make sure that you refer to Moodle for important information regarding your exam structure, and this semester’s examinable topics. Please also make sure that you refer to the mock eExam on Moodle to familiarise yourself with the eExam platform ahead of your actual exam. Though your exam is open book, you should ensure that you study just as hard as you would for a closed book exam. To make the most of these practice questions, attempt them under self-imposed exam conditions – that is, using the resources you will have with you for your exam, typed on your computer, and sticking to a time limit. If you do this, you certainly won’t produce perfect answers on your first attempts, but you will maximise your capacity to learn and improve ahead of the exam itself. Brief answer outlines are provided on Moodle. You are strongly encouraged to attempt these questions first, under self-imposed exam conditions, before looking at those answer outlines. Looking at answers without attempting the questions first is of little to no assistance in your study, as it will not give you a genuine opportunity to test your knowledge nor the opportunity to practice your skills in responding to hypothetical legal problem questions. We wish you all the very best of luck with your studies! CONSUMER PROTECTION Question 1 In April 2016, the Federal Court of Australia found that the maker of Nurofen, Reckitt Benckiser, breached section 18 of the Australian Consumer Law “and another section of the ACL”. The Federal Court found that Nurofen’s “specific pain” range misled consumers because they all contained the same active ingredient — ibuprofen lysine 342mg — and did the same thing. Nevertheless the “specific pain” range cost twice as much as the “nonspecific” general Nurofen product. The products promised to relieve back pain, period pain, and tension headache or migraine, even though it is not possible to specifically target pain relief in such a manner. It was admitted by the ACCC that if a consumer looked carefully he or she would have noticed small print on the packets that said that the active ingredient in each of the products was the same. The ACCC was responsible for bringing legal proceedings against the manufacturer in the Federal Court. What arguments do you believe the ACCC would have presented to the Court in relation to the breach of s 18? Would the ACCC also be able to argue a breach of s 29? Refer to relevant cases to support your analysis of the legislation. (10 marks) (Approximately 20 minutes of writing time) Question 2 Olga migrated to Australia with her husband and two children from Russia one year ago. Her command of English is poor, and she has little understanding of everyday business matters. While home alone, a sales representative of “Feel Good Gymnasium” knocked on her door, with an offer for a two-year family deal at the gymnasium for $5,000. The salesman explained that it was necessary in Australia for her children to be fit and in good shape at school, or else they were likely to be bullied. Olga, hearing this from the salesman, signed the gymnasium membership contract immediately. She also made an initial advance payment of $1,000. Olga’s husband Peter returned home that evening, and learned about the gymnasium expenditure. He was very upset and angry. As the couple have recently migrated, they have little money, and Peter believes that the salesman made up the story about bullying at school. Olga now wishes to get her money back and get out of the contract. Advise Olga of any statutory rights she has under the Australian Consumer Law against “Feel Good Gymnasium”. Use appropriate sections and cases to support your argument. (10 marks) (Approximately 20 minutes of writing time) Question 3 Mitchell is an avid soccer player. He purchases a new pair of soccer boots from SportsPlus. The boots are very expensive and are at the top of the range, costing $299. The boots are made by Spike, a company using a distinctive arrow to brand and market all of its products. There is a large arrow on the side of each of the soccer boots that Mitchell has purchased. After using the boots at two soccer training sessions, the arrow on one of the boots has started to lift and has almost peeled off altogether. Mitchell would like a refund. The store says that a refund is not possible, and insists that the boots must be sent for repair. It will take 7 days for the boots to be fixed. The store also points to the sign at the check-out counter which states that: “SportsPlus will only be liable for whichever is the lowest of the cost of repair or replacement of faulty items.” Advise Mitchell of his rights, and any relevant remedies, under the consumer guarantee provisions of the Australian Consumer Law. Do not discuss any potential claims that may be made under s 18 or s 29 of the Australian Consumer Law. Please ensure that you use relevant authority in support of your answer (ie: cases and/or legislation). (10 marks.) (Approximately 20 minutes of writing time) Question 4 Monarch Mattresses sells a range of mattresses. The mattresses are on display in its showroom, which is open to the public. Monarch Mattresses’ business practices include the following:  Advertising its mattresses with the statement “Sleeping on our mattresses feels like floating on a cloud”.  Advertising its most popular mattress, the “Cloud 9” as “Was $1,800, Now Only $1,200”.  Advertising its mattresses as being “ideal for asthma sufferers, as endorsed by the Asthma Council”.  Displaying a sign in its showroom that states: “Mattresses can only be returned if covered by Monarch Mattresses’ 30 day warranty period”. Monarch Mattresses has never sold the “Cloud 9” mattress for $1,800. It has also never had the materials that its mattresses are made out of tested for allergies or had any direct dealings with the Asthma Council. Advise Monarch Mattresses whether they have breached section 18 and any of the subsections in section 29 of the Australian Consumer Law, including references to any relevant legal cases to support your arguments. Ensure you specifically consider each business practice under both section 18 and section 29, and identify any specific contraventions. (8 marks) (Approximately 16 minutes of writing time.) THE LAW OF TORTS Question 5 Ashraf Ghani completed a diploma in Cooking and Baking at William Anguish College. Immediately after graduating he set up his own bakery in Dandenong that he called “Kabul Breads”. A few months later, as things were going well, Ashraf decided to expand his business. Around that time, he met an old Afghani friend, Shah Masood, who was an accountant and a financial adviser. They discussed Ashraf’s expansion plans, and Shah quickly offered to review his financial situation and to prepare a business plan. As Ashraf was financially ignorant and needed expert guidance, he accepted Shah’s offer and gave him his financial records. Shah prepared a financial report and advised Ashraf that he was in a sound financial position, and that he could expand his business. He recommended that Ashraf borrow money in order to set up a new bakery on fashionable Lygon Street, in Carlton (a suburb of Melbourne). Ashraf trusted his friend and decided to act on the advice. He borrowed $500,000 from “For You Only”, a small credit union located in Springvale that provides loan and overdraft facilities. “For You Only” used the financial report prepared by Shah to offer a loan to Ashraf. Ashraf signed a five-year lease. Soon after opening his new shop, Ashraf realised that people who visit the Lygon Street area generally only buy traditional Italian food and bread – there was no market for Afghani bread. Ashraf came under financial stress, and blamed Shah for his situation. Shah admitted that he had not adequately factored in Ashraf’s pre-existing debts, and had underestimated the significant costs associated with setting up the new business. Shah advised Ashraf to terminate the lease and inform “For You Only” that he would be unable to repay the loan. “For You Only” is faced with significant losses. (a) Advise Ashraf about his prospects of success in an action against Shah in the tort of negligence. Refer to relevant cases and statutes. (14 marks) (Approximately 28 minutes of writing time) (b) Does Shah owe “For You Only” a duty of care? Refer to relevant cases. (6 marks) (Approximately 12 minutes of writing time) Question 6 The Big Cheese Pty Ltd makes cheese. During the manufacture of a particular batch of cheese marked ‘use by 31 March 2019’, The Big Cheese omitted to put the batch through the bacteria treatment process which usually kills any bacteria which has affected the cheese. The cheese was then packaged in airtight plastic packaging and was sold to Monash Supermarkets Pty Ltd for sale in their supermarkets. On 15 March, Louisa purchased a block of cheese which was marked ‘use by 31 March 2019’ from Monash Supermarkets Pty Ltd in Caulfield. Louisa stored the cheese in the refrigerator but did not look at the ‘use by’ date. On 7 April, during her lunchbreak at work she ate part of the cheese which was contaminated by bacteria and became very ill. She fainted in the office, and in the process of fainting she slipped on the power cord of her laptop computer, which was dragged over the side of her desk and dropped to the floor, causing the screen to crack. The laptop was valued at $5,000. Louisa was admitted to hospital, incurred ambulance and medical expenses, and was unable to work for 6 weeks. Advise Louisa of her prospects of success in an action against The Big Cheese Pty Ltd in the tort of negligence. Please discuss all elements of a negligence action and any defences that might apply. Please ensure that you use relevant legal principles and authority in support of your answer (ie. cases and/or legislation). (14 marks) (Approximately 28 minutes of writing time) THE LAW OF BUSINESS ORGANISATIONS Question 7 Vance and Cadel are good friends and enthusiastic cyclists. Vance has won several events and is well-known in the cycling community. Now in their sixties, they decide to start a small business selling bicycles and establish a partnership. It is agreed that Cadel will play a more active role in the day-to-day running of the shop whilst Vance will do promotions and continue racing on the veterans’ circuit, wearing the partnership’s colours. It is also agreed that Cadel may purchase stock for the business, up to the value of $5,000 per month. Several months after the partnership was established, Cadel purchases six high performance Italian racing bikes from Avanti’s agent in Melbourne. Each racing bike