Commex Communications Corporation Pty Ltd v Cammeray Investments Pty Ltd & Anor [2005] QSC 394 (15 December 2005).
http://www.austlii.edu.au/au/cases/qld/QSC/2005/394.html
Sydney, Australia
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Category Archives: Contract
Dubow v Fitness First Australia P/L [2005] NSWCTTT 340
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd
ON 11 NOVEMBER 2004, the High Court of Australia delivered Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; 219 CLR 165; 79 ALJR 129; 211 ALR 342 (11 November 2004).
http://www.austlii.edu.au/au/cases/cth/HCA/2004/52.html
At [40], the court said:
“This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”
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Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5
Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5; (2002) 186 ALR 289; (2002) 76 ALJR 436 (14 February 2002).
http://www.austlii.edu.au/au/cases/cth/HCA/2002/5.html
Sydney, Australia
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Hollis v Vabu Pty Ltd [2001] HCA 44
ON 9 AUGUST 2001, the High Court of Australia delivered Hollis v Vabu Pty Ltd [2001] HCA 44; 207 CLR 21; 75 ALJR 1356; 106 IR 80; 181 ALR 263 (9 August 2001).
http://www.austlii.edu.au/au/cases/cth/HCA/2001/44.html
The plaintiff was a pedestrian who was injured on a footpath by a bike courier. The defendant was the courier company who engaged the cy list. The company denied liability for the pedestrian’s injuries on the basis that the cyclist was an independent contractor. The trial judge awarded damages to the pedestrian, finding that the cyclist was an employee. The Court of Appeal allowed an appeal by the company, finding that the cyclist was an independent contractor.
The High Court allowed an appeal by the cyclist, holding that the cyclist was not an independent contractor because:
- no discretion to accept or reject work.
- stringent roster system.
- clear rules on taking annual leave.
- little or no scope for freelancing.
- no special skills.
- cyclists were identified with the company with uniforms and a dress code.
- pay and conditions were consistent with an employment relationship.
- no scope for bargaining of rates.
- the provision of the bikes as necessary tools and equipment was not inconsistent with an employment relationship
- the exercise of control by the company over the courier’s activities.
The relevant considerations for determining whether or not a person is an independent contractor include:
- Who owns the business?
- Who controls the operation/work?
- Who owns the office space?
- Who owns the tools?
- Who does the contractor provide duties to?
- Does the independent contractor bear a risk of profit or loss?
- Is there a creation of goodwill?
- How is the independent contractor paid?
Sydney, Australia
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Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61
ON 23 MARCH 2001, the NSW Court of Appeal delivered Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61 (23 March 2001).
http://www.austlii.edu.au/au/cases/nsw/NSWCA/2001/61.html
Sydney, Australia
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Garcia v National Australia Bank Ltd [1998] HCA 48
ON 6 AUGUST 1998, the High Court of Australia delivered Garcia v National Australia Bank Ltd [1998] HCA 48; 6 CCL 81; 194 CLR 395; 155 ALR 614; 72 ALJR 1243 (6 August 1998).
http://www.austlii.edu.au/au/cases/cth/HCA/1998/48.html
The High Court considered its earlier decisions of Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649, Commercial Bank of Australia Ltd v Amadio [1983] HCA 14; (1983) 151 CLR 447 as well as the English decision of Barclays Bank Plc v O’Brien [1994] 1 AC 180.
Yerkey v Jones provides a special rule for married women who, regardless of other characteristics, voluntarily guarantee their husband’s loans. There are two limbs: (1) a wife may have a guarantee set aside if the consent was obtained by undue influence, unless she received independent advice (at 649, per Dixon J); and (2) a wife has a prima facie right to have a guarantee set aside if she failed to understand the effect of the guarantee or its significance, unless steps were taken by the lender to inform the wife of such matters (at 683, per Dixon J).
Commercial Bank of Australia Ltd v Amadio is the leading Australian case on unconscionability. Unconscionable dealings are defined as the “unconscientious use of a superior position to the detriment of a party who suffers some special disability or is or is in some special position of disadvantage” (Mason J at 461). Such dealings occur when “one party by reason of some condition or circumstance is placed at a special disadvantage vis-a-vis another and unfair or unconscientous advantage is taken” ((Mason J at 462). In other words, entry into the contract must be caused by taking advantage of a special disability, not mere inequality or impaired judgment.
In Garcia, the High Court rejected the submission that the rule in Yerkey v Jones had been overruled by or subsumed in Amadio. The court at [34] per Gaudron, McHugh, Gummow and Hayne JJ reaffirmed Yerkey v Jones as being a separate rule of unconsciounability (1) applying to married women and not dependant on any presumption of undue influence by the husband over the wife or the husband as acting as agent for the creditor and (2) dependant on “the surety being a volunteer and mistaken about the purport and effect of the transaction, and the creditor being taken to have appreciated that because of the trust and confidence between surety and debtor the surety may well receive from the debtor no sufficient explanation of the transaction’s purport and effect”.
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Baltic Shipping Company v Dillon [1993] HCA 4
ON 10 FEBRUARY 1993, the High Court of Australia delivered Baltic Shipping Company v Dillon [1993] HCA 4; (1993) 176 CLR 344; (1993) 111 ALR 289; (1993) 67 ALJR 228 (10 February 1993).
http://www.austlii.edu.au/au/cases/cth/HCA/1993/4.html
As an exception to the rule that damages are not available for mental distress and disappointment arising from a breach of contract, such damages may be awarded if the contract in question contemplated the delivery of enjoyment, relaxation or peace of mind.
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Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234
ON 12 MARCH 1992, the NSW Court of Appeal delivered Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234.
This is one of the earliest instances in which an Australian court was willing to imply a contractual duty of good faith.
Sydney, Australia
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Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1998] HCA 44
ON 8 SEPTEMBER 1988, the High Court of Australia delivered Trident General Insurance Co Ltd v McNiece Bros Pty Ltd [1988] HCA 44; (1988) 165 CLR 107 (8 September 1988).
The proprietor of a building site (Blue Circle Cement) took out an insurance policy with Trident General Insurance which promised to indemnify the assured who it defined as Blue Circle Cement but also “all its subsidiary, associated and related Companies, all Contractors and Sub-Contractors and/or Suppliers”.
A contractor (McNeice) who incurred a legal liability (a judgment in favour of an injured worker) was held to be covered although not a party to the policy.
A non-party beneficiary under an insurance policy has a right at common law for benefits promised under the policy. The decision creates an exception to the privity of contract rule.
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