Contractual penalties in Australian law after Andrews: an opportunity missed
Article
Article Title | Contractual penalties in Australian law after Andrews: an opportunity missed |
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ERA Journal ID | 33243 |
Article Category | Article |
Authors | |
Author | Gray, Anthony |
Journal Title | Deakin Law Review |
Journal Citation | 18 (1), pp. 1-25 |
Number of Pages | 25 |
Year | 2013 |
Place of Publication | Melbourne, Australia |
ISSN | 1321-3660 |
1835-9264 | |
Web Address (URL) | http://www.deakin.edu.au/buslaw/law/dlr/current.php |
Abstract | This article considers the current state of the law with respect to penalties in contracts in the light of the recent High Court decision in Andrews. It argues that the Andrews decision was contrary to many of the existing precedents which had limited questions of relief against penalties to cases involving a breach of contract. The High Court should have acknowledged this, before explaining why reform of past principles was justified. Further, the Court should have taken the opportunity to subsume the anomlous principle regarding penalties in contracts into broader principles dealing with unconscionability. |
Keywords | penalties; liquidated damages; unconscionability |
ANZSRC Field of Research 2020 | 440203. Courts and sentencing |
480410. Legal theory, jurisprudence and legal interpretation | |
480699. Private law and civil obligations not elsewhere classified | |
Public Notes | © Deakin University 2013. You may view this article and save an electronic copy, or print out a copy, for your own information, research or study, but only if you: do not modify the copy; and include the copyright notice on the copy. |
Byline Affiliations | School of Law |
Institution of Origin | University of Southern Queensland |
https://research.usq.edu.au/item/q20x0/contractual-penalties-in-australian-law-after-andrews-an-opportunity-missed
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