costs $15,000. When the invoice arrives, Vance is angry and refuses to agree to pay. These were clearly the most expensive bikes that Cadel had ever ordered. Avanti threatens legal action against the partnership. Advise Vance whether he can be held liable for the purchase made by Cadel, under the Partnership Act. (6 marks) (Approximately 12 minutes of writing time) Question 8 Jacob Farook’s company, JF Solar Panels Pty Ltd, has been running a solar panel business for many years. Jacob is the sole director and the sole shareholder. In July 2016, Jacob ordered glass panels to the value of $1 million from Glass Makers Pty Ltd, a glass wholesaler, as he had done on many occasions. At around the time that the order was placed, the company was experiencing serious cash-flow problems, and was unable to pay its debts. Jacob, who was immersed in the research and development side of the business, did not pay sufficient attention to the company’s accounts, and only realised that it was in serious trouble a month later. When the glass was delivered in September, the company could not pay the account and it has remained unpaid. The manufacturer is now suing both the company and Jacob. Advise Jacob of the extent (if any) of his personal liability. (8 marks) (Approximately 16 minutes of writing time) Question 9 Ace Cleaning Ltd (AC) was established in 2010. It specialises in providing office cleaning services in the central business districts of several states. It has two directors (Ellie and Abdul), and Ang Lee is the CEO. The company secretary is Renae. The company was very profitable for the first few years of operations, and in February 2015 it entered into a contract with Cleaning Systems Ltd (CS) to purchase a new vacuum and washing equipment system for $5 million, payable over three years. In April 2016, AC was facing financial difficulties. Indeed, it had the appearance of insolvency: it couldn’t pay its cleaning suppliers and the bank was dishonoring its cheques due to insufficient funds in AC’s bank account. Nevertheless, Ellie and Ang Lee committed to a $300,000 advertising campaign, genuinely believing that it would help boost sales. Abdul was not involved in making this decision, as he had decided to visit his dying father back in Malaysia. Unfortunately, the campaign did not produce the required results, and AC has been put into liquidation. Advise Ellie, Abdul and Ang Lee whether they can be made personally liable for the money owed for the advertising campaign. Refer to relevant cases and statutes. (10 marks) (Approximately 20 minutes of writing time) Question 10 Emilio and Fernando are directors of the company Planet Express Pty Ltd. Emilio’s friend Amy promises Emilio a free trip to Europe for 3 weeks if Planet Express Pty Ltd buys shares to the value of $1 million in Amy’s company, Moonlight Pty Ltd. Emilio does not do any research before deciding that Planet Express Pty Ltd should invest in Moonlight Pty Ltd, because Amy is his friend, and he is enticed by the free trip. He does not disclose these matters to Fernando. Moonlight Pty Ltd is very poorly run and goes out of business six weeks later. Planet Express Pty Ltd loses its $1 million investment. Advise Emilio whether he has breached any of his obligations under the Corporations Act 2001 (Cth) in connection with Planet Express Pty Ltd investing in shares in Moonlight Pty Ltd. Please ensure that you refer to relevant sections of the legislation and any relevant cases to support your answer. (5 marks.) (Approximately 10 minutes of writing time) BUSINESS LAW – PRACTICE EXAM QUESTIONS – BATCH 2 Please refer to the notes accompanying Batch 1 of our practice exam questions, before using these questions for the purposes of your exam revision. Note that while issues guides are provided for the Batch 1 practice exam questions, they are not provided for these questions in Batch 2. If you would like feedback on attempted answers, please make an appointment to see your tutor during pre-exam consultation hours. CONSUMER PROTECTION Question 1 Wiz Ltd agrees to lease premises for its retail computer business in a new shopping mall recently built and managed by Transfield Ltd. Two other computer retail outlets also open within the same shopping complex. Wiz Ltd believed that it would have only one competitor. During the negotiations, Wiz did not ask about how many competitors there would be and Transfield remained silent on the issue. Wiz now wishes to rescind the contract and/or claim damages from Transfield. Please advise it of any rights it may have under the Australian Consumer Law. Cite relevant cases and/or statutes. Please do not refer to common law misrepresentation. Approximately 14 minutes of writing time. Question 2 Hardly Normal Pty Ltd sells household appliances and electronic equipment through its various stores around Australia. In July 2017, it starts selling SuperSonic Capsule Coffee Machines. Like other capsule coffee machines on the market, SuperSonic machines use small coffee capsules to produce espresso coffee. However, the distinguishing feature of SuperSonic machines are their speed – the machines use very high pressure water to produce cups of coffee much quicker than competitor models. SuperSonic machines sell at a higher price than other coffee machines. Alison purchases a SuperSonic machine from Hardly Normal. The machine works perfectly well for a month, but in August, the pressure seal on the machine breaks, and the very high water pressure causes the machine to explode. Luckily, Alison is not injured, and she returns the machine to Hardly Normal for a refund. (a) Has there been a breach of the consumer guarantee of acceptable quality, under the Australian Consumer Law? Approximately 10 minutes of writing time. When Alison returns to the store, an employee – Meg – tells Alison that the malfunction is a ‘manufacturer’s warranty issue’. Meg tells Alison that she will have to contact the SuperSonic Company – the manufacturers of the SuperSonic machine – and seek a refund directly from them, rather than from Hardly Normal. (b) Has Hardly Normal Pty Ltd engaged in misleading or deceptive conduct, or breached any of the specific prohibitions on false or misleading representations? Approximately 20 minutes of writing time. THE LAW OF TORTS Question 3 Avis is a bunk bed manufacturer. It sells beds, with a tag “suitable for children ages 7+”. Bob, a 5-year-old boy, is badly injured when he falls down from the top level of an Avis double bunk when attempting to get down from the bed. He was staying with friends. There is no ladder or guard-rail. Advise Avis as to its potential liability under the tort of negligence. Approximately 24 minutes of writing time. THE LAW OF BUSINESS ORGANISATIONS Question 4 Merle, Art and Lance are all partners in an accounting firm called “MAL Financial Services”, operating in Victoria. Lance is also a director of a large company “Gardens Galore Ltd” (GG) that manufactures garden products and fertilisers. Unknown to the other partners, Lance has been regularly depositing money for GG (for various amounts) directly into MAL’s trust account, withdrawing the proceeds and then wrongfully using the funds for his own personal use. With Lance now broke and in Brazil, the Board of GG wish to bring legal action for the fraud against the remaining partners. Advise the Board. Cite relevant cases and/or statutes. Approximately 12 minutes of writing time. Question 5 Rebbo is a newly appointed CEO of a large public company. She is aware that amongst various other statutory obligations and duties under the Corporations Act she has a duty under s 180 to exercise care and diligence in her role. However, she is very worried that she may be liable for breach of this duty whenever she makes a poor or unprofitable commercial decision. Please advise her. Cite relevant cases and/or statutes. Approximately 12 minutes of writing time. Question 6 Michael and Andrew are brothers. They both have a keen interest in technology. They decide to form a business to pursue various technology projects, and decide that a company will be the best business structure to adopt. They establish CathXander Pty Ltd. Michael and Andrew are its only shareholders (taking 25,000 x $1 shares each), and they are also its only directors. Michael takes a much more active role in managing the company than Andrew. Andrew relies heavily upon Michael to provide him with information about the company, particularly in relation to its finances, and its dealings with other companies. Andrew does not himself investigate the finances or transactions of CathXander Pty Ltd, other than by relying on Michael to provide him with this information. In June 2017, Michael arranges for CathXander Pty Ltd to purchase a very large quantity of electronics components. The components are acquired from ErinElectronics Pty Ltd, a company that Michael has a significant shareholding in. The transaction generates significant profits for ErinElectronics Pty Ltd. Michael signs the contract on behalf of CathXander Pty Ltd; Andrew does not sign the contract, and is not aware of the contract, as Michael does not inform him about it. The transaction puts CathXander Pty Ltd in a disastrous financial position. After paying for the very large order, it is no longer able to pay its debts. When Andrew eventually finds out (in August 2017), he is very worried – about his own potential responsibility, as well as about the failure of the business. Have Michael and / or Andrew breached any of their directors’ duties? Discuss the duties owed by both Michael and Andrew. Approximately 40 minutes of writing time. BUSINESS LAW – PRACTICE EXAM QUESTIONS – BATCH 3 Please refer to the notes accompanying Batch 1 of our practice exam questions, before using these questions for the purposes of your exam revision. Note that while issues guides are provided for the Batch 1 practice exam questions, they are not provided for these questions in Batch 3. If you would like feedback on attempted answers, please make an appointment to see your tutor during pre-exam consultation hours. CONSUMER PROTECTION Question 1 – 20 minutes Empress Furniture Pty Ltd sells a range of furniture, and is especially famous for its couches. Empress Furniture promotes its newest range of couches in catalogues and in television advertisements, using the following statements, which are in large, bold letters: • “The most stylish couches in the world” • “Experience the luxury leather feel” • “Now you can enjoy the luxury of leather for less” • “$3,500 this week only*” An asterisk (*) appears after “$3,500 this week only”, and