goods - treating something as your own when it is not, · 'The essence of a conversion is a dealing with the goods, an intentional assertion of dominion over the goods, in a manner that is repugnant to the rights of the true owner' (Dixon J, Penfolds Wines v Elliott) can onoy result from an intentional act to assert ownership over the goods (cf to trespass which can be intentional or negligent). See Bunnings Group v Check. Not necessary to show that the D intended to displace the P by that act. D may convert the P's goods without any dishonest or guilty intent. Irrelevant if innocent mistake. In a bailment, bailee is usually exonerated if all he does is return the goods to his bailor... Examples: o Wrongful taking and receiving - not every physical taking is conversion eg moving goods without intention for possession or exercising rights over it (Fouldes v Willoughby) o Wrongful detention - refusing to surrender goods upon lawful and reasonable demand (Howard E Perry v British Railways Board) - involved a steel-worker strike, refused to allow the P to collect steel that was owned by them that was in the D's warehouse, D's feared that their employees would engage in industrial action if they allowed them to get their steel. Court said it was wrongful detention. o Wrongful use - intentionally destroying, consuming, or selling goods (Penfolds Wines v Elliott) Title to sue: actual possession or immediate right to possession

Private Nuisance

· An unreasonable interference with an occupier's use or enjoyment of land - 1. Interference with use or enjoyment or 2. Material damage to property. Can occur when the plaintiff's land if affected by things like noise, vibrations, fumes, flooding, systematic snooping by neighbours. Doesn't include trivial inconveniences eg noise from children playing in a backyard, the wafting of cigarette smoke etc. · How does private nuisance differ from trespass? Much broader in terms of activities it covers o Extends beyond physical interferences o Includes acts that are indirect - eg something falling from one's property onto another's action in private nuisance. Compare with public nuisance - an interference with the enjoyment of a right to which all members of the public are entitled, or an activity which endangers the health, safety, comfort or property of the public (Walsh v Ervin) private remedy only available if suffered beyond the public generally, otherwise must be brought by the AG on behalf of the public. In this case two farmers had a road between the property. P had to use the road to get to the other property. D, neighbour, started fencing and blocked off part of the property between the P's properties. Brought an action in public and private nuisance. Held, the plaintiff had suffered interference with access to his private property as well as interference with the public right to use the road standing to sue because more inconvenienced from being unable to use the road as compared to other members of the public.

Fearn & Others v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104

· Appealed earlier this year · Involving overlooking from the Tate modern gallery in London. Viewing platform on 10th floor with panoramic views of London, including view of a luxury apartment building, owned by the P's in this case. · The viewing platform was open to all of the public who visited the Tate. P's claimed that the visitors could see directly into the apartment, and were using binoculars to look into the apartments, taking photos of what was happing in the apartments. Sought an injunction. · Held, mere overlooking is not capable of giving rise to a cause of action in private nuisance, and that was all it was - there were things they could do - curtains, blinds, to prevent people from looking in. consistent with Victoria Park Racing.

Campomar Sociedad Ltd v Nike International Ltd (2000) 202 CLR 45 - add more notes

· Campomar began selling a sports fragrance in Australia labelled 'NIKE SPORTS FRAGRANCE' in pharmacies with other sports fragrances sold under the names of other sportswear companies · Campomar had a trade mark registration for 'NIKE' with respect to perfume products · Nike International (the sportswear company) alleged that the promotion would cause confustion to the public, and mislead them to think that they were involved in the promotion or distribution of the product · Issue: Did the marketing of the product mislead or deceive the public that Nike had promoted or distributed the product? · Held, was misleading /deceptive - the placing of the product in the same area of the pharmacy with other sports fragrances was likely to mislead the public that it was a NIKe international product · 'where the persons in questions are not identified as representation has been made or from whom a proposal was withheld, but are members of a class of public to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion, a representative member of that class.' · For a representation that is made to the public or a class of public, regard must be had to the ordinary reasonable members of the class of prospective persons to whom the conduct is directed, taking into account the characteristics of that class of persons...Such a hypothetical individual would be someone who would not react in a way that was extreme or fanciful.

Damage by aircraft - statutes - add notes**

· Commonwealth: Damage by Aircraft Act 1999 o When does it apply? See s 9 - application of Act o When does liability arise? See s 10 - 'impact' and 'material loss, damage or destruction' o ACT v Cook - injured when a plane landed in his paddock after getting caught in wires. Impact - he didn't actually touch the aircraft or wires, some sort of electrical arc that led to him being electrocuted. HC found that there was, even though an arc, sufficient impact bc the injury resulted from the impact of the plane itself. · NSW: Civil Liability Act 2002 o When does it apply? Note s 109 of the Australian Constitution - commonwealth always prevails - in PQ, always start with the commonwealth act. Move to state act if commonwealth didn't apply. o When does liability arise? See s 73 - 'material loss or damage' - statutory defence for the tort of trespass to land and private nuisance. Concerned with the separate statutory action of damage by aircraft. Requires material loss or damage, has to occur or be suffered as a result of something falling from an aircraft, or an aircraft taking off or landing. Only if none of the commonwealth acts apply - eg doesn't involve a corporation.

Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 - NB Add more from text book

· Taco Bell operated a business known as 'Taco Bell's Casa' in Bondi · The business had operated under that name since 1976 and similar names (such as Taco Bill's) since 1970 · In 1981 Taco Company of Australia (TCA), owned by the US giant that operates Taco Bell in the US, opened two 'Taco Bell' restaurants in Sydney · Alleged that breach of s 52 of Trade Practices Act, and Australian company argued the other way around. · Issue: Did TCA engage in conduct that was 'misleading or deceptive' under the Act? · Held misleading or deceptive, the Bondi taco bell was already well-established. Dean and Fitzgerald JJ: 'ordinarily a tendency to cause confusion or uncertainty will not suffice - q cannot be substituted for whether the statutory description..... · Process to determine whether the conduct was misleading or deceptive

Trespass to land: Defences

· Consent by occupier - express or implied (within limits): Halliday v Nevill: person entering becomes licencee, can be revoked, provided the licencee has a reasonable opportunity to leave. Can also be implied by words or conduct - police arrested someone driving out of his driveway - no locked gate, unobstructed, so implied licence. · Statutory authority - 'statutory authority to engage in what otherwise would be tortious conduct must be clearly expressed in unmistakable and unambiguous language' - Coco v The Queen (Mason CJ) - entry onto someones land can be authorised by statute, even if the person would not consent to the entry herself. Coco v Queen - judge approved listening advice, but no statutory authority for the police to enter the property - Mason CJ - 'statutory authority to engage in what would otherwise be tortious conduct must be clearly expressed in unmistakeable and unambiguous language. · Necessity - limited defence - typically used for an urgent situation of imminent danger. Urgent situation rather than a long-term problem. · If aerial trespass, consider Civil Liability Act 2002 (NSW) s 72

Finder v Occupier

· Consider where the goods are found o On public spaces o In or under private property - see eg, Chairman, National Crime Authority v Flack; South Staffordshire Water Co v Sharman - workers cleaning a pool on a private residential property, worker found 2 gold rings in mud, lodged at the bottom of the pool, and the occupier of the land sued for detinue to get the gold rings back and they succeeded, held them to be in possession of the rings. · On a public part of private property - semi or quasi-public place, consider whether the occupier has 'manifested an intention to control everything on that property': Parker v British Airways · Note that a trespasser on land will not acquire any rights in respect of goods found on that land: Hibbert v McKiernan

