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Australian Contract Law Notes

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This is an extract of our Australian Contract Law Notes document, which we sell as part of our Contract Notes collection written by the top tier of Griffith University students.

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FORMATION

................................................................................................................................................................................

38


CONTRACT

THEORY

..................................................................................................................................................................

39


INTENTION

.................................................................................................................................................................................

41


OFFER

...........................................................................................................................................................................................

45


ACCEPTANCE

AND

CERTAINTY

............................................................................................................................................

50


CONSIDERATION

.......................................................................................................................................................................

57


FORMALITIES

AND

ESTOPPEL

.............................................................................................................................................

61


CAPACITY

AND

PRIVITY

.........................................................................................................................................................

67


EXPRESS

TERMS

.......................................................................................................................................................................

75


IMPLIED

TERMS

.......................................................................................................................................................................

81


INTERPRETATION

OF

TERMS

AND

CONSTRUCTION

....................................................................................................

87


PERFORMANCE

OF

THE

CONTRACT

...............................................................................................................................

103

PAGE

2

LIST

OF

CASES


Intention

to

be


Legally

Bound

Rose

and

Frank

Co

v

JK


Crompton

and

Bros

Ltd


Balfour

v

Balfour


Cohen

v

Cohen


Merritt

v

Merritt


Riches

v

Hogben


Jones

v

Padavatton

Todd

v

Nicol

Wakeling

v

Ripley

Roufos

v

Brewster

Simpkins

v

Pays

Rose

&

Frank

v

Crompton


Jones

v

Vernon's

Pools


Esso

Petroleum

v

Comm


Taxation


Edwards

v

Skywards


Banque

Brussels

Lambert


SA

v

Australian

National


Industries

LTD


Gate

Gourmet

Australia

Pty


Ltd

(In

Liq)

v

Gate

Gourmet


Holding

AG

PAGE

3

Intend

to

be

bound:

clause

which


indicated

they

weren't

intending

to


be

bound

by

law


Presumption:

there

is

no

intention


in

a

domestic

relationship


Presumption:

there

is

no

intention


in

a

domestic

relationship


Presumption:

separated

couples


are

more

likely

to

have

intention


Presumption:

separated

couples


are

more

likely

to

have

intention


Domestic

Relationship:

there

is

no


intention

between

mother

and


daughter


Domestic

Relationship:

widow


invites

sister

and

niece

of

deceased


husband

to

live

with

her

-

there

was


intention


Domestic

Relationship:

Invited


sister

and

brother--in--law

to

move

to


Australia

and

live

with

him

-

there


was

intention


Domestic

Relationship:

Son--in--law


helps

out

with

business

deliveries


and

the

goods

were

damaged

en


route

-

there

was

intention


Domestic

Relationship:


granddaughter

and

grandmother


and

paying

lodger

lived

together


paying

rent

and

entered

a


competition

for

which

they

paid

1/3


each.

Granddaughter

refused

to

pay

intention

to

be

bound


Honour

Clauses


Honour

Clauses


Puffery


Ex

Gratia

Payments


Letters

of

Comfort


Letters

of

Comfort

Coogee

Esplanade

Surf


Motel

v

Cth


Administrator

of

PNG

v


Leahy


Australian

Woollen

Mills

v


Cth


Cameron

v

Hogan


Baldwin

v

Everingham


Finlayson

v

Carr

Offer

Letters

of

Intent


Government

contracts


Government

contracts

Voluntary

Associations


Voluntary

Associations


Voluntary

Associations


Presumption:

relationship

with

the


Ermogenous

v

Greek


Church

is

not

business

-

no


Orthodox

Church


intention

-

PRESUMPTIONS

CAN

BE


REBUTTED

AND

UNORTHODOX


Definition:

a

statement

of

the

terms


upon

which

the

offeror

is

prepared


Nielsen

v

Dysart

Timbers


to

be

bound

if

acceptance

is


Ltd


communicated

while

the

offer


remains

alive


Knowledge:

parties

must

have


Fitch

v

Snedaker


knowledge

of

the

offer,

which

has

to


be

communicated


Who:

Offer

can

be

made

to

the


world

at

large


Puffery:

exaggeration

which

is

not


Carlil

v

Carbolic

Smoke

Ball


intended

to

be

taken

seriously


Invitation

to

Treat:

offer

to

receive


offers


Agreement:

if

parties

have

reached


Clarke

v

Dunraven


final

agreement,

there

can

be

a


contract


Intention:

it

was

a

government


Australian

Woollen

Mills

v


scheme

to

promote

industry

-

no


Commonwealth


intention

to

be

legally

bound


Puffery:

advertisement

which


Mitchell

v

Valherie


exaggerated

benefits

of

the

goods

-


not

misrepresentation


Puffery:

reasonable

person

would


Leonard

v

Pepsico


not

interpret

the

ad

as

being

factual


Information:

request

for


Harvey

v

Facey


information

is

not

an

offer

or


acceptance


Information:

request

for


Stevenson

Jaques

&

Co

v


information

is

not

an

offer

or


McLean


acceptance


Gibson

v

Manchester

City


Invitation

to

Treat:

invitations

to


Council


treat

are

not

offers


Advertisements:

wine

list

sent

out


Grainger

and

Sons

v

Gough


as

an

ad

was

an

invitation

to

treat

PAGE

4

Shop

Displays:

invitations

to

treat


and

not

offers


Shop

Displays:

the

display

of

a


Pharmaceutical

Society

v


product

in

a

store

with

a

price


Boots

Cash

Chemists


attached

is

not

sufficient

to

be

an


offer


Auctions

with

Reserve:

the

call

for


Payne

v

Cave


bids

is

an

invitation

to

treat


AGC

(Advances)

Ltd

v


Auctions

without

Reserve:

general


McWhirter


rule

applies

(call

=

invitation)


Internet

Auctions:

a

binding


contract

existed

between

the

two


parties

as

the

essential

terms

were


Smythe

v

Thomas


listed

on

eBay

and

it

wasn't

stated


that

sale

was

subject

to

discussion


or

negotiation

(sale

of

a

plane)


Pratt

Contractors

Ltd

v


Tenders:

the

call

for

tenders

is

an


Palmerston

North

City


invitation

to

treat,

but

the


Council


submission

is

the

offer


Tenders:

the

contract

is

awarded

to


Harvela

v

Royal

Trust


the

highest

fixed

bid

(bilateral


Company


contract)


Tender

-

Collateral

Contract:


Hughes

Aircraft

Systems


information

about

the

tender

was


International

v

Airservices


passed

to

another

party

-

breach

of


Australia


a

collateral/process

contract


Tender

-

Collateral

Contract:


Blackpool

&

Fylde

Aero


tenders,

and

requests

for

tenders


Club

v

Blackpool

Borough


are

accompanied

by

a

collateral


Council


contract

which

implies

the

bid

will


be

inspected


MacRobertson

Miller


Ticket

purchase

(prior):

Issue

of


Airline

Services

v


the

ticket

=

offer,

and

when

the


Commissioner

of

State


passenger

takes

their

seat

=


Taxation

(WA)


acceptance


Ticket

purchase

(automatic


Thornton

v

Shoe

Lane


machine):

display

of

the

machine

=


Parking


offer,

money

placed

into

the


machine

=

acceptance


Termination:

an

offer

is

terminated


Byrne

v

Van

Tienhoven


if

it

is

withdrawn,

however


revocation

must

be

communicated


Termination:

termination

of

the


Dickinson

v

Dodds


offer

can

be

in

words

or

in

conduct,


even

by

a

third

party


Termination

(Option

Contract):


Goldsborough

Mort

and

Co


an

offer

can

be

revoked

by

the

v Quinn


offeror

before

communication

of


acceptance

by

offeree


Fisher

v

Bell

PAGE

5

Acceptance

Termination

by

Death:

a

contract


can

still

be

performed

if

there

is

a


Carter

v

Hyde


personal

element,

or

else

the

offer


will

lapse


Termination

through

Condition


Failure:

the

signature

of

one

co--
Neill

v

Hewens


vendor

is

not

binding

without

the


signature

of

another

-

ALL

parties


must

sign


Rejection/

Revocation

and


Unilateral

Contracts:

breached


Mobil

Oil

v

Wellcome


contract

with

dealers

-

revocation


International


made

it

impossible

for

acceptance

to


occur


Acceptance:

must

be

as

a

response


Crowne

v

Clarke


to

and

as

a

result

of

the

offer


Counter--Offer:

a

counter

offer

is


Hyde

v

Wrench


not

acceptance


Standard

Forms:

Terms

of

the


Butler

Machine

Tool

Co

Ltd


buyer

were

different

to

the

terms

of

v Ex--Cell--O--Corp

(England)


the

seller.

