Remedies – Contracts Act 1950

REMEDIES system by which an injured ships comp both enforces a right or corrects a divergence. It exiting depend on the nature of go bad and the result will be differ in the midst of parties. The remedies visible(prenominal) for breach of pick out argon 1) RESCISSION An equitable remedy available at the discretion of the judge. It is available where a contract is voidable as a result of a vitiating factor such as misrepresentation, undue influence or duress. It will not cover return. Car &038Universal Credit v Cadwell Norris had nonrecreational ? 10 cash deposit and left an other car as security and gave a cheque for ? 65 to Cadwell for Jaguar car purchased. The contiguous day, Caldwell went to cash the cheque and discovered it was fraudulent and the car left as deposit turned out to be stolen. The chat up held that Mr Caldwell had successfully rescinded the contract. He had taken all steps possible to demonst identify that he no longer wished to be bound by the contra ct. He should not be prejudiced by the fact that his endeavours failed to locate Norris. 2) RESTITUTION It is not contractual and does not rely on complainant remediation (quasi-contract). One party knowingly has original a benefit to which party is not empower.An array imposed by judge to rectify an occurrence of unjust enrichment. Sinclair v Brougham The society became insolvent, and the question arose how to divide up assets. By the season of the action, the alone live douse was between some of the B sh areholders and the depositors in the bank, the stead of the A shareholders and trade creditors having been settled by conform toment. The salute held that the banks actions had been ultra vires and void, and that thither was no possibility for the depositors to recover chthonian quasi-contract. 3) redress It is a legal remedy available for breach of contract. Damages are an award of money to compensate the innocent party. The primary purpose of damages is to place the injured party in the position they would excite been in had the contract been put to deathed. Types of DamagesThere are basically four spacious categories of damages ? Compensatory (to cover direct losses and costs). ? Consequential (to cover substantiating and foreseeable losses). ? P social unitive (to punish and deter mistake). ? Nominal (to recognize wrongdoing when no monetary loss is shown) An award of damages is subject to the industriousness of the rules on causation, remoteness and a duty to mitigate loss. Provision subsection 74 &038 75 CA Heng Hang Khim v Sineo Enterprise Sdn Bhd The chat up held that where the suspect failed to deliver vacant possession of a condo unit before the 36-month period as stipu deeplyd in the S&038P agreement. The plaintiff was entitled to a refund of the sum paid which was compensation for loss &038 damage caused by breach of contract. Selva Kumar a/l Murugiah v Thiagarajah a/l Retnasamy The court held that thither is no distincti on between liquidated damage and penalties.In view of section 75 which provides that in every face the court must determine what is the reasonable compensation. Any failure to prove the damages will result in refusal to award such damages. remoteness A claimant may only recover losses which may jolly be considered as arising by nature from the breach or those which may sanely be supposed to be in the contemplation of the parties at the m the contract was made. Hadley v Baxendale Due to neglect of the suspect, the crankshaft was returned 7 days late to the plaintiff.The plaintiff unable to use the swot during this time and claimed for loss of profit. The Defendant argued that he was unaware that the mill would have to be closed during the deferral and therefore the loss of profit was too remote. The court held that Hadley would have been entitled to recover lost profits from the five extra days the mill was inoperable. However, the rule should be that the damages were those fairly and reasonably considered to have hookn naturally from the breach itself, or such as may be reasonably supposed to have been in the contemplation of both parties at the time the contract was made. Mitigation of Loss The law imposes a duty upon the someone claiming damages to take all reasonable steps to reduce or mitigate their loss. If the plaintiff is able to avoid loss, damages will not be recoverable for the potential loss that the plaintiff may have suffered. Payzu v Sauders The court held that the claimant was not entitled to damages. He was given the luck to purchase at the discounted price exclusively rejected this. He was under a duty to take reasonable steps to mitigate his loss. The bid was a reasonable one and one which the claimant could easily have complied with. ) peculiar(prenominal) PERFORMANCE It is a discretionary order set asideed by the courts tell a person to carry out their obligations under contract. It is not chiefly used in breach of contra ct actions unless damages prove to be inadequate. When the court cannot supervise the implementation of contract, it will not generally grant proper(postnominal) performance. Ryan v Mutual Tontine Westminster Chamber Association The lessor concur to provide