about BTF5955
0 · Exam map course data + brief
| Task | Exam value |
|---|---|
| Reflective Assessment | 20% |
| Take-Home Assessment | 30% · two IRAC problems: negligence + contract |
| Final Examination | 50% · IRAC problems · Topics 1–12 except liquidation |
Duration and sections: confirm on Moodle. Build every response as separate mini-IRACs; give the most space to Application.
1 · IRAC control strip T1 · T13
| Move | What earns marks |
|---|---|
| I | Precise legal question, not a topic label. |
| R | Elements + source: ratio or statutory section; AGLC4. |
| A | Pin each element to operative facts; argue both ways; analogise/distinguish. |
| C | Short, qualified result and available remedy. |
Precedent: a superior court’s ratio binds lower courts in the same hierarchy; obiter is persuasive. Valid statute prevails over inconsistent common law. Civil proof: balance of probabilities.
| Source / court move | Use in Rule |
|---|---|
| Statute | Start with ordinary text; avoid absurdity; prefer the purpose that best achieves the Act. |
| Case | Extract material facts + legal issue + ratio; use obiter only as persuasion. |
| Hierarchy | High Court apex; State Courts of Appeal/Supreme Courts above intermediate and lower courts; Federal Court handles federal matters. |
| Equity | Discretionary relief supplements common law: injunction, specific performance, rescission, rectification. |
AGLC4 exam shorthand: identify the full authority once, then make every later reference do analytical work: “Unlike Olley, notice came before formation …”.
2 · Negligence roadmap T2
Duty → breach → cause → damage
Duty: reasonable foreseeability plus salient features; established categories simplify it. Donoghue v Stevenson [1932] AC 562: neighbour principle; manufacturer–consumer anchor.
Breach: objective reasonable person. Wyong Shire Council v Shirt; Wrongs Act 1958 (Vic) s 48. Weigh probability and seriousness of harm against burden of precautions and social utility.
Causation: factual “but for” plus appropriate scope of liability, s 51. Remoteness: damage must be a reasonably foreseeable kind: The Wagon Mound [No 1].
Defences: contributory negligence reduces damages by apportionment; volenti is complete but requires knowledge, understanding and free acceptance of the specific risk. P bears the four elements; D bears a defence.
| Duty signal | Starting point |
|---|---|
| Sealed product | Manufacturer–consumer: Donoghue. |
| Visitor on premises | Established occupier–entrant category. |
| Driver / employer / professional | Established relationship; define foreseeable claimant and harm. |
| Novel duty | Foreseeability + salient features: vulnerability, control, proximity. |
Trap Foreseeability appears at duty, breach and remoteness but does different work. Give each element its own application.
3 · Contract formation T3
Agreement
Offer = willingness to be bound on stated terms. Displays, adverts and website listings usually invite offers: Pharmaceutical Society v Boots. A clear unilateral promise can be an offer to the world: Carlill v Carbolic Smoke Ball Co.
Acceptance must mirror the offer and be communicated; silence ≠ acceptance. Counter-offer kills the original. Offer also ends by communicated revocation before acceptance, rejection, lapse or death. Postal exception: effective on posting where post is proper, Adams v Lindsell; instant communications on receipt.
Other gates
Intention: commercial dealings presumed binding; social/domestic presumed not, rebuttable: Balfour v Balfour. Consideration: bargained-for benefit/detriment; sufficient not adequate; moves from promisee; past consideration is not good consideration. Existing duty generally insufficient: Stilk v Myrick.
Promissory estoppel: reliance + detriment + unconscionability may support relief despite missing consideration: Waltons Stores v Maher. Then test capacity, genuine consent, certainty and legality.
Exam move Identify who made the offer. “I accept” cannot convert an invitation to treat into an offer.
4 · Terms enter the deal T4
| Route | Rule / authority |
|---|---|
| Signature | Bound whether read or not, absent exception — L’Estrange v Graucob. |
| Notice | Reasonable notice before/at formation — Olley v Marlborough Court. |
| Dealing | Regular, consistent prior course between same parties. |
| Implied | Fact, law, custom or statute; ACL guarantees overlay. |
| Statement/puff? | Intention: timing, importance, special knowledge and writing. |
| Wholly written | Parol evidence cannot vary it; exceptions: collateral contract, rectification, ambiguity. |
5 · Classify breach → remedy T4 · T5
Exclusion clause: (1) prove incorporation; (2) construe whether it covers this loss; ambiguity runs against the relying party (contra proferentem); (3) check statute. ACL consumer guarantees are non-excludable.