Remedies: for interference with goods

· Damages - Basic principles of tort compensation apply (Butler v Egg Marketing Board) ie had the tort not been committed. o If P is deprived of the goods, can recover full value of goods at date of the tort (conversion, trespass) or at date of the judgment (detinue) o If goods are damaged, measure of damages is the actual loss suffered in consequence of the tort · Injunction - see eg, Model Dairy v White - case similar to Penfold, involved the owner of a dairy intentionally using branded bottles of the P, for the supply of her own milt to customers conversion. P's successfully got an injunction. If unrestrained, the D would still continue to use the bottles to a considerable extent. cf to Penfold: where the majority found no substantial dealing in the bottles with Elliot, and they only got nominal damages. · Return (specific restitution) of goods o Usual remedy for detinue o Where an award of damages would be inadequate and goods are unique for conversion eg a family heirloom · NB Contributory negligence is no defence to any of these intentional torts - Bank of China case

Redgrave v Hurd (1881) 20 Ch D 1

· During negotiations for the sale of his law practice, Redgrave represented that the practice brought in approximately £300 p.a. and produced supporting documents · Hurd could see from these documents that the practice was worth only £200 p.a. · When Hurd inquired about the difference in revenue, Redgrave produced more documents which Hurd did not inspect · These documents showed that the business was worth almost nothing, as Hurd discovered when he took over the business · Issue: Did Hurd's opportunity to inspect the documents prevent him from relying on the misrepresentation? · No, Hurd's opportunity to inspect did not prevent proof of reliance on an innocent misrepresentation. · Held at 13-14"If a man is induced to enter into a contract by a false representation it is not sufficient to answer him to say, 'if you had used due diligence you would have found out that the statement was untrue. You had the means afforded you of discovering its falsity and did not choose to avail yourself of them'... Nothing can be plainer ... on the authorities in equity than that the effect of false representations is not got rid of on the ground that the person to whom it was made has been guilty of negligence..." favourable to the representee · Failure to investigate does not prevent the misled party from asserting misrepresentation. · Statement must be calculated to induce, and would influence a reasonable person.

Holmes v Jones (1907) 4 CLR 1692

· During negotiations to sell a cattle station, the seller made a false statement in a letter as to the number of cattle on the property The purchasers sent their agent to inspect the property before its purchase, where they discovered the true number of cattle, and contracted on that basis Issue: Had the purchasers relied on the false statement contained in the seller's letter? No, the sellers were able the discharge the onus of proof because the purchasers were able to inspect the property before its purchase - where they discovered the true number of cattle, and they relied on that agent's report and they ended up contracting on that basis. Further, when a purchaser chooses to rely on his judgement or that of his agent, he cannot say that he relied on a previous representation by the seller.

Cth v Amann Aviation Pty Ltd (1991) 174 CLR 64- assessment of damages for wasted expenditure

· Facts: Amann incurred substantial expenses (e.g >$5M on aircraft, with resale value of < $1M) to perform services under its 3 year contract with Cth to provide aerial surveillance of Australia's northern coastline. Amann commenced flights when required, but not all of its aircraft were contractually compliant, and on this basis, the Cth purported to terminate the contract by serving amann with a notice of termination. Amann claimed this termination was wrongful (because it did not comply with the notice procedure required under the contract) and sought damages. · Issue: 1. If Amann had not terminated and the contract remained on foot, there was a chance (20%) that the Cth would have validly terminate at some stage during the remaining 3 years. More significantly the contract appeared to be a losing contract for amann and contained no right of renewal.

Possession and Finding

· The court is concerned with the respective rights of the parties to the dispute, not with the rights of third parties (jus tertii) which of the parties has the better right to the goods found. · Relevance of tort law to finding? May be criminal law implications larceny by finding · General rule - a finder acquires superior title against all but the true owner (Armory v Delamirie), but note exceptions: person may obtain a better title than the finder o finder (employee) v employer o finder v occupier of property

White & Carter Councils Ltd v McGregor [1962] AC 413

· Facts: Appellants agreed to attach plates to bins advertising the respondents' garage business over a period of 3 years. The respondents repudiated the contract on the same day it was made but the appellants nevertheless prepared the plates, displayed them for a period, and sought the full amount due under the contract, claiming the advantage of an accelerated time provision. · Issue: If D repudiates contract, can P elect to affirm the contract, perform remaining obligations and seek the contract price as a debt? · Held: The house of lords upheld the claimants' action for the agreed sum following its decision to affirm the contract in the face of the other party's repudiation. Significantly, however, this ability is subject to 2 important restrictions: 1. P must be able to perform obligations without D's co-operation 2. P must have a legitimate interest in pursuing this course of action · What is meant by a 'legitimate interest in this context? 1. A source of continuing controversy in English law since White & Carter was decided for two main reasons 2. (1) uncertainty regarding the nature of this restriction - is it a restriction on the promisee's right to affirm the contract or on the promisee's right to recover the contract price? (probably the former). (2) Precise meaning of legitimate interest is unclear - one suggestion, made by Liu is that it is concerned with whether the wastefulness of the promisee's continued performance outweighs that party's interest in earning the contract price.

Bellgrove v Eldridge (1954) 90 CLR 613 - Defective Building Work

· Facts: B contract with E to construct a two-storey villa. Contract price was 3,500 (pounds). Substantial defects were found in foundations and in the mortar used in the walls. The trial judge awarded damages of 4,950 pounds on a 'reinstatement basis', that is, on the basis that the plaintiff was entitled to the cost of rectifying the defects. The sum included the cost of demolishing and reconstructing the building. · Issue: was this the correct basis upon which damages were to be assessed? · Held per Dixon and Fullagar JJ: The cost of repairs will be awarded where the work is both necessary to produce conformity and reasonable course for the plaintiff to adopt. Both conditions satisfied here so the trail judge's award was upheld. Question: Is an intention to carry out repairs necessary? Se Ruxley Electronics v Forsyth [1996] AC 344 where a claim for the cost of demolishing and rebuilding a swimming pool was denied because it was unreasonable, with the effect that the trial judge's award of 2,5000 pounds for loss of amenity was reinstated.

Shevill v Builders Licensing Board (1982) 149 CLR 620

· Facts: BLB leased property to a company STS&S, Shevill was guranator of the company's obligations. A clause in the lease allowed BLB to terminate the lease and retake possession if rent remained unpaid for 14 days. STS&S was often behind in paying the rent. When two months' rent was outstanding BLB terminated the lease. · Issue: Could B claim damages for loss of the bargain, that is, the rent to fall due in the future, less the amount obtained by the lessor through re-letting the premises? Held: No, the loss of the bargain was caused by the decision to terminate rather than aserious breach (compare termination under common law principles).

Clark v Macourt [2013] HCA 56 - Expectation Damages for Breach of Warranty

· Facts: Both Clark and Macourt were registered medical practitioners operating fertility clinics providing Assisted Reproductive Technology (ART) services. They were both bound by ethical guidelines prohibiting commercial trading in gametes or embryos and paying donors of gametes or embryos beyond reasonable expenses. In 2002, Macourt agreed via deed to sell Clark its ART practice along with certain assets or attached to the practice for a price to be calculated by reference to a formula based on C's income in the years following the sale. The assets included 3,513 straws of frozen sperm - Maccourt provided a warranty that the identification of sperm donors complied with certain guidelines that required donors to be properly identified. Due to certain breaches of these guidelines in combination with the 'family limit rule' in 9.14 it was held that Clark was effectively deprived of 1,996 usable straws. · Held: Clark was unable to purchase replacement sperm in Australia complying with the relevant guidelines and that, on the evidence available, the cost of purchasing replacement sperm at the date of breach via an American supplier was approx. AU $1.02 million. From the time Clark bought replacement sperm and charged each patient a fee that substantially covered her costs. When clark refused to pay the due outstanding balance - St George sued - Clark counter claimed seeking damages for warranty. Macourt was found liable and ordered to pay the cost of replacement at the date of breach which was found to be AU $1.02 Million - after this decision was reversed by the NSWCA clark successfully appealed to the HC who reinstated the initial decision. · HC's Finding: 1. Focus on characterising the deed as a K for the sale of assets of a business was misplaced - 2. The NSWCA erred in holding that any loss initially suffered by clark due to St George's breach was fully mitigated because she recovered her expenditure on the Xytex stock from her patients in the course of providing ART treatments in the period between the contract's completion and trial. 3. Rejected the argument that Clark's award was subject to a discount for betterment on the basis that Xytex's sperm was superior to that which would have been supplied has St George complied with the K.

