John W. Carter - Contract Law in Australia

A catalogue record for this book is available from the National Library of Australia

2018 Ironhans Pty Limited. Under exclusive licence to Reed International Books Australia Pty Limited trading as LexisNexis.

First edition 1986, Second edition 1991, Third edition 1996, Fourth edition 2002, Fifth edition 2007,

Sixth edition 2013

This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission.

Inquiries should be addressed to the publishers.

Edited by Rosemary Peers.

Typeset in Times New Roman and Optima by DiZign Pty Ltd.

Printed in China.

Visit LexisNexis Butterworths at www.lexisnexis.com.au

The principal purpose of the sixth edition of Contract Law in Australia was as recorded in the preface to take account of the Competition and Consumer Act 2010 (Cth) (replacing the Trade Practices Act 1974 (Cth)), and the Australian Consumer Law. For this edition, incorporating cases decided since the sixth edition has been the main concern. These include (see ) many significant decisions of the High Court, such as Paciocco v Australia and New Zealand Banking Group Ltd, Electricity Generation Corporation v Woodside Energy Ltd and Commonwealth Bank of Australia v Barker. Of course, account has also been taken of the decisions of other courts, and statutory changes over the past five years.

I have taken the opportunity in this edition to revise all chapters of the book, to simplify some of the material and to make room for new material without increasing the overall length of the book. This has led to changes to all chapters, some of them substantial, but generally within the structure adopted for the previous edition. However, the structure of , which now has the title Default Rules, Commercial Construction and Good Faith, is entirely new. The principal objective of the chapter is to investigate the developing concept of good faith in conjunction with a brief consideration of the two other concepts included in the title. The chapter also notes the attitude of other countries towards the role of good faith in contract.

A synopsis of the contents now precedes each chapter of the book.

Many people have assisted me in completing this edition within a difficult timeframe. First, I must thank my secretaries at Herbert Smith Freehills (Emma Schwager and Tiffany Martinez). Tiffany very kindly managed the proofs and liaised with the many people who provided research assistance and commented on drafts of several chapters: Luca Moretti, David Thorpe, John Eldridge and Dilu and Prasan Ulluwishewa. My thanks also to Associate Professor Wayne Courtney and Professor Greg Tolhurst for allowing me to draw on collaborative research and published work in the preparation of the text. (In addition Wayne provided valuable comments on a draft of .) My biggest thank you must go to Rosemary Peers and Diana Murray, who edited the work and prepared the files (and tables) with their usual skill and care and quite remarkable attention to detail. Rosemarys keen eye saved me from a great many infelicities and mistakes of syntax and style. As always, my wife Helen has been a constant support. I must also thank LexisNexis, particularly Jocelyn Holmes.

The law is generally stated on the basis of the reported cases available to me on 1 December 2017. However, I was also able to incorporate some references to the High Courts very recent decision in Thorne v Kennedy.

J W Carter

Sydney

December 2017

References are to paragraph numbers

3meg.com Pty Ltd v T M & S M Pike Pty Ltd (2012) .

1144 Nepean Highway Pty Ltd v Abnote Australasia Pty Ltd (formerly known as Leigh Mardon Australasia Pty Ltd) (2009) .

A v Hayden (1984) .

ABB Power Generation v Chapple (2001) .

Abbott v Lance (1860) .

Abdurahman v Field (1987) .

Aberfoyle Plantations Ltd v Cheng [1960] .

Abrahams v Herbert Reiach Ltd [1922] .

Abram SS Co Ltd v Westville Shipping Co Ltd [1923] .

Academy of Health and Fitness Pty Ltd v Power [1973] .

ACCC v Leelee Pty Ltd (2000) .

Accounting Systems 2000 (Developments) Pty Ltd v CCH Australia Ltd (1993) .

Acron Pacific Ltd v Offshore Oil NL (1985) .

Actionstrength Ltd v International Glass Engineering IN.GL.EN Spa [2003] .

Adam v Newbigging (1888) .

Adami v Maison de Luxe Ltd (1924) .

Adams v Lindsell (1818) .

Adamson v New South Wales Rugby League Ltd (1991) .

Addis v Gramophone Co Ltd [1909] .

Addison v Brown [1954] .

Adelfamar SA v Silos E Mangimi Martini SpA (The Adelfa) [1988] .

Adenan v Buise [1984] .

Adey v Fisher (1914) .

Adler v Dickson [1955] .

Administration of the Territory of Papua New Guinea v Leahy (1961) .

Administrative and Clerical Officers Association v The Commonwealth (1979) .

Adventure World Travel Pty Ltd v Newsom (2014) .