Commercial law

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Full Title Copyright Preface Table of Cases Table of Statutes Table of Contens PART I THE FUNDAMENTALS OF PERSONAL PROPERTY LAW Chapter 1 THE OBJECTS AND NATURE OF PERSONAL PROPERTY PERSONAL PROPERTY Real property and personal property Chattels real and chattels personal Choses in possession Choses in action INTERESTS IN PROPERTY INTERESTS CREATED BY WAY OF SECURITY Creation of security interests Common forms of security interest created by agreement Security interest created by transfer of title: mortgage Security interest created by possession Security interest created by operation of law THE TRANSFER OF PERSONAL PROPERTY Sale Gift Assignment Assignment of after-acquired property Chapter 2 OWNERSHIP AND POSSESSION WHAT IS A PROPERTY OR PROPRIETARY RIGHT? POSSESSION The nature and relevance of possession THE SIX FORMS OF POSSESSION Custody Actual or de facto possession Legal possession or possession in law Lawful possession Constructive possession The right to possession POSSESSORY TITLE INTERFERENCE WITH POSSESSION Trespass Detinue Conversion OWNERSHIP Chapter 3 FINDING DEFINING A ‘FINDING’ DISPUTE ABANDONMENT What is abandonment? The elements of abandonment How does the occupier of an abandoned chattel become the owner? FINDING: ACQUIRING A PRIORITY OF ENTITLEMENT Further consideration of the Parker principles Treasure trove Aboriginal objects Chapter 4 ACCESSION, SPECIFICATION AND INTERMIXTURE CHANGING THE NATURE OF A CHATTEL ACCESSION The effects of accession Remedies of the owner of the accessory SPECIFICATION INTERMIXTURE Authorised intermixture Unauthorised intermixture ACCESSION, SPECIFICATION AND INTERMIXTURE COMPARED FIXTURES PART II COMMERCIAL LAW Chapter 5 AGENCY THE CONCEPT OF AGENCY PRACTICAL METHODOLOGY CAPACITY REQUIRED OF PRINCIPAL AND AGENT Principal Agent THE SOURCES OF AN AGENT’S AUTHORITY ACTUAL AUTHORITY Actual express authority Actual implied authority OSTENSIBLE AUTHORITY What is ostensible authority? The elements of ostensible authority Ostensible agency and forgery Consequences of finding of ostensible agency RATIFICATION Contract must be expressly entered on behalf of principal Authority to ratify The act of ratification Communication of ratification Distinguishing ratification by acquiescence and estoppel Full knowledge of material circumstances by principal Ratification of the whole Exceptions to ratification IMPUTED KNOWLEDGE CORPORATIONS AND THE DOCTRINE OF ATTRIBUTION Primary rules of attribution General rules of attribution Special rules of attribution THE DOCTRINE OF UNDISCLOSED PRINCIPAL How the doctrine applies Limits on the doctrine AGENCY BY OPERATION OF LAW DUTIES OF AGENTS PRINCIPALS’ DUTIES AND AGENTS’ RIGHTS Remuneration Lien Indemnity WHERE THERE IS NO AUTHORITY: THE AGENT’S LIABILITY TO THE THIRD PARTY When an agent might be personally liable on the contract Breach of warranty of authority TERMINATION OF AUTHORITY TERMINATION BY THE PARTIES Termination by operation of law PROVING AGENCY Chapter 6 SALE OF GOODS INTRODUCTION TO SALE OF GOODS TRANSACTIONS APPLICATION OF STATE AND TERRITORY SALE OF GOODS LEGISLATION Sale of Goods Act PERFORMANCE OF THE CONTRACT General rules of delivery Special rules of delivery relating to carriers Delivery of the wrong quantity IMPLIED TERMS: SALE OF GOODS ACT Implied undertaking as to right to sell, quiet possession and freedom from encumbrance Correspondence with description Fitness for purpose Merchantable quality Sale by sample REMEDIES OF THE BUYER Remedies for breach of a condition implied by the Sale of Goods Act Acceptance and CIF or FOB contracts Remedies for breach of a warranty implied by the Sale of Goods Act Remedy for defective instalment deliveries Damages for non-delivery or delayed delivery Remedy for specific performance REMEDIES OF THE SELLER Unpaid seller against the buyer Chapter 7 CONSUMER TRANSACTIONS INTRODUCTION TO THE AUSTRALIAN CONSUMER