mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23 ; (1989) 166 CLR 623
Outcome: referred to
is not necessary, for repudiation of a contract, that the repudiator make plain that he will never perform his contractual obligations at all, as Deane and Dawson JJ pointed out in Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23 ; (1989) 166 CLR 623 at 658-659. There, Mason CJ said that there was a difference between evincing an intention to carry out a contract only if and when it suited the party to do so, and evincing an intention to carry it out as and when it suited the party to do it. He said that in the first case, the party intended not to carry the contract out at all, in the event that it did not suit him. Whereas in the second case, the party intended to carry out the contract, but only to carry it out as and when it suited him. Mason CJ said that it is easier to say of the first than the second case that a party has evinced an intention no longer to be bound by the contract, although ultimately the question whether a party is taken to have evinced such an intention is determined objectively: Laurinda 166 CLR at 634; see also 643 per Brennan J, and 666 per Gaudron J. It was an essential term under the franchise agreement that the franchisee (Hoy Mobile) be paid the commissions to which it was entitled arising from its performance of its obligations. The evidence established that Allphones was not paying commissions earned by Hoy Mobile in full, and sometimes at all. Just as Hoy Mobile's conduct in relation to the fraud evinced an intention not to be bound, Allphones' conduct in respect of the short payment of the commission can be described as conduct which evinced an intention no longer to be bound by the franchise agreement or to fulfil it in a manner substantially inconsistent with Allphones' obligations: Koompahtoo 241 ALR at 100 [44] per Gleeson CJ, Gummow, Heydon and Crennan JJ applying; Laurinda 166 CLR at 634 per Mason CJ.
Case: Lazarus Estates Ltd v Beasley [1956] 1 QB 702
Outcome: cited
one of the parties to a contract has committed a fraud in its performance, the fraudster cannot complain that he or she has been prejudiced by acts of the other party done without sufficient knowledge of his or her fraud. That is why the courts have always held that fraud fundamentally affects the way in which relations between parties are viewed. As Denning LJ said in Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712 (see also SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 237 ALR 64 at 68 [15] - [16] ): 'No court in this land will allow a person to keep an advantage which he has obtained by fraud. ... Fraud unravels everything.' Allphones argued that because Hoy Mobile had engaged in a fraud which fell within cl 9.3(viii) of the franchise agreement and which had continued for a considerable period, it should be allowed to terminate pursuant to its express contractual right. In Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713, Denning LJ referred to Master v Miller (1791) 4 TR 320 at 337-338; 1 Smith's LC, 13 th ed ,780, 799) where Buller J said: 'It is a common saying in our law books, that fraud vitiates every thing. I do not quarrel with the phrase, or mean in the smallest degree to impeach the various cases which have been founded on the proof of fraud. But we must recollect, that the principle which I have mentioned is always applied ad hominem . He who is guilty of a fraud shall never be permitted to avail himself of it; and if a contract founded in fraud be questioned between the parties to that contract, I agree, that as against the person who has committed the fraud, and who endeavours to avail himself of it, the contract shall be considered as null and void. ... Even as between the parties themselves we must not forget the figurative language of Lord Ch J Wilmot , who said [that]: "... the statute law is like a tyrant; where he comes he makes all void: but the common law is like a nursing father, and makes void only that part where the fault is, and preserves the rest."'
Case: Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2001) 210 CLR 181
Outcome: referred to
Maggbury Pty Ltd v Hafele Australia Pty Ltd [2001] HCA 70 ; (2001) 210 CLR 181 at 188 [11] , Gleeson CJ, Gummow and Hayne JJ said: '[11] Interpretation of a written contract involves, as Lord Hoffmann has put it ( Investors Compensation Scheme Ltd v West Bromwich Building Society [1997] UKHL 28 ; [1998] 1 WLR 896 at 912; [1997] UKHL 28 ; [1998] 1 All ER 98 at 114. See also the remarks of Mason J in Codelfa Construction Pty Ltd v State Rail Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 350-352, and of Lord Bingham of Cornhill in Bank of Credit and Commerce International SA v Ali [2001] UKHL 8 ; [2002] 1 AC 251 at 259): "the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract." That knowledge may include matters of law, as in this case where the obtaining of intellectual property protection was of central importance to the commercial development of Mr Allen's ironing board (cf Bank of Credit and Commerce International SA v Ali [2001] UKHL 8 ; [2002] 1 AC 251 at 282, per Lord Clyde).'