ostiarius who would be constantly in attendance but the porter also workplaces as a chef. In his absence while working as chef, other person will perform his duties.The issue was whether tenant could seek an order of specific performance against the porter that he carries out his obligations. The court was not prepared to order specific performance because it would have had to constantly supervise the porters attendance. Lamare v Dixon The plaintiff induced the defendant to agree to take a countenance of cellars by orally promising they would be made dry. The promise had no effect as a misrepresentation as it related to the future. The court refused the plaintiff specific performance since he had made no cause to perform h is promise.Cohen v Roche The court refused the specific performance to a emptor of a set of Hepplewhite chairs saying that they were ordinary articles of commerce and of no special comfort or interest. The buyer was contracting with a view to resale and for face-to-face use. 5) INJUNCTION It is a discretionary court order. Unlike specific performance, this is a court order restraining a party from breaking their contract or from committing a wrongful act and will not be awarded if damages are an adequate remedy. An injunction may be ? Prohibitory preventing the breach of contract. ? Mandatory requiring a person to perform some contractual obligation. ? interlocutory where it freezes the status quo between the parties until the dispute can be heard by court. Neoh Siew Eng &038 Anor v Too Chee Kwang (mandatory example) The landlord had cut the water supply. An injunction was granted requiring the landlord to go for all communication pipes in proper repair so that water supply to the premises would not be disconnected.Broome (Selangor) Rubber Plantations v R H Whitley (prohibitory example) An injunction was granted restraining an employee from entering into employment as a manager or assistant of any plantation in the States of Selangor and Negeri Sembilan other than the estate of his employers until the expiry of his contract of service. This is equivalent to the specific performance by the court of that negative bargain which the parties have made. Mareva Injunction It prevents the defendant removing or disposing any assets in the jurisdiction until the court makes decision.Mareva Compania Naviera SA v world(prenominal) Bulk Carriers SA, The Mareva. The shipowner hired out their ship (Mareva) to the defendant with half-monthly in advance. The defendant were only able to meet the first two installments, Mareva sued for damages and due hire. They also sought an injunction to stop hirer removing any monies received from the voyage. The issue whether an injunction was obtainable to prevent the removal before judgment. The court held that an injunction was granted to continue until the dispute came to trial to prevent the defendants from disposing any assets. ) ANTON PILLER ORDER May be made available in transcendent circumstances. It is acourtorder that provides the right to search premises and buy up evidence without prior warning. This prevents destruction of relevantevidence, particularly in cases of assert trademark, copyright or patent infringements. Anton Piller v Manufacturing Processes Ltd The plaintiff was under the look that one of its agents was supplying confidential information to one of their competitors. However, they are touch that subpoena would give ample time for the agent to destroy evidence.The issue was whether the company could obtain an order enabling them to enter the agents premises to inspect the documents. The court granted the order as there was strong prima facie case of infringement which could cause damage to applier and clear evidence that the defendants had incriminating the material in their possession which they could destroy. 7) QUANTUM MERUIT Quantum meruit instrument as much as he deserved. It is the determination of value of the services extended based on the amount of work and the rate of work existing there for similar work, when an agreement or contract is not existing between the parties.The contract may be electric arc by breach but where the contract is for goods &038 services, there is a wise implied contract imposed by law on the party fetching benefit that they will pay reasonable amount of quantum. Can arise where ? A defendant has prevented a plaintiff from carrying out their contractual duties. ? The parties cannot agree on payment ? The parties agree on payment for the part-performance but not the actual amount. Sumpter v Hedges The claimant concur to build two houses and was agreed that ? 565 would be payable on completion.The claimant done a little much than half job and then ran out of money and was unable to complete. and so defendant completed the work himself. The issue was whether the claimant could recover payment for work done. The contract was entire and not divisible. So, the claimant could not recover under it. Furthermore, it is not defendants fault he could not complete the job and so there was no entitlement for quantum meruit. While the defendant obtained the benefit, it did not constitute acceptance of incomplete performance in this case.