LAW APPLICATION OF THE LEGISLATION CONSUMER GUARANTEES Consumer Guarantee as to title: s 51 Guarantee as to undisturbed possession: s 52 Guarantee as to undisclosed securities: s 53 Guarantee as to acceptable quality: s 54 Guarantee as to fitness for purpose: s 55 Guarantee as to correspondence with description: s 56 Guarantees relating to the supply of goods by sample or demonstration model: s 57 Guarantees as to repairs and spare parts: s 58 Guarantee as to express warranties: s 59 REMEDIES FOR NON-COMPLIANCE WITH STATUTORY CONSUMER GUARANTEES Action against suppliers Rejection of goods Action against manufacturers PERSONS INJURED BY UNSAFE GOODS: PT 3-5 OF THE ACL (FORMER PT VA OF THE TRADE PRACTICES ACT) Chapter 8 TRANSFER OF PROPERTY AND TITLE IN GOODS DISTINGUISHING ‘PROPERTY’ AND ‘TITLE’ THE EFFECT OF THE PPSA TRANSFER OF PROPERTY Unascertained goods: no transfer of property Goods other than unascertained goods TRANSFER OF PROPERTY PRESUMPTIONS WHERE NO CONTRARY INTENTION APPEARS Specific goods in a deliverable state Specific goods not in a deliverable state Specific goods to be weighed, measured or tested to ascertain price Goods delivered ‘on approval’ or ‘on sale or return’ Unascertained or future goods RISK Obligations as bailee Goods perish after agreement to sell but before sale Goods have already perished at time of sale TRANSFER OF TITLE BY A NON-OWNER The estoppel exception Sale under a voidable title Sale by a mercantile agent Seller in possession: s 27(1) Buyer in possession: s 27(2) Miscellaneous exceptions Chapter 9 BAILMENT WHAT IS BAILMENT? BAILMENT AND THE PPSA BAILMENT AND DELIVERY BAILMENT REQUIRES KNOWLEDGE AND CONSENT OF THE BAILEE BAILMENT IN THE CONTEXT OF OTHER RELATIONSHIPS Sale Hire purchase Mutuum Deposits of money SUB-BAILMENT JOINT BAILMENT BAILMENT AND CONTRACT CLASSIFICATION OF BAILMENTS DUTIES COMMON TO ALL BAILMENTS Duty of care of a bailee Duty to deliver goods bailed Duty not to deviate from the terms of the bailment and not to convert Obligations on bailor in respect of the quality of goods bailed GRATUITOUS BAILMENT Deposit Mandate Gratuitous loan for use BAILMENT FOR REWARD Legislative provisions Custody for reward (hire of custody) Hire of work and labour Pledge Hire of chattels for reward LIABILITY FOR ACTS OF EMPLOYEES BAILMENT AND OCCUPIERS ABANDONMENT TERMINATION OF BAILMENT ONUS OF PROOF ENFORCEMENT ACTIONS DEPEND UPON A SUPERIOR RIGHT OF POSSESSION EXEMPTION CLAUSES AND SUB-BAILMENTS DELEGATION OF PERFORMANCE OF BAILMENT BY BAILEE Chapter 10 PERSONAL PROPERTY SECURITY INTERESTS INTRODUCTION TO THE PERSONAL PROPERTY SECURITIES ACT APPLICATION OF THE LEGISLATION PPSA SECURITY INTERESTS Deemed security interests Grantor Secured party Collateral A lease or bailment Conditional sale agreements (retention of title clauses) Consignment contracts THE ELEMENTS OF AN EFFECTIVE PPSA SECURITY INTEREST THE CREATION OF A SECURITY INTEREST: ATTACHMENT Grantor has rights in the collateral Value or act by grantor ENFORCEABILITY AGAINST THIRD PARTIES AND PRIORITY: ATTACHMENT AND PERFECTION Requirements for enforceability against third parties The concept of perfection Perfection by registration Perfection by possession Perfection by control Specific rules that apply to the proceeds from collateral WHEN A THIRD PARTY CAN TAKE PERSONAL PROPERTY FREE OF AN EXISTING SECURITY INTEREST Unperfected security interest Where serial number incorrect on PPSR (s 44 of the PPSA) Taking motor vehicles free of security interest (s 45 of the PPSA) Collateral sold in the ordinary course of business (s 46 of the PPSA) Low-value personal, domestic or household property (s 47 of the PPSA) DETERMINING PRIORITY WHERE THERE ARE COMPETING SECURITY INTERESTS General priority rules Special priority rules ENFORCEMENT OF SECURITY INTERESTS Chapter 11 INSURANCE REGULATION OF THE INSURANCE INDUSTRY Introduction Overview of regulatory framework Role of regulatory authorities The present prudential regulatory