British Steel v. Cleveland Bridge [1984] ER: Not a general right to receive expenses but where there is a request to start crucial there is an obligation to pay reasonable sum work Unjust enrichment not Contract claim
Peet v Richmond [2011] VSCA contract repudiated before work finshed
Quantum meruit claim [amount work is worth to R]
Pocket expenses plus part increase in value
Agreed price in unenforceable contract evidence of services worth
Not for expectation: point of the action is to recover just compensation for work which has been done not to recover damages for the loss of the opportunity
Pavey & Matthews v Paul (1987) CLR: builder incurs expenditure on work, contracter doesn't have to pay as builder didn't put it in writing
Certainty and agreement
it is better for a thing to have effect than be found void Judges are willing to fill in gaps and will do utmost to uphold the agreement (Hillas v Arcos)
Distinguish complexity and uncertainty. Upper Hunter v Australian Chilling (1968) CLR, Barwick CJ
1. Terms
Geebung v Varga (1995) BPR Kirby P: Courts should be the upholders of bargains and not their destroyers, and should avoid ‘over-nice approach’ which results in a disharmony between the parties’ reasonable expectations and what the law provides.
1.1 Reference to Non Existent Terms
Scammell v. Ouston(1941): Sale of car on “hire purchase terms”- but many types of HP terms. incomplete
Fitzgerald v Masters (1956) CLR: Dixon: absurd to nullify for typo when everything essential agreed - sever
Whitlock v Brew (1968 HC): agreement “on such reasonable terms as commonly govern such a case”. Arbitration for “interpretation or operation” disputes. Held (3-1) void for uncertainty as to period of rent. Arbitration can be for meaning of agreed terms, not selection of terms. Kitto: reference to ‘reasonable terms’ would have been apt had there been a set of such terms in common use
Quarante v Owners Strata Plan [2008] NSWCA: “Reimbursement conversation” on refurbishment costs but key issues omitted from discussion post contractual conduct building not sufficient
cf. Hillas v. Arcos (1932), Lord Wright: course of dealing considered were contract repeated
1.3 Incomplete Expression and Gap Filling
implied terms may fill necessary gaps in existing contract but cant be used to create a contract
Statutory gap filling
Sale of Goods Act 1896 (Qld): implied terms: S.11(2) price, S.16 sale by description and S.17 goods shall be reasonably fit for purpose
Competition and Consumer Act 2010: statutory guarantees: S. 56 supply by description and S. 54 goods to be of acceptable quality
1.4 Uncertainty and Essential Terms
Whether term is essential depends on what parties not courts deem important (Pagnan v Feed Products)
Geebung Investments v Varga Group Investments (1995) Kirby P:
“If business people have agreed upon essential terms common law should uphold it. It should not rifle through the terms to find some particular which has not been agreed, in order for one party to escape its bargain.”
Existence of matters of importance in which the parties have not reached consensus make it will less likely they intend to be bound
In simple, straightforward, cases Courts may see if agreement on essential terms
Ormwave Pty Ltd v Smith [2007] NSWCA: P was a chef on cruise boat. Ship renamed and moved. pay could be determined with wage, hours and duties of previous employment
1.5 Terms Left Open
contract now that provides formula (i.e. test) and machinery (e.g. arbitration) for resolving terms later
May & Butcher v R [1934] KB: contract to later determine pay
Foley v. Classique Coaches (1934) KB: Courts will try to give effect to an agreement where there is performance. Formula: reasonableness considering past dealings (3 years selling oil, consider past prices)
Godeke v Kirwan (1973): no uncertainty if choice given to one party. “we will execute other conditions as vendor may reasonably require”. Held B left matter to V’s solicitor to choose [mechanism].
Walsh J: limited by reference to reasonableness (formula) conditions not inconsistent with offer.
Gibbs: without objective standard of reasonableness unlikely contract would stand
1.6 terms left open - defective Machinery
Hall v Busst (1960) HC: Option for S to repurchase land if later resale by B. clause included formula of price plus value of improvement, less depreciation. Price too indefinate. reasonable price principle not extendable to sale of land. To extreme to be upheld now?
Dixon J – no external standard to decide actual additions
Sudbrook v. Eggleton [1983] AC: Sale price to be agreed by 2 valuers appointed by LL and T LL refuses to appoint. Held: Formula is reasonableness. Court can operate ‘machinery’ to appoint valuer. Cf Lord Russell (traditional view) (thought it wasn't up to court to decide)
