Pitfalls in pleading Section 52 |
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Author :
A I Tonking SC
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Section 52 of the Trade Practices Act 1974 (the Act) (and its analogues) has now been part of our jurisprudence for a generation. In its early days there seemed to be no limit to its inroads into established areas of the law, and this led to statutory limitations such as s65A (prescribed information providers) and Parts VIA and VIB (proportionate liability and personal injury damages) although other influences were at work in the case of the latter. Section 51A (introduced in 1986) was another consequence of developments of the cause of action unforeseen at the time of its introduction.
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But first, as is appropriate for this topic, a number of disclaimers: this is not intended as a comprehensive discourse on s52 or on pleading. It does not attempt to address the specialised area where s52 is used in aid of the tort of passing off or related intellectual property claims. Nor can it be claimed that the list of pitfalls identified is necessarily exhaustive. It is a summary only of the more frequently encountered or more interesting, and should not be relied on as providing the answer to all factual situations. Rather it is provided by way of a practical checklist that endeavours to collect, in one place, and comment briefly on, the issues that can arise in pleading s52 in familiar and unfamiliar contexts ... |
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Section 1323 of the Corporations Act: ASIC's nuclear weapon and the benefits which may be available to private litigants |
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Author :
Leo Gor
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The purpose of this article is to re-examine the manner in which s1323 of the Corporations Act 2001 (Cth) is being applied. It is the writer's contention that it offers litigants, especially insolvency practitioners, a powerful litigation tool. In may respects, it offers applicants everything that mareva relief provides and more.
The provision has been around for more than two decades and is the subject of numerous first instance decisions, especially in the context of ASIC investigations (one of three possible gateways for relief). The cases are not uniform in their approach. A forefather of s1323 received some appellate consideration in the late 1980s, but it is respectfully submitted that it is time to revisit the ambit and operation of the provision. |
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Mistake in the formation and performance of contracts: remedial options under Australian law |
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Author :
Jeffrey Goldberger
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MISTAKE IN CONTRACT FORMATION:
• Treatment of mistake in Australian law
• Common mistake at law
• Mistake in equity
• Unilateral mistake
• Rectification and unilateral mistake
RECTIFICATION AND COMMON MISTAKE
• The rationale and underlying basis of the equitable remedy of rectification
• Rectification and subjective common intention
• Requirement for outward expression of accord
• Standard of proof
• Nature of the relevant common mistake
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ESTOPPEL BY CONVENTION AND MISTAKEN ASSUMPTIONS
• Characterisation of conventional estoppel
• The elements of estoppel
• Estoppel by convention and pre-contract negotiations
• Assumptions as to fact or law
• Relationship between estoppel by convention and promissory estoppel
RECOVERY OF MONEY PAID UNDER A MISTAKE OF FACT OR LAW
• Historical antecedents - restitution and unjust enrichment
• Mistake of law and fact - David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353
• Voluntariness and mistake of law
• The defence of change of position |
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