Baltic Shipping Co v Dillon - Injured Feelings

· Facts: D booked pleasure cruise on the Mikhail Lermontov. Vessel sank a little over halfway through the voyage. D claimed return of the fare (restitution for failure of consideration?) AND damages for, inter alia 1. Lost property 2. Disappointment and distress; 3. Personal Injury (including emotional trauma) · Issue: was she entitled to damages for (2)? Held: Yes, since purpose of the K was the provision of a holiday.

Alexander v Cambridge Credit Corporation Ltd (1987) 9 NSWLR 310

· Facts: Due to a breach of their contractual duty of care, auditors of CCC overstated the value of the company's assets. If the asses had been properly value, CCC would have been put into receivership in 1971, but continued trading until 1974. If the company had gone into receivership in 1971, its losses were $155 million. The claim was for the difference. · Held: · McHugh JA: o Focused on common sense the auditor's negligence was sufficiently superseded in potency by supervening events as to not be a (legal) cause. o Also found that the loss was "too remote" b/c the loss CCC suffered between 1973-74 was not of a kind which the parties would have contemplated as being a serious possibility...in 1970. (Koufos standard applied). · Mahoney JA: o Questioned the usefulness of the 'but for' test of causation - in any event, found that "allowing a co. to remain in existence does not, without more, cause losses form dangers incidental to mere existence. · Glass JA (in dissent): o Auditor's negligence was a common-sense cause b/c it was a 'but for' cause. Losses also no too remote b/c auditors were aware that decisions regarding receivership depended on their findings and that failure to close the co. down where there was a breach of the relevant rations created a serious possibility that market movements would cause serious losses.

British Westinghouse v Underground Electric Railways Co - Mitigation

· Facts: In 1902, LU enterd into $250,00 K with BW for the purchase of 8 steam turbines for electricity generation. Turbines were defective, requiring significantly more coal than they should have had to run. In using the machines over the 6 years, LU spent approx.. $43,000 more on coal than what was necessary. In 1908 LU purchased and installed new turbines at an estimate cost of $78,186. These machines were so efficient that even if BWs original turbines had complied with the contractual specifications, it still would have been cheaper for LU to replace BWs machines with the parsons machines as soon as the latter became available on the market. When BW claimed the unpaid balance, LU counterclaimed for an award assessed by reference to the additional costs incurred over the period in which it had used BWs machines before replacing them (that is, the cost of the extra coal and other expenses), plus the cost of purchasing the Parsons machines. Held: LUS' entitlement to the former sum was undisputed by the House of Lords refused to award the latter amount. However, there is uncertainty as to why. Viscount Haldone said - subsequent transactions will be taken into account to reduce the damages recoverable only if they arise out of the consequences of the breach and in the ordinary course of business.

Tabcorp Holdings Ltd v Bowen Investments Pty Ltd [2009] HCA 8

· Facts: In breach of covenant, the tenant under a commercial lease (tabcorp) substantially altered/destroyed the recently refurbished foyer of commercial premises owned by the landlord (Bowen). Despite being requested to stop these alterations, the tenant persisted with the refurbishment, apparently assuming that their alterations would cause little, if any, diminution in the value of the reversion. · Held: The basic principle from Bellgrove was correct. The clause breached was an express negative covenant capable of grounding injunctive relief if the tenant's contumelious disregard for the landlord's rights had not prevented this possibility. A reinstatement award was reasonable in the circumstances

McRaw v Commonwealth Disposals Commission (1950) 84 CLR 377 - assessment of damages for wasted expenditure

· Facts: Sale of oil tanker lying on reef. No tanker actually existed. M paid $285 and then incurred costs in an expedition to locate and salvage the vessel (total incurred was about $756). Claimed a substantial sum as 'expectation' damages based on what profit they hoped to make from finding the tanker and, in the alternative, damages for their wasted expenditure. · Issue: Was this wasted expenditure recoverable? Held: Yes, but why? Because it was simply impossible to calculate and award on an expectation basis.

Misrepresentation - element 1: A false statement of a present fact

· Generally limited to statements that are true or false at the time they are made eg I say the revenue of my business is $1 bn - can be verified at the time it was made. · Excludes: misstatements as to future matters, opinions, puff, and misstatements of law · However, it may be possible to say that a representation as to one of these excluded matters contains an implied representation as to a present fact, by showing either: 1. that the representor honestly holds the view expressed (representee must show that the representor did not have an honest belief - ie very difficult to prove); or 2. that the representor has reasonable grounds for holding that view (representee must show that there were no reasonable grounds - easier to prove bc can be based on data/evidence) · Typically there will be a positive statement or conduct by the representor to the representee - eg a word, a nod or a wink. · Can someone engage in misrepresentation through silence? Should they be obliged to disclose information in the other party's interest - eg should a vendor say what the flaws are in a product o Cicero's answer - only a 'shifty, deep, artful, treacherous, malevolent, underhand, sly, habitual rogue' would conceal such information o Common law answer - caveat emptor (buyer beware), but note exceptions: 1. half-truths - one representation of fact, but failure to disclose something else - so overall impression is misleading. Telling a half-truth that creates a misleading impression misrepresentation. 2. failure to correct statement that becomes false - facts change from when representation was made, and when it is acted upon: With v O'Flanagan - involved a sale of a medical practice - during negotiations for sale, O'Flanagan represented that the shop brought in $15000 per annum and that it had x patients. True at the time, but ceased to be true when the contract was entered into beause he had been absent due to sickness when he was away. Patients went down. Issue: whether purchaser was entitled to rescind the contract when he discovered these facts immediately after the purchase. The court said that he was. If a person who has made a repression that is not immediately acted upon finds that the facts have changed, that person must disclose the change to the represeentee before the representation is acted upon - he did not do it before it was purchased. the accuracy of the statement is assessed at the time of contract rather than time of statement. 3. contracts of utmost good faith (eg insurance contracts) - not examinable

Cavendish Square Holding BV v Talal El-Makdessi; Parking Eye limited v Beavis [2015] UKSC 67

· Held: The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dundedin's four tests would usually be perfectly adequate to determine its validity. BUT compensation is not necessarily the only legitimate interest that the innocent party may have in the performance of the defendant's primary obligations.

ALC s 18 - Contributory Negligence

· If a person making a claim under s 236 (caused by a contravention of s 18) has suffered loss or damage partly as a result of his/her own failure to take reasonable care, the damages recovered are 'to be reduced to the extent which a court thinks just and equitable having regard to the claimant's share in the responsibility for the loss or damage' · Note that there are no equivalent provisions in State or Territory fair trading acts - case of Perpetual Trustee company - court noted that the fair trading act did not contain a comparable provision providing a defence to misleading or deceptive conduct. · Proportionate liability regime applies to s 18 claims.

