It is common for construction contracts to limit indemnities to direct loss (and to exclude consequential loss) and for exclusion clauses to seek to limit or exclude liability for consequential o

Australian Law And Consequential Loss

  • Consequential loss - Smart Counsel
  • Direct and indirect loss for contractors
  • How Does Consequential Loss in a Building Contract Work ...
  • INTERNATIONAL COMPARISON - LIABILITY, INDEMNITIES ...
  • Consequential loss - Smart Counsel

    The law on the meaning of the term ‘consequential loss’ is currently unsettled in Australia. There are three possible approaches arising out of the case law that may be relevant to construing a clause that attempts to exclude ‘consequential loss’: Unexpected consequences when contracts exclude consequential loss Michael Cossetto It is common for a supplier of goods and services to a local council to include in their standard T&Cs, not only a monetary cap on their liability, but also an ‘exclusion of consequential loss’ clause. Which governing law should I choose? There may be a technical reason for your choice of law. For example, the treatment of consequential loss under English laws is different under Australian laws. Alternatively, you might consider the defences available under the French law of defamation preferable to those in Australia or England.

    Consequential Loss: do you know what you are excluding ...

    The Australian case law on consequential loss has changed considerably over the past ten years and produced some surprising results. Loss of profits can be direct loss. 1 Economic loss can be direct loss. 2 Additional construction costs associated with a delay can be consequential loss. 3. Consumers can claim compensation for consequential loss if a good or service fails to meet a consumer guarantee. ... Australian Consumer Law -- Chapter 5 -- Consumer guarantees - consequential ... Australian law - Pure economic losses fall within shipowner's limitation fund ... the court rejected Qenos's and Huntsman's submissions that the reference to "consequential loss therefrom" was to consequential loss suffered by a party resulting from "concrete loss" to that same party. ... gives the decision international significance and may ...

    What is Consequential Loss? | LegalVision

    The loss in a contract which both parties reasonably foresee at the time they enter into the contract is called consequential loss and is typically limited or excluded from liability in the contract. Australian courts have emphasised that parties should define the consequential loss they seek to exclude in specific terms. The key drafting point for consequential loss clauses in the wake of the current state of the law is to avoid drafting ‘bare’ consequential loss exclusion clauses, which in no way define what is included or excluded. One method of introducing some certainty is to state in the contract in respect of particular heads of … Continue reading How to draft consequential loss clauses → title = "Service guarantees and consequential loss under the Australian Consumer Law: The illusion of uniformity", abstract = "The aim of the new Australian Consumer Law (ACL) is to 'create a single national consumer law' establishing a uniform set of rules across all jurisdictions in relation to consumer protection.

    Avoiding Consequential loss - Australian Law

    If you provide a service, but cause damage or loss you can be held liable for that loss. Some great examples for tradies. ... Avoiding Consequential loss - Australian Law TopNotch Legal. Loading... Regional Power submitted that although the law may have altered since 1994, it was more appropriate to apply the case law as understood by Australian lawyers in 1994 in construing clause 26.1 and determining the meaning of consequential loss. Instructions for using database. Searching the database for articles by a specific author can be completed by either typing out the authors full name in the "Query” search function or by searching using the separate "Author Search” Function.

    SCL: Exclusions of Consequential Loss: an Australian ...

    - fewer disputes over the interpretation of consequential loss clauses. The writers hope that this article provides a useful summary of the main issues in this area and welcome any feedback or comment that readers may have. Michael Bywell is a Partner at Johnson Winter & Slattery, an Australian law firm: www.jws.com.au the operation of consequential loss provisions ... From a construction law perspective, the presence of liquidated damages will be crucial in providing remedies for delay and underperformance. ... 1 Andrews v Australian and New Zealand Banking Group Ltd (2012) 247 CLR 205, 216. The case of Regional Power Corporation v Pacific Hydro Group Two Pty Ltd (No.2) [2013] WASC 356, a decision of the Supreme Court of Western Australia, has added a new layer of complexity to the interpretation of consequential loss clauses. In a contract which did not define consequential loss, the Court gave priority to finding a commercial interpretation based on the wording of the clause and ...