Discharge: performance; agreement; serious breach; or narrow frustration (supervening no-fault event makes performance impossible or radically different, not merely harder/unprofitable). Anticipatory repudiation lets the innocent party affirm or accept and terminate.
6 · Enforcement checklist T5
Termination: condition, serious breach of intermediate term, or repudiation. Warranty breach → damages only. Election matters: affirm or terminate.
Damages: expectation default; reliance alternative for wasted expenditure. Hadley v Baxendale: recover loss arising naturally, or special loss reasonably contemplated at formation because circumstances were known. P must mitigate; avoidable loss is unrecoverable.
Fixed sum: genuine pre-estimate enforceable; punishment out of proportion to loss is an unenforceable penalty.
Equity: specific performance / injunction only where damages inadequate; also rescission and rectification.
Answer order Right to terminate → measure → Hadley limb → mitigation → equitable alternative.
8 · Consumer + privacy T6
ACL s 18 IRAC: trade/commerce; misleading/deceptive or likely; and, for damages, causal loss. Test the objective overall impression on the ordinary target audience. Intent is irrelevant; buried fine print rarely cures a dominant claim. Remedies: injunction, damages and corrective orders, but no pecuniary penalty under s 18 itself.
Privacy: Privacy Act 1988 (Cth); 13 APPs govern collection, use/disclosure, security/quality and access/correction. Eligible serious-harm breach → affected individuals + OAIC under NDB.
Trap Do not say “no intent, so no s 18”. Strict liability makes effect, audience and context decisive.
9 · Entity + veil T7
Salomon v Salomon & Co Ltd; s 124: company owns property, contracts, sues/is sued and continues independently. Members risk unpaid share amounts, not company debts. Veil lifting needs sham/facade, agency/alter ego or statute; genuine risk limitation is insufficient.
| Structure | Liability / continuity / control |
|---|---|
| Sole trader | No separate entity; unlimited liability; direct control. |
| Partnership | Partners generally jointly/severally liable; mutual agency; may dissolve on departure. |
| Trust | Trustee holds property for beneficiaries; analyse deed and trustee liability. |
| Company | Separate person; limited liability; perpetual succession; compliance cost. |
10 · Company acts T8
s 198A: board manages and exercises powers not reserved to members. Members cannot overrule day-to-day management by ordinary resolution; use special resolution to alter constitution or remove/replace directors. s 140: constitution + replaceable rules operate as statutory contract. Company capacity: s 124; execution: s 127.
11 · Members: decision + remedy T9
| Question | Rule |
|---|---|
| Vote? | Ordinary: >50% cast. Special: ≥75%, s 9; e.g. constitution, s 136. |
| Call meeting? | Directors or members with ≥5% votes, s 249D. |
| Dividend? | s 254T: assets exceed liabilities sufficiently; fair/reasonable to members; no material creditor prejudice. |
| Who sues? | Foss v Harbottle: company is proper plaintiff for company wrong. |
| Company wrong? | Derivative action ss 236–237; leave: good faith, company’s best interests, serious question, notice. |
| Personal unfairness? | Oppression ss 232–233; objective commercial unfairness; wide orders, commonly buy-out. |
Oppression: affairs/act/omission contrary to members’ interests as a whole, or oppressive, unfairly prejudicial or unfairly discriminatory. s 233 commonly supports a buy-out and permits wide relief. Derivative recovery goes to the company; oppression protects the member.
12 · Directors’ duty stack T10 · T11
Care + purpose: s 180(1) objective standard: Daniels v Anderson; ASIC v Cassimatis. Section 180(2) needs good faith/proper purpose, no material interest, adequate information and rational belief. Section 181 catches a control-motivated share issue: Howard Smith v Ampol.
Misuse / debt: ss 182–184; add Regal, ss 191/195 and ss 208–210 for conflict. For s 588G use s 95A, then s 588H / s 588GA. Finish: ss 1317E/G/H, ss 206C–206E and general-law relief: ASIC v Adler.
13 · Distress path T12
Receiver: secured creditor/court → charged assets → secured debt; reasonable care to obtain market value/best price, s 420A.
Administration: ss 436A/437A appointment + control/moratorium; s 439C outcome; s 435A continuation or better return.