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Wk 10: Remedies - Coggle Diagram

- - - - Liverpool Holdings Ltd v Gordon Lynton Car Sales P/L
        
        Gross contract price = $285, 000
        
        Buyer refused to complete
        
        DATE OF BREACH value: = $145,000
        
        Damages = $285k - $145k = $140k
        (minus forfeited deposit)
      - What about consequential loss = unsettled
        
        LCQ: don't include costs of the ABORTED sale
        
        Include costs of the RESALE:
        
        legal expenses
        
        commission
        
        settlement expenses
        
        Other costs: repossession (yes), holding costs (rates, water, land tax, body corp (yes/QLD), interest on mortgage (no)
    - - REIQ Cl 9.4, 9,6 and 9.7
      - Amga P/L v Michie No 2
        
        $160k price
        
        $173,500 DOB
        
        $80 resale
  - - - After AFFIRMATION, a buyer CAN seek compensation either under the contract or at common law. EG
        
        failure to give vacant possession
        
        promissory warranties
        
        adjustment of outgoings
      - After COMPLETION
        
        Doctrine of merger - at common law CANNOT claim for defects in title
        
        BUT REIQ 7.5: Can CLAIM for errors in boundary/area. encroachments or mistake/omission in describing the property or the seller's title to it
- - - - By writing or conduct
      - Eg
        
        Issuing writ claiming termination and damages (termination)
        
        Selling the property to someone (termination)
        
        Calling for transfer docs (affirmation)
        
        Granting an extension is not an election
    - - Sargent v ASL
        You do not need to know about the legal rights; if you know about the breach and act in a way that is inconsistent with continuing the contract, it may not change the clear election
    - - Time for making the election must have arrived
      - When is this?
      - When a part must CHOOSE between TWO INCONSISTENT rights/courses of action
        
        Must be done within a reasonable time
      - If a statute says the time for exercising right to terminate is 'by settlement', then there's no waiver until that time:
        
        MP Management P/L v Churven (confirmation a contract had gone unconditional)
        
        Esp consumer protection statutes may be interpreted as UNABLE to waive until the specified time
      - A party will be held to their SOLICITOR's conduct!
- - - - Tramways Advertising P/L v Luna Park, Associated Nespapers v Bancks
        
        the term must have been so important the person would not have entered into the contract without assurance of a strict or at least substantial performance of the term
      - Gilson v Flamingo Enterprises (unobstructed views)
    - - Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd
        
        may act as a condition, may act as a mere warranty
        
        what is the effect of the breach? Is it substantial?
    - - Shevill v Builders Licensing Board
      - Express
        
        Implied
        
        Erroneous interp of the contract
        
        Wrongful termination
- - - - 'Unwinds' the contract as though it never existed (recission ab initio)
      - Orders will be made to restore the parties to the status quo ante (substantial restitutio in integrum)
      - Bars: affirmation, laches/delay, 3rd parties, inability to achieve restiutio
      - After settlement, before registration: can claim
      - After registration: recission not possible due to merger (except if fraud, TFC, personal equity from seller's act)
    - - ACL - sch 2 of Comp and Consumer
      - s 237 Compensation order etc.
      - s 243 Kind of orders that may be made
  - - - Measure = put the applicant in the position as if the tort had not been committed
      - Ask: How much worse off are they after entering the transaction than if it never took place. City Mutual
      - Pl will generally recover the amounts spent in reliance on the conduct NOT the amount of profit expected to make
      - Usual measure = difference between real VALUE of property AT ACQUISITION and what was PAID
      - Can claim consequential losses
    - - Under s 236 Actions for damages
      - (b) claimant may recover amount of the loss or damage by action against that other person
      - Henville v Walker
        Now s 137B - contributory negligence (s 18)
      - Calculating the loss: diff between market value at date of contract and price paid
      - If the contract is rescinded won't get this but may claim consequential loss
      - Also...accessorial liability