ALC Remedies - Injunction & other orders

· Injunction (ACL s 232): An order mandating or prohibiting the doing of a particular act · General power to make any other orders court thinks appropriate to compensate, prevent or reduce actual or likely loss or damage (ACL ss 237-245) · Can include orders o declaring a contract void o varying a contract o directing refund of money or return of property o directing repair of goods or supply of services o for payment of compensation

Remedies for private nuisance

· Injunctions - an 'equitable' remedy to restrain continuance of the nuisance · Equitable damages - generally awarded in lieu of an injunction with respect to future damage: Shelfer v City of London Electric Lighting Co, as opposed to CL damages for a past damage. can be awarded where 1. The interference with legal rights is small, 2. Capable of being compensated by a small monetary compensation. 3. Oppressive for the D to grant an injunction. In that case the D said he would pay for the damage if he could keep what he was doing. Court said, he cannot commit a nuisance if an injunction is warranted. Strict conditions for equitable damages in lieu of an injunction. · If no basis for seeking an injunction, equitable damages would not be available: Supreme Court Act 1970 (NSW) s 68 · Common law damages - available in respect of past interference with the land's 'amenity value' during the period for which the nuisance persisted: Hunter v Canary Wharf Ltd - for loss already suffered. Where the nuisance has affected the value of the P's property, the reduction in value provides the primary value of damages. CF where the defendant has interfered with the P's use or enjoyment without diminishing the market value P can only recover for loss of amenity/enjoyment. As in the tort of negligence, damages only available for damages which they ought not to have reasonably avoided? Tweed Shire Council.

unreasonable interference and rights to privacy:

· Is there a right not to be overlooked? · '[T]he natural rights of an occupier do not include freedom from the view and inspection of neighbouring occupiers or other persons who enable them to overlook the premises' - Victoria Park Racing and Recreation Grounds v Taylor (Dixon J) · See also: Fearn & Others v The Board of Trustees of the Tate Gallery [2020] EWCA Civ 104 · But see: Raciti v Hughes - 'watching and besetting' - creepy neighbour, ended up installing floodlights in order to illuminate the plaintiff's backyard, so every time the P's went into their backyard, the floodlights would shine on them, and the D had a video set up where he was conducting some sort of surveillance on them. P's sued in private nuisance. Held Young J: [14839]'the lights are automatically switched on by noise or movement on the plaintiff's land the plaintiff's are suffering real health problems as a result of the continued illumination of their land a nuisance. ...and secondly, 'there is a deliberate attempt to snoop on the privacy of a neighbour and to record that on video tape...the surveillance and accompanying recording by video camera of what occurs in the plaintiff's backyard gets sufficiently close to watching and besetting actionable nuisance.' [14841]. Different to the other cases, higher level than mere snooping. · Is there a tort of invasion of privacy in Australian law? Victoria Park racing Latham CJ, said there isn't, but in ABC v Lenah Game Meats...HC noted that a tort of invasion of privacy could still be developed, some room for it, and lower court support, but hasn't happened yet.

Parramatta City Council v Lutz (1988) 12 NSWLR 293

· Mrs L lived in a weatherboard cottage which she had purchased Next door was an abandoned weatherboard property, which Mrs L was concerned was a fire risk Mrs L went to the council a number of times and drew their attention to the issue The council said they would ensure that the house next door was not a danger to her property, but nothing was done The house next door burned down and Mrs L's house caught fire. She successfully sued the council for negligence Issue: What damages was Mrs L entitled to? Reinstatement costs of rebuilding her house, or decrease in value to her property Council argued that the house was worthless, and that there was no decrease in the value of her property. She argued that it was her house to live in, so it was worth something to her. Court assessed damages based on the reinstatement costs of rebuilding her house, not just the reduction in the property value, which in fact was negligible. Ie nice result for her. Kirby P: 'the object is to restore the plaintiff to the position in which they would have been placed if the wrongful act had not been committed.'...'Lutz was entitled to recover the reasonable cost of reinstatement of her home. Taking into account her personal circumstances, her desire to have the home in which she as living reinstated is not unreasonable, excessive nor extravagant...restoring it is the only she could be reinstated in the position she would have been in had she not suffered loss.' [311]

Misrepresentation: Element 2: Statement induces entry into a contract

· Requires an intention to induce the representee who then relied on the statementAn opportunity to verify the facts does not prevent proof of reliance: Redgrave v Hurd: Onus of proof is generally on the representee, but where a fraudulent statement is made that is calculated to induce the representee to enter into a contract, then inducement will be presumed (subject to the representor showing that the representee did not rely on the statement): Holmes v Jones

Victoria Laundry (Windsor) Ltd v Newman Industries LTD [1949] 2 KB (case about Hadley's second limb):

· Sale of a boiler to launderers and dyers · Buyers told sellers that they intended to put the boiler to use in the shortest possible time. · Delivery was delayed by almost five months · Buyer claimed for lost profits of two kinds: 1. Ordinary business during that period 2. Extraordinary profits lost due to being unable to accept new particularly lucrative (post-war) contracts from UK govt. · Held Ordinary profits recoverable but not the profits lost by failing to be able to perform the exceptionally lucrative govt contracts sine this loss was not within sellers' reasonable contemplation.

Defences for Private Nuisance

· Statutory authority is the key defence, but limited o Once the plaintiff has established the nuisance, the defendant must then show that the interference with the plaintiff's use or enjoyment of the land is the 'inevitable result' of the activity authorised by statute: Allen v Gulf Oil Refining Ltd -the nuisance was inevitable in the sense that it would not be avoided by the D taking reasonable care. · 'Coming to the nuisance' is no defence: Campbelltown Golf Club Ltd v Winton - means there is no defence for the D, that the P acquired his or her land with knowledge of the existence of the private nuisance. McPherson JA: 'if an occupier of land permits a nuisance to be conducted on its land on which it knows or ought to know, it becomes liable for that nuisance and its potentially harmful consequences to others from the time at which it acquired that knowledge or ought to have done so' - re gold balls (from the golf club) hitting property of plaintiff.' [65,956] · Consider Civil Liability Act 2002 (NSW) s 72 - trespass or nuisance by aircraft - no action for height above the ground that is reasonable, so long as air navigation regulations are complied with. Only defence if the height was reasonable in the circumstance.

Christie v Davey (1893) 1 Ch 316

· The defendant's letter: "During this week we have been much disturbed by what I at first thought were the howlings of your dog, and, knowing from experience that this sort of thing could not be helped, I put up with the annoyance. But, the noise recurring at a comparatively early hour this morning, I find I have been quite mistaken, and that it is the frantic effort of some one trying to sing with piano accompaniment, and during the day we are treated by way of variety to dreadful scrapings on a violin, with accompaniments. If the accompaniments are intended to drown the vocal shrieks or teased catgut vibrations, I can assure you it is a failure, for they do not. I am at last compelled to complain, for I cannot carry on my profession with this constant thump, thump, scrape, scrape, and shriek, shriek, constantly in my ears. It may be a pleasure or source of profit to you, but to me and mine it is a confounded nuisance and pecuniary loss, and, if allowed to continue, it must most seriously affect our health and comfort... If it is not discontinued I shall be compelled to take very serious notice of it. It may be fine sport to yon, but it is almost death to yours truly." · When he didn't get a response, he decided to take matters into his own hands. So every time the music was played, he started banding on the walls, shrieking loudly, why the P was the music teacher - she said all of this incredible noise in response to music was a nuisance. Court agreed, and said it was due to the malicious intent of the D.

