mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Wenkart v Pitman (1998) 46 NSWLR 502
Outcome: applied
an innocent claimant is under no positive duty to take action to mitigate losses resulting from another's breach of contract, that party may not recover damages for that breach in respect of losses which it might reasonably have been expected to avoid: see generally Furmston (ed), at 8.96-8.103; Cheshire and Fifoot's Law of Contract , [23.41]-[23.44] (9 th Aust ed, 2008); Carter on Contract , 41-340 ff. The onus of proof is upon the party in breach to show that the claimant ought reasonably to have taken certain mitigating steps: Wenkart v Pitman (1998) 46 NSWLR 502. The claimant is not bound to take all possible steps to mitigate its loss, only those which are reasonable: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603 at [134] . As noted in Furmston (ed) at 8.100-8.101, many of the reported cases which have considered whether the claimant has acted reasonably to reduce its loss have involved the refusal of offers made by the party in breach. While it will be regarded as unreasonable to require a claimant to take steps which are likely to injure its commercial reputation: James Finlay &amp; Co Ltd v NV Kwik Hoo Tong Handel Maatschappij [1929] 1 KB 400 ; Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] V R 507 ; in commercial contracts, as Scrutton LJ commented in Payzu Ltd v Saunders [1919] 2 KB 581 at 589, "it is generally reasonable to accept an offer from the party in default. However, it is always a question of fact." In judging what is reasonable in relation to such offers in a commercial matter, the claimant can be expected to view the matter dispassionately without "indulgence in far-fetched resentment": Payzu , at 586.
Case: James Finlay &amp; Co Ltd v NV Kwik Hoo Tong Handel Maatschappij [1929] 1 KB 400
Outcome: cited
an innocent claimant is under no positive duty to take action to mitigate losses resulting from another's breach of contract, that party may not recover damages for that breach in respect of losses which it might reasonably have been expected to avoid: see generally Furmston (ed), at 8.96-8.103; Cheshire and Fifoot's Law of Contract , [23.41]-[23.44] (9 th Aust ed, 2008); Carter on Contract , 41-340 ff. The onus of proof is upon the party in breach to show that the claimant ought reasonably to have taken certain mitigating steps: Wenkart v Pitman (1998) 46 NSWLR 502. The claimant is not bound to take all possible steps to mitigate its loss, only those which are reasonable: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603 at [134] . As noted in Furmston (ed) at 8.100-8.101, many of the reported cases which have considered whether the claimant has acted reasonably to reduce its loss have involved the refusal of offers made by the party in breach. While it will be regarded as unreasonable to require a claimant to take steps which are likely to injure its commercial reputation: James Finlay &amp; Co Ltd v NV Kwik Hoo Tong Handel Maatschappij [1929] 1 KB 400 ; Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] V R 507 ; in commercial contracts, as Scrutton LJ commented in Payzu Ltd v Saunders [1919] 2 KB 581 at 589, "it is generally reasonable to accept an offer from the party in default. However, it is always a question of fact." In judging what is reasonable in relation to such offers in a commercial matter, the claimant can be expected to view the matter dispassionately without "indulgence in far-fetched resentment": Payzu , at 586.
Case: Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] V R 507
Outcome: cited
an innocent claimant is under no positive duty to take action to mitigate losses resulting from another's breach of contract, that party may not recover damages for that breach in respect of losses which it might reasonably have been expected to avoid: see generally Furmston (ed), at 8.96-8.103; Cheshire and Fifoot's Law of Contract , [23.41]-[23.44] (9 th Aust ed, 2008); Carter on Contract , 41-340 ff. The onus of proof is upon the party in breach to show that the claimant ought reasonably to have taken certain mitigating steps: Wenkart v Pitman (1998) 46 NSWLR 502. The claimant is not bound to take all possible steps to mitigate its loss, only those which are reasonable: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603 at [134] . As noted in Furmston (ed) at 8.100-8.101, many of the reported cases which have considered whether the claimant has acted reasonably to reduce its loss have involved the refusal of offers made by the party in breach. While it will be regarded as unreasonable to require a claimant to take steps which are likely to injure its commercial reputation: James Finlay &amp; Co Ltd v NV Kwik Hoo Tong Handel Maatschappij [1929] 1 KB 400 ; Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] V R 507 ; in commercial contracts, as Scrutton LJ commented in Payzu Ltd v Saunders [1919] 2 KB 581 at 589, "it is generally reasonable to accept an offer from the party in default. However, it is always a question of fact." In judging what is reasonable in relation to such offers in a commercial matter, the claimant can be expected to view the matter dispassionately without "indulgence in far-fetched resentment": Payzu , at 586.
