Table of Contents
1 – Misleading Conduct ... 2
1.1 – Identify the conduct ... 2
1.2 – Was the conduct in ‘trade and commerce’ ... 2
1.3 – Define misleading... 2
1.3 – Identify the damage ... 3
1.4 – Damages ... 3
1.5 - Apportionment ... 3
1.6 – Defences ... 4
2 – Contract Formation ... 4
2.1 – Agreement ... 4
2.1.1 – Offer ... 4
2.1.2 – Acceptance ... 5
2.2 – Consideration ... 6
2.2.1 – Introduction ... 6
2.2.1 – Nature of consideration... 6
2.2.2 – Adequacy of consideration ... 7
2.2.3 – Sufficiency of consideration ... 7
2.3 – Certainty ... 8
2.3.1 – Certainty requirement ... 8
2.3.2 – Essential term ... 8
2.3.3 – Incompleteness from omission ... 8
2.3.4 – Agreement to agree ... 9
2.3.5 – Agreement to negotiate ... 9
2.3.6 – Unclear language ... 9
2.3.7 – Illusory promises ... 10
2.4 – Intention ... 10
2.4.1 – Presumptions ... 10
2.4.3 – Preliminary agreements ... 11
2.5 – Capacity ... 11
2.5.1 – Introduction ... 11
2.5.2 – Special cases ... 11
2.6 – Formalities ... 12
2.6.1 – Compliance with requirements ... 12
2.6.2 – The effect of non-compliance... 12
2.7 – Privity ... 12
2.7.1 – Identifying parties to a contract ... 13
2.7.2 – Privity rule: non-application and circumvention ... 13
2.8 – Property ... 13
3 – Estoppel ... 13
3.1 – The nature of equity ... 13
3.2 – Estoppel Elements – Non-negotiable ... 14
3.3 – Estoppel Elements – Negotiable ... 15
3.4 – Cause of action ... 15
4 – Restitution ... 15
4.1 – Introduction ... 15
4.2 – Restitution for money / Money Had and Received... 16
4.3 – Quantum Meruit ... 17
4.4 – Defences ... 17
4.5 – Remedies ... 18
of the wrongdoers would be responsible for paying their part of the claimant’s loss, divided based on their contribution to the harm. The claimant must show that the damage or loss was a result of each of the parties involved.
1.6 – Defences
It may be possible to exclude liability, if the defence can prove they have a defence. However, It is not possible to exclude the statutory liability that arises from breaching s 18 by force of contractual provision or disclaimer alone. A disclaimer or contractual promise may affect statutory liability if:
• An exclusion clause exists
• There was a disclaimer included
• Other techniques
Exclusion clause
• Many contracts contain clauses intended to exclude liability for pre-contractual statements and other conducts.
• Traditional view is that contractual provisions cannot oust the operation of the Act (Henjo Investments v Collins Marrickville). They are still included in contracts because they may be able to include contract law liability.
Disclaimers
A disclaimer may be sufficient to prevent the alleged misconduct from being misleading or make it difficult for a fully informed person to show actual reliance if it is: (Butcher v Lachlan Elder Realtors)
• Appropriately worded
• Sufficiently prominent and contemporaneous with alleged misconduct
• Worded unambiguously
• Feature prominently
• Must be communicated to the reader that the disclaimer is relevant to the information it is seeking to qualify Other techniques
Techniques to attempt to reduce their potential liability under s 18 (with mixed success):
• Requiring one party to warrant that it has not relied on information given to it and has instead relied on its own investigations (this is directed to the causation requirement under s 236); and
• Requiring all claims to be brought within a specified time (which on its face would bar late claims under s 18)
2 – Contract Formation
2.1 – AgreementIntroduction
To determine if there is contract formation, there are 4 elements to establish. The first is agreement. Agreement constitutes of offer and acceptance.
Distinguish between an executory or unilateral contract
• Executory contract – Formed through the exchange of promises o Acceptance and performance are two different events
• Unilateral contract – Formed by the exchange of a promise for requested conduct o Acceptance and performance are the same event and performed by the offeree 2.1.1 – Offer
An offer is the willingness to enter into a contract on specified terms. As stated in Carlill, courts use an objective test to determine if a reasonable person in the position of the offeree would believe that an offer was intended and that a binding agreement would be made upon acceptance.
• Gibson – Courts will look at the terminology of the offer. In Gibson, the court highlighted the word “may” in “may be prepared to sell” (Lord Diplock)
o ‘may’ constituted tentative language, it was not certain
• Mobil – “may” was too vague and uncertain
o Court looked at the tense of the language. Many of the words were in future tense, so it did not seem to be a current offer
• Brambles – Offer must be capable of acceptance/rejection, it is not words of a command
contractual’ actions because their claims were based on implied or fictional contract. However, in Pavey & Matthews v Paul, the court changed the name into, what is now known as ‘restitutionary claims”.
• They stated that a claim under the law of restitution is not an implied contract, but an obligation imposed by law to prevent unjust enrichment.
The relevant basis for restitution is that there is a failure of consideration. The two most common restitutionary claims are:
• To recover money paid to another party
• To recover reasonable remuneration for services performed (Quantum meruit)
4.2 – Restitution for money / Money Had and Received
Restitution for money had and received is the action to recover money paid to another party in circumstances where it is unjust to retain the money. A money had and received claim can be based on:
• A mistake
• Compulsion
• Total failure of consideration Mistake
Money paid by the plaintiff to the defendant under a mistake can be recovered provided the mistake caused the payment. There are two types of mistakes:
• Mistake of fact
• Mistake of law
Traditionally, if there was a mistake of fact, then the money can be recovered; whereas, if there was a mistake of law, the money cannot be recovered. David Securities v CBA abolished the traditional rule instead stating that both, mistakes of fact and mistakes of law, can lead to a claim because the foundation of the distinction between the two is weak and it is too difficult to distinguish between the two. The court stated that the recovery available depends on the law and there must be a vitiating factor which causes the unjust enrichment.
• David Securities –
o ‘Payment that has been caused by a mistake is sufficient to give rise to a prima facie obligation on the part of the respondent to make restitution … the respondent must point to circumstances which the law recognises would make an order for restitution unjust’
Compulsion
Payment that was made under compulsion or duress may be recovered.
• Sundell –
o Court does not need to determine if the threat was reasonable or unconscionable. The mere existence of a threat is sufficient to give rise to a prima facie restitutionary right
▪ Threat was ‘to refrain from performing a contractual duty’ and was ‘a compulsive threat made to refrain from performing a contractual duty [which] is sufficient to enliven a restitution claim’ [326]- [328]
o There are three types of pressure that will justify restitutionary claim:
▪ Threat to cause harm to a person
▪ Threat to cause harm to property of the person
▪ Threat to infringe a person’s legal rights → This was the case in Sundell where they were refused to be given the appropriate zinc/metal
Total failure of consideration
Payment to a project that is no longer enforced may be recovered.
• Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour:
o Failure of consideration means failure of the basis of the payment or the purpose for which the payment was made
o Where restitution is sought with respect to money paid or services rendered under a contract, the issue is not whether a return promise was given by the payee, but whether the payee’s promise was fulfilled
• Baltic Shipping:
o Money is only recoverable if it was paid for a consideration that has totally failed.
o If some part of the bargain has been received, then no restitutionary claim is available
▪ P received some benefit. Some part of what she bargained for in leisure, food,
• Roxborough v Rothmans:
