Laina discussed the impact on claims of the extended statutory duty of care in the Design and Building Practitioners Act 2020 (NSW) and the recovery of damages in construction claims at the 2023 UNSW Edge Construction Law Edge.
Rights of the Parties and Discharge; Remedies for Breach of ContractHelpWithAssignment.com
Business law is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.It is often considered to be a branch of civil law and deals with issues of both private law and public law.
This document contains an assignment for a subject on legal aspects of business. It includes 6 questions related to performance of contracts, rights of surety, termination of bailment, performance of sale of goods contracts, anti-competitive agreements, and types of company meetings. For each question, it provides explanations and answers in paragraphs of varying lengths. The questions cover topics such as definitions related to contract performance, rights of sureties against creditors, principal debtors and co-sureties, circumstances for termination of bailment, duties of buyers and sellers, factors considered for anti-competitive effects, and types of statutory, annual general, extraordinary and class meetings.
Critical Appraisal of Section 124 & 125 of Indian Contract Act, 1872.pptxtaxguruedu
Indemnity in a literal sense means protection against loss. In an indemnity contract, one party – the indemnifier – promises to reimburse some other party – the indemnified – for the damage experienced by the other.
This document discusses the key aspects of a contract of guarantee under Indian law. It defines a contract of guarantee as a contract where one party agrees to be liable for the debt or obligation of a third party in case of default. It outlines the three parties in such a contract - the surety, principal debtor, and creditor. It describes the essential elements of a valid contract of guarantee and the types of guarantees. It also explains the various ways in which a surety can be discharged from liability and the rights of a surety against the creditor and principal debtor.
Negotiating investor interest in indemnity clausesAditi Duggal
Indemnity is a shield that protects investor interests in contracts including share purchase agreements or share subscription agreements. The presentation explores all safeguards that must be carefully negotiated in indemnity contracts.
Indemnity contract | contract law | contract II | KSLUKarthikSP22
The document discusses several types of contracts under Indian law, beginning with contracts of indemnity, guarantee, bailment, and pledge. It then covers contracts of agency and partnerships under the Indian Partnership Act. Finally, it discusses the Sale of Goods Act regarding contracts of sale. For contracts of indemnity specifically, it defines key terms, outlines the essential elements, and describes the rights of the indemnity holder and duties of both parties. A contract of indemnity involves one party promising to compensate another for losses caused by the conduct of either the promisor or a third party.
1) The document discusses the implications of including a 'waiver of subrogation' clause in construction works insurance policies where there are multiple insureds. It notes that such a clause could have unintended consequences for the insurer if not carefully worded.
2) It then provides background on the legal concept of subrogation, including that it allows an insurer to 'step into the shoes' of the insured and recover losses from third parties. However, subrogation cannot be used by an insurer against its own insured.
3) The document analyzes a court case where a subcontractor claimed protection under the waiver of subrogation clause in the principal contractor's insurance policy, even though the subcontract
A breach of contract occurs when one party fails to perform their obligations under the terms of a binding agreement. There are two types of breach - anticipatory and actual. Remedies for breach include suing for damages or compensation, an injunction, quantum meruit, rescission of the contract, or specific performance. Damages can be ordinary, special, exemplary, nominal, pre-fixed, or for deterioration. The landmark Hadley v. Baxendale case established that damages must have been foreseeable or naturally arise from the breach.
Rights of the Parties and Discharge; Remedies for Breach of ContractHelpWithAssignment.com
Business law is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales.It is often considered to be a branch of civil law and deals with issues of both private law and public law.
This document contains an assignment for a subject on legal aspects of business. It includes 6 questions related to performance of contracts, rights of surety, termination of bailment, performance of sale of goods contracts, anti-competitive agreements, and types of company meetings. For each question, it provides explanations and answers in paragraphs of varying lengths. The questions cover topics such as definitions related to contract performance, rights of sureties against creditors, principal debtors and co-sureties, circumstances for termination of bailment, duties of buyers and sellers, factors considered for anti-competitive effects, and types of statutory, annual general, extraordinary and class meetings.
Critical Appraisal of Section 124 & 125 of Indian Contract Act, 1872.pptxtaxguruedu
Indemnity in a literal sense means protection against loss. In an indemnity contract, one party – the indemnifier – promises to reimburse some other party – the indemnified – for the damage experienced by the other.
This document discusses the key aspects of a contract of guarantee under Indian law. It defines a contract of guarantee as a contract where one party agrees to be liable for the debt or obligation of a third party in case of default. It outlines the three parties in such a contract - the surety, principal debtor, and creditor. It describes the essential elements of a valid contract of guarantee and the types of guarantees. It also explains the various ways in which a surety can be discharged from liability and the rights of a surety against the creditor and principal debtor.
Negotiating investor interest in indemnity clausesAditi Duggal
Indemnity is a shield that protects investor interests in contracts including share purchase agreements or share subscription agreements. The presentation explores all safeguards that must be carefully negotiated in indemnity contracts.
Indemnity contract | contract law | contract II | KSLUKarthikSP22
The document discusses several types of contracts under Indian law, beginning with contracts of indemnity, guarantee, bailment, and pledge. It then covers contracts of agency and partnerships under the Indian Partnership Act. Finally, it discusses the Sale of Goods Act regarding contracts of sale. For contracts of indemnity specifically, it defines key terms, outlines the essential elements, and describes the rights of the indemnity holder and duties of both parties. A contract of indemnity involves one party promising to compensate another for losses caused by the conduct of either the promisor or a third party.
1) The document discusses the implications of including a 'waiver of subrogation' clause in construction works insurance policies where there are multiple insureds. It notes that such a clause could have unintended consequences for the insurer if not carefully worded.
2) It then provides background on the legal concept of subrogation, including that it allows an insurer to 'step into the shoes' of the insured and recover losses from third parties. However, subrogation cannot be used by an insurer against its own insured.
3) The document analyzes a court case where a subcontractor claimed protection under the waiver of subrogation clause in the principal contractor's insurance policy, even though the subcontract
A breach of contract occurs when one party fails to perform their obligations under the terms of a binding agreement. There are two types of breach - anticipatory and actual. Remedies for breach include suing for damages or compensation, an injunction, quantum meruit, rescission of the contract, or specific performance. Damages can be ordinary, special, exemplary, nominal, pre-fixed, or for deterioration. The landmark Hadley v. Baxendale case established that damages must have been foreseeable or naturally arise from the breach.
This document provides an overview of obligations and contracts law, specifically regarding penal clauses and the extinguishment of obligations. It discusses penal clauses, their purpose and effects, as well as cases related to their application. It also outlines various ways obligations can be extinguished, such as payment, loss of the subject matter, impossibility of performance, and others. Various related legal principles and requirements are explained, with examples provided through case summaries.
The Law of Penalties - ANZ v Andrews and beyond Laina Chan
In https://www.youtube.com/watch?v=TVVSSbLUm0g, Ian Bailey SC and Laina Chan barristers, discuss the developments in the law of penalties since ANZ v Andrews. They also consider the approach of the Supreme Court in the UK in the first of a series of Chatz with Bailey SC and Chan in Cavendish Square Holding BV v Talai El Makdessi [2015] UKSC 67. This is the powerpoint that accompanies the chatz
This document provides information about contracts of indemnity and guarantee under business law. It defines a contract of indemnity as one where one party promises to save the other from loss caused by the promisor or a third party. A contract of guarantee involves three parties where a surety promises to fulfill the liability of a principal debtor in case of default. The key differences between the two contracts are that indemnity involves two parties and primary liability, while guarantee involves three parties and secondary liability of the surety. The document outlines the rights and obligations of parties under these contracts.
This document discusses various aspects of obligations and contracts under Philippine law. It begins by defining an obligation with a penal clause as one that attaches an accessory undertaking, such as a penalty, to ensure performance. It then discusses the effects of penal clauses, including liquidated damages and strengthening coercive force. The document also covers topics like extinguishing obligations through payment or other means, loss of the thing due, and impossibility of performance. It provides examples and exceptions to the general rules regarding these various aspects of obligations and contracts.