Case: Payzu Ltd v Saunders [1919] 2 KB 581 
Outcome: cited
an innocent claimant is under no positive duty to take action to mitigate losses resulting from another's breach of contract, that party may not recover damages for that breach in respect of losses which it might reasonably have been expected to avoid: see generally Furmston (ed), at 8.96-8.103; Cheshire and Fifoot's Law of Contract , [23.41]-[23.44] (9 th Aust ed, 2008); Carter on Contract , 41-340 ff. The onus of proof is upon the party in breach to show that the claimant ought reasonably to have taken certain mitigating steps: Wenkart v Pitman (1998) 46 NSWLR 502. The claimant is not bound to take all possible steps to mitigate its loss, only those which are reasonable: Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd [1998] HCA 38 ; (1998) 192 CLR 603 at [134] . As noted in Furmston (ed) at 8.100-8.101, many of the reported cases which have considered whether the claimant has acted reasonably to reduce its loss have involved the refusal of offers made by the party in breach. While it will be regarded as unreasonable to require a claimant to take steps which are likely to injure its commercial reputation: James Finlay &amp; Co Ltd v NV Kwik Hoo Tong Handel Maatschappij [1929] 1 KB 400 ; Metal Fabrications (Vic) Pty Ltd v Kelcey [1986] V R 507 ; in commercial contracts, as Scrutton LJ commented in Payzu Ltd v Saunders [1919] 2 KB 581 at 589, "it is generally reasonable to accept an offer from the party in default. However, it is always a question of fact." In judging what is reasonable in relation to such offers in a commercial matter, the claimant can be expected to view the matter dispassionately without "indulgence in far-fetched resentment": Payzu , at 586.
Case: Rickel v Schwinn Bicycle Co 192 Cal Reptr 732 (1983)
Outcome: cited
way of preface I should note that up until final written submissions the case had been prosecuted by Hamilton on the basis that AMC, as Hamilton's fiduciary, held the two trademarks as constructive trustee for it, the marks having been obtained by it in breach of its fiduciary duty to Hamilton. The constructive trust claim and with it, seemingly, the allegation of breach of fiduciary duty were abandoned in Hamilton's written submissions. I say "seemingly" in relation to the fiduciary claim because it was scarcely addressed in submissions yet it is anything but non-contentious in the propositions it asserts: see Hospital Products Ltd ; Rickel v Schwinn Bicycle Co 192 Cal Reptr 732 (1983); Glover, Commercial Equity: Fiduciary Relationships , 3.48-3.51 (1995); and for the causes of contention in this area of the law see my "Fiduciary Principle" in Youdan (ed), Equity, Fiduciaries and Trusts , 1 (1989); see also Gibson Motorsport Merchandise Pty Ltd v Forbes [2006] FCAFC 44 ; (2006) 149 FCR 569 at [11] - [16] . I will return to this in the context of AMC's copyright ownership claim. It was open to Hamilton and AMC to cast their contractual relationship in a way which could, for certain purposes at least, have obliged AMC to act in Hamilton's interests alone or, distinctly, in their joint interests: cf Gibson Motorsport Merchandise at [7]-[16]. They chose to formalise their relationship as one of supplier and distributor, a type of relationship which characteristically is designed, subject to contractual limitations, to serve the several interests of the participants: see Hospital Products Ltd v United States Surgical Corporation ; Rickel v Schwinn Bicycle Co . The Distribution Agreement, and the parties conduct under in it in relation to the packaging was quite characteristic of this. Dr Keung was permitted to serve AMC's interests in selling products it acquired from Hamilton, by utilising artwork and language which he considered would facilitate the sale of those products in the area of the Agreement, so furthering AMC's own interests. Hamilton, in turn, would thereby have its own interests served to the extent that enhanced sales by AMC would be likely to lead to enhanced orders from Hamilton. While AMC was given latitude in the language so used, Hamilton in turn was able to protect its own interests in this matter. It retained for itself a right to approve all statements made on the packaging because of its exposure to product liability and it insisted that the two language versions had to match (to comply with requirements of the TGA scheme). There was nothing fiduciary in this arrangement though it doubtless required elements of trust, cooperation and reliance by the parties if it was to work effectively. But these element of themselves did not turn a non-fiduciary contractual relationship into a fiduciary and personal one outside of, and potentially inconsistent with, the contract itself: cf Gibson Motorsport Merchandise at [11].