Case: Marshall v Director-General, Department of Transport [2001] HCA 37 ; (2001) 205 CLR 603
Outcome: referred to
McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55 ; (2005) 221 CLR 646 at 661 [40] McHugh, Gummow and Heydon JJ discussed the construction of a section which had been re-enacted in the same words in new legislation. They departed from the construction of the earlier legislation in a previous decision of the High Court and said: 'It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions (see Ogden Industries Pty Limited v Lucas [1970] AC 113 at 127; Brennan v Comcare (1994) 50 FCR 555 at 572.)' And, in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 242 ALR 383 at 391 [31] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ applied McHugh J's comments in Marshall v Director-General, Department of Transport [2001] HCA 37 ; (2001) 205 CLR 603 , where he said (at 632-3 [62]): ' But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.' (emphasis added)
Case: Master v Miller (1791) 4 TR 320
Outcome: followed
argued that because Hoy Mobile had engaged in a fraud which fell within cl 9.3(viii) of the franchise agreement and which had continued for a considerable period, it should be allowed to terminate pursuant to its express contractual right. In Lazarus Estates Ltd v Beasley [1956] 1 QB 702 at 712-713, Denning LJ referred to Master v Miller (1791) 4 TR 320 at 337-338; 1 Smith's LC, 13 th ed ,780, 799) where Buller J said: 'It is a common saying in our law books, that fraud vitiates every thing. I do not quarrel with the phrase, or mean in the smallest degree to impeach the various cases which have been founded on the proof of fraud. But we must recollect, that the principle which I have mentioned is always applied ad hominem . He who is guilty of a fraud shall never be permitted to avail himself of it; and if a contract founded in fraud be questioned between the parties to that contract, I agree, that as against the person who has committed the fraud, and who endeavours to avail himself of it, the contract shall be considered as null and void. ... Even as between the parties themselves we must not forget the figurative language of Lord Ch J Wilmot , who said [that]: "... the statute law is like a tyrant; where he comes he makes all void: but the common law is like a nursing father, and makes void only that part where the fault is, and preserves the rest."'
Case: Matthews v Smallwood [1910] 1 Ch 77
Outcome: cited
principle of election operates to hold a party to a position it has communicated to the other party as the choice that it has made between two inconsistent rights. Communication of the choice cannot occur in a factual vacuum. The circumstances and context of the communication affect how a reasonable person in the position of the other party would understand it. A landlord accepting rent ( Matthews v Smallwood [1910] 1 Ch 777 per Parker J) or a fire insurer, exercising rights to take possession of the insured's damaged premises ( Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64 ; (1920) 28 CLR 305 per Knox CJ, Isaacs and Starke JJ) acting unilaterally, could not say that it was acting 'without prejudice'.
