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Case Law Update

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27th November 2012

Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30 – further report

27th November 2012

The recent High Court decision in Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30 (which we have previously reported on) has generated much comment, and we wanted to unpack the issues this case raises in a bit more detail. The rule against penalties continues to apply in situations that amount to a breach of contract. In Andrews, the High Court decided that the rule could also apply in some situations that do not amount to a breach of contract, but not all situations.

10th September 2012

Andrews v Australia and New Zealand Banking Group Ltd [2012] HCA 30

10th September 2012

Conventional wisdom, until now, has been that the rule against penalties could only be engaged in situations of breach of contract. As such, the mindful contract drafter arguably only had to ensure that the relevant consequence (that is, the potential ‘penalty’) was triggered by an event that was not a breach of contract, in order to avoid the application of the rule. This approach is no longer certain following today’s High Court decision in Andrews v Australia and New Zealand Banking Group Ltd (2012) HCA 30.

23rd August 2012

Cuscal Ltd v First Data Resources Australia NSW SC 1625

23rd August 2012

In Cuscal Ltd v First Data Resources Australia Ltd [2011] NSWSC 1625, Cuscal entered into a master services agreement (MSA) with First Data for the supply, by First Data, of data transfer services for a term of 5 years expiring on 31 December 2012.

1st August 2012

Alstom Ltd v Yokogawa Australia Pty Ltd and Anor (No 7) [2012] SASC 49

1st August 2012

Most Australian lawyers involved in drafting and negotiating commercial contracts are familiar with the Peerless decision. However a recent unreported judgement of the South Australian Supreme Court takes the concepts one step further, potentially narrowing even further the types of damages recoverable under contracts that exclude liability for “consequential loss”.

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