Case: Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564
Outcome: applied
52 has, over the last 35 years, been the subject of considerable judicial exegesis. The burden of its injunction that a corporation shall not in trade or commerce, engage in conduct that is misleading or deceptive, is not in dispute between the parties. Suffice it for me to say the following. First , conduct is misleading or deceptive if, in the circumstances, it induces or is capable of inducing error: see generally Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [63] . Secondly , the omission to do a thing is a species of conduct such that silence can in particular circumstances constitute or be part of misleading or deceptive conduct: Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 at 32 and 40. As French J observed in Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53 ,193 at 53,195: The cases in which silence may be so characterised [as contravening s 52] are no doubt many and various and it would be dangerous to essay any principle by which they might be exhaustively defined ... [U]nless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that that fact does not exist. Thirdly , there will be no contravention of s 52 unless error or misconception results from the conduct of the alleged contravenor and not from other circumstances for which that person is not responsible: Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1989) 16 IPR 431 at 440. Fourthly , the state of mind of the contravenor is immaterial unless the conduct in question involved a statement about its state of mind. It is sufficient that, tested objectively, the conduct in question was misleading or deceptive or was likely to mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. Fifthly , where, as here, the alleged misleading or deceptive conduct was that of one party to a business relationship and in the course of it and that conduct is the subject of complaint by the other, the complainant must establish a causal link between the impugned conduct and the loss or damage suffered by that conduct: cf TP Act s 87. In so doing, as indicated in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [37] , it is necessary to consider the character of the particular conduct of, here, AMC, in relation to Hamilton: ... 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, or which each may be taken to have known. Factual Setting
Case: Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31
Outcome: applied
52 has, over the last 35 years, been the subject of considerable judicial exegesis. The burden of its injunction that a corporation shall not in trade or commerce, engage in conduct that is misleading or deceptive, is not in dispute between the parties. Suffice it for me to say the following. First , conduct is misleading or deceptive if, in the circumstances, it induces or is capable of inducing error: see generally Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [63] . Secondly , the omission to do a thing is a species of conduct such that silence can in particular circumstances constitute or be part of misleading or deceptive conduct: Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 at 32 and 40. As French J observed in Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53 ,193 at 53,195: The cases in which silence may be so characterised [as contravening s 52] are no doubt many and various and it would be dangerous to essay any principle by which they might be exhaustively defined ... [U]nless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that that fact does not exist. Thirdly , there will be no contravention of s 52 unless error or misconception results from the conduct of the alleged contravenor and not from other circumstances for which that person is not responsible: Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1989) 16 IPR 431 at 440. Fourthly , the state of mind of the contravenor is immaterial unless the conduct in question involved a statement about its state of mind. It is sufficient that, tested objectively, the conduct in question was misleading or deceptive or was likely to mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. Fifthly , where, as here, the alleged misleading or deceptive conduct was that of one party to a business relationship and in the course of it and that conduct is the subject of complaint by the other, the complainant must establish a causal link between the impugned conduct and the loss or damage suffered by that conduct: cf TP Act s 87. In so doing, as indicated in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [37] , it is necessary to consider the character of the particular conduct of, here, AMC, in relation to Hamilton: ... 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, or which each may be taken to have known. Factual Setting
Case: Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53 ,193
Outcome: cited
52 has, over the last 35 years, been the subject of considerable judicial exegesis. The burden of its injunction that a corporation shall not in trade or commerce, engage in conduct that is misleading or deceptive, is not in dispute between the parties. Suffice it for me to say the following. First , conduct is misleading or deceptive if, in the circumstances, it induces or is capable of inducing error: see generally Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [63] . Secondly , the omission to do a thing is a species of conduct such that silence can in particular circumstances constitute or be part of misleading or deceptive conduct: Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 at 32 and 40. As French J observed in Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53 ,193 at 53,195: The cases in which silence may be so characterised [as contravening s 52] are no doubt many and various and it would be dangerous to essay any principle by which they might be exhaustively defined ... [U]nless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that that fact does not exist. Thirdly , there will be no contravention of s 52 unless error or misconception results from the conduct of the alleged contravenor and not from other circumstances for