A demand guarantee is a guarantee that must be honoured by the guarantor upon beneficiary's demand. The beneficiary is not required to first make a claim or take any action against the obligor of the guaranteed obligation that the guarantee supports
The document discusses contracts of indemnity and guarantee under Indian contract law. It defines a contract of indemnity as a promise to save someone from loss caused by one's own actions or another's actions. A contract of guarantee involves three parties where a surety promises a creditor that they will perform or pay if a principal debtor defaults. The document outlines the essential elements of these contracts, rights of the parties, and key cases that have helped establish principles like when an indemnifier's liability arises and implied rights of indemnifiers. It concludes that indemnity contracts are commonly used but their outcomes are unpredictable, requiring careful drafting to clearly allocate risks and liabilities.
- Oklahoma follows modified comparative negligence, where recovery is barred if plaintiff is over 51% at fault. Stacking of UM/UIM coverage is permitted.
- Minimum liability limits are $25,000/$50,000/$25,000. UM/UIM coverage is mandatory with minimum limits of $25,000/$50,000. Medical payments coverage is optional.
- The statute of limitations for UM/UIM claims is 5 years from the date of breach. Insurers have 30 days to provide claim forms/assistance and acknowledge claims, and 60 days to accept or deny first party claims.
The document discusses the purposes and limitations of negative pledge clauses. It examines whether an automatic negative pledge clause constitutes a form of security, and analyzes potential remedies for breach of a negative pledge, including damages, injunction, and specific performance. Specifically:
1) A negative pledge aims to maintain equal treatment of unsecured creditors and prevent the granting of security to other lenders, but it does not restrict all unsecured debt. An automatic negative pledge operates as a floating charge that crystallizes upon the creation of prohibited security.
2) Damages are generally not an adequate remedy for breach of a negative pledge since they do not undermine the security granted to other lenders.
3) An injunction may be granted to
This document summarizes key aspects of a contract of guarantee under Indian law. It defines the parties in a contract of guarantee as the principal debtor, surety, and creditor. It outlines essential requirements like consideration and consent. It discusses types of guarantees like bank guarantees and continuing guarantees. It also explains the liabilities of sureties and ways in which sureties can be discharged from liability, such as through release of the principal debtor. Key cases are referenced to illustrate legal principles.
The document discusses contracts of indemnity and guarantee under Indian contract law. It defines a contract of indemnity as one where one party promises to save the other from loss caused by the promisor or another person. A contract of guarantee involves three parties - a principal debtor, creditor, and surety where the surety promises to discharge the liability of the principal debtor in case of default. The key differences between the two types of contracts are that indemnity involves two parties while guarantee involves three, and the liability of an indemnifier is primary while a surety's liability is secondary upon the principal debtor's default.
The document discusses the doctrine of promissory estoppel, which provides a remedy for promises that fail the test of enforceability under traditional contract law due to a lack of consideration. Promissory estoppel binds a gratuitous promise if the promisor reasonably expected the promise to induce reliance, reliance occurred, and injustice can only be avoided by enforcing the promise. The document traces the evolution of promissory estoppel from its roots in equitable estoppel and examines how courts have applied it in various contexts, including donative promises, reliance on offers, indefinite agreements, and preliminary negotiations. It notes that remedies under promissory estoppel are more flexible than contract remedies and can be limited to reliance damages.
The document discusses various legal remedies available for breach of contract, including:
1) Damages, which provide monetary compensation to put the injured party in the position they would have been if the contract was performed. Damages must be causally related to the breach and not too remote.
2) Equitable remedies like rescission, restitution, specific performance, and injunctions which are discretionary and aim to restore the injured party.
3) Types of damages including nominal, ordinary, exemplary, liquidated, and unliquidated damages.
1. A contract of indemnity involves two parties, where one party promises to compensate the other for any loss or liability incurred. A contract of guarantee involves three parties, where a guarantor promises the creditor to compensate for the debt if the principal debtor defaults.
2. The key differences are: in indemnity the indemnifier's liability is primary while in guarantee the surety's liability is secondary; indemnity covers future losses while guarantee covers existing debts; and the surety can recover from the principal debtor, while the indemnifier can only recover from the indemnity holder.
