Posts in Contract
Getting in on the deal: nominees and novation of contracts

In the context of contracts for the sale of land, it is quite common to see clauses permitting the purchaser to nominate a third party to which title is to be transferred. Less common (one would hope) are issues arising from this, such as whether a right to nominate has been validly exercised and whether the contract of sale ultimately has been novated. Such issues recently arose for the New South Wales Court of Appeal’s resolution in Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWCA 282.

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When enforcing a contract, what does it mean to be ‘ready, willing and able’ to perform your side of the bargain?

Where a party seeks to rely on another’s repudiation of a contract as a basis for suing, that party must show it has been ready, willing and able to comply with the contract. Matters can be complicated where the parties clearly disagree about how to interpret and comply with the contract, and even more so where the contract expressly requires the parties to use their best endeavours to see the contract fulfilled. The Court of Appeal in its recent decision in Bisognin v Hera Project Pty Ltd [2018] VSCA 93 has tackled these kinds of issues.

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Breach of contract: quantifying damages for a lost opportunity to ... lose money?

Where there has been a breach of contract, the innocent party can sue for damages including, where relevant, damages for the lost opportunity under the contract. In Principal Properties Pty Ltd v Brisbane Broncos Leagues Club Limited [2017] QCA 254, the Queensland Court of Appeal has considered a scenario where the opportunity to earn a profit under the contract was affected by various contingencies and where there might ultimately have been a loss instead. The Court has addressed the question of law, namely, whether an innocent party to a breach of contract can suffer a compensable loss even where, had the contract proceeded, that party might have lost money.

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Contractual offer and acceptance: when can an exchange of emails be enough?

It is elementary to the law of contract that a binding contract requires an offer and acceptance of that offer by the respective parties. In the recent decision in Queensland Phosphate Pty Ltd v Korda [2017] VSCA 269, the task for the Court of Appeal was to determine whether, on the facts, such qualities existed in light of an exchange of emails. The Court’s decision serves as a reminder of the importance, when seeking to create a binding contract through informal means, of not leaving too much to guess-work.

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Appeals, ContractCameron Charnley
What have I signed up for? A recent exercise by the Court of Appeal in contractual interpretation

Where one has a purported deed or a ‘heads of agreement’ type of document, when might that document be binding and when might it fall short for lack of formality? The Victorian Court of Appeal in its recent decision in Nurisvan Investment Ltd & Anor v Anyoption Holdings Limited has provided some guidance, and the decision is of note for the way in which it uses evidence of post-contractual conduct in ascertaining the identity of parties to an agreement.

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Seeking an injunction? The court might award damages instead

A person may apply to a court for an injunction in order to prevent threatened or actual and ongoing infringement of that person’s legal rights. When hearing an application for an injunction, most courts have jurisdiction to award damages instead of, or together with, an injunction. The Queensland Supreme Court has recently provided some guidance regarding the circumstances in which a court might do so.

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What is a ‘retail tenancy dispute’? Navigating the statutory regime

Disputes regarding retail tenancies are typically the exclusive province of the Victorian Civil and Administrative Tribunal. Nonetheless, the Supreme Court of Victoria in the recent case of AMJE Pty Ltd v Mobil Oil Australia Pty Ltd held that the Court possesses jurisdiction in circumstances where, turning on a point of statutory interpretation, the plaintiff had made a claim that was not in fact a ‘retail tenancy dispute’ in the strict sense.

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Contracts, specific performance and interlocutory injunctions

The Victorian Supreme Court has recently refused to grant an interlocutory injunction that would have had the effect of requiring specific performance of a contract. In addition to giving persuasive reasons for doing so, the decision in Hera Project Pty Ltd v Bisognin & Anor more broadly represents a useful illustration of the principles to be applied when considering an application for an injunction.

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