Accepted

as

a

counter


Ltd


offer

as

it

wasn't

the

original

terms


Subject

to

Contract:

finality

is


Master

v

Cameron


subject

to

another

contract

being


formed


Empirnall

Holding

v


Conduct:

acceptance

can

be


Machon

Paul

Partners


conferred

through

conduct


Silence:

acceptance

is

not

valid

if

it


Felthouse

v

Bindley


is

stipulated

by

silence


Postal

Rule:

acceptance

arises

as


Adams

v

Lindsell


soon

as

the

letter

is

posted,

NOT


recieved


Postal

Rule:

parties

must

have


Henthorn

v

Fraser


contemplated

post

would

be

means


of

communication


Postal

Rule

Exception:

parties


Bressan

v

Squires


must

have

stipulated

actual

receipt


of

the

acceptance

letter


Postal

Rule

Exception:


Tallerman

v

Nathan's


circumstances

of

the

case

-

where


Merchandise


negotiations

are

complex

and

highly


contentious


Instantaneous

Communication:


Entores

Ltd

v

Miles

Far


general

rule

applies

to

telexes

and


East


telephones,

not

the

postal

rule


Instantaneous

Communication:


Brinkibon

Ltd

v

Sahag


general

rule

applies

to

telexes

and


Stahl


telephones

not

the

postal

rule

PAGE

6

Reese

Bros

Plastic

Ltd

v


Hamon--Sobelco

Australia


Foley

v

Classique

Coaches


Ltd

Instantaneous

Communication:


general

rule

applies

to

faxes


Completeness:

need

final


agreement

on

all

essential

terms


Completeness:

parties/subject


matter

and

price

need

to

be

decided


Illusory

Terms:

A

term

can

be


implied

based

on

reasonableness


regarding

the

deferral

of

agreement


Completeness:

Agreements

to


agree

or

negotiate

constitute

an


incomplete

contract


Certainty:

A

contract

is

only

legally


enforceable

if

the

terms

are

officially


agreed

on

and

certain


Illusory

Promises:

If

a

promise


gives

one

party

an

unrestricted


discretion,

the

promise

is

illusory


Illusory

Promises:

if

the

promise


isn't

illusory,

the

contract

provides


information

as

to

who

should


determine

important

matters


Illusory

Promises:

If

the

promise


isn't

illusory,

the

contract

provides


an

objective

criteria

for

exercise

of


discretion


Illusory

Terms:

Terms

can

be


implied

based

on

an

external


standard


Illusory

Terms:

Invalid

terms

can


be

severed

if

the

contract

can


survive

without

it.

Otherwise

the


contract

becomes

void


Illusory

Terms:

If

a

term

is

for

the


benefit

of

one

party

only,

that

party


can

waive

the

term


Definition:

Act,

or

promise

of

an

act


which

is

done

in

return

for

a


promise


Move

from

the

promise:

To


enforce

it,

it

must

be

paid

for


Definition:

Valuable

consideration


must

consist

of

some

right,

interest,


profit

or

benefit

for

one

party,

or

a


forbearance

of

the

other


Definition:

Consideration

must

be


paid

for

to

be

enforceable

Hall

v

Busst

Coal

Cliff

Collieries

P/L

v


Sijehama

P/L


G

Scammell

and

Nephew


Ltd

v

HC

and

JG

Ouston


Placer

Development

Ltd

v


Commonwealth


Godecke

v

Kirwan

Meehan

v

Jones

Hillas

v

Arcos

Fitzgerald

v

Masters

Whitlock

v

Brew


Consideration


Dunlop

Pneumatic

Tyre

v


Selfridge

and

Co

Currie

v

Misa

Parastatidis

v

Kotaridis

PAGE

7

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