3. For a guarantee to be valid, it must satisfy the requirements of a contract and
This document discusses remedies for breach of contract, including rescission, damages, quantum meruit, specific performance, and injunction. It defines each remedy and provides examples. Rescission allows a party to treat a contract as void after a breach. Damages provide monetary compensation for losses from a breach. Quantum meruit applies when partial performance justifies compensation. Specific performance requires literal fulfillment of contract obligations. Injunctions enforce negative contract terms.
This document discusses remedies for breach of contract, including rescission, damages, quantum meruit, specific performance, and injunction. It defines each remedy and provides examples. Rescission allows a party to treat a contract as voided due to breach. Damages provide monetary compensation for losses from breach. Quantum meruit applies when partial performance justifies compensation. Specific performance requires literal fulfillment of contract terms. Injunctions enforce negative contract obligations.
1. An indemnity is a contractual agreement where one party promises to compensate the other for any losses or damages.
2. Indemnity clauses are commonly found in rental agreements, leases, and contracts involving intellectual property to allocate risks and limit liability for damages.
3. Suppliers have become more reluctant to provide intellectual property indemnities due to factors like open source software, increased litigation risks, and more software patents.
What Can You Claim for Breach of A Construction Contract?Sarah Fox
A summary of the law setting out the damages you can claim in the event that someone breaches their contract with you.
The note was developed by Sarah Fox, author of the 500-Word Contract. The tips and techniques from her 500-Word series of talks, workshops and contract coaching will help you create simple, ethical contracts you can read, use and understand.
Contact her by email sarah@500words.co.uk or for more information, visit her website www.500words.co.uk
This document provides an overview of obligations and contracts law, specifically regarding penal clauses and the extinguishment of obligations. It discusses penal clauses, their purpose and effects, as well as cases related to their application. It also outlines various ways obligations can be extinguished, such as payment, loss of the subject matter, impossibility of performance, and others. Various related legal principles and requirements are explained, with examples provided through case summaries.
The Law of Penalties - ANZ v Andrews and beyond Laina Chan
In https://www.youtube.com/watch?v=TVVSSbLUm0g, Ian Bailey SC and Laina Chan barristers, discuss the developments in the law of penalties since ANZ v Andrews. They also consider the approach of the Supreme Court in the UK in the first of a series of Chatz with Bailey SC and Chan in Cavendish Square Holding BV v Talai El Makdessi [2015] UKSC 67. This is the powerpoint that accompanies the chatz
This document provides information about contracts of indemnity and guarantee under business law. It defines a contract of indemnity as one where one party promises to save the other from loss caused by the promisor or a third party. A contract of guarantee involves three parties where a surety promises to fulfill the liability of a principal debtor in case of default. The key differences between the two contracts are that indemnity involves two parties and primary liability, while guarantee involves three parties and secondary liability of the surety. The document outlines the rights and obligations of parties under these contracts.
This document discusses various aspects of obligations and contracts under Philippine law. It begins by defining an obligation with a penal clause as one that attaches an accessory undertaking, such as a penalty, to ensure performance. It then discusses the effects of penal clauses, including liquidated damages and strengthening coercive force. The document also covers topics like extinguishing obligations through payment or other means, loss of the thing due, and impossibility of performance. It provides examples and exceptions to the general rules regarding these various aspects of obligations and contracts.
A demand guarantee is a guarantee that must be honoured by the guarantor upon beneficiary's demand. The beneficiary is not required to first make a claim or take any action against the obligor of the guaranteed obligation that the guarantee supports
The document discusses contracts of indemnity and guarantee under Indian contract law. It defines a contract of indemnity as a promise to save someone from loss caused by one's own actions or another's actions. A contract of guarantee involves three parties where a surety promises a creditor that they will perform or pay if a principal debtor defaults. The document outlines the essential elements of these contracts, rights of the parties, and key cases that have helped establish principles like when an indemnifier's liability arises and implied rights of indemnifiers. It concludes that indemnity contracts are commonly used but their outcomes are unpredictable, requiring careful drafting to clearly allocate risks and liabilities.
- Oklahoma follows modified comparative negligence, where recovery is barred if plaintiff is over 51% at fault. Stacking of UM/UIM coverage is permitted.