Case: McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55 ; (2005) 221 CLR 646
Outcome: referred to
McNamara v Consumer Trader and Tenancy Tribunal [2005] HCA 55 ; (2005) 221 CLR 646 at 661 [40] McHugh, Gummow and Heydon JJ discussed the construction of a section which had been re-enacted in the same words in new legislation. They departed from the construction of the earlier legislation in a previous decision of the High Court and said: 'It would be an error to treat what was said in construing one statute as necessarily controlling the construction of another; the judicial task in statutory construction differs from that in distilling the common law from past decisions (see Ogden Industries Pty Limited v Lucas [1970] AC 113 at 127; Brennan v Comcare (1994) 50 FCR 555 at 572.)' And, in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2008] HCA 5 ; (2008) 242 ALR 383 at 391 [31] Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ applied McHugh J's comments in Marshall v Director-General, Department of Transport [2001] HCA 37 ; (2001) 205 CLR 603 , where he said (at 632-3 [62]): ' But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction. Judicial decisions are not substitutes for the text of legislation although, by reason of the doctrine of precedent and the hierarchical nature of our court system, particular courts may be bound to apply the decision of a particular court as to the meaning of legislation.' (emphasis added) In my respectful opinion, although his Honour did not have the benefit of the reasoning in Baxter Health Care [2007] HCA 38 ; 237 ALR 512 , which was delivered subsequently to the reasons in Ketchell [2007] NSWCA 161 , the reasoning of Mason P is plainly wrong. In addition, Ketchell [2007] NSWCA 161 was decided on different legislation: see McNamara 221 CLR at 661 [40]; Walker Corporation 242 ALR at 391 [31]. I am of opinion that the non-compliance by Allphones with its obligations under cl 11 of the Code did not make the franchise agreement void. That non-compliance is a factor which, had Hoy Mobile wished to do so, could have been raised by it to seek relief under s 87 of the Act. It would defeat the evident purpose of the Code if Allphones were entitled to rely on its own breach of its obligation imposed under cl 11 to deny a franchisee with whom it had entered into a contract, the entitlement to enforce that contract against it or to seek a variation of it or relief from it under the Act. For these reasons I reject Allphones' argument that the franchise agreement is void.
Case: Melbourne Harbour Trust Commissioners v Hancock [1927] HCA 26 ; (1927) 39 CLR 570
Outcome: cited
also argued that cll 15 and 16 operated to prevent Hoy Mobile relying on any election, by Allphones to keep the franchise agreement on foot, which was not in writing. Because of my findings above it is not necessary to consider the application of R v Paulson [1921] 1 AC 271 at 282-283 to cll 15 and 16 on which Hoy Mobile relied. However, their Lordships indicated that the issue depends on the facts for they said, as Owen J pointed out in Owendale Pty Ltd v Anthony [1967] HCA 52 ; (1967) 117 CLR 539 at 610, that '[i]t may well be that many cases may occur to which the clause as to waiver would be applicable' before saying that, in that case, it was not: see too Owendale 117 CLR at 590 per Taylor J with whom Barwick CJ agreed on this issue at 569; per McTiernan J at 581; per Kitto J at 581-582. And, in any event, contractual provisions like cll 15 and 16 are strictly construed: Craine 28 CLR at 325-326; affirmed in Yorkshire Insurance Co Ltd v Craine [1922] 2 AC 541 at 546; (1922) 31 CLR 27 ; see too Melbourne Harbour Trust Commissioners v Hancock [1927] HCA 26 ; (1927) 39 CLR 570 at 584 per Knox CJ and Gavan Duffy J; 589 per Isaacs J; 590 per Rich J; and 594 per Starke J.
Case: Nguyen v Nguyen [1990] HCA 9 ; (1990) 169 CLR 245
Outcome: cited
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 at 151-152 [135] , Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ said that intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is 'plainly wrong': see too Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ. And, where an intermediate appellate court holds itself free to depart from an earlier decision it should do so cautiously and only when compelled to the conclusion that the earlier decision is wrong: Nguyen v Nguyen [1990] HCA 9 ; (1990) 169 CLR 245 at 250 per Brennan J, at 269 per Dawson, Toohey and McHugh JJ and at 251 per Deane J agreeing.