framework General Insurance Code of Practice National Privacy Principles FORMATION OF THE CONTRACT OF INSURANCE DISCLOSURE The insured’s duty of disclosure When is something ‘known’ by the insured? Matters ‘relevant to the decision of the insurer whether to accept the risk’ Matter includes an opinion The reasonable insured What matters do not need to be disclosed? Disclosure and ‘eligible contracts’ of insurance The consequences of non-disclosure MISREPRESENTATION When is a statement a misrepresentation? Excluded misrepresentations The consequences of misrepresentation DUTY OF GOOD FAITH Introduction The insured and the duty of utmost good faith The insurer and the duty of utmost good faith CONSTRUING THE POLICY Introduction Structure of the insurance contract Determining the meaning of the policy: principles of construction Unusual terms: ss 14 and 37 considered BREACH BY INSURED OF A TERM IN THE POLICY Introduction The application of s 54 Insurer’s remedy for a breach of condition MAKING A CLAIM Loss covered by the policy Causation When and whether a ‘claim’ is in fact made against the insurer Delay in the notification of a claim FRAUDULENT CLAIMS What is a ‘fraudulent claim’? The effect of a fraudulent claim What if the value of the claim is exaggerated or an otherwise valid claim is supported by false evidence? The fraud of a co-insured and its effect on other insureds and third parties The interaction between ss 13, 54 and 56 No fraud, but has the insured proved the loss falls within the policy? SUBROGATION What does subrogation mean? When can the insurer exercise its right of subrogation? What rights can the insurer receive through subrogation? What if the insurer recovers more from the third party than the insurer has paid to the insured? How is subrogation different from an insurer’s right of contribution? Subrogation to rights against family Subrogation to rights against employees Release and settlement of claims by insured DOUBLE INSURANCE AND CONTRIBUTION Introduction Nature of double insurance and the right of contribution Obligation of insured to notify of other insurance Determining the amount of contribution where double insurance exists Chapter 12 GUARANTEES WHAT IS A GUARANTEE? A definition The purpose and nature of a guarantee Consideration THE PRIMARY OBLIGATION OF THE PRINCIPAL DEBTOR THE COLLATERAL OBLIGATION OF THE GUARANTOR A secondary obligation The collateral obligation is co-extensive Continuing collateral obligations All moneys clauses Revocation of the collateral obligation FORMALITIES The Statute of Frauds Consumer Credit Code Electronic Transactions Act PERSONAL LIABILITY OF THE GUARANTOR Personal liability is not necessary element of a guarantee Personal liability and the Statute of Frauds THE RULES OF CONSTRUCTION DISTINGUISHING GUARANTEES FROM SIMILAR COMMERCIAL TRANSACTIONS Indemnities Insurance DISCHARGING THE LIABILITY OF THE GUARANTOR Agreement to the contrary Grounds for discharge of the liability of the guarantor The Marston contention VITIATING FACTORS Unconscionability Undue influence Non-disclosure Setting aside the guarantee on other grounds Independent advice STATUTORY REGULATION OF GUARANTEES AND THE CREDITOR’S CONDUCT RIGHTS OF THE GUARANTOR Indemnity Restitution Subrogation Contribution Chapter 13 E-COMMERCE INTRODUCTION: THE RISE OF E-COMMERCE THE INTERNET The origins of the internet What is the internet? The internet and the world wide web Communication on the internet: packet switching The growth of e-commerce and the information economy Restraints on the development of e-commerce: access, user confidence and security Regulation of the internet and legislative intervention The Australian approach ELECTRONIC COMMERCE AND CONTRACT LAW Shrinkwrap agreements Clickwrap agreements Browsewrap agreements JURISDICTION A new law for the internet? Jurisdiction Choice of law Forum non conveniens Enforcement of foreign judgments, internet publication and defamation Index