Trespass to land element 1: direct interference

· The interference to the land must be direct · Recall the general distinction between trespass (result of directly caused damage) and the action on the case (result of indirectly caused damage) · Examples? Southport Corp v Esso Petroleum Co - Esso owned a stranded oil tanker - deliberately floated oil through an estuary onto southport shore - S sued for trespass, wasn't a trespass because Esso didn't directly charge oil onto the shore - it was taken by the shore, thus not a trespass. "In order to support an action for trespass to land the act done by the defendant must be a physical act done by him directly on to the plaintiff's land." (Denning LJ) · Note also a 'continuing trespass'

Misrepresentation - remedies

· The only remedy available for an innocent misrepresentation is rescission · Where a misrepresentation is accompanied by fault there is, in addition to rescission, the prospect of damages in tort o Tort of deceit for fraudulent misrepresentation - The person who made the statement must know the statement is untrue, or be reckless as to the truth: Derry v Peek o Tort of negligence for negligent misstatement - The person who made the statement must owe and breach a duty to take reasonable care as to the accuracy of information provided

Bases of liability in Private Nuisance

· The person who creates the nuisance: Fennel v Robson Excavations - until it is removed or come to an end - in that case it was an excavation - contractor working on property owned by a developer, was meant to build a retaining wall - neighbours wall started to collapse - nuisance against the excavator, held, the D was liable as the creator of the nuisance, even though he had never been in occupation or possession of the property where the excavation was done. 'a person who erects a nuisance, whether he be the occupier of the land, or a contractor, or servant acting on behalf of the occupier, incurs personal responsibility for it'[491] Glass JA. Even, per Mahoney JA 'where a nuisance has been caused by a person acting, not for his own benefit, but for that of one in possession of the land from which the nuisance emanates, that person is liable...and remains liable even though he has ceased to act for him who is in possession of the land. · Is fault necessary? o No for 'misfeasance' (a wrongful activity) - liability is strict if the nuisance is created by action or activities - exercise of reasonable care not sufficient to excuse them from liability: Fennel v Robson Excavations o Yes for 'non-feasance' (an omission or failure to act) - liability is fault-based if the nuisance arises out of inaction: Goldman v Hargrave - the D was an elderly man who lived alone on a grazing property - notified that a tree was struck by lightning and had caught on fire, days later, a log that was still smouldering caught fire, that started a bushfire that burnt the neighbours property. Sued by neighbour held, he was liable if he knew the nuisance existed, and failed through his own inaction or negligence, to being that nuisance to an end. · Is an occupier of land from which a nuisance emanates liable if it was created by others? o A trespasser - occupier will be liable if she 'adopts' or 'continues' the nuisance: if the occupier with actual or constructive knowledge, fails to take reasonable prompt and effective steps to bring the nuisance to an end Sedleigh Denfield v O'Callaghan o A licensee - licensor will be liable if she negligently fails to bring it to an end: Challen v McLeod Country Club - needs actual or constructive knowledge. o A lessee - 'lessor will only be liable only if she authorised the nuisance or if it was certain to result from the purpose for which the land was leased' [587]: Peden Pty Ltd v Bortolazzo :'an occupier of land commits a nuisance if, with knowledge or presumed knowledge of a nuisance initially committed by another, the occupier fails to take reasonable means to end a nuisance within a reasonable time.' (McMurdo P and Philippides JJ [581]. 'the general rule is that one person is under no duty to control another person to prevent doing damage to a third a lessor will not ordinarily be liable for a nuisance created by the tenant, and is under no obligation to put an end to the tenancy when he or she discovers that a tenant is creating a nuisance. · Liability for a nuisance arising from an act or state of nature - not sufficient to excuse an occupier from liability: Goldman v Hargrave - where tree struck by lightning - didn't put the fire out successfully. D who owned the property liable for failing to put out the fire.

Victoria Park Racing and Recreation Grounds Co v Taylor (1937) 58 CLR 479

· The plaintiff owned and operated a racecourse · The defendant lived near the racecourse. He put up a platform in his garden and broadcast contemporaneous reports of the races on radio · Attendance at the races dropped as a result of the live radio broadcast and the plaintiff lost profits · Issue: Did the 'overlooking' constitute private nuisance? · The D's action did not nuisance because it affected only the plaintiff's business activities and not their use or enjoyment of the land. · Latham CJ: 'the racecourse was as suitable as ever for use as a racecourse, what the defendants do does not interfere with the races, nor does it interfere with the comfort or enjoyment of any person who is on the racecourse' [494]. · Dixon J 'the natural rights of an occupier do not include freedom from the view and section of neighbouring occupiers who enable them to overlook the premises.'[507] No right in law not to be merely overlooked.

Tort liability for Interference with Goods: title to sue

· Title to sue depends on the plaintiff's 'interest' in the goods: o Ownership of the goods - may or may not have the goods in their possession, and if not in possession bailment situation o Actual possession of the goods at the time of the tort - has the goods, may or may not own the goods. Does not have to be physically in their position, but still actual eg of a book. o An immediate right to possession of the goods - with or without actual possession - eg can lend a textbook eg I have Suse's book (actual), she has immediate right. o Reversionary rights to possession of the goods - eg where a car is leased on hire purchase, owner has reversionary rights in the car. · Title to sue is determined at the date of the tort

Halliday v Nevill (1984) 155 CLR 1

· Two police officers saw a man known to be a disqualified driver reversing out of the driveway of a house · The driver saw them and drove back into the driveway, whereupon the police officers walked up the driveway and arrested him · Issue: Were the police officers trespassers on the property at the time of the arrest? · Held, Nevill had an implied licence from the occupier of the premises to be upon the driveway. [6]...whether an occupier of land has granted a licence to another to enter upon it is a q of fact [7]]...such a licence will...be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or revoked. · Held, 'if the pathway or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorised, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house' [7]. · Implied bc the driveway was open, unobstructed, no gate, no lock, no notice prohibiting entry. No matter that the owner may not subjectively intended to induce entry. Law will imply a licence for public to go upon a path or driveway for the purpose of lawful communication or delivery to any person in that house. Permissible to walk up and open a path or driveway

XL Petroleum (NSW) v Caltex Oil - HCA - trespass to land remedies

· What is the purpose of an award of exemplary damages? · When are they appropriate? · How does the court determine an appropriate amount for an award of exemplary damages? · Bibbs CJ Held at [462-3], 'in deciding to what extend Caltex should be punished for its invasion of XL's rights, the nature of those rights and the ability of the plaintiff to benefit from their exercise are matters properly to be considered....need to point to the risk that exemplary damages might amount to a punishment greater than would be likely to be imposed if the conduct were criminal, and juries should display restraint in making an award.'

Trespass to land - title to sue

· What title is required? Actual and exclusive possession of the land at the time of interference. · What constitutes actual and exclusive possession? See Newington v Windeyer · Consider: o A tenant (lesee)? See Rodrigues v Ufton While typically the owner has the exclusive right, if it has been leased, the tenant has the right of exclusive possession for the duration of the lease. Trespass to leased property - the tenant is the possessor. The occupier is the only person with title to sue for trespass [543 - Hodges J]. o A licensee? See Kaye v Robertson - guest who is a patient in a hospital for a limited time. Licencees can enter the property for a purpose but they cant exclude others, they are not occupiers. K was an actor who had a car accident coma photographers took photos of him - no action in trespass because K was a mere licencee in the hospital - no action for trespass in that situation. o A squatter? What if the person in possession of the land is a squatter? Even if they have wrongfully taken possession of it. Newington - didn't own or lease, but had de facto, no defence that the plaintiffs were in wrongful possession. - because that would still have given the plaintiffs better title than she had.