    Consumers' rights & obligations | ACCC

    The consumer can ask the seller to provide a remedy, and the seller is required by law to oblige. In this situation the manufacturer must reimburse the seller. The reimbursement amount can include any compensation paid to the consumer for reasonably foreseeable consequential losses. Consequential loss - Designing Buildings Wiki - Share your construction industry knowledge. In the event that there are problems with a development, it is possible that losses will be incurred by the injured party. For example, the cost of repairs, loss of rent, loss of profit and so on. The party that suffers the loss may then try to recover it from the party that caused it. Under the common ...

    Direct and indirect loss for contractors

    This guide will summarise the difference between direct and indirect, or consequential, loss resulting from breach of contract and the issues to be aware of when attempting to exclude liability for loss under a contract. The basic test: "remoteness of damages" Under English law, parties to a contract will not always recover all of their losses. Economic loss is a term of Tort which refers to financial loss and damage suffered by a person such as can be seen only on a balance sheet rather than as physical injury to the person or destruction of property. There is a fundamental distinction between pure economic loss and consequential economic loss, as pure economic loss occurs independent of any physical damage to the person or property ...

    Consequential loss - a state of confusion - TMT ...

    A common type of loss that is often completely excluded in technology contracts is 'consequential' loss (sometimes also referred to as 'indirect' loss). Until recently, a rather ancient line of English cases had been followed by Australian courts in interpreting the meaning of 'consequential loss'. A loss of no consequence. Back To Issue. Cover Story. ... LIJ, p.26. Two recent decisions significantly affect the interpretation of exclusion clauses that refer to consequential loss – but the argument may not be over. ... are important cases because they demonstrate a significant change in the way Australian courts approach the definition ... Accordingly, it is clear that at the moment the approach to the interpretation of “consequential loss” in exclusion clauses in Australian contract law is far from settled. This uncertainty has prompted contracting parties, and their advisors, to re-emphasise the importance of incorporating into their contracts an extensive definition of ...

    Consequential loss exclusion clauses: Issues for owners ...

    15 Sep 2004. Consequential loss exclusion clauses: Issues for owners and contractors. by Arch Fletcher. Limitation or exclusion clauses which speak only of "consequential loss" or "indirect or consequential loss" ordinarily will not be effective to limit or exclude liability for direct loss of production, loss of revenue or loss of profit. The recent Victorian case of Brighton Australia Pty Ltd v Multiplex Constructions Pty Ltd [2018] VSC 246 (Brighton Decision) has cast further doubt on the definitive answer to an important legal question: Do limitations of liability clauses apply to claims made under section 18 of the Australian Consumer Law (ACL)? In other words, can a […]

    Australian courts redefine “consequential loss” - Lexology

    The Australian decisions held that if a clause was only stated to exclude "consequential loss", this would not exclude loss of profits which flowed directly from the breach, as these losses fell ... Consequential Loss Under UAE Law. It has been suggested by some commentators that consequential loss under the UAE Civil Code (the “Code”) should be confined to tort and tortious liability (primarily, it seems, on the basis of the distinction between direct and consequential loss in Article 283 of the Code).

    The meaning of the expression "consequential loss" – the ...

    It is common for construction contracts to limit indemnities to direct loss (and to exclude consequential loss) and for exclusion clauses to seek to limit or exclude liability for consequential or indirect loss. However, the Australian law is in a state of uncertainty regarding the determination of the meaning of the expression "consequential ... If you do not include a specific loss then the meaning will be open to dispute later. For example simply broadly stating that 'Consequential Loss means any and all indirect or consequential losses' is of next to no real assistance. 2. Consider if there are any specific exclusions from the general classes of consequential loss that you list. For example, section 18 of the Australian Consumer Law ... Arts Law is not responsible for any loss suffered as a result of or in relation to the use of this information sheet. To the extent permitted by law, Arts Law excludes any liability, including any liability for negligence, for any loss, including indirect or consequential damages ...

    How Does Consequential Loss in a Building Contract Work ...

    What does this mean? This article unpacks the concept of consequential loss, and how the courts have interpreted its meaning to date. What is Consequential Loss? Much of the discussion around consequential loss is whether a contract can exclude another party from claiming lost profits or the costs incurred from remedying a breach. no liability for consequential loss the exclusion of all implied warranties. This position paper sets out the legal issues that Employers need to be aware of in dealing with these issues. Specifically, we explore: the operation of liquidated damages clauses and how they can be invalidated

    'Excluding consequential loss' – Do you really know what ...

    If you do not include a specific loss then the meaning will be open to dispute later. For example simply broadly stating that 'Consequential Loss means any and all indirect or consequential losses' is of next to no real assistance. Consider if there are any specific exclusions from the general classes of consequential loss that you list. The Australian Consumer Law is set out in Schedule 2 of the Competition and Consumer Act 2010 (Cth) (ACL) and provides a set of consumer guarantees that apply whenever goods are supplied to “consumers” as defined under the ACL. This article explores the interaction between supplier, manufacturer and consumer when there has been a breach […]

    Direct vs consequential loss: is there a difference ...

    There is no longer a clear line between direct and consequential loss. In the 2008 decision of Peerless, the Victorian Court of Appeal distinguished between normal loss and consequential loss, finding that some consequential loss could still be direct loss. Courts in Western Australia and New South Wales have followed suit, looking at the ... Direct and consequential losses A single International approach and understanding? ... As to determining what is meant by ‘consequential loss’, it was English law that led the way in determining when, in 1978, the English Court of Appeal decided the case of ... the approach taken by the Australian and New Misleading or deceptive conduct (often referred to as just misleading conduct) is a doctrine of Australian law.. Section 18 of the Australian Consumer Law, which is found in schedule 2 of the Competition and Consumer Act 2010, prohibits conduct by corporations in trade or commerce which is misleading or deceptive or is likely to mislead or deceive. The states and territories of Australia each ...

    What is consequential loss and how do I deal with it in my ...

    On the other hand, certain consequential losses may not be insurable, or may be costly to insure, and may in fact amount to significant loss or damage to a party's business if the other party were to do the wrong thing, so it is not always appropriate to include a blanket exclusion of consequential loss. It can be hard to put a dollar figure on compensation for damages and loss. Compensation should put you in the position you would have been in if the products or services had done what they are supposed to under consumer guarantees. For example: A consumer took their curtains to a dry cleaner to be dry cleaned. economic loss which is not consequential upon injury to person or property. Since Caltex Oil, however, there has been little clarification in Australian case law, at least, as to the scope of potential liability for relational economic loss.

    Limitation of liability: consequential or indirect loss ...

    The term “consequential loss” is a classic case of words not bearing their dictionary meanings in a legal context. ... loss of profit. But the law often regards loss of profit as a direct loss May 2015 » Your Guide to Understanding Australian Consumer Law. Call us on 02 4940 4602. Your Guide to Understanding Australian Consumer Law. ... but any consequential loss to the consumer for goods not performing as expected. That means if a consumer buys a computer from you, and it fails to work in a reasonable manner and they lose work time ...

    INTERNATIONAL COMPARISON - LIABILITY, INDEMNITIES ...

    Under Australian law „consequential loss‟ has been used in many different ways in a wide variety of judgements with the outcome that it has lost its legal meaning and the concept has been largely replaced by the legal concept „pure economic loss damages‟. Colloquially, consequential loss is often taken to mean pure economic loss in the ... liability for consequential loss (this is usually in conjunction with a request to limit overall liability). After being a vexed question under