3 cases negative injunctions
warren, lumley, sharp
disqualifying factors for equitable relief
argyle stores (constant supervision) , patel v ali (hardship) , AG for England and Stocker (lack of mutuality), Walters v Morgan (equity) sharp and argyle (disproportionate loss)
personal contract
thomas borthwick and there was another one?
kumar
kumar - contract, breach of side contract which was what investors were relying on, refusal to settle. not repudiation as investors believed contract allowed them not to settle, but SP did repudiate by breaching terms of side agt as shows intention not to fulfil agt which was found to be essential.
mana
mana - express term that had to be to the point, time not impliedly essential unless stated, it was esential, but no right to cancel as there was no time limit
cases for meaning of substantial change
bachelor peas, mainzeal, sharplin v henderson, stine
affirmation
jansen, gray v thomson
no affirmation
wilson v hines, white and carter (crticised)
adequate cancellation notice
akl water beds, speedy parcels, le page, phone call/email NOT McLachland
incorporated terms
hollier, ollie v malrborough, thornton, parker v south eastern railway, AG 7 v Electrical, Te Photo, Hadwick, Toll v Alpha, L’Estrange
implied terms
moorhouse, hamlyn, sharplin, BP Refinery, Bathurst, Mobil Oil, Marks v Spencer
misrep
smith v land, bisset v wilkinson, NZ Finance, Magee v Mason, Ridgeway Empire, Ware v Johnson, Vincent v Thomson, Wakeman v Jackson, Ladstone v Leonora
general rule for unsigned contracts
terms are incorporated if actual or reasonable notice is given
frustration
Multi-factorial approach:
Relevant Factors from The Sea Angel (cited in Planet Kids):
Terms of the contract;
Contract matrix or context;
Parties’ knowledge, expectation, assumptions, contemplations particular as to risk at the time of the contract;
Nature of supervening event;
Parties’ reasonable calculations as to possibility of future performance in the new circumstances.
Other factors
- Impossibility
- The contracts purpose
- Hardship
- The demands of justice
- Allocation of risk:
frustration situations
Common situations where frustration may occur:
Unattainability of thing or person:
Unattainability of purpose:
Supervening illegality:
Where you can NOT claim Frustration:
Where supervening event is self-induced by a party, you cannot claim frustration.
If the risk was foreseen (cf forseeable) you cannot claim frustration
Where the contract is more difficult to perfor or more expensive you cannot claim frustration
CCLA Frustration
61: Money already paid under contract may be recovered, and any money that is yet to be paid ceases to be payable (assessed at the time of discharge of the contract).
S 62: Court may allow party who has incurred expenses to retain or recover money, if the court considers it just to do so having regard to all the circumstances.
S 63: Party may recover a sum that the court thinks is just if the other party has obtained valuable benefit. Court to have regard to all the circumstances when considering sum, including any expenses incurred in transferring the benefit.
S 67: Court must give effect to the provisions of the contract. Parties can contract themselves for what happens in the event of frustration. If parties have clearly contemplated the event, the more detailed a contract is, the more likely the Court will be to acknowledge that the parties intended certain things to occur upon frustration.
when can frutrsation not be claimed and why
davis contractors and tsaki (Suez Canel)