Trespass to land element 2: unauthorised or unlawful

· When is a person a trespasser? See Public Transport Commission of NSW v Perry : Ms Perry got a ticket to travel on a train, was standing on platform and had an epileptic fit, collapsed onto tracks and the train hit and injured her. Sued them for driver's negligence. Argued no duty was owed because she was a trespassor - HC Held, she was not a trespassor, was a lawful entrant by ticket and didn't go onto the tracks voluntarily. · Consider authority to enter land - express or implied: Halliday v Nevill; Coco v The Queen: judge has approved the use of a listening device in Mr Coco's home under a QLD statute, police planted the listening devise and collected evidence to later convict him of a bribery offence. He alleged the planting of the device was a trespass and was illegally obtained evidence. HC held, it was even though there was an order approving it, it did not validly authorise entry under the statute, no permission to plant the device, thus the evidence had been obtained illegally, so his conviction was quashed. 'every unauthorised entry upon private property is a trespass, the right of a person in possession or entitled to possession of premises to exclude others from those premises being a fundamental common law right [435]...the instillation of the listening devive in the [private factory] premises...infringed the fundamental right of a person to exclude others from his or her property.'[438]. o Limits - does not extend to unauthorised conduct: TCN Channel Nine v Anning · A grey area: What if one enters with consent or for a lawful purpose but then breaches a condition of entry? Does the person then become a trespasser or only when asked to leave?

Finder (employee) v Employer

· Where goods are found by the employee 'in the course of employment' (rather than incidentally), the employer will acquire a finder's title: See eg, Willey v Synan (1937) 57 CLR 200 - a bag of concealed silver coins on a ship by a crewmember searching for stowaways, the crewmember only came into possession of the coins as his masters agent. No right to the coins, they were the employer's · However, if the employment merely provides the 'occasion' for the finding but is not regarded as its 'effective cause', the employee will have better rights to the goods: See eg, Byrne v Hoare [1965] Qd R 135 - an on duty policeman found a gold nugget near the public entrance of a drive in cinema - claimed that they should have the gold because the policeman was on duty. Held, even though he was on duty, he wasn't conducting a search when he found it, simply walking on a path so any member of the public could have found it. The fact that he found it was merely incidental. While the employment provided the occasion, not regarded as the effective cause entitled to keep the gold.

s 18 Element: 'misleading or deceptive'

· Whether conduct is misleading or deceptive is a factual issue · Intended to protect 'the inexperienced as well as the experienced, and the gullible as well as the astute', though not those who fail to take reasonable care of their own interests: Parkdale Custom Built Furniture v Puxu: Gibbs J - intended to protect the gullible and the astute, though not those who fail to take reasonable care of their own interests. Not confined to conduct that is intended to deceive or mislead - no need to prove fault, intention or negligence, it is a strict liability provision. · Not confined to conduct that is intended to mislead or deceive, or that involves a failure to take reasonable care: Hornsby Building Information Centre v Sydney Building Information Centre: Stephen J: the section should be understood as meaning precisely what it says and involving no questions of intent upon the parties/part of the corporation whose conduct is in q. not necessary to prove intention or that a person was actually mislead or deceived. Can be persuasive · 'Conduct is misleading or deceptive if it leads a person into error, though not if it merely causes them to wonder about something': Henjo Investments v Collins Marrickville · Process: Consider the audience to whom the conduct was directed: the public or a class of the public; or particular individual(s) o If class of the public: 'it is necessary to isolate by some criterion a representative member of that class' and ask whether that 'reasonable' hypothetical member would be misled or deceived? Campomar Sociedad Ltd v Nike International Ltd o If individual: Consider the character of the particular conduct in relation to the particular individual 'bearing in mind what matters of fact each knew about the other as a result of the nature of their dealings and the conversations between them' - Butcher v Lachlan Elder Realty Pty Ltd objective and subjective elements - subjective circumstances objective assessment as to whether a reasonable person would have been mislead. Appropriate where plaintiff alleges that it as made to identified persons where he or she is one.

Parker v British Airways Board [1982] QB 1004

· While waiting for a flight, Mr Parker found a gold bracelet on the floor of the British Airways executive lounge at Heathrow airport He handed the bracelet in to British Airways, gave his name and address, and requested that it be returned to him if not claimed by the owner The bracelet was not claimed, but BA did not return it to Mr P and instead sold it Issue: Who had better claim to the gold bracelet? The finder, or occupier of the property (BA) Held, Mr Parker had the better claim, the BA's lounge was in fact, a semi-public area, even though it was the executive lounge. There was no manifestation of any intention by BA's to exercise control over lost property found in its lounge. What would be needed for manifestation of control? - needed to have signs that anything found in the lounge was the property of BA.

Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594

· Workman was told incorrectly by a foreman that it was safe to stand on a ventilation grill on a site · He stood on one, fell through and was severely injured · Issue: Was this conduct 'in trade or commerce' such that s 18 applied? · Held, it was not - the representation as misleading but it was purely internal communications, so not technically in trade or commerce. 'What the section is concerned with is the conduct of a [person] towards persons, be they consumers or not, with whom it...has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.'

Detinue

· Wrongful detention or failure to return goods after demand · Title to sue: actual possession or immediate right to possession · Overlap with conversion where wrongful detention or failure to return goods is intentional - but where goods are negligently lost or destroyed, will only give rise to a detinue claim (no conversion): see eg, Reeve v Palmer - negligently lost - solicitor negligently lost title to property - inability to return the title deeds sufficient to ground an action for detinue. · Can use detinue to revive a cause of action by issuing a fresh demand for the return of the goods - eg if there is a bailment for a term and the tort of conversion or trespass is committed, the bailor doesn't have title to sue bc no actual possession or immediate right to possession at the time of the tort. However, if the term has ended, it becomes a bailment at will, and the bailor has right to immediate possession and can demand return of the goods, if not returned, the bailor will have an action in detinue. The date of the tort has changed. Revive the demand.

Private Nuisance element: unreasonable interference

· court has to balance the plaintiff's desire to use the property against the D's desire to undertake the activity that causes the interference - what interest in land should be protected - conflicting property uses - takes into account a number of factors - objective test - objectively unreasonable in the circumstances. · 1. Locality of the activity - interference must be substantial according to the ordinary standards of comfort to be expected in the particular locality (Munro v Southern Dairies Ltd; in order to be an actionable nuisance the interference with comfort and convenience - ordinary standards of comfort to be expected in the particular locality. In that case, P was successful on the basis of noise, smell and flies on the P's property - above the level of comfort. Would a reasonable person in the particular locality be upset. St Helen's Smelting Co v Tipping) - see below. · 2. Sensitivity of the plaintiff - reactions of ordinary persons in the particular locality, not the particular plaintiff's sensitivities (Robinson v Kilvert) - test of the reasonable person; in this case, the D's were manufacturers of paper boxes, leased warehouse to plaintiff - hot air rose from D's to P's floor that damaged the paper that was stored there. Held, the hot air was not a nuisance because of the exceptionally delicate trade of the plaintiff's paper trade, not an ordinary use of the property. Other case eg - vegan claimed that smells from her neighbours bbq meant that she couldn't enjoy being in her backyard - the smell of fish - q whether the smell nuisance, held, it didn't, her neighbours conduct was reasonable, they had moved it to appease her, and were using their home and backyard as any family would. Didn't matter that the P was particularly sensitive to the smell of meat. ·3. Malice by the defendant - using property maliciously to cause interference is not reasonable (Hollywood Silver Fox Farm v Emmett; Christie v Davey) - more likely for the court to find that it was nuisance. In Hollywood case, the P's were breeders of silver foxes, that are sensitive creatures during their breeding season - can refuse to breed when they are disturbed during this time - was breeding them, and D would deliberately set off guns near the part of the fence where the breeding pens were located disturbed them. Nuisance due to the sound frightening the foxes. Held the sound constituted nuisance because the D was malicious in setting off the guns so close to the fence. The malice actually outweighed the particular sensitives of the P's land - most important factor of the case. Christie case, P was a music teacher, D shared a wall with them. D sent a letter to the P complaining about the noise from the lessons see below · 4. Duration/frequency - repeated course of conduct vs one-off - more likely nuisance if a repeated course of conduct rather than a one-off event.