- Minimum liability limits are $25,000/$50,000/$25,000. UM/UIM coverage is mandatory with minimum limits of $25,000/$50,000. Medical payments coverage is optional.
- The statute of limitations for UM/UIM claims is 5 years from the date of breach. Insurers have 30 days to provide claim forms/assistance and acknowledge claims, and 60 days to accept or deny first party claims.
The document discusses the purposes and limitations of negative pledge clauses. It examines whether an automatic negative pledge clause constitutes a form of security, and analyzes potential remedies for breach of a negative pledge, including damages, injunction, and specific performance. Specifically:
1) A negative pledge aims to maintain equal treatment of unsecured creditors and prevent the granting of security to other lenders, but it does not restrict all unsecured debt. An automatic negative pledge operates as a floating charge that crystallizes upon the creation of prohibited security.
2) Damages are generally not an adequate remedy for breach of a negative pledge since they do not undermine the security granted to other lenders.
3) An injunction may be granted to
This document summarizes key aspects of a contract of guarantee under Indian law. It defines the parties in a contract of guarantee as the principal debtor, surety, and creditor. It outlines essential requirements like consideration and consent. It discusses types of guarantees like bank guarantees and continuing guarantees. It also explains the liabilities of sureties and ways in which sureties can be discharged from liability, such as through release of the principal debtor. Key cases are referenced to illustrate legal principles.
The document discusses contracts of indemnity and guarantee under Indian contract law. It defines a contract of indemnity as one where one party promises to save the other from loss caused by the promisor or another person. A contract of guarantee involves three parties - a principal debtor, creditor, and surety where the surety promises to discharge the liability of the principal debtor in case of default. The key differences between the two types of contracts are that indemnity involves two parties while guarantee involves three, and the liability of an indemnifier is primary while a surety's liability is secondary upon the principal debtor's default.
The document discusses the doctrine of promissory estoppel, which provides a remedy for promises that fail the test of enforceability under traditional contract law due to a lack of consideration. Promissory estoppel binds a gratuitous promise if the promisor reasonably expected the promise to induce reliance, reliance occurred, and injustice can only be avoided by enforcing the promise. The document traces the evolution of promissory estoppel from its roots in equitable estoppel and examines how courts have applied it in various contexts, including donative promises, reliance on offers, indefinite agreements, and preliminary negotiations. It notes that remedies under promissory estoppel are more flexible than contract remedies and can be limited to reliance damages.
The document discusses various legal remedies available for breach of contract, including:
1) Damages, which provide monetary compensation to put the injured party in the position they would have been if the contract was performed. Damages must be causally related to the breach and not too remote.
2) Equitable remedies like rescission, restitution, specific performance, and injunctions which are discretionary and aim to restore the injured party.
3) Types of damages including nominal, ordinary, exemplary, liquidated, and unliquidated damages.
1. A contract of indemnity involves two parties, where one party promises to compensate the other for any loss or liability incurred. A contract of guarantee involves three parties, where a guarantor promises the creditor to compensate for the debt if the principal debtor defaults.
2. The key differences are: in indemnity the indemnifier's liability is primary while in guarantee the surety's liability is secondary; indemnity covers future losses while guarantee covers existing debts; and the surety can recover from the principal debtor, while the indemnifier can only recover from the indemnity holder.
3. For a guarantee to be valid, it must satisfy the requirements of a contract and
This document discusses remedies for breach of contract, including rescission, damages, quantum meruit, specific performance, and injunction. It defines each remedy and provides examples. Rescission allows a party to treat a contract as void after a breach. Damages provide monetary compensation for losses from a breach. Quantum meruit applies when partial performance justifies compensation. Specific performance requires literal fulfillment of contract obligations. Injunctions enforce negative contract terms.
This document discusses remedies for breach of contract, including rescission, damages, quantum meruit, specific performance, and injunction. It defines each remedy and provides examples. Rescission allows a party to treat a contract as voided due to breach. Damages provide monetary compensation for losses from breach. Quantum meruit applies when partial performance justifies compensation. Specific performance requires literal fulfillment of contract terms. Injunctions enforce negative contract obligations.
1. An indemnity is a contractual agreement where one party promises to compensate the other for any losses or damages.
2. Indemnity clauses are commonly found in rental agreements, leases, and contracts involving intellectual property to allocate risks and limit liability for damages.
