Case Law Update
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
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
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
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”.
9th August 2011
By Tim Gole, Simon Burns
Have you ever paused to wonder just how far your indemnity provisions might reach and who can enforce them? A recent decision of the Supreme Court of Victoria serves as a reminder that particular care is required when drafting broad indemnities with multiple indemnified parties.
30th June 2011
A recent decision from the Federal Court provides a reminder about the usefulness of international arbitration in resolving disputes between contracting parties in different jurisdictions.
30th March 2011
2011 has seen the most significant change to trade practices law in Australia, through the introduction of the second part of the Australian Consumer Law. The changes have been extensive, and in some cases trouble us all by the introduction of new terminology and section numbers – the “Competition and Consumer Act” rather than the “Trade Practices Act”, section 18 of the ACL rather than section 52 of the TPA, and so on.
22nd March 2011
A recent case in the Federal Court which held a company responsible for claims made in testimonials that its clients posted on its Facebook wall.
19th October 2010
In this case law update, we recap two cases that emphasise the importance of attention to detail in drafting commercial contracts. While often long-established principles of contractual interpretation will operate to address certain drafting anomalies consistently with the parties’ original intent, these two cases serve as an important reminder of how expensive litigation can result from even minor drafting errors in commercial contracts.
2nd September 2010
The UK High Court decision in BMS Computer Solutions Limited v AB Agri Limited [2010] EWHC 464 (Ch) serves as a practical reminder of the importance of clearly expressing whether a perpetual software licence is intended to survive termination or expiry of the relevant agreement, because this will not automatically be the result.
16th July 2010
The recent case of Fabcot Pty Ltd v Port Macquarie-Hastings Council [2010] NSWSC 726 (Fabcot) dealt with the question of whether, during a tender process, a customer can open negotiations with an alternative supplier (that is, not the down-selected supplier) even if no exclusivity arrangement is in place. This case provides a useful reminder of the importance of drafting clear provisions in a tender.
7th June 2010
If you’ve ever wondered whether those qualifications to an indemnity that you’ve spent ages negotiating are enforceable, a recent Queensland Court of Appeal decision confirms that courts will work hard to understand and give effect to them.
27th April 2010
Is software a “good” for the purposes of consumer protection laws such as the Sale of Goods Act? The appeal decision in Gammasonics handed down by the Supreme Court of New South Wales last week considered this issue.
30th March 2010
This case dealt with the consequences of a seller withdrawing paintings shortly before they were due to be auctioned. The facts of the case are perhaps more salacious than most, dealing with the acquisition of paintings in cash from the sales generated by a chain of adult stores; a referral of the evidence heard to the ATO for investigation of possible tax avoidance; and a marriage separation where the wife (Mrs Ange) had sought to auction the paintings in her own right, but with the paintings ultimately being withdrawn after her husband also claimed title to them.