Case: Nina's Bar Bistro Pty Ltd v MBE Corporation (Sydney) Pty Ltd [1984] 3 NSWLR 613
Outcome: considered
their Honours' comments were obiter, since they had already acknowledged that that was not a case where the party attempting to rescind was in breach of a condition or had otherwise repudiated. And they said that they did not need to undertake a comprehensive analysis of the effect of a breach on a party's right to rescind: see Roadshow 42 NSWLR at 479F. They recognised that, although a party in breach of a non-essential term was not prevented from rescinding for a fundamental breach or a repudiation by the other party, there may be an exception where a causal relationship existed between the breaches of non-essential terms by the party attempting to rescind and the fundamental breach relied on: Roadshow 42 NSWLR at 479G-480B referring to Nina's Bar Bistro Pty Ltd v MBE Corporation (Sydney) Pty Ltd [1984] 3 NSWLR 613. When Gleeson CJ, Handley JA and Brownie AJA said in the passage, which I have quoted, that a party in breach of an essential but independent term may also rescind for fundamental breach, they relied on the decision of the English Court of Appeal in State Training Corporation of India Ltd v Golodetz Ltd [1989] 2 Lloyd's Rep 277. There, Kerr LJ (with whom Lloyd and Butler-Sloss LJJ agreed: Golodetz [1989] 2 Lloyd's Rep at 286) said that where both parties had obligations which had to be performed concurrently but neither was dependent upon the other: 'Since both obligations are (assumedly) in the nature of conditions, both parties had an equal right, so long as the other party's obligation remained unperformed, to treat the other party as having wrongfully repudiated.' In Kyrwood v Drinkwater [2000] NSWCA 126 at [154] Powell JA (with whom Meagher JA agreed at [1]; see also the dissenting view of Fitzgerald JA at [231]-[251]) said: 'In Nina's Bar Bistro Pty Ltd v MBE Corporation (Sydney) Pty Ltd [1984] 3 NSWLR 613 it was held by this Court that, if non-compliance with a contractual obligation is to take away the defaulting party's right to terminate, there must be a direct causal relationship between the non-compliance and the failure to complete, the onus of proving which lies on the non-defaulting party, and there must be an absence of repudiation by the defaulting party prior to that time . The same approach was taken by this Court in Roadshow Entertainment Pty Ltd v CEL/Vision (ACN 053 006 269) Pty Ltd (1997) 42 NSWLR 462 at 479-480.'
Case: Owendale Pty Ltd v Anthony [1967] HCA 52 ; (1967) 117 CLR 539
Outcome: referred to
also argued that cll 15 and 16 operated to prevent Hoy Mobile relying on any election, by Allphones to keep the franchise agreement on foot, which was not in writing. Because of my findings above it is not necessary to consider the application of R v Paulson [1921] 1 AC 271 at 282-283 to cll 15 and 16 on which Hoy Mobile relied. However, their Lordships indicated that the issue depends on the facts for they said, as Owen J pointed out in Owendale Pty Ltd v Anthony [1967] HCA 52 ; (1967) 117 CLR 539 at 610, that '[i]t may well be that many cases may occur to which the clause as to waiver would be applicable' before saying that, in that case, it was not: see too Owendale 117 CLR at 590 per Taylor J with whom Barwick CJ agreed on this issue at 569; per McTiernan J at 581; per Kitto J at 581-582. And, in any event, contractual provisions like cll 15 and 16 are strictly construed: Craine 28 CLR at 325-326; affirmed in Yorkshire Insurance Co Ltd v Craine [1922] 2 AC 541 at 546; (1922) 31 CLR 27 ; see too Melbourne Harbour Trust Commissioners v Hancock [1927] HCA 26 ; (1927) 39 CLR 570 at 584 per Knox CJ and Gavan Duffy J; 589 per Isaacs J; 590 per Rich J; and 594 per Starke J.