3. Suppliers have become more reluctant to provide intellectual property indemnities due to factors like open source software, increased litigation risks, and more software patents.
What Can You Claim for Breach of A Construction Contract?Sarah Fox
A summary of the law setting out the damages you can claim in the event that someone breaches their contract with you.
The note was developed by Sarah Fox, author of the 500-Word Contract. The tips and techniques from her 500-Word series of talks, workshops and contract coaching will help you create simple, ethical contracts you can read, use and understand.
Contact her by email sarah@500words.co.uk or for more information, visit her website www.500words.co.uk
1) The document discusses strategies for managing construction claims and avoiding disputes, including establishing proper communication channels and building trust between owners and contractors.
2) It describes the "dispute syndrome" where a lack of trust and objectivity can cause claims to escalate into full disputes as each side takes increasingly aggressive positions.
3) Key recommendations include focusing on claims avoidance by managing risks upfront, addressing claims in a timely manner, and aligning project goals between parties to reduce conflicting interests.
Powerpoint for Legalwise Annual Property Seminar March 2016Laina Chan
This document summarizes key legal principles regarding sunset clauses in property contracts and quantification of damages. It discusses when a vendor can rescind a contract under a sunset clause, including if the subject lot is not created by the sunset date and the court finds rescission is just and equitable considering factors like contract terms, vendor conduct, and purchaser impact. It also reviews cases that establish vendors must act in good faith and not arbitrarily when rescinding. The document examines how damages may be assessed at a date other than breach when no market exists or the plaintiff is locked into the asset.
Powerpoint for New York State Bar LectureLaina Chan
Powerpoint used in the lecture on 29 October 2014 to the New York State Bar presented at Hinshaw & Culbertson on the Enforcement of International Arbitral Awards in the Asia Pacific. An event supported by the International Subcommittees for International Arbitration, Insurance and Reinsurance as well as the Chinese American Bar Association
Rob Harper SC & Laina Chan How to brief counsel and WhyLaina Chan
There are many myths surrounding the briefing of counsel. See http://www.lawyersweekly.com.au/careers/briefing-counsel-the-myths. This set of slides provides a practical step by step approach to briefing counsel both traditionally and digitally.
This document provides an overview of the assessment of damages for breach of contract under Australian law. It discusses the general compensatory approach to damages, outlining the types of losses that can be claimed. It then examines the rule in Hadley v Baxendale, which limits damages to those arising naturally from the breach or within the parties' contemplation. The document reviews the elements of causation and remoteness under Hadley v Baxendale and discusses how to determine when a loss is too remote through an analysis of the likelihood and knowledge requirements. Finally, it analyzes recent Australian cases applying these principles.
This document provides a summary of a lecture on insuring risk in construction projects. It discusses the various parties involved in construction projects and the risks they face, such as delays, claims, insolvency, design flaws, and more. It then outlines the various types of insurance commonly used in construction, including contractors' all risk policies, professional indemnity, and more. The document discusses several legal cases that relate to interpreting insurance contract clauses and exclusions. It examines issues like whether rectification costs are covered, how cross-liability and waiver of subrogation clauses work, and when insurance payouts might reduce damages owed.
This document provides an overview of security for performance in construction contracts, including different forms of security like bank guarantees, letters of credit, and performance bonds. It discusses key cases like Woodhall Limited v The Pipeline Authority that established the autonomy principle for bank guarantees, meaning they are payable on demand regardless of disputes between the parties. The document outlines exceptions to the autonomy principle such as fraud, statutory provisions, and express contractual exclusions. It also analyzes relevant clauses from the case Rejan Constructions Pty Ltd v Manningham Medical Centre Pty Ltd regarding when a party can have recourse to security or retention money.
When Conveyances Go Wrong - Purchaser’s Remedies for Vendor BreachesLaina Chan
This document provides an overview and summary of a lecture about purchaser's remedies for vendor breaches in property conveyances. It discusses vendor obligations under common law caveat emptor principles. It also outlines legislative constraints on vendors under the Australian Consumer Law and Conveyancing Act, including implied warranties and prescribed documents that must be attached to contracts. Finally, it discusses various types of vendor breaches such as non-disclosure of contamination or development controls, and the available remedies to purchasers including rescission and damages.