Statutory Liability for Misleading or Deceptive Conduct: ACL s 18

· s 18(1): A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive - elements 1. Conduct in trade or commerce, 2. Misleading or deceptive, 3. Likely to mislead/deceive

Coastal Estates v Melevende [1965] VR 433

• 1960: Mr Melevende entered into a contract to purchase a seaside property via instalments. The contract was induced by a fraudulent misrepresentation • 1961: M become aware of the misrepresentation. He continued to make instalment payments and tried to sell the land • 1962: After seeking legal advice, M became aware of his right to rescind the contract, and made the decision to do so. • Issue: Was Melevende's conduct in trying to sell the land, making instalment payments, an affirmation of the contract such that rescission was not possible? • Held, upheld validity of rescission - necessary for a binding election to affirm that the defrauded party should have known of his right to rescind, but he did not know that he had a right until two years later when he saw a solicitor. None of his subsequent acts were inconsistent with his decision to rescind. • Held, Plaintiff was entitled to rescind the contract however general rule is if an innocent party affirms the contract after becoming aware of the falsity of the representation the right to rescind is lost. The Behaviour must unequivocally indicate that the party has elected to affirm. Must have knowledge of both misrepresentation and their legal right to rescind. • Criticism - presents certain difficulties for the party alleging affirmation to the defendant - burden of proof is difficult to discharge given the constraints of legal professional privilege. Eg not able to reveal when their client knew. Result is more likely in cases of fraudulent misrepresentation. Query whether innocent or fraudulent - whether the principle that you have to know of your right to rescind applies.

Duress elements

• Elements of duress (Crescendo Management Pty Ltd v Westpac Banking Corp) 1. Illegitimate or improper pressure - at what point does bargaining become improper? Certainly if unlawful - criminal or tortious. Lawful threats? See Australia and New Zealand Banking Group Ltd v Karam - approach taken here was restrictive - no lawful act of duress in NSW - lawful threats do not amount to duress. But the HC Thorn v Kennedy recent high court case - Kennedy threatened not to proceed with his wedding to Thorn if she refused to sign a pre-nup agreement - lawful threat - majority set -aside the contact on unconscionable conduct and undue influence - did not consider duress - unhelpful for duress. Law remains somewhat unsettled 2. That induces entry into the contract - must be shown to have a causative effect on their entry into the contract, but does not have to be the sole casue. Eg The Atlantic Baron Case - north ocean shipping didn't have a genuine choice to refuse the demand to enter into the new contract. · McHugh J [45-46] "proper approach...is to ask whether any applied pressure induced the victim to enter the contract and then ask whether that pressure went beyond what the law is prepared to countenance as legitimate' pressure will be illegitimate if it consists of unlawful threats or amounts to unconscionable conduct, but the categories are not closed. Even overwhelming pressure, not amounting to unconscionable conduct, however, will not necessarily constitute economic pressure. • Onus of proof - on P to show that an appropriate threat of pressure was made directed to procuring contractual consent, then onus on D to show that it contributed nothing to the decision of the P to enter the agreement. • McHugh J in Crescendo: " it is unnecessary for the victim to prove that the illegitimate pressure was the sole reason for him entering into the contract. It is sufficient that the illegitimate pressure was one of the reasons for the person entering into the agreement. Once the evidence establishes that the pressure exerted on the victim was illegitimate, the onus lies on the person applying the pressure to show that it made no contribution to the victim entering into the agreement." the real issue in duress is the nature of the illegitimate conduct rather than the extent to which consent is impaired. • Consequence - contract is voidable, victim can elect to rescind. Also, the improper conduct can amount to a tort for which compensation could be claimed eg a wrongful act against a person assault.

Mutual Mistake

• Where the parties are at cross purposes - as to the other parties intention, such that they intend to contract on completely different terms. Each party makes a different mistake, not the same mistake. • Is it possible to identify consensus ad idem (objective agreement) and if so, on what terms? • Process: On an objective view of the parties' dealings and the surrounding circumstances, is it possible to say that one party has the 'right' understanding of the bargain? Ie evidence that shows there was only one reasonable construction to be placed on the words or conduct. o If so, the parties have a contract on those terms, and it is only one party who is mistaken - it is then a question of whether relief is available with respect to that unilateral mistake if not, there is no contract (see Raffles v Wichelhaus) • Goldsbrough Mort v Quinn - no operative mistake where court able to assign meaning to the term: ie only one party was mistaken. mistaken party would need to prove other knew or had reason to suspect difference in understanding.

Bars to recession - factual and legal bars

• Factual bars - Where rescission is factually impossible, i.e. there is an inability • to restore the parties to their pre-contractual positions - eg where the subject matter is destroyed by the party seeking recession - business abandoned by the purchaser cf Alati where the business was not completely abandoned. Or perishable subject matter. Contract for services - cannot rescind work that has already been performed. Vadasz v Pioneer Concrete - partial rescission only possible where a representee with knowledge of the misrepresentation would have entered a varied form of contract anyway. • Legal bars: o Affirmation - once an election to affirm has been made the right to rescind is lost, unless the innocent party did not know of their right to rescind (Coastal Estates v Melevende) - has to be clear and unequivocal. Leaf v Internaitonal galleries - lapse of time can be evidence of affirmation. o Third party rights - provided the third party is a bona fide purchaser for value without notice and the property transfer occurs before rescission (Car & Universal Finance Co v Caldwell) - the rights of an innocent third party prevails over the rights of the contracting parties eg 1. A passes property to B under a contract, if A then validly rescinds the contract, what happens if B has transferred the property to C, an innocent third party, before the contract was rescinded by A - if it happens before rescission, C's title prevails over A's right to rescind the contract with b. IF B passes property to C, the innocent third party, after rescission, C only obtains possession and does not get title to the property, as in Car & Universal - contract for sale of a car - turned out to be a rogue buyer - dishonoured cheque, sold to an innocent third party, seller informed police and asked for assistance in trying to find the car - effective rescission by original owner and innocent party did not obtain title, sale to the innocent party - key point is that the third party also acquires the property before rescission takes place. Rule = if a seller rescinds the contract before an innocent third party acquires rights, then the representee's rescission is effective and the third party must return the goods. o Rule in Seddon's case - where a contract for the sale of land has been executed (discharged and complete in all respects), the right to rescind for innocent misrepresentation is lost. This rule only applies to one vitiating factor misrepresentation, and only innocent misrepresentation. Applied in very few cases, including sale of business, but criticised as inaccurate application of the rule - mostly restricted to the sale of law because the purchaser has the best opportunity to investigate title to the land - is this fair given an innocent purchaser may only know of the misrepresentation after title has been obtained.

