Commercial Law

This page is devoted to finding resources on commercial law. It includes my (and others’) blog posts, leading cases, as well as articles that I have found useful:

Contract/Obligations

• This is my post on the recent decision of Koutsopoulos v Pintusen (No 2) [2011] NSWCA 122, A recent decision of the NSWCA on affirmation and recision of contract.
• This is the semenel case of Masters v Cameron [1954] 72, famous for many reasons, including when a conditional contract comes into existence.
  • The following learned articles deal with issues in Masters v Cameron:
    • But We Agreed – (2007) 81(8) LIJ 52;
    • Contract: What Contract – 26(5) BCL 304;
• The famous case of Trident General Insurance Co Ltd v McNiece Bros Pty Ltd— (1988) 165 CLR 107; a case which changed the shape of insurance law and redefined the concept of privity of contract:
  • The following learned journal articles deal with Trident:
    • Privity of Contract – That Pestilential Nuisance – (1993) 56 MLR 722
    • Professional Indemnity Insurance – Do 3^rd Parties Have an Interest? – (2003) 14 ILJ 77
• The case of High Court Of Australia in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52) is a landmark case affirming fundamental principles of freedom to contract (read the contract first (and the back!)!
  • A summary of Toll (FGCT) can be found here.
• The article Limits of Voluntariness in Contract [2005] MULR 5 (by Andrew Robertson, Associate Professor at Melbourne University) is recommended by me for its rigorous theoretical treatment (and challenge) of several fundamental contractual law principles. It also deals with Toll (above) and the principles within.
• This presentation at Cambridge by Kirby J (as he then was) talks about interpretation in contract and statutes.
• The Networked Knowledge Contract Law Homepage, while not particularly current, has a wealth of information and many great links. 
• For an elegant (although currently incomplete) website on some of the basics of Contract Law, I would recommend Dr Julie Clarke’s Australian Contract Law page.

…more (to come)…

Equity

• This is the High Court decision in Breen v Williams, mostly important for its discussions on fiduciary duties.
  • The following learned articles deal with Breen:
    • Proscriptive Fiduciary Duties in Australia (2004) 25 Aust Bar Rev 1 – (discusses amongst ather things the ‘no-conflict’ and ‘no-profit’ rules in Australia);
    • Trusting Lawyers with Confidences — Conflicting Realities (A Review of the Test and Principles Applying to Lawyers’ Conflicts of Interests)(1997) 16 Aust Bar Rev 222 – (discussion focusses on conflict of interests with lawyers).
• This is the High Court decision of Nelson v Nelson a decision dealing with the presumptions of advancement and resulting trust, as well as being able to rely on prior inconsistent statements
  • An outstanding article (in my view), written by His Honour Chisholm J, deals with the very issue of being able to rely on prior inconsistent statements: Exclusion of evidence inconsistent with earlier statements: The rise and fall of the ‘Elias principle’ (2001) 15 Australian Journal of Family Law 1.

…more (to come)…

Resititution

• These seem to be the unholy trinity of recent HCA decisions:
  • Roxborough v Rothmans of Pall Mall Australia Ltd [2001] HCA 68 
  • Farah Constructions Pty Ltd v Say-dee Pty Ltd [2007] HCA 22 
  • Lumbers v W Cook Builders Pty Ltd in Liquidation[2008] HCA 27
  • (see also my blog post on the recent decision of Einstein J in Australian Financial Services & Leasing Pty Ltd v Hills Industries Ltd [2011] NSWSC 267: Restitution lives on in Australia. http://wp.me/p1yX5a-3d)

• This scathing article by Professor Burrows provides detailed and cogent analysis of the divergence between the Australian Courts and the English Court in the law of resitution.
• For a more measured analysis of Farah, Lee Aitken’s article is recommended: Unforgiven: Some Thoughts on Farah Constructions Pty Ltd v Say-dee Pty Ltd (2007) 29 Aust Bar Rev 195

…more (to come)…