When are agreed damages clauses in contracts unenforceable penalty clauses rather than enforceable liquidated damages clauses?

When negotiating a contract the parties commonly think about what should happen in the event that the other party breaches a term of the contract. They may also wish to stipulate what should happen upon the occurrence of a certain event (which may not technically constitute a “breach” of the contract). The other party might […]

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$45,000 damages for republication of defamatory statement by third party: Milne v Ell [2017] NSWSC 555 (8 May 2017)

This case serves as a reminder of how liability for defamatory statements can extend to the republication of the statement by third parties, even where the republication has not been expressly authorised (but impliedly authorised).  In summary, an original publisher will be liable for the repetition of his or her original defamatory publication, including in […]

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Minimum employment terms and conditions in Australia

Employers who wish to sponsor skilled employees from overseas are, in summary, required under the subclass 457 scheme to provide terms and conditions which are at least equivalent to those which an Australian citizen or permanent resident would achieve performing the same work at the same location.  This is an ongoing requirement not least because […]

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Online copyright infringement of movies and website blocking by CSPs: Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 (15 December 2016)

The Federal Court of Australia has made the first reported orders under the new s.115A of the Copyright Act 1958 (Cth) by requiring numerous Australian carriage service providers to disable access[1], for up to 3 years[2], to various websites whose “primary purpose” is the infringement or facilitation of infringement of copyright. The Copyright Amendment (Online […]

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Protection for small businesses against unfair contract terms : ss 23 – 28 of Schedule 2 to the Competition and Consumer Act 2010 (Cth)

BACKGROUND Following public consultation processes, new laws[1] came into force on 12 November 2016 which extended existing consumer protection laws against unfair contract terms to “small business contracts” (e.g. business to business contracts). Under these laws, small businesses can also have an “unfair” term in a “standard form contract” declared as void in specified circumstances. […]

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