Vitiating Factors

• Pre-contractual conduct that undermines (or 'vitiates') the consent of a party to a contract - may relate to the party or a third party - eg could be induced by the conduct of a third party - who are the parties to a particular transaction. Defect in the voluntariness of consent should get you out - focus is on the quality of the consent given by the parties to the transaction at the time of formation. If the consent is undermined justification for non-performance of contractual obligations by the innocent party. • Legally recognised categories: o Undue influence - where one party abuses a position of influence or dominance over the other party. Exists under general law/CL+ Equity o Unconscionable conduct - where one party takes advantage of another party - operates under general law and statute o Unfair contracts - under statute only o Duress - threat by one party to another's economic well-being, general law o Mistake - where one party takes advantage of a misunderstanding of another party - general o Misrepresentation and misleading or deceptive conduct - false or misleading statement that induces the other to enter into a contract. Result --> Defective consent

Rescission

• Process of 'unwinding' a contract - the parties are restored to their pre-contractual positions (restitutio in integrum) - different to damages in contract (putting them in a position had the contract been performed). Puts the plaintiff in the position had the contract never been made. o Following the approach in equity, this requires that the parties be restored to their substantial starting positions: Alati v Kruger • Consequence - the contract is treated as though it never existed, so damages for breach of contract cannot be claimed - only way to claim damages is if a relevant tort can also be made out - eg fraudulent misrepresentation, that corresponds with the tort of deceit.

Svanosio v McNamara (1956) 96 CLR 186

• Sale by McNamara to Svanosio of hotel and land, together with licence and goodwill • Price was £5,000, apportioned £800 to premises, £4,200 to licence and goodwill • After conveyance of title, S discovered that approximately one-third of the hotel building stood on Crown land. M had not been aware of this • S claimed a declaration that the contract was void for mistake and orders setting aside the conveyance and for the repayment of the purchase price. • Issue: Was the contract voidable on the ground of common mistake? • Reference to fraud added extra unconscionability regarding the behaviour of the seller of McNamara. Court said there has to be circumstances which render it unconscionable for the party to have it in force in order for there to be common mistake. • McTiernan, Williams and Web JJ: [205] 'contracts usually contain stipulations relating to the proof of title and giving the vendor the right to rescind the contract if the purchaser takes an objection with which he is unable to comply...three stages in the sale of land; 1. Making the contract of sale, 2. The interval between the making of the contract and its completion to allow the purchaser to investigate the title, to survey the land and make any relevant inquiries as for instance as to tenancies and 3. The completion of the contract by the conveyance of the land and the payment of the purchase money. • [206] the plaintiff did not object to the title as he could have done ... must be deemed to have accepted the title...he could have had the land surveyed prior to completion...but he neglected to do so' • Held, [207] 'a contract for the sale of land cannot be set aside on the ground that the purchaser was induced to enter into it by an innocent material misrepresentation or on the ground that the vendor has innocently concealed some defect of title after completion has taken place. Actual fraud must be proved...' • In the case of the sale of land...relief has never been given on the ground of innocent misrepresentation after the contract has been executed and it is difficult to see why common mistake, unless it leads to a total failure of consideration, should be in any different position....in the case of a completed contract of sale, rescission is only possible on the ground of common mistake where, contrary to the belief of the parties, there is nothing to contract about. • Held, after the contract has been completed by the execution of the conveyance and the payment of the purchase money, the purchaser, apart from rights arising from the deed of conveyance or subsisting under the contract which do not merge in the deed, has no remedy in law or in equity in respect of any defects either in the title to or in the quantity or quality of the estate.

Duress

• Threat of a wrongful act against person (eg kidnapping), goods (eg threat to damage or destroy), or economic interest which forces another to agree to a demand • 'the courts are not armed with a general power to set aside bargains simply because, in the eyes of the judge, they appear to be unfair, harsh or unconscionable' (Toohey J at 654 in Louth v Diprose) • The most common form of duress is economic duress, a threat to economic wellbeing which would cause purely financial loss to the victim - see eg, North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd - typical cases where the parties are already in a contractual relationship - threat to breach an existing contract, not to perform unless the other party agrees to pay more money, or a threat not to perform unless the other party agrees to enter into a new contract. If the variation contract is supported by consideration (ie not already bound by existing contractual duties rule) can that contract be rescinded by duress?

Common Mistake

• Where both parties are under the same misapprehension - cases are quite rare • Two approaches: based on English cases and have to consider both. 1. Construing the contract in accordance with ordinary principles of contractual interpretation, to determine where the risk of the mistake lies. As a matter of construction is the contract subject to an implied condition such if the condition fails, the contract fails and is void at common law? Consequence is that the contract is that it will be void. Can it be resolved through construction - subject to implied condition, such that if the condition fails, the contract is void at common law - condition must occur before the parties are bound to perform - condition must be fulfilled, otherwise contract is void and contract ends (eg subject to finance clause). McRae v Commonwealth Disposals Commission (Contract for sale of oil tanker lying on reef; McRae paid £285 and then incurred costs in an expedition to locate and salvage the vessel ; No tanker actually existed; Issue: Was the contract subject to an implied condition precedent that the tanker existed, such that without the tanker there was no contract? CDC claimed No contract here because both parties contracted on shared assumption that there was a contact - ie implied condition that the tanker existed, non-existence was thus a common mistake. HC held, disagreed - no implied condition thus no common mistake - instead if the CDC had promised that the tanker existed, result was that they were liable to pay McRae for breach of contract. An implied condition precedent exists where a state of affairs is fundamental. Prohibition on common mistake where fault element exists. The presence of the tanker was a term of the contract itself - contract could not have an implied term that the ship existed and an implied term that if it did not exist the contract was void. Ie the court may find that the contract is subject to an implied condition if that implied condition ceases to be met, both parties are released from their contractual obligations. [409] 'they must have known that any tenderer would rely implicitly on their assertion of the existence of a tanker, and they must have known that the plaintiff's would rely implicitly on their later assertion of the existence of a tanker in the latitude and longitude given. they took no steps to verify what they were asserting, and any 'mistake that existed was induced by their own culpable conduct... Sale of goods act (NSW) s 11- perished goods - where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void. 2. Involves a principle of law which recognises that the contract may be void for common mistake in certain circumstances. Is equitable relief available rendering the contract voidable? 'If the parties were under a common misapprehension either as to facts or as to their relative and respective rights, provided that the misapprehension was fundamental and that the party seeking to set it aside was not himself at fault' - Solle v Butcher (Lord Denning) [692] - three elements- if a contract can be set aside for common mistake, if the parties were under 1. Common misapprehension, provided that 2. Misapprehension was fundamental and 3. Party seeking to set it aside was not himself at fault; and (4- latter edition) if circumstances render it unconscionable for the party seeking to uphold the contract to have it enforced - Svanosio v McNamara - approving Solle v Butcher in HCA, adding fourth element. If satisfied 1-4 above, contract will be voidable.

Unilateral Mistake

• Where one party is under a misapprehension as to the terms of the agreement of which the other is aware - close examination - one party has the right understanding, q of whether relief is available: NB distinguished from failing to take care - L'estrange v Graucobb - not just some misapprehension. • A contract is void if one party to the contract enters into it under a serious mistake as to the cntent or existence of a fundamental term and the other party has knowledge of that mistake (Taylor v Johnson, [428] Mason ACJ, Murchy and Deane JJ). • Process: See Taylor v Johnson 1. One person enters into a contract under a serious mistake about its content in relation to a fundamental matter (term of the contract or its subject matter); 2. The other party is aware that the first person is entering into the contract under a serious mistake about the content or subject matter of the contract; and 3. The second party deliberately sets out to ensure that the first party does not become aware of the existence of the mistake