at the bottom of each advertisement there is a statement in very small print stating “plus $200 delivery charge”. Empress Furniture does not allow customers to collect the couches – delivery by the store (at the customer’s expense) is mandatory. The small print in the advertisement also states that: “Furniture can only be returned if covered by Empress Furniture’s 60 day warranty period”. A sign with the same statement also appears in its showroom. The couches sold by Empress Furniture are not covered in leather. Instead they are covered in a synthetic material that has the appearance and feel of leather. It is not as durable as leather and will peel over time. Advise Empress Furniture whether it has breached sections 18 and 29 of the Australian Consumer Law, including references to any relevant legal cases to support your arguments. Question 2 – 24 minutes Wei Peng is the owner of a successful graphic design business. Wei visits Shazaam Office Equipment to purchase a new, high powered multi-function device that is able to print, scan and photocopy to meet all of the needs of the business. Wei explains to Sam, the senior sales representative at Shazaam, that she needs a device that can print at least 30 colour pages per minute, whilst retaining very crisp quality text and images, as well as having a double-sided printing function. Sam discusses three suitable alternatives with Wei, and Wei decides to purchase one of the devices recommended by Sam. The device costs $5,999. When Wei sets up the device, she discovers that it can only print 30 pages per minute in black and white – colour printing is a lot slower at 15 pages per minute – and there is no double-sided printing function. Wei is devastated. Wei has an urgent job that needs printing, so she sends it to the device. All of a sudden while printing there is a spark from the device, that causes a small fire to start. Wei quickly extinguishes the fire, but there is damage to the office wall that will need repairing and painting. The device no longer works and Wei would like her money back, as well as compensation for the damage to her wall. Sam tells Wei that is not possible and shows Wei their policy which states: “Shazaam limits its liability to the cost of repairing or replacing any faulty goods.” Advise Wei of her rights, and any relevant remedies, under the consumer guarantee provisions of the Australian Consumer Law. Do not discuss other parts of the Australian Consumer Law such as misleading or deceptive conduct. Please ensure that you use relevant authority in support of your answer (ie: cases and/or legislation). Question 3 – 16 minutes Heartz Kids produces a range of meals and snacks for babies and toddlers (aged 1-3 years). They have introduced a new line of snacks called “Chewy Fruit and Veg Cubes”. The packaging for the Cubes has the following statements on the front of the box, in large, bold letters: • “healthy and nutritious*” • “developed by nutritionists” • “essential for normal brain development and growth” • “Heartz Kids are the happiest in the world” An asterisk (*) appears after “healthy and nutritious”, and on the back of the box there is a statement in very small print stating “*Eat in moderation due to the high sugar content”. A list of ingredients and nutritional values is also on the back of the box in small print. It states that the product has 68% sugar content, as it is made from mostly fruit juice concentrate and pastes. This level of sugar is much higher than what is recommended for toddlers according to World Health Guidelines. The front and back of the box have lots of pictures of fruit and vegetables, as well as toddlers playing happily. Advise Heartz Kids whether they have breached sections 18 and 29 of the Australian Consumer Law, including references to any relevant legal cases to support your arguments. Question 4 – 16 minutes Alice has just moved to Australia and is interested in getting broadband access. She goes into Better Computer Store, and asks Carl, a recently hired salesperson, if there is a wireless router that he recommends. Alice states that the modem absolutely must have 5n-wireless, a new broadcasting standard that her computer is capable of using. Carl, worried that he will seem inexperienced, states that he has a large amount of experience in this area and recommends the Dove wireless router, a bargain at only $300. Alice buys the Dove but is disappointed that the device does not use 5n wireless, but only an older 4n technology. Alice is upset, as 4n is significantly slower than 5n. When Alice attempts to return the device to Better Computer Store for a refund, the manager, Erik, points to a sign which reads “In all cases except a malfunctioning device, all returns will be for store credit only.” As the router is working properly, Erik refuses to give Alice a refund. Advise Alice as to whether she may utilise Consumer Guarantees to secure a refund. DO NOT discuss any potential claims that may be made under section 18 or 29 of the Australian Consumer Law. Question 5 – 24 minutes Alpha Dog Ltd sells a range of pet food. Alpha wants to expand its line of products to include premium pet food brands, which will be more expensive to buy than its current range. Alpha promotes its latest pet food offerings in advertisements and on the packaging of its products. These advertisements and packaging feature the following FIVE statements or representations: I. Large pictures of gourmet foods, including a cooked chicken breast, T-bone steaks, and lamb cutlets, in a dog food dish II. “Your dog never had it so good — The most luxurious dog food in the world!” III. “Ethically sourced ingredients — Made from free-range chickens” IV. “Made in Australia” V. “With the riboflavin that dogs need for shiny coats!” The products do contain chicken, beef, and lamb, but not of the premium cuts pictured on the advertisements. The chickens used to make the products were raised and slaughtered in Papua New Guinea. The chickens were allowed to freely range for a portion of their lives, but not when they were fully grown. The chicken was cooked and prepared in Australian factories. There is no scientific evidence that riboflavin is necessary for dogs to develop shiny coats. Advise Alpha whether they have breached sections 18 AND 29 of the Australian Consumer Law for EACH OF THE FIVE STATEMENTS OR REPRESENTATIONS, including references to any relevant legal cases to support your arguments. THE LAW OF TORTS Question 6 – 24 minutes Crystal Cruises operates a business specialising in sailing cruises around Phillip Island. The cruise stops at various places to allow passengers to go swimming and snorkelling. In January 2020, Ted is a passenger on a cruise. Unfortunately, while snorkelling, Ted is stung by a poisonous bluebottle jellyfish on his upper back, neck, and face, and suffers a severe reaction. He incurs medical expenses, including the cost of an emergency ambulance, totalling $1,800, and a loss of income of $900. He also lost his underwater camera worth $1,100 as he dropped it due to the pain of being stung by the jellyfish. An investigation into the matter reveals that during the summer months, hundreds of these jellyfish are known to be present in the waters around Phillip Island. There are usually around 10,000 cases of bluebottle stings each year on the east coast of Australia, but most of these stings, while painful, do not need emergency medical treatment. The number of stings per year around Phillip Island is estimated to be 500. Crystal Cruises has never had a passenger get stung before, in more than 10 years of operating. Crystal Cruises conducts a safety briefing at the start of the cruise, and recommends that passengers wear a wetsuit to protect themselves when swimming and snorkelling during the summer months. However, Crystal Cruises allows passengers to swim and snorkel without wearing a wetsuit. The wetsuits that are provided by Crystal Cruises do not cover the neck, face, hands or feet. Wetsuits providing greater protection, and which cover the neck, hands, feet and most of the face are available, but they are five times the price of a normal wetsuit. Ted was not wearing a wetsuit when he was snorkelling. Advise Ted about his prospects of success in an action against Crystal Cruises in the tort of negligence. Please discuss all elements of a negligence action, and any defences that might apply. Please ensure that you use relevant legal principles and authority in support of your answer (ie: cases and/or legislation). Question 7 – 10 minutes Romeo Constructions is a property developer. Before acquiring a substantial property in the city for the purposes of redevelopment into new apartments, Romeo Constructions contacts the local council to obtain copies of zoning restrictions. The council provides Romeo Constructions with details of the zoning restrictions for the wrong property by mistake. Romeo Constructions purchases the block, but later discovers that it will not be able to develop the property as planned due to heritage restrictions that prevent the existing building from being demolished. There are also strict requirements that must be met for any changes to the building. Romeo Constructions would not have purchased the block if it had known of the heritage restrictions, and the amount that it paid for the property was $900,000 over the property’s true value as a result of the council’s mistake. Advise Romeo Constructions whether the local council owes Romeo Constructions a duty of care in the tort of negligence. Do not discuss other elements of the tort of negligence when answering this question. Please ensure that you use relevant legal principles and authority in support of your answer (ie. cases and/or legislation). Question 8 – 28 minutes Aussie Barracuda specialises in designing and making handcrafted surfboards. The surfboards are all individually made by hand, with unparalleled attention to detail and the highest quality craftsmanship. Aussie Barracuda employs a small team of board makers who each have several years’ experience in handcrafting surfboards. While making the surfboards, there is a small risk that hot fibreglass resin may splash during the shaping and moulding process, as well as small particles flying in the air during the sanding process. Aussie Barracuda has issued safety glasses to all of its board makers, with strict instructions that the glasses must be worn at all times within the factory. They have also placed a sign in the factory work area which states: “Safety equipment must be worn at all times.” The factory supervisor, Gary, rarely checks