The document discusses the solicitor-client relationship and the duties solicitors owe to their clients. It covers several key topics:
1. Solicitors' duties arise from contract, tort, statute and professional rules. They owe duties of care, confidentiality and to act in their clients' best interests.
2. Solicitors have actual and ostensible authority to represent clients. Actual authority can be express or implied, while ostensible authority depends on how the client presents the solicitor's role.
3. Case law has explored the scope of solicitors' duties. While they must competently perform the work they were retained for, cases disagree on whether there is a broader "penumbral duty
The presentation deals with the concept of Right to Default Bail laid down under Section 167 of the Code of Criminal Procedure 1973 and Section 187 of Bharatiya Nagarik Suraksha Sanhita 2023.
2. Roberts v Goodwin Street
Development Pty Ltd
[2023] NSWCA 5
stabbing the purpose - all
classes of buildings are
covered.
s 4 defines the type of
"work"
s 36(1) defines the type of
“building”
1.
2.
3.
2
3. Provisions to
note in DBP Act
2020(NSW)
S 39 the duty is non-delegable.
What does this mean? is it non-
apportionable?
s 41 - limitation periods under
limitation Act 1969 and EPAA
apply.
3
4. Section 39
A person who owes a duty of care under this Part is not
entitled to delegate that duty.
Duty must not be delegated
4
5. Section 41
The provisions of this Part are in addition to duties, statutory warranties or
other obligations imposed under the Home Building Act 1989, other Acts
or the common law and do not limit the duties, warranties or other
obligations imposed under that Act, other Acts or the common law
This Part does not limit damages or other compensation that may be
available to a person under another Act or at common law because of a
breach of a duty by a person who carries out construction work.
This Part is subject to the Civil Liability Act
2002.
1.
2.
3.
Note
Actions under this Part are subject to applicable limitation periods
established under the Limitation Act 1969, and section 6.20 of the
Environmental Planning and Assessment Act 1979 which relates to
civil actions relating to certain work.
5
6. The statutory duty of care is apportionable: Boulus
Constructions Pty Ltd v Warrumbungle Shire
Council (No 2) [2022] NSWSC 1368 at [61] and
applied in The Owners – Strata Plan No 84674 v
Pafburn Pty Ltd [2023] NSWSC 116 at [29].
However, the person owing the non-delegable
duty of care is vicariously liable for the actions of
their independent contractor: Woodhouse v
Fitzgerald [2021] NSWCA 54 at [100], [102]; 104
NSWLR 475
6
7. The Compensation Principle
A PLAINTIFF CANNOT
RECOVER MORE THAN HE OR
SHE HAS LOST
The settled principle governing the assessment of
compensatory damages, whether in actions of tort or
contract, is that the injured party should receive
compensation in a sum which, so far as money can do,
will put that party in the same position as he or she
would have been in if the contract had been performed
or the tort had not been committed: Haines v Bendall
(1991) 172 CLR 60 at 63.
Also applies to ACL damages: Mills v Walsh [2022]
NSWCA 255 at [117].
7
8. Onus of Proof – The Plaintiff has the onus to prove the prima facie case
Evidentiary Burden - Upon the Plaintiff establishing the prima facie case, the
evidentiary burden shifts to the Defendant
Provisional Presumptions and Burdens – relevant facts or circumstances can
raise a “presumption” or make a “prima facie” case.
8
9. In the case of the failure of a party bearing the evidentiary burden only, the
direct evidence of the party with the onus of proof can be more readily
accepted and inferences in his or her favour may be more confidently drawn:
Jones v Dunkel [1959] HCA 9; 101 CLR 298.
9
10. RELIANCE DAMAGES -
RECOVERY OF WASTED
EXPENDITURE
Expenditure is “wasted”
if the promise in reliance
on which it was made is
not performed.
Wasted expenditure
includes any detrimental
change of position by
the plaintiff in reliance
upon the defendant’s
promise.
Onus on the defendant
show the value of any
benefit derived from the
wasted expenditure is
brought to account:
Mills v Walsh [2022]
NSWCA 255 at [138].
