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Decorrado v Manoukian
[2009] VSC 451
…at the defendant’s conduct in making four monthly payments of interest after the due date alters that position. [22] (1874) LR 7HL 27. [23] [2009] VSC 451. 52 I do not consider that the fact that the defendant paid four monthly interest payments is basis for establishing an implied term, present in the contract a…
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Franklins Pty Ltd v Metcash Trading Ltd
[2009] NSWCA 407
…lso FAI Traders Insurance Co Ltd v Savoy Plaza Pty Ltd [1993] 2 VR 343, at 347- 251 and Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, at [10-13], [308], [330-332].…
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Zachariadis v Allforks Australia Pty Ltd
[2009] VSCA 258
…ied the “genuine pre-estimate of damages” and “out of all proportion” tests to the determination of whether a provision was a penalty. [57] [2009] VSCA 258. 115 I am satisfied that the defendant has established that the rate fixed by the third loan agreement upon default of repayment of 5.5 per cent per month was…
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Harrison Ford Pty Ltd v Ford Motor Company of Australia Limited
[2008] VSC 235
…ngrow Pty Ltd v BP Australia Pty Ltd and the judgment of Habersberger J . in Harrison Ford Pty Ltd v Ford Motor Company of Australia Ltd .[56] [56] [2008] VSC 235. 113 The Yarra Capital Group Case bears some analogies with the present in that it concerned the question of whether an interest rate payable upon defa…
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Yarra Capital Group Pty Ltd v Sklash Pty Ltd
[2006] VSCA 109
…ip between the contracting parties, a factor relevant to the unconscionability of the plaintiff’s conduct in seeking to enforce the term.” [54] [2006] VSCA 109. [55] (1986) 162 CLR 170, at 193.…
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Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2)
[2005] VSCA 298
…fendant was not unreasonable: see Hazeldene’s Chicken Farm Pty Ltd v Victorian Work Cover Authority (No.2) .[175] [175] (2005) 13 VR 435. 268 I therefore propose to award costs to the plaintiff against the defendant on a party- party basis. 269 A further issue argued was in respect of the question of a stay. The de…
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Hardie v Shadbolt
[2004] WASCA 175
…contractual interest on the termination date was a breach of contract, for which the respondent’s remedy was damages.”[163] [161] [2004] WASCA 175. [162] (1874) LR7HL 27. [163] [2004] WASCA 175, at [46].…
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PCRZ Investments Pty Ltd v National Golf Holdings Ltd
[2002] VSCA 24
…ities including: Australian Guarantee Corporation Ltd v De Jager [1984] VR 483; PCRZ Investments Pty Ltd v National Golf Holdings Ltd [2002] VSCA 24; Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 and Degman Pty Ltd (In Liq) v Wright (No 2 ) [1983] 2 NSWLR 354…
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Ugly Tribe Co Pty Ltd v Sikola
[2001] VSC 189
Para 7
…ade allegations that the opposite party was guilty of fraud, knowing them to be false. [172] [172] See Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7]. 263 The defendant countered by pointing to aspects of the plaintiff’s case including the large sum that the plaintiff had originally claimed against the defe…
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Hungerfords v Walker
[1989] HCA 8
…Mr Cilmi and Mr Lagana, the plaintiff would have only received one-third of any interest paid by the defendant. [159] Hungerfords v Walker (1989) 171 CLR 125. [160] T 71, L 105-106, 119-120. 240 I was not referred to authority on whether a claim for damages for detention of debt was a Hungerford’s claim. In Hardie v…
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AMEV-UDC Finance Ltd v Austin
[1986] HCA 63
…ting parties, a factor relevant to the unconscionability of the plaintiff’s conduct in seeking to enforce the term.” [54] [2006] VSCA 109. [55] (1986) 162 CLR 170, at 193.…
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O'Dea v Allstates Leasing System (WA) Pty Ltd
[1983] HCA 3
…unt in comparison with the greatest loss that could conceivably be proved to have followed from the breach.”[53] [51] [1915] AC 79, 86-87. [52] (1983) 152 CLR 359. [53] at 399-400.…
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BP Refinery (Westernport) Pty Ltd v Shire of Hastings
[1977] UKPCHCA 1
…astings Shire Council .[21] Nor did the payments establish a custom and usage, which might provide a basis for an implication of a term. [21] (1977) 180 CLR 266. 50 It is noteworthy that the Extension of Agreement specifically continued interest payments for three months, but no longer. 51 In my opinion, Cook v Fowle…
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Young v Queensland Trustees Ltd
[1956] HCA 51
…whether the defendant had repaid the loans. The defendant bears the onus of proving repayment of the loans.[59] [59] Young v Queensland Trustees Ltd (1956) 99 CLR 560. 118 A few days after 7 April 2004, the plaintiff sold the business she conducted on the Werribee property and repaid $30,000 of the loan by a cheque…
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The same principle was applied in Minister for Mineral Resources v Brantag Pty Ltd
[1997] NSWCA 206
…in this sort of case, though it is a very good general guide.”[165] [164] Australian edition 1995, pps 790-791 and 795. [165] (1997) 8 BPR 15 cf. Re Andersons Seeds Ltd [1971] 2 NSWLR 120 at 123.…
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Agricultural and Rural Finance Pty Limited v Gardiner
[2008] HCA 5711
…interpretation, of a contract. 55 In Agricultural & Rural Finance Pty Ltd v Gardiner ,[24] Gummow, Hayne and Kiefel JJ. stated: [24] (2008) 238 CLR 570. “In addition to approach issues of construction in this way would be at odds with the general principle that ‘it is not legitimate to use as an aid in the construct…
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[2010] VCC 0511
[2010] VCC 0511
…[2010] VCC 0511…
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[1915] AC 79
[1915] AC 79
…and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach.”[53] [51] [1915] AC 79, 86-87. [52] (1983) 152 CLR 359. [53] at 399-400.…