Case: Paal Wilson &amp; Co v Partenreedere Hannah Blumenthali [1983] 1 AC 854
Outcome: referred to
common law, a party who brings an action for breach of contract must show that he is ready and willing to perform his part of the concurrent acts: Cohen &amp; Co 24 CLR at 298 per Isaacs J. Where, at least in English law, both parties to a contract are in breach of a mutual obligation owed by each to the other, neither can rely upon the other's breach as giving him a right to terminate, following the decisions of the House of Lords in Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corp Ltd [1981] AC 909 at 978-988A per Lord Diplock, with whom Lords Edmund-Davies and Russell of Killowen agreed; Paal Wilson &amp; Co v Partenreedere Hannah Blumenthal [1983] 1 AC 854 at 908H-909F per Lord Brandon of Oakbrook with whom the other members of the House agreed in separate speeches. In Paal Wilson [1983] 1 AC at 915C-916D Lord Diplock discussed the entry of both parties to an executory contract into a 'new contract' which he styled 'the contract of abandonment'. He explained that in such a case, each party promises by words or conduct to release the other from further performances of obligations on its part which remain to be performed, including the obligation to pay damages. And in Australian law the parties to a contract can so conduct themselves that they can be seen to have mutually abandoned or abrogated the contract; for example where neither takes any steps to perform over a period: see Summers v The Commonwealth [1918] HCA 33 ; (1918) 25 CLR 144 at 151-152 per Isaacs J; DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12 ; (1978) 138 CLR 423 at 434 per Stephen Mason and Jacobs JJ; Foran 168 CLR at 422-423 per Brennan J.
Case: Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165
Outcome: cited
is a danger in approaching commercial relationships with an overlay of equitable considerations. The relationship between the parties here arose in the contractual settings of the franchise agreement and the Code. Indeed, cl 12 of the franchise agreement expressly stated that the relationship between the parties was not one involving agency, partnership or joint venture. Nor does the Code create a fiduciary relationship between franchisor and franchisee. The necessity to identify the precise content of an alleged fiduciary relationship was emphasised by McHugh, Gummow, Hayne and Callinan in Pilmer v Duke Group Ltd (in liq) [2001] HCA 31 ; (2001) 207 CLR 165 at 198-199 [77] - [79] . Here, each party expected to earn profit by its own efforts. While it was in the joint interests of Allphones, and the franchisees, for Allphones to negotiate the best terms it could with carriers, the first question for consideration is what the terms of cll 7.3 and 7.4 require Allphones to do on their proper construction. If the contractual claims made by Hoy Mobile for the right to receive payments under one or other of those clauses in respect of the monies identified by it are correct, then it is not necessary to consider whether any fiduciary relationship existed. I propose to approach the problem in this way.
Case: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 768 [2003] HCA 10 ; , 196 ALR 257
Outcome: cited
am satisfied that Allphones was responsible for the diversion of calls from Hoy Mobile's territory of Eastgardens because of, first, the inappropriate programming by Zintel from March 2006 and, secondly, from October 2006 its own failure to correct what it knew was a problem. I am satisfied that Hoy Mobile lost the opportunity to make some sales from calls to the 138000 number during the period of the diversion. I am also satisfied that this loss had some value. Where there has been an actual loss of some sort, the common law does not permit difficulties of estimating the loss in money to defeat an award of damages: see Sellars v Adelaide Petroleum NL [1994] HCA 4 ; (1992) 179 CLR 332 at 349-350 per Mason CJ, Dawson, Toohey and Gaudron JJ. However, it is not possible to make any precise calculation of the value of this loss, which included payments under cll 7.3 and 7.4 and the ongoing right to receive MTAC. Doing the best I can, I find the value of this to be the loss of about 1% of the sales of the Randwick store made during the period of the diversion. That results in a past loss of about $900, but this amount excludes any MTAC which Hoy Mobile would have earned after March 2007 on those sales. Although there is some guesswork involved, I find the total loss of Hoy Mobile as a result of the diversion to be $1,500: see generally Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd [2003] HCA 10 ; (2003) 196 ALR 257 at [37] - [38] per Hayne J with whom Gleeson CJ, McHugh and Kirby JJ agreed: Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd [2007] FCAFC 40 ; (2007) 157 FCR 564 at 569-570 [35] - [36] per Black CJ and Jacobson J, at 581 [99]-[101] per myself.