which that person is not responsible: Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1989) 16 IPR 431 at 440. Fourthly , the state of mind of the contravenor is immaterial unless the conduct in question involved a statement about its state of mind. It is sufficient that, tested objectively, the conduct in question was misleading or deceptive or was likely to mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. Fifthly , where, as here, the alleged misleading or deceptive conduct was that of one party to a business relationship and in the course of it and that conduct is the subject of complaint by the other, the complainant must establish a causal link between the impugned conduct and the loss or damage suffered by that conduct: cf TP Act s 87. In so doing, as indicated in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [37] , it is necessary to consider the character of the particular conduct of, here, AMC, in relation to Hamilton: ... 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, or which each may be taken to have known. Factual Setting
Case: Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1989) 16 IPR 431
Outcome: applied
52 has, over the last 35 years, been the subject of considerable judicial exegesis. The burden of its injunction that a corporation shall not in trade or commerce, engage in conduct that is misleading or deceptive, is not in dispute between the parties. Suffice it for me to say the following. First , conduct is misleading or deceptive if, in the circumstances, it induces or is capable of inducing error: see generally Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [63] . Secondly , the omission to do a thing is a species of conduct such that silence can in particular circumstances constitute or be part of misleading or deceptive conduct: Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 at 32 and 40. As French J observed in Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53 ,193 at 53,195: The cases in which silence may be so characterised [as contravening s 52] are no doubt many and various and it would be dangerous to essay any principle by which they might be exhaustively defined ... [U]nless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that that fact does not exist. Thirdly , there will be no contravention of s 52 unless error or misconception results from the conduct of the alleged contravenor and not from other circumstances for which that person is not responsible: Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1989) 16 IPR 431 at 440. Fourthly , the state of mind of the contravenor is immaterial unless the conduct in question involved a statement about its state of mind. It is sufficient that, tested objectively, the conduct in question was misleading or deceptive or was likely to mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. Fifthly , where, as here, the alleged misleading or deceptive conduct was that of one party to a business relationship and in the course of it and that conduct is the subject of complaint by the other, the complainant must establish a causal link between the impugned conduct and the loss or damage suffered by that conduct: cf TP Act s 87. In so doing, as indicated in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [37] , it is necessary to consider the character of the particular conduct of, here, AMC, in relation to Hamilton: ... 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, or which each may be taken to have known. Factual Setting
Case: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82
Outcome: applied
52 has, over the last 35 years, been the subject of considerable judicial exegesis. The burden of its injunction that a corporation shall not in trade or commerce, engage in conduct that is misleading or deceptive, is not in dispute between the parties. Suffice it for me to say the following. First , conduct is misleading or deceptive if, in the circumstances, it induces or is capable of inducing error: see generally Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at [63] . Secondly , the omission to do a thing is a species of conduct such that silence can in particular circumstances constitute or be part of misleading or deceptive conduct: Demagogue Pty Ltd v Ramensky [1992] FCA 557 ; (1992) 39 FCR 31 at 32 and 40. As French J observed in Kimberley NZI Finance Ltd v Torero Pty Ltd [1989] ATPR (Digest) 53 ,193 at 53,195: The cases in which silence may be so characterised [as contravening s 52] are no doubt many and various and it would be dangerous to essay any principle by which they might be exhaustively defined ... [U]nless the circumstances are such as to give rise to the reasonable expectation that if some relevant fact exists it would be disclosed, it is difficult to see how mere silence could support the inference that that fact does not exist. Thirdly , there will be no contravention of s 52 unless error or misconception results from the conduct of the alleged contravenor and not from other circumstances for which that person is not responsible: Equity Access Pty Ltd v Westpac Banking Corporation [1989] FCA 506 ; (1989) 16 IPR 431 at 440. Fourthly , the state of mind of the contravenor is immaterial unless the conduct in question involved a statement about its state of mind. It is sufficient that, tested objectively, the conduct in question was misleading or deceptive or was likely to mislead or deceive: Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd [1984] FCA 180 ; (1984) 2 FCR 82 at 88. Fifthly , where, as here, the alleged misleading or deceptive conduct was that of one party to a business relationship and in the course of it and that conduct is the subject of complaint by the other, the complainant must establish a causal link between the impugned conduct and the loss or damage suffered by that conduct: cf TP Act s 87. In so doing, as indicated in Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 ; (2004) 218 CLR 592 at [37] , it is necessary to consider the character of the particular conduct of, here, AMC, in relation to Hamilton: ... 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, or which each may be taken to have known. Factual Setting