to see whether the board makers are wearing their safety glasses. One of the board makers, Jessie, is splashed in the face and eye with hot fibreglass resin. He jumped up screaming, and then collapsed in the work area, in the process knocking his brand new smart phone to the floor, where it was smashed to pieces. The phone was valued at $1,200. Jessie required hospitalisation, incurred medical expenses, and a loss of income, as he was unable to work for two months. An investigation into the matter discovers that Jessie was not wearing the safety glasses, and, while working, Jessie was also sending text messages and listening to music on his new smart phone. It is also discovered that instead of safety glasses, protective face masks could have been issued by Aussie Barracuda, which would have protected the whole face, not just the eye area, but these would have been 5 times the cost of the safety glasses. The investigation also shows that this type of accident has never happened before at Aussie Barracuda in more than 25 years of operations, but on average occurs in the industry approximately once every 10 years. Advise Jessie about his prospects of success in an action against Aussie Barracuda in the tort of negligence. Please discuss all elements of a negligence action and any defences that might apply. Please ensure that you use relevant legal principles and authority in support of your answer (ie. cases and/or legislation). Question 9 – 12 minutes Epic Consultants are looking to buy commercial premises for a new office. They consult with Sunshine Real Estate, who assists Epic Consultants to find suitable premises in the suburb of their choice. Before making an offer, Sunshine Real Estate prepares a report for Epic Consultants setting out comparable sales in the area. Epic Consultants uses this report to decide how much to offer to buy their preferred premises. The offer is accepted straight away by the vendor of the premises, without any negotiation. Later Epic Consultants discovers that Sunshine Real Estate typed in the wrong postcode when retrieving the comparable sales data for the report, which resulted in Epic Consultants paying too much for the new premises. They paid more than $50,000 above the current market rate. Advise Epic Consultants whether Sunshine Real Estate owes Epic Consultants a duty of care in the tort of negligence. Do not discuss other elements of the tort of negligence when answering this question. Please ensure that you use relevant authority in support of your answer (ie. cases and/or legislation). Question 10 – 28 minutes Amazo Ltd makes the highest quality blown glass figurines. The figurines are all individually made by hand. Amazo has a dedicated team of experienced glass blowers. However, as with all glass blowing, there is small risk that the glass bubble will pop and send glass shards in the air. Glass blowers need to cool equipment using water, and sometimes this water spills on the ground. Amazo has a strict policy that safety goggles must be warn at all times when on the glass blowing floor of the factory. The factory safety supervisor, Bernard, checks once every morning to see that the glass blowers are wearing their safety glasses. However, there are no signs in the workplace about safety equipment. Bernard also patrols once every 3 hours to check for spilled water. Spills are mopped up on these patrols, but not at other times. One afternoon, Caj, an experienced glass blower working for Amazo, slips on a puddle of water that had spilled earlier. This causes Caj’s arm to rapidly move and causes the glass bubble Caj is working on to shatter, sending a glass shard into Caj’s eye. Caj required eye surgery in hospital, incurred medical expenses, and suffered a loss of income, as Caj was unable to work for 6 weeks. An investigation into the matter discovers that David, another glass blower, accidentally spilled water on the floor about 2 hours before Caj’s accident. Moreover, Caj was not wearing the safety glasses at the time of the accident. The investigation reveals that several workers have complained that the safety glasses fog up in the afternoon and make it difficult to see as the factory floor heats up. There are non-fog safety glasses. However, the cost of non-fog safety glasses is 15 times the cost of regular safety glasses. The investigation also shows that reports of workers slipping on spilled water are fairly common, occurring about three to five times a year, but that most of these have been minor injuries, not requiring any medical treatment. Advise Amazo about their prospects of success in defending an action brought against them by Caj in the tort of negligence. Please discuss all elements of a negligence action and any defences that might apply. Please ensure that you use relevant legal principles and authority in support of your answer (ie: relevant cases and legislation). Question 11 – 12 minutes Axe Land would like to expand its business selling musical instruments. Axe has approached Big Bank to ask for a $500,000 loan to support this expansion. Big Bank requires numerous business planning and financial statement documents from Axe. The documents Axe provides indicate that Axe is in a sound financial position. These documents were prepared by Cento Accounting firm. Axe did not tell Cento that the documents would be used as part of a loan application to Big Bank. Cento routinely prepares documents that are used in loan applications, but did not know of Axe’s specific intention to seek a loan. Big Bank relies on the documents and decides to give Axe the requested loan. Later, Big Bank discovers that Cento had failed to take into account a large judgment against Axe arising from a labour dispute. The result was that the financial documents prepared by Cento overstated Axe’s worth by $10 million. This meant Axe was in fact in a poor financial position and the business expansion made the situation worse. Axe is unable to make its repayments for the $500,000 loan and defaults. As a result, Big Bank has suffered a significant loss. Advise Big Bank whether Cento Accounting owes Big Bank a duty of care in the tort of negligence. DO NOT discuss other elements of the tort of negligence when answering this question. Please ensure that you use relevant authority in support of your answer (ie: cases and/or legislation). THE LAW OF BUSINESS ORGANISATIONS Question 12 – 10 minutes Matt and Tim operate a shop selling LED lights, bulbs and tubes, called “Bright Light LED Lighting” (“Bright Light”). Their business is structured as a partnership. They agree that Tim is responsible for retail sales and customer service, and that Matt is responsible for purchasing, packing and storing. Chu bought an LED light from Bright Light, which she installed in her garage. She was injured when the light exploded in the garage, leaving her unable to work for several weeks. The explosion also damaged her car. Matt packed the light for Chu’s order. He mistakenly packed it with the wrong transformer. Chu seeks damages to cover medical expenses, lost wages and pain and suffering. She is also seeking compensation for the damage caused to her car. Tim argues that the damage is solely the responsibility of Matt. Advise whether Tim can also be held liable to Chu under the law of partnerships. Refer to relevant legislation and appropriate cases to support your argument. (Do not discuss what Chu would need to establish to succeed in an action for the tort of negligence.) Question 13 – 12 minutes Chris, Mitchell and Lachlan operate a herb farm in the Yarra Valley. Their business is structured as a partnership. They are equal partners in the partnership and have agreed that each may make purchases for the business up to the value of $5,000. Any purchase above $5,000 for the business must be agreed to by all partners in advance. One day, Chris decides on his own initiative to buy a second hand tractor in order to increase productivity. The tractor cost $25,000. He did not consult the others about the purchase and bought the tractor on credit with finance provided by the seller at a rate of interest five times the normal rate. When the others found out, they were furious. Advise Mitchell and Lachlan whether they can be held liable for the purchase of the tractor under the law of partnerships. Please ensure that you use relevant authority in support of your answer (ie: cases and/or legislation). Question 14 – 28 minutes Yellow Leaf Pty Ltd is a commercial landscaping business. The directors of the company are Summer, Adam and Jackson. The market it operates in is highly competitive and Yellow Leaf Pty Ltd has been unsuccessful in securing the last 5 jobs that it has bid for and is experiencing trading losses. It has several unpaid invoices that are due for items such as pavers and water features, for which it has received final demand notices. It has fallen behind in repayments for its major bank loan. In an effort to save money, the directors buy a huge quantity of bluestone pavers on sale at 50% off their normal price, as well as discounted trees, from a new supplier. When payment is due 30 days’ later, Yellow Leaf Pty Ltd is unable to pay and has fallen further behind in its bank loan. The bank forces the company into liquidation. Summer has been unable to attend the most recent board meetings as she is receiving treatment for cancer. Adam and Jackson have attended all recent board meetings. While a director of Yellow Leaf Pty Ltd, Jackson set up his own landscaping company, Green Fields Pty Ltd, without informing Yellow Leaf Pty Ltd. Jackson is the sole director and shareholder of Green Fields Pty Ltd. It turns out that Jackson has been submitting tenders in competition with Yellow Leaf Pty Ltd, after seeing Yellow Leaf Pty Ltd’s tenders, and has been undercutting Yellow Leaf Pty Ltd’s prices to successfully win the tenders for Green Fields Pty Ltd. Jackson has also been using customer lists belonging to Yellow Leaf Pty Ltd to directly approach customers of Yellow Leaf Pty Ltd and has been offering them discounted rates for future work, resulting in many customers dealing with Green Fields Pty Ltd instead of Yellow Leaf Pty Ltd. Jackson thought he was engaging in fair competition and was acting honestly. He did not have any intention to deceive Yellow Leaf Pty Ltd. (a) Advise Summer, Adam and Jackson whether they can be held liable for the debts of Yellow Leaf Pty Ltd under the Corporations Act 2001 (Cth). Please ensure that you refer to relevant sections of the legislation and any relevant cases to support your answer. (16 minutes) (b) Advise Jackson whether he has breached any of his obligations under the Corporations Act 2001 (Cth) in connection with the establishment and operation of Green Fields Pty Ltd, even if he was acting honestly. Please ensure that you refer to relevant sections of the legislation and any relevant cases to support your answer. (12 minutes) Question 15 – 10 minutes Adam, Beatrice, and Cina are partners in a bakery business, Edible Everything. All are equal partners and have agreed that each may make purchases for the business up to the value of $5,000. In order to make a purchase above that amount, all partners must agree. Adam is in a shop when he sees a special deal for the Donut5000, an expensive donut press that usually retails at $10,000. The machine costs $7,000 while on sale. Adam, sure that the other partners would approve of the purchase, went ahead and bought the Donut5000 without consulting the other partners first. The purchase was on credit, with finance provided by the seller at a rate of interest 10 times the normal rate. When the other partners found out, they were furious that Adam entered into such a bad financing arrangement. Advise Beatrice and Cina whether they can be held liable for the purchase of the Donut5000 under the law of partnerships. Please ensure that you use relevant authority in support of your answer (ie. legislation and cases). Question 16 – 30 minutes Apex Ltd runs a series of high-priced hotels and casinos. The directors of the company are Bianca, Carlos, and Dezi. Recently the directors decided to build a new luxury hotel, the Elam. At the time when the directors decided to build the Elam, Apex had fallen behind in repayments for its major bank loan. There had been a general downturn in casino attendance and the company had several unpaid bills, for which it had received final demand notices. However, before deciding whether to build the Elam, the directors arranged for a report from Fiona, the company’s accountant. Fiona’s report stated that the company was in a sound financial position. Bianca arranged for the building of the Elam and sought three construction quotes. However, she awarded the contract to a company called Great Spire Pty Ltd, and ignored the other two quotes she received. Bianca holds many shares of Great Spire, but she did not tell Carlos or Dezi this. Bianca is present for the meeting where the directors decide to award the contract to Great Spire. Bianca ensures that Great Spire’s prices are competitive, so she does not believe that she needed to disclose her connections with Great Spire. In light of the large expense of building a luxury hotel, the contract was very profitable for Great Spire. Unfortunately, Apex is unable to pay the loan it took out to construct the Elam. The bank forces the company into liquidation. (a) Advise Bianca, Carlos, and Dezi whether they can be held liable for the debts of Apex under the Corporations Act 2001(Cth). Please ensure that you refer to relevant sections of the legislation and any relevant cases to support your answer. (16 minutes) (b) Advise Bianca whether she has breached any of her obligations under the Corporations Act 2001 (Cth) in connection with awarding the building contract to Great Spire. Please ensure that you refer to relevant sections of the legislation and any relevant cases to support your answer. (14 minutes) Concise Australian Commercial Law CACL6___Book.indb 1 27-Nov-20 15:51:45 Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 care.ANZ@thomsonreuters.com http://​ legal.thomsonreuters.com.au/​For all customer inquiries please ring 1300 304 195 (for calls within Australia only) INTERNATIONAL AGENTS & DISTRIBUTORS CACL6___Book.indb 2 NORTH AMERICA Thomson Reuters Eagan United States of America ASIA PACIFIC Thomson Reuters Sydney Australia LATIN AMERICA Thomson Reuters São Paulo Brazil EUROPE Thomson Reuters London United Kingdom 27-Nov-20 15:51:46 Concise Australian Commercial Law CLIVE TURNER LLB (B’ham), PhD (ANU) Sometime Associate Professor of Law University of Queensland JOHN TRONE BA, LLB, PhD (UQ) Research Fellow Curtin Law School Curtin University ROGER GAMBLE LLB (Melb), LLM (Mon), Dip Ed (Rus) Affiliate Department of Business Law and Taxation Monash Business School, Monash University SIXTH EDITION LAWBOOK CO. 2021 CACL6___Book.indb 3 27-Nov-20 15:51:46 Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW 2009 Fifth edition revised reprint ……… 2019 ISBN: 9780455244686 © 2021 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at www.ag.gov.au/​cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-​General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Product Developer: Vickie Ma Edited and typeset by Newgen KnowledgeWorks Printed by Ligare Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://​www.pefc.org CACL6___Book.indb 4 27-Nov-20 15:51:46 This one’s for Gab Gab -​RG CACL6___Book.indb 5 27-Nov-20 15:51:46 CACL6___Book.indb 6 27-Nov-20 15:51:46 Preface The sixth edition of Concise Australian Commercial Law (CACL) has two basic objectives. The first is to provide students with a general understanding of the legal environment of business and to expose them to the language and perspectives of legal professionals, regulators and others with whom they will increasingly be required to interact in their professional lives. The second is to discuss the main commercial law topics in a way that balances the need for clarity, accessibility and simplicity with the need for the text to be rigorous, interesting, relevant and up to date. Further, when writing the text or selecting cases, legislation and other material we have tried to keep in mind the needs and desires of non-​law students many of whom are coming to a law unit for the first time and some of whom are coming from countries that do not have a common law legal system nor a Westminster-​style parliamentary democracy. The sixth edition has been updated to incorporate the many changes to the law that have occurred since the fifth edition was written. There have been a number of important High Court and state and federal appellate court decisions –​for example, Australian Securities and Investment Commission v Kobelt, Moore v Scenic Tours, Queensland v Masson, Commonwealth v Love and Thoms, Australian Securities and Investment Commission v King, Australian Securities and Investment Commission v Cassimatis, Australian Competition and Consumer Commission v Kimberly-​Clark –​in contract, torts, consumer protection and company law and there have been significant legislative amendments to the Australian Consumer Law and the Corporations Act. To ensure this edition is a complete teaching and learning package, there are diagrams, flowcharts and tables as well as a revised set of tutorial activities at the end of each chapter, including a new and comprehensive set of basic and more advanced comprehension-​type questions that systematically cover all the main issues in the chapter. These comprehension-​type questions have been included because, during the life of this edition, it is very likely that a considerable amount of teaching and learning will be done online. Although individual lecturers and tutors will have their own bag of online tools, it might be beneficial to have a standard set of questions that (a) direct students to the most relevant issues and (b) provide students with a secure launching pad from which to attempt the hypothetical problems. There is an introductory section offering advice on how to approach the assessment tasks, particularly the hypothetical problem question (there are three extended answer guides, two of which explain and follow the IRAC method and one of which adopt a more free-​flowing approach), research assignments and multiple-​choice questions. There is a glossary and the relevant legislation is located in the Appendix. Extensive resources are available to lecturers. Finally, unlike any of the previous editions of CACL, this edition was written against the backdrop of two cataclysmic events, both of which have relevance to students of the law. First, the COVID-​19 pandemic –​a time of masks, social distancing and more or less severe lockdowns that kept us at or near home for most of 2020. The pandemic fundamentally changed our lives and has forced us to reconsider how we do business (and, of course, how we teach and learn). It has also already changed the legal landscape (from the way the federation works (who is responsible for borders and boat arrivals?), to the doctrine of frustration (can I be excused from contractual obligations because of COVID-​19?) and the way we deal with business insolvency (to what extent can I take refuge from unsecured creditors?)). The list will grow. Second, the CACL6___Book.indb 7 27-Nov-20 15:51:46 viii Concise Australian Commercial Law extraordinary US election campaign, culminating (at the time of writing this Preface) with the incumbent President losing the election but refusing to concede defeat, arguing, without credible evidence, via Twitter and in various courts, that the election count was corrupt and that he, in fact, won. It is a lesson for us all, but particularly students of the law, that democracy –​and the rule of law –​is very fragile. My thanks to Vickie Ma, the product developer at Thomson Reuters, and to the editors at Newgen, particularly Padmapriya Karthik. I would also like to thank two of my colleagues at BLT –​Rebecca Neophitou who, conscientiously and enthusiastically, checked the draft, chapter by chapter, and provided me with invaluable advice and Eugenio Vergara Marshall who provided feedback on many occasions during the life of the fifth edition. Continuing thanks to Clive Turner and John Trone for their permission to adapt Australian Commercial Law. ROGER GAMBLE Affiliate Monash University November 2020 CACL6___Book.indb 8 27-Nov-20 15:51:46 Contents Preface…………………………………………………………………………………………………………………………………………………. vii Table of Cases………………………………………………………………………………………………………………………………………… xi Table of Statutes……………………………………………………………………………………………………………………………………. xix Table of Abbreviations…………………………………………………………………………………………………………………………. xxix Glossary…………………………………………………………………………………………………………………………………………… xxxiii Assessment Tasks in Commercial Law………………………………………………………………………………………………….. xxxix PART 1: INTRODUCTION…………………………………………………………………………………………………………………… 1 Chapter 1: An Introduction to Law and the Australian Legal System………………………………………………… 3 PART 2: LAW OF CONTRACT……………………………………………………………………………………………………………..51 Chapter 2: Introduction to the Law of Contract……………………………………………………………………………… 53 Chapter 3: Offer and Acceptance…………………………………………………………………………………………………….. 61 Chapter 4: Intention to Create Legal Relations………………………………………………………………………………..89 Chapter 5: Consideration, Promissory Estoppel and Formalities…………………………………………………….. 97 Chapter 6: Contractual Capacity……………………………………………………………………………………………………. 115 Chapter 7: Genuine Consent………………………………………………………………………………………………………….. 123 Chapter 8: Legality of Object………………………………………………………………………………………………………….147 Chapter 9: Contents and Interpretation of the Contract………………………………………………………………..165 Chapter 10: Operation of the Contract……………………………………………………………………………………………197 Chapter 11: Termination and Breach of a Contract………………………………………………………………………… 205 Chapter 12: Remedies……………………………………………………………………………………………………………………. 225 PART 3: CONSUMER PROTECTION…………………………………………………………………………………………………..241 Chapter 13: Consumer Protection………………………………………………………………………………………………….. 243 PART 4: TORTS……………………………………………………………………………………………………………………………….. 321 Chapter 14: Law of Torts…………………………………………………………………………………………………………………323 PART 5: BUSINESS RELATIONSHIPS………………………………………………………………………………………………..369 Chapter 15: Law of Agency………………………………………………………………………………………………………………373 Chapter 16: Law of Partnerships……………………………………………………………………………………………………..391 Chapter 17: Corporations Law……………………………………………………………………………………………………….. 425 CACL6___Book.indb 9 27-Nov-20 15:51:46 x Concise Australian Commercial Law PART 6: BUSINESS ETHICS……………………………………………………………………………………………………………..465 Chapter 18: Business Ethics…………………………………………………………………………………………………………… 467 Appendix 1: Extracts from the Australian Consumer Law (Cth)………………………………………………………………….. 485 Appendix 2: Extracts from the Corporations Act 2001 (Cth)………………………………………………………………………. 543 Appendix 3: Extracts from the Civil Liability Act 2002 (NSW)…………………………………………………………………… 569 Appendix 4: Extracts from the Partnership Act (VIC)………………………………………………………………………………… 577 Index………………………………………………………………………………………………………………………………………………….. 591 CACL6___Book.indb 10 27-Nov-20 15:51:46 Table of Cases A A Schroeder Music Publishing Co Ltd v Macaulay [1974] 1 WLR 1308 ………………………………. [8.510] Abdurahman v Field (1987) 8 NSWLR 158 …….. [8.590] ACME Properties Pty Ltd v Perpetual Corporate Trust Limited [2019] FCA 1189 ……………… [3.470] ACT Cross Country Club Inc v Cundy [2010] FCA 782 ……………………………………………… [9.600] Australian Securities and Investment Commission v Cassimatis (No 8) [2016] FCA 1023 ………. [17.410] Australian Securities and Investment Commission v King [2020] HCA 4 …………………………….. [17.340] Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 201������������������������������������������[9.610] Agriculturist Cattle Insurance Co, Re (1870) LR 5 Ch App 725 …………………………………. [16.10] Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 ………………… [9.300], [9.415], [13.1420] Alati v Kruger (1955) 94 CLR 216 …………………. [7.400] Alzawy v Coptic Orthodox Church Diocese of Sydney, St Mary and St Merkorious Church (No 2) [2016] NSWSC 1123 …………………. [14.820] Andrews Bros (Bournemouth) Ltd v Singer & Co Ltd [1934] 1 KB 17 ………………………….. [9.390] Andrews v Parker [1973] Qd R 93 …………………. [8.220] Annetts v Australian Stations Pty Ltd [2002] HCA 35 …………………………………………….. [14.180] Apand Pty Ltd v The Kettle Chip Co Pty Ltd (1994) 52 FCR 474 ……………………………… [13.310] Argo Managing Agency Pty Ltd v Al Kammessy [2018] NSWCA 176 ……………………………. [14.510] Ashmore, Benson, Pease & Co Ltd v AV Dawson Ltd [1973] 1 WLR 828 ………… [8.150] Ashton v Pratt [2015] NSWCA 12 …………………. [4.110] Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 …………………………………………. [9.170] Astley v Austrust Ltd (1999) 197 CLR 1 …………………………………. [12.260], [14.830] Austotel Pty Ltd v Franklins Selfserve Pty Ltd (1989) 16 NSWLR 582 ……………………………………. [5.300] Australian Competition and Consumer Commission v AirAsia Berhad Co [2012] FCA 1413 …….. [13.890] Australian Competition and Consumer Commission v Apple Inc (No 4) [2018] FCA 953 ………… [13.620], [13.950] Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 ……………………………………….. [13.410] CACL6___Book.indb 11 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634 ……………………………… [13.200], [13.940] Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 ……………………………… [7.480], [13.470] Australian Competition and Consumer Commission v Ford Motor Company of Australia Limited [2018] FCA 703������������������������������������������[13.450] Australian Competition and Consumer Commission v Heinz [2018] FCA 360 …………………………. [13.600] Australian Competition and Consumer Commission v iSelect (VID370/2019)�������������� [13.635], [13.710] Australian Competition and Consumer Commission v JJ Richards & Sons Pty Ltd [2017] FCA 1224���������������������������������������������������[13.550] Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2015] FCA 1263 ……………………………………………[13.610] Australian Competition and Consumer Commission v Jutsen (No 3) (2011) 206 FCR 264 ………… [13.870] Australian Competition and Consumer Commission v Kimberly-​Clark Australia Pty Ltd [2020] FCAFC 107 ………………………………………… [13.270] Australian Securities and Investment Commission v Kobelt [2019] HCA 18 …………………………. [13.440] Australian Competition and Consumer Commission v Kogan [2020] FCA 1004 ………………………. [13.190] Australian Competition and Consumer Commission v LG Electronics Australia Pty Ltd [2018] FCAFC 96 ………………………………………….. [13.630] Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] FCA 695 ……………………………………………. [13.650] Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8 ………………… [13.910] Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd [2017] FCA 1305���������������������������������������������������[13.250] Australian Competition and Consumer Commission v Meriton Property Services Pty Ltd (No 2) [2018] FCA 1125 ………………………………… [18.100] Australian Competition and Consumer Commission v Oscar Wylee Pty Ltd [2020] FCA 1340���������������������������������������������������[13.980] Australian Competition and Consumer Commission v Panthera [2020] FCA 340 …………………….. [13.910] Australian Competition and Consumer Commission v Reckitt Benckiser (2016) FCA 424 ………… [13.230], [13.760] 27-Nov-20 15:51:46 xii Concise Australian Commercial Law Australian Competition and Consumer Commission v Samton Holdings (2002) 117 FCR 301 ……………………………………………. [13.420] Australian Competition and Consumer Commission v Taxsmart Group Pty Ltd [2014] FCA 487 ……………………………………………. [13.720] Australian Competition and Consumer Commission v Thermomix in Australia Pty Ltd [2018] FCA 556 ……………………………………………. [13.580] Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) HCA 54 ……. [13.210] Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2020] FCAFC 130 ………………………….. [13.170], [13.180] Australian Competition and Consumer Commission v Trivago [2020] FCA 16�������������������������������[13.260] Australian Competition and Consumer Commission v Turi Foods Pty Ltd [2013] FCA 665 ……………………………. [13.220], [13.1230] Australian Competition and Consumer Commission v Uber Eats (2019) (administrative resolution)��������������������������[13.540] Australian Competition and Consumer Commission v Viagogo AG (No 3) [2020] FCA 1423 ………………………………………….. [13.970] Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) (2007) 244 ALR 673 ……………………………… [18.80] Australian Competition and Consumer Commission v Woolworths [2016] FCA 1472������ [7.490], [13.480] Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 ……………………………. [14.140] Australian Securities and Investment Commission v Young (ASIC file no: 20-​007) (Queensland District Court, unreported) …………………… [17.600] Australian Securities and Investments Commission v Adler [2002] NSWSC 171 …………………….. [17.470] Australian Securities and Investments Commission v Healey [2011] FCA 717 ……………………….. [17.390] Australian Securities and Investments Commission v Mariner Corporation Limited [2015] FCA 589 ……………………………………………. [17.450] Australian Securities and Investments Commission v Plymin, Elliott and Harrison [2003] VSC 123 ……………………………………………. [17.590] Australian Securities and Investments Commission v Rich (2009) 236 FLR 1 ………………………… [17.440] Australian Securities and Investments Commission v Vizard [2005] FCA 1037 ………………………. [17.500] Australian Woollen Mills Pty Ltd v Commonwealth of Australia (1954) 92 CLR 424 ……………… [4.210] B BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1978) 180 CLR 266 …………………. [9.530] Balfour v Balfour [1919] 2 KB 571 ………………….. [4.60] Baltic Shipping Co v Dillon (1993) 176 CLR 344 …………………………. [9.270], [12.240] Bank of America Australia Ltd v Ceda Jon International Pty Ltd (1988) 17 NSWLR 290 ……………………………………. [8.100] CACL6___Book.indb 12 Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 ……………………….. [4.120], [4.190] Barac (t/​as Exotic Studios) v Farnell (1994) 53 FCR 193 …………………………………………. [8.220] Barry v Davies [2000] 1 WLR 1962 ……………….. [3.170] Barton v Armstrong [1976] AC 104 ……………….. [7.440] Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 ……… [3.600] Beswick v Beswick [1968] AC 58 …………………… [10.50] Bettini v Gye (1876) 1 QBD 183 ……………………. [9.180] Birdanco Nominees Pty Ltd v Money (2012) 36 VR 341 …………………………………………… [8.460] Blyth v Birmingham Waterworks Co (1856) 156 ER 1047 ………………………………………. [14.440] Bojczuk v Gregorcewicz [1961] SASR 128 ………… [6.40] Bolton v Mahadeva [1972] 2 All ER 1322 ……… [11.60], [11.70] Bolton v Stone [1951] AC 850 …………………….. [14.530] Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd [1982] HCA 53 ………………… [3.660] Brick & Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279 ………. [17.200] Brien v Dwyer (1978) 141 CLR 378 …………….. [11.270] Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246 ………………………. [13.370] Brinkibon Ltd v Stahag Stahl GmbH [1983] 2 AC 34 ………………………………….. [3.370], [3.610] British Crane Hire v Ipswich Plant Hire [1975] QB 303 ……………………………………………….. [9.570] Brookfield Multiplex Ltd v Owners -​Strata Plan 61288 (2014) 254 CLR 185 …………… [14.310] Buckland v Massey [1985] 1 Qd R 502 …………….. [8.80] Buckley v Tutty (1971) 125 CLR 353 …………….. [8.490] Bunge v Tradax [1981] 1 WLR 711 ……………….. [9.220] Bunnings Group Ltd v Laminex Group Ltd (2006) 153 FCR 479 ………………………….. [13.1280] Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 ……………………………. [14.560] Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 ……………………………………… [13.360] Byers v Dorotea Pty Ltd (1986) 69 ALR 715 …. [13.330] Byrne & Co v Leon Van Tienhoven & Co (1880) 5 CPD 344 …………………………………. [3.280] C CAL No 14 Pty Ltd and Kirkpatrick v Motor Accidents Board (2009) 239 CLR 390 ………………….. [14.230] Commonwealth Director of Public Prosecutions v Hill and Kamay [2015] VSC 86 …………………… [17.630] Caltex Oil (Aust) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529 ……………… [14.280], [14.320] Cameron v Murdoch (1986) 60 ALJR 280 ………………………………………… [16.10] Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 …………………………. [2.30], [3.40], [3.50], [3.210], [3.400], [3.510] Carpet Call v Chan (1987) ATPR (Digest) 46-​025 …………………………………………….. [13.1280] Cassimatis v Australian Securities and Investments Commission [2020] FCAFC 52 ……………… [17.410] 27-Nov-20 15:51:46 Table of Cases Causer v Browne [1952] VLR 1 …………………….. [9.330] Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 ………………………. [5.250] Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 ……. [14.850] Chan v Zacharia (1984) 154 CLR 178 ………….. [16.270] Chappel v Hart (1998) 195 CLR 232 …………… [14.710], [14.720] Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87 …………………………………………………… [5.50] Clarence City Council v Commonwealth of Australia [2019] FCA 1568 ………………………………….. [10.70] Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 …………………………. [9.540], [11.460] Collins v Godefroy (1831) 109 ER 1040 …………. [5.130] Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 …………………. [7.560], [7.570] Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 ……………………………….. [12.70] Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 ………………………………….. [18.20] Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 …………………… [13.80] Con-​Stan Industries of Australia Pty Ltd v Norwich Winterthur (Australia) Ltd (1986) 160 CLR 22 …………………………………………. [9.560] Construction Engineering Pty Ltd v Hexyl Pty Ltd (1985) 155 CLR 541 ……………………………. [16.500] Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460 ……………………………… [10.20] Council of the City of Sydney v West (1965) 114 CLR 481 ……………………………………….. [9.430] Council of the Upper Hunter County District v Australian Chilling & Freezing Co Ltd [1968] HCA 8 ………………………………………. [3.630] Cox v Hickman (1860) 11 ER 431 ……………….. [16.200] Crago v Multiquip Pty Ltd (1998) ATPR 41-​620 ……………………………………. [13.1280] Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 …………….. [11.100] Cribb v Korn (1911) 12 CLR 205 ………………… [16.190] Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 ………………. [14.240] Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 ……… [5.320], [9.140] Cruttwell v Lye (1810) 34 ER 129 ……………….. [16.350] Cummings v Claremont Petroleum NL [1992] FCA 674 ……………………………………………. [17.490] Cummings v Sir William Arrol & Co Ltd [1962] 1 WLR 295 ………………………………………… [14.700] Cundy v Lindsay (1878) 3 App Cas 459 …………. [7.140] Curtis v Chemical Cleaning & Dyeing Co Ltd [1951] 1 KB 805 …………………………………… [9.350] D DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 ……………….. [9.160], [11.270] Daniels v Anderson (1995) 3 7 NSWLR 438 ……………………………………. [17.370] CACL6___Book.indb 13 xiii Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 ………………….. [9.380] David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 ……. [7.220] Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 ………………………… [11.340] Dawson v World Travel Headquarters Pty Ltd (1981) 53 FLR 455 ……………………………… [13.780] Day v O’Leary (1992) 57 SASR 206 …………….. [12.150] Dayeian v Davidson (2010) 76 NSWLR 512 …… [3.620] De Francesco v Barnum (1890) 45 Ch D 430 ……. [6.80] Deatons Pty Ltd v Flew (1949) 79 CLR 370 ….. [14.860] Degiorgio v Dunn [2004] NSWSC 767 …………. [16.150] Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 …………………………………………. [13.150] Derry v Peek (1889) 14 App Cas 337 ……………… [7.270] Dick Bentley Productions Limited v Harold Smith (Motors) Ltd [1965] 1 WLR 623 ……… [9.70] Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643 …………………………………………. [8.350] Donoghue v Stevenson [1932] AC 562 …………… [1.430], [14.40], [14.70], [14.80], [14.90], [14.180], [14.330] Ducret v Colourshot Pty Ltd (1981) 35 ALR 503 ……………………………………….. [13.700] E eBay International AG v Creative Festival Entertainment Pty Ltd (2006) 170 FCR 450 ………………….. [9.490] EHT18 v Melbourne IVF [2018] FCA 1421 ……………………………….. [1.200], [1.360] Elder Smith Goldsbrough Mort Ltd v McBride [1976] 2 NSWLR 631 ………………. [9.390] Electricity Generation Corporation t/​a Verve Energy v Woodside Energy Ltd [2014] HCA 7 ………………………………………………… [9.230] Elizabeth City Centre Pty Ltd v Corralyn Pty Ltd (1995) 63 SASR 235 …………………. [3.400], [3.410] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 ………………. [3.390] Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd (2008) 19 VR 358 ……………………… [7.340] Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 ………………………. [4.20] Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 …………. [14.420] Escape Media Pty Limited v Lawler [2018] NSWCATAP 17 ………………………………… [13.1090] Evans v Davantage [2019] FCA 884 ………………. [3.680] F Felthouse v Bindley (1862) 142 ER 1037 ………… [3.430] Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 ………………………………………. [8.170], [9.590] Foakes v Beer (1884) 9 App Cas 605 ……………… [5.170] Forrest v Australian Securities and Investment Commission [2012] HCA 39 ……………………. [2.60] 27-Nov-20 15:51:46 xiv Concise Australian Commercial Law Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 …………….. [15.120], [15.180] Fulcher & Ors v Knott Investments Pty Ltd & Ors [2012] QSC 232 ………………………………… [13.1630] G Gaffney v Ryan [1995] 1 Qd R 19 …………………… [8.90] Garcia v National Australia Bank Ltd (1998) 194 CLR 395 ……………………………………….. [7.620] Gibson v Manchester City Council [1979] 1 All ER 972 ………………………………………….. [3.80] Gippsreal Ltd v Registrar of Titles (2007) 20 VR 127 …………………………………………… [2.110] Giumelli v Giumelli (1999) 196 CLR 101 ……….. [5.340] Given v Pryor (1980) 30 ALR 189 ……………….. [13.670] Glasbrook v Glamorgan County Council [1925] AC 270 ……………………………………………….. [5.140] Gnych v Polish Club Ltd (2015) 255 CLR 414 ……………………………………….. [8.110] Godecke v Kirwan (1973) 129 CLR 629 …………. [3.650] Goldberg v Jenkins (1889) 15 VLR 36 ………….. [16.480] Goldsborough Mort & Co Ltd v Quinn (1910) 10 CLR 674 …………………………………………. [3.260] Goodridge v Macquarie Bank Ltd (2010) 265 ALR 170 ……………………………………… [10.190] Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 …………. [13.110] Goudberg v Herniman Associates Pty Ltd [2007] VSCA 12 ………………………………….. [16.130] Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 ……………………………. [14.590] Grant v Australian Knitting Mills [1936] AC 85 …………………………………………………. [14.90] Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237 ……………… [11.300], [12.180] H H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] 1 QB 791 …………………………………. [12.170] Hadley v Baxendale (1854) 9 Exch 341 …………. [7.340], [12.120], [12.130], [12.210] Hall & Barker, Re [1878] 9 Ch D 538 ……………. [11.30] Hamerhaven Pty Ltd v Ogge [1996] 2 VR 488 …………………………………………… [16.540] Hamilton v Lethbridge (1912) 14 CLR 236 ………. [6.60] Harris v Nickerson (1872-​73) LR 8 QB 286 ……. [3.150] Hartley v Ponsonby (1857) 7 E & B 872 ……………………………….. [5.160], [5.180] Harvey v Harvey (1970) 120 CLR 529 …………. [16.330] Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 ……………………… [14.330], [14.340] Hely-​Hutchinson v Brayhead Ltd [1968] 1 QB 549 …………………………………………… [15.140] CACL6___Book.indb 14 Henjo Investments Pty Ltd v Collins Marrickville (1988) 79 ALR 83 ……………… [13.130] Henthorn v Fraser [1892] 2 Ch 27 …………………. [3.400] Hermann v Charlesworth [1905] 2 KB 123 ……… [8.640] Herne Bay Steamboat Co v Hutton [1903] 2 KB 683 ……………………………………………. [11.420] Hoenig v Isaacs [1952] 2 All ER 176 ……………… [11.50] Hollis v Vabu Pty Ltd (2001) 207 CLR 21 …….. [14.850] Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1952] 2 QB 26 ……………. [9.200] Hopcroft v Edmunds (2013) 116 SASR 191 ….. [15.150] Howe v Teefy (1927) 27 SR (NSW) 301 ………… [12.210] Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133 ….. [9.100] Humberstone v Northern Timber Mills (1949) 79 CLR 389 ……………………………………….. [14.850] Hyde v Wrench (1840) 49 ER 132 …….. [3.310], [3.330] Hyder v McGrath Sales Pty Ltd [2018] NSWCA 223 …………. [13.100], [13.350], [13.1550] I Insight Vacations Pty Ltd v Young (2011) 243 CLR 149 ……………………………………….. [9.400] Interfoto Picture Library Ltd v Stiletto Visual Programs Ltd [1989] 2 QB 433 ………………. [9.320] J J Lauritzen AS v Wijsmuller BV [1990] 1 Lloyds Rep 1 ……………………………………. [11.500] JJ Savage v Blakney (1970) 119 CLR 435 …………………………….. [9.50], [9.120] Jaensch v Coffey (1984) 155 CLR 549 ………….. [14.100] Jardin v Metcash Ltd (2011) 285 ALR 677 ……… [8.430] Jarvis v Swans Tours Ltd [1973] 1 QB 233 ……. [12.230] Je Maintiendrai Pty Ltd v Quaglia (1980) 26 SASR 101 ………………………………………… [5.260] Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-​441 ………………………….. [13.1280] John Dorahy’s Fitness Centre Pty Ltd v Buchanan [1996] NSWCA 278 ……………….. [9.410] Johnson Tiles Ltd v Esso Australia Pty Ltd [2004] VSC 466 ……………………. [14.290], [14.300] Johnson v Buttress (1936) 56 CLR 113 …………… [7.510] Jones v Vernon’s Pools Ltd [1938] 2 All ER 626 ………………………………………… [4.170] K Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 ……………………………………….. [7.600] Khan v Miah [2000] 1 WLR 2123 …. [16.110], [16.130] King v Philcox (2015) 255 CLR 304 …………….. [14.190] Kiriri Cotton Co Ltd v Dewani [1960] AC 192 ……………………………………………….. [8.570] Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 ……. [9.190], [11.320] 27-Nov-20 15:51:47 Table of Cases Koufos v Czarnikow Ltd [1969] 1 AC 350 …….. [12.170] Krell v Henry [1903] 2 KB 740 ……………………. [11.410] L L J Hooker Ltd v W J Adams Estate Pty Ltd (1977) 138 CLR 52 ……………………………………………… [15.360] L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 ……………………………………. [11.290] La Rosa v Nudrill Pty Ltd [2013] WASCA 18 ….. [9.360] Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 ……… [11.230] Laws v GWS Machinery Pty Ltd (2007) 209 FLR 53 ………………………………………. [13.1270] Le Mans Grand Prix Circuits Pty Ltd v Illiadis [1998] VSC 331 ……………………………………. [9.340] Leaf v International Galleries [1950] 2 KB 86 ………………………………………. [7.40], [7.70] Leibler v Air New Zealand Ltd [1999] 1 VR 1 ………………………………………………… [7.250] Leonard v PepsiCo 88 F Supp 2d 116 (1999) …….. [3.60] L’Estrange v Graucob [1934] 2 KB 394 …………. [15.110] Lewis v Averay [1972] 1 QB 198 ……….. [7.170], [7.390] Lintrose Nominees Pty Ltd v King [1995] 1 VR 574 …………………………………………… [15.250] Lloyd v Grace, Smith & Co [1912] AC 716 …… [16.650] Lloyd’s Bank Ltd v Bundy [1975] QB 326 ………. [7.540] Lloyd’s Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505 ……………………. [8.390] Louth v Diprose (1992) 175 CLR 621 ……………. [7.590] Love v Commonwealth of Australia and Thoms v Commonwealth of Australia [2020] HCA 3 ………………………….. [1.260], [1.300] M MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq) (2010) 31 VR 575 ……………. [9.410] Mabo v State of Queensland (No 2) (1992) 175 CLR 1 ………………………………. [1.110], [1.130] Mahmoud & Ispahani, Re [1921] 2 KB 716 …………………………………… [8.20], [8.130] Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227 ………………………… [4.130] March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 ……………………………………… [14.810] Marks v GIO Australia Ltd [1998] HCA 69 …………………………………………… [13.1080] Marsh v Baxter (2015) 49 WAR 1 ………………… [14.315] Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 ……………………………….. [8.70] Masters v Cameron (1954) 91 CLR 353 …………………………….. [3.460], [3.470] Maxitherm Boilers Pty Ltd v Pacific Dunlop Ltd [1998] 4 VR 559 …………………………….. [3.560] McFarlane v Daniell (1938) 38 SR (NSW) 337 …………………………………………… [8.610] CACL6___Book.indb 15 xv McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 …………………………………. [7.90] McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 …….. [13.290] Megevand; In Re, Ex parte Delhasse (1878) 7 Ch D 511 ………………………………………… [16.210] Mercantile Credit Co Ltd v Garrod [1962] 3 All ER 1103 …………………………………….. [16.470] Mercantile Union Guarantee Corp Ltd v Ball [1937] 2 KB 498 …………………………………….. [6.90] Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145 ………….. [13.1340], [13.1520] Merritt v Merritt [1970] 1 WLR 1211 ………………. [4.80] Metropolitan Water Board v Dick, Kerr & Co Ltd [1918] AC 119 …………………………. [11.440] Meyer v Kalanick (2016) No 15 Civ 9796 ………. [9.480] Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 ……………………………………………. [1.70] Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 ……………………………………… [13.140] Minchello v Ford Motor Company [1995] 2 VR 594 …………………………………………. [13.1280] Mitor Investments Pty Ltd v General Accident Fire & Life Ass Corp [1984] WAR 365 …………….. [15.310] Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 ……………………………. [14.160] Moore v Scenic Tours Pty Ltd [2020] HCA 17 ……………….. [11.480], [12.250], [13.1460] Moore Ltd and Landauer, Re [1921] 2 KB 519 ……………………………………………… [11.20] Moorcock, The (1889) 14 PD 64 ……………………. [9.530] Moss v Elphick [1910] 1 KB 846 …………………. [16.690] Mules v Ferguson [2015] QCA 5 ………………….. [14.660] Musumeci v Winadell Pty Ltd (1994) 34 NSWLR 723 ……………………………………. [5.210] Mutual Life and Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 ……………… [14.360], [14.420] N NE Perry Pty Ltd v Judge (2002) 84 SASR 86 ………………………………………….. [8.470] Nagle v Rottnest Island Authority (1993) 177 CLR 423 ……………………………………… [14.260] National Carriers Ltd v Panalpina (Northern) Ltd [1981] AC 675 ……………………………………. [11.540] National Commercial Banking Corp of Australia Ltd v Batty (1986) 160 CLR 251 …………… [16.610] New South Wales v Fahy (2007) 232 CLR 486 ……………………………………… [14.500] New South Wales v Lepore (2003) 212 CLR 511 ……………………………………………. [14.850] North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] 1 QB 705 ………………………… [7.460] Nouri v Australian Capital Territory [2018] ACTSC 275 ……………………………………….. [14.740] 27-Nov-20 15:51:47 xvi Concise Australian Commercial Law O O’Brien v Smolonogov (1983) 53 ALR 107 …….. [13.80] O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 ……………………………………………… [1.430] Olley v Marlborough Court Ltd [1949] 1 KB 532 …………………………………. [9.290], [9.460] Optus Mobile Pty Ltd v Telstra Corporation Limited [2018] FCA 745 ………………………. [13.590] Oscar Chess Ltd v Williams [1957] 1 WLR 370 ……………………………………………. [9.60] Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound No 2) [1967] AC 617 (PC) ………………………………………. [14.770] Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388 …………….. [14.750], [14.760] Polkinghorne v Holland (1934) 51 CLR 143 ……………………………………….. [16.620] Popat v Schonchhatra (1997) 3 All ER 800 ………………………………………………. [16.250] Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1980) 144 CLR 300 ……………………………………….. [10.80] Positive Endeavour Pty Ltd v Madigan (2009) 105 SASR 109 ………………………………………. [8.400] Powell v Lee (1908) 99 LT 284 ……………………… [3.540] Printing and Numerical Registering Co v Sampson (1875) LR 19 Eq 462 …………………. [2.40] Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 ………………….. [11.240] Public Service Employees Credit Union Co-​operative Ltd v Campion (1984) 56 ACTR 39 ………… [8.260] Pukallus v Cameron (1982) 180 CLR 447 ………. [7.240] P Q Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 ……………………………………… [15.190] Paciocco v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 ……………. [12.320] Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711 ……………………………. [15.200], [17.180], [17.210], [17.280] Pao On v Lau Yiu Long [1980] AC 614 ………….. [5.110] Paris v Stepney Borough Council [1951] AC 367 ……………………………………………… [14.570] Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 ………… [13.300] Parker v McKenna (1874) 10 Ch App 96 ………. [15.280] Parkinson v College of Ambulance Ltd [1925] 2 KB 1 …………………………………….. [8.300], [8.560] Partridge v Crittenden [1968] 2 All ER 421 …….. [3.110] Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 ……………………….. [12.400], [12.420] Payzu Ltd v Saunders [1919] 2 KB 581 …………. [12.190] Pearson v HRX Holdings Pty Ltd (2012) 205 FCR 187 ……………………………………….. [8.450] Pennington v Norris (1956) 96 CLR 10 ………… [14.800] Perisher Blue Pty Ltd v Nair Smith (2015) 295 FLR 153 ………………………………………… [14.50] Perre v Apand Pty Ltd (1999) 198 CLR 180 …… [14.280], [14.290], [14.300] Petelin v Cullen (1975) 132 CLR 355 …………….. [7.190] Petrofina (Great Britain) Ltd v Martin [1966] 1 Ch 146 ……………………………………………… [8.370] Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1952] 2 QB 795 …………………………………………….. [3.100] Phillips v Brooks Ltd [1919] 2 KB 243 …………… [7.160] Photo Production Ltd v Securicor Transport Pty Ltd [1980] AC 827 ………………………….. [9.450] Pioneer Mortgage Services Pty Ltd v Columbus Capital Pty Ltd & Ors (2016) 250 FCR 136 ……………………………………… [14.860] Plummer v Thomas [2002] NSWSC 1185 ……… [16.180] Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 ……………………………………………… [14.700] Queensland v Masson [2020] HCA 28 ………….. [14.450] CACL6___Book.indb 16 R R v Clarke (1927) 40 CLR 227 …………. [3.230], [3.440] R v Hannes (2002) 173 FLR 1 …………………….. [17.620] R v R [1991] UKHL 12 ………………………………….. [1.30] Ramsgate Victoria Hotel Co v Montefiore (1866) LR 1 Ex 109 ………………………………………… [3.520] Reardon v Morley Ford Pty Ltd (1980) 33 ALR 417 ……………………………………….. [13.800] Redgrave v Hurd (1881) 20 Ch D 1 ……………….. [7.370] Reg Glass Pty Ltd v Rivers Locking Systems Pty Ltd [1968] 120 CLR 516 ………………… [12.110] Regal (Hastings) Ltd v Gulliver [1942] UKHL 1 …………………………………………….. [15.290] Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 ………. [9.630] Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria St Doncaster Pty Ltd (2012) 37 VR 486 …………………………………………….. [9.40] Riley v Osborne [1986] VR 193 …………………….. [5.420] Roads and Traffic Authority of NSW v Dederer (2007) 238 ALR 761 ……………………………. [14.540] Robertson v New Balmain Ferry Company (1906) 4 CLR 379 …………………………………………… [9.370] Roe v Wade 410 US 113 (1973) …………………….. [1.240] Rogers v Whitaker (1992) 175 CLR 479 ………. [14.210], [14.580] Roscorla v Thomas (1842) 3 QB 234 ……………… [5.100] Rose & Frank Co v JR Crompton & Bros Ltd [1925] AC 445 ……………………………………… [4.150] Rosenberg v Percival (2001) 205 CLR 434 ……. [14.720] Ross v Allis-​Chalmers Australia Pty Ltd (1980) 32 ALR 561 ………………………………… [9.50], [9.80] Rowe v McCartney [1976] 2 NSWLR 72 ………. [14.780] Royal Globe Life Assurance Co Ltd v Kovacevic (1979) 22 SASR 78 ……………………………… [15.480] 27-Nov-20 15:51:47 Table of Cases Ryan v Mutual Tontine Westminster Chambers Assoc [1893] 1 Ch 116 ………………………… [12.370] S Salomon v Salomon & Co Ltd [1897] AC 22 …………………………………….. [17.40], [17.50] San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 ……………… [14.400] Scarborough v Sturzaker (1905) 1 Tas LR 117 …… [6.40] Scolio Pty Ltd v Cote (1992) 6 WAR 475 ………. [8.270], [8.280] Scott v Coulson [1903] 2 Ch 249 ………….. [7.40], [7.50] Seidler v Schallhofer [1982] 2 NSWLR 80 ………. [8.230] Seven Network (Operations) Ltd v Warburton [2011] NSWSC 386 ………………………………. [8.440] Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 ………… [14.370], [14.380] Shaw v Thomas [2010] NSWCA 169 ……………. [14.550] Shelley v Paddock [1980] QB 348 ………………….. [8.580] Shevill v Builders Licensing Board (1982) 149 CLR 620 ……………………….. [11.220], [11.270] Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 ……………………………………………… [9.530] Sidhu v Van Dyke [2014] HCA 19 ………… [5.290], [5.330] Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 ……………………………………… [13.960] Smythe v Thomas [2007] NSWSC 844 ……………. [3.190] Specht v Netscape Communications Corp 306 F 3d 17 (2d Cir 2002) ……………………… [9.470] Spong v Spong (1914) 18 CLR 544 ………………… [7.530] St John Shipping Corp v Joseph Rank Ltd [1957] 1 QB 267 …………………………………….. [8.20] State of Queensland v Kelly [2015] 1 Qd R 577 ….. [14.250] Stellard Pty Ltd v North Queensland Fuel Pty Ltd [2015] QSC 119 ………………………… [3.490] Stevenson Jaques & Co v McLean [1880] 5 QBD 346 ………………………………………….. [3.330] Stilk v Myrick (1809) 2 Camp 317 ……. [5.150], [5.180], [5.190] Strong v Woolworths Ltd (2012) 246 CLR 182 ……………………………………… [14.690] Sumpter v Hedges [1898] 1 QB 673 ……………….. [11.80] T Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 ……………………………… [12.90] Tame v New South Wales (2002) 211 CLR 317 ………….. [14.100], [14.110], [14.170] Taylor v Caldwell (1863) 3 B & S 826; 122 ER 309 ………………………………………… [11.390] Taylor v Johnson (1983) 151 CLR 422 ………….. [7.110], [7.120], [7.200] Taylor v The Owners-​Strata Plan No 11564 (2014) 253 CLR 531 ……………………………… [1.350] Thomas v Thomas (1842) 2 QB 851 ………………… [5.50] CACL6___Book.indb 17 xvii Thompson v Excel Intelligent Pty Ltd [2018] ACAT 4 ……………………………………………. [13.1320] Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 …………………………………………….. [9.310] Thorp v CA Imports Pty Ltd (1989) 16 IPR 511 ……………………………………….. [13.1010] Todd v Nicol [1957] SASR 72 ……………………….. [4.100] Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 …………… [9.260], [9.460], [15.110] Tower Cabinet Co Ltd v Ingram [1949] 2 KB 397 ……………………………………………. [16.560] Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 ………. [9.160] Trego v Hunt [1896] AC 7 ………………………….. [16.350] Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 ………….. [1.420], [10.90], [10.100] Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93 ……………………………………… [11.520] Tweddle v Atkinson (1861) 1 B & S 393 …………. [10.30] U Ultramares Corp v Touche (1931) 255 NY 170 ……………………………………….. [14.290] United Dominion Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1 ……………………………….. [16.280] V Van Den Esschert v Chappell [1960] WAR 114 …………………………………………….. [9.150] Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd [2015] WASCA 21; (2015) 47 WAR 547 ……………………………. [3.480], [7.250] Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 …………….. [12.140] Videon v Barry Burroughs Pty Ltd (1981) 37 ALR 365 ……………………………………….. [13.680…

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