10
11. 4.
The reliance interest is the
quantum of the net
detriment.
123 259 932 V CESSNOCK CITY
COUNCIL [2023] NSWCA 21
3.
Any benefit received by the
plaintiff will be offset.
2.
The evidentiary burden is
then upon the defendant
to show that the plaintiff
would not have recouped
its expenditure had the
contract been performed.
1.
If a plaintiff is unable or
does not undertake to
demonstrate whether or to
what extent the
performance of a contract
would have resulted in a
profit then the presumption
arises that the plaintiff will
be able to recover its
“wasted” expenditure.
Relevant Principles as to when a plaintiff may claim to recoup its wasted expenditure
11
12. 123 259 932 V CESSNOCK CITY
COUNCIL [2023] NSWCA 21
Termination of the
contract by the innocent
party is not invariably a
precondition to recovery
of reliance damages.
It is not a precondition
to the presumption that
the plaintiff first
establish that it is
“impossible” to prove
expectation damages.
Notes:
12
13. SEE ALSO LEEDA PROJECTS (ACN 072 077 171) V YUN
ZENG (2020) 61 VR 384 WHERE A BUILDING PROJECT
WAS DELIVERED LATE.
Reliance damages in the form of wasted expenditure in the form of Owners Corporations’ fees, service
charges and council rates during the delay period awarded.
NOT the rental value of the property.
Special leave was refused.
13
14. Note that in a “no transaction” case, the plaintiff bears the
onus of establishing that it has suffered loss by showing
that what it has received is worth less than what it has
paid: see Mills v Walsh [2022] NSWCA 255 at [138].
Mills had succeeded on a s 18 ACL “no transaction” case but
had not proved the damage suffered.
14
15. Cappello v Hammond & Simonds NSW Pty Ltd [2021] NSWCA 57.
Owners’ claim for a diminution in value of the home at the time of
delivery vs the notional date of delivery as promised was rejected.
Fungibles vs Real Property: Morris v Leaney [2022] NSWCA 95 at
[87].
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16. The claim for damages for anxiety, disappointment
and distress was not allowed in Cappello at [88] –
[91]. Such damages are not recoverable in an action
for breach of contract unless you are dealing with a
Scenic Tours scenario and the object of the contract
is to provide enjoyment, relaxation or freedom from
molestation.
Cf with damages for mental distress, vexation and
inconvenience which may be recoverable in a tortious
claim or an ACL misrepresentation claim where a
plaintiff has suffered inconvenience and mental
distress: Archibald v Powlett [2017] VSCA 259 at [64]
Or where the plaintiff has suffered physical
discomfort or inconvenience: Archibald v Powlett
[2017] VSCA 259 at [63].
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17. THE PREVENTION PRINCIPLE IS A RULE OF CONSTRUCTION
In the absence of
clear words, a
contractual
entitlement upon a
particular event will
not be enlivened if
the event came
about through
breach of the party
seeking to rely on it.
No man can take
advantage of his own
wrong.
A man cannot
enforce against
another a right
arising from his own
breach of contract
or breach of duty.
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18. The rule only applies to the extent of undoing the advantage
gained by the wrongdoer where that can be done and not to
the extent of taking away a right previously possessed.
No one shall gain a right by his own wrong. Not that if he has a
right, he shall lose it, or the power of exercising it, by a wrong
done in connection with it.
A party in breach of contract may be precluded from relying on
a contractual entitlement arising from the breach, but will not
be precluded from relying on a contractual entitlement which
does not arise from the breach.
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19. Re mitigation and the avoided loss principle:
see Ruthol Pty Ltd v Tricon (Australia) Pty Ltd [2005] NSWCA 443 at [44] and referred to in
obiter in Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd [2016] NSWCA 123 at
[242].
The avoided loss principle applies where the innocent party in fact gained a compensating
advantage.
The guilty party bears the burden of proving that loss had been avoided and the extent to which it
had been avoided there must be proof of an actual benefit and what the benefit was.
The innocent party then has the evidentiary burden of rebutting the avoided loss once there is
evidence of compensation advantage.
Consider betterment which is a form of compensating advantage.
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