81/100 Torts & Contract 2 Notes (All case authorities)

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High quality Torts & Contract 2 (LAWS1017/LAWS5006) notes for the University of Sydney. I used these notes to achieve a 81/100 overall (4 marks off HD). These notes cover the substantive topics in the course (as they existed in 2023): Contents I: Introduction to Torts and Contracts II Torts and Contracts Generally Torts Contracts Concurrent liability in tort and contract Structure TORT For interference with land For interference with goods Intentional economic loss For pure economic loss CONTRACT Client wants to claim damages in contract: Client wants to rescind the contract: Bars to recession PROPORTIONATE LIABILITY FOR ECONOMIC LOSS OR PROPERTY DAMAGE Under the Civil Liability Act Under the Competition and Consumer Act T2: Trespass to Land Trespass to Land 1. Does P have title to sue 2. Does this fall within the scope of the plaintiff’s interest in land? 3. Has there been direct interference without lawful authority with the land? – Halliday v Nevill Remedies - NB Compensation for actual damage suffered Injunction Remedy of declaration Ejectment of trespasser Defences Necessity Statutory or common law authority [Statute] Statutory Action for Damage by Aircraft (1) Damage by Aircraft Act 1999 (Cth) s 9 Application of Act (1) Damage by Aircraft Act 1999 (Cth) s 10 Liability for injury, loss etc. (1) Damage by Aircraft Act 1999 (Cth) s 11 Recovery of damages without proof of intention, negligence etc. (2) CLA (NSW) T3: Private Nuisance Action on the case for unlawful interference with the use or enjoyment of land. Does the plaintiff have title to sue? What scope of the plaintiff’s interest in the use or enjoyment of land does private nuisance protect? (examples) Was it an interference amounting to an unreasonable and substantial interference with the plaintiff’s use or enjoyment of land: Munro v Southern Dairies. Basis of liability: Fault in nuisance? Defences Statutory authority Coming to the nuisance Remedies Actionable per se? Strict liability Damages (common law) Injunction Abatement T4: Tort Interference with Goods Attaining title to Sue Key idea behind appropriate title to sue ● nemodat quod non habet - you cannot give what you do not have Finding goods Bailment (giving possessions) 3 Different Torts: Interference with Goods Tort 1: Trespass - interference with goods in another’s possession Tort 2: Conversion (broader tort) Tort 3. Detinue (useful, every time you issue a fresh demand, there is a fresh title, also if negligently lost goods Reeve) Alternative: Action on the case for reversionary interest Remedies Generally Trespass to land Conversion Detinue Reversionary interest T5. Pure Economic Loss Tort of Deceit (Intentional) (Fraudulent Misrepresentation) Elements (Derry v Peek): [Generally] Negligence Duty of care Causation and scope of liability Why was the law so cautious towards purely economic loss in negligence? PEL from Negligent Misstatement Duty of care Did the defendant breach the duty of care owed the plaintiff? Did the defendant’s breach cause the pure economic loss suffered by the plaintiff? What remedies are available? PEL for Professional Negligence Generally Duty of care Breach of duty? Did the defendant’s breach cause the pure economic loss suffered by the plaintiff (see above)? Does the defendant have immunity from liability? (not examinable) Remedies PEL for Damage to Third Party Property Property damage vs PEL (Is this really PEL?) The exception to the general rule Establishing a duty of care – McHugh J in Perre v Apand See examples Breach (see above) – s5B CLA Causation (see above) – s5D CLA misstatement to third party, causing loss to P - Novel Case Injury to Third Parties (mostly not examinable) Action for injury to third party under negligence Death to Third Parties Death of a human being may not be complained of as a legal injury: Baker v Bolton. Defective Structures (NOT EXAMINABLE) Multiple Wrongdoers: Proportionate Liability Proportionate Liability for Property Damage and Economic Loss What is the correct statute/type of tort Is the D only proportionately liable under CLA (NSW) Is the D only proportionally liable under Liability under the CCA 2010 (Cth) Outside the CLA and CCA (Joint and/or several (and contribution rights)) : Loss, Causation and Remoteness Solving a Contract Damages quesiton Causation and Remoteness Is the defendant liable for loss in contract? Identify the breach(s). Does the CLA apply? CLA Applies Common Law Applies Common Law (1) Loss Common Law (2) Causation Common Law (3) Remoteness : Measure of Damages Solving an assessment of damages question Heads of Damages Generally Nominal damages Expectation damages/loss of bargain? Date of assessment Loss of chance and difficulty of assessing damages CL right to termination, effect of termination on assessment, and loss of bargain damages Reliance damages Restitutionary damages Reinstatement costs Injured feelings, disappointment, or distress Reasons to reduce the damage Contributory negligence Apportionment CLA Mitigation - always tested - always says Particular issues (Consider!) P must prove extent of the breach: Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, 80, 99, 137 Effect of taxation Late payment of money : Sums Fixed by Contract Solving a sums fixed by contract problem question General Principles Identify the relevant agreed damages clause Unconditionally accrued vs conditionally accrued Damages or debt due Liquidated damages clause or penalty - if you go for damages : Recission Solving a rescission problem Vitiating factors Pre-contractual conduct that undermines (vitiates) the consent of a party to a contract. Consequences: Rescission Generally What is Rescission Expressing rescission Bars to Rescission (consider after establishing VF) Factual bar to rescission ● Restitution impossible Affirmation (“defence” to rescission) (better described as a bar to rescission) Third parties Rule in Seddon’s case 12: Mistake Solving a mistake problem Common mistake Mutual mistake Unilateral mistake Rectification of documents Non est factum 12: Duress Solving a duress problem (1) Whether any applied pressure induced the victim to enter the contract: Crescendo Management v Westpac Banking. (2) Whether that pressure went beyond what the law is prepared to countenance as legitimate: Crescendo Management v Westpac Banking. Consequence: contract is voidable: North Ocean Shipping v Hyundai Construction. 13: Undue Influence Solving an undue influence problem Presumed undue influence relationships: Thorne v Kennedy. Tests? Yerkey principle Three-party situations Consequence: voidable: Anderson v McPherson. 13: Unconscionable Transactions Solving an Unconscionable Conduct Problem Unconscionable Transactions (Equitable Principles) [Statute] Unconscionable Transactions ● ACL (NSW) s 20 Unconscionable conduct within the meaning of the unwritten law ● ACL (NSW) s 21 Unconscionable conduct in connection with goods or services ● ACL s 22 Matters the court may have regard to for the purposes of section 21 ● “In trade or commerce” ● “Conduct” ● Remedies 13: [Statute] Unfair Contract Terms and Unjust Contracts Solving a unfair/unjust contract term question Unfair contract terms Unjust contract 14: [Statute] Misleading or Deceptive Conduct Solving an ACL s 18 problem ACL s 18 Misleading or deceptive conduct Is the conduct “In trade or commerce”: s 2 ACL Is there “Conduct” by a corporation or individual such that the ACL applies? Objectively misleading or deceptive such that it is in breach of s18 of the ACL? Remedies Effect of Contributory negligence on damages [no equivalent in NSW legislation] Effect of Proportionate Liability on damages Other remedies 14: Misrepresentation under common law Solving a misrepresentation problem The onus is on the representee to show misrepresentation and inducement: Holmes v Jones. A false factual statement by the representor The statement induces entry into the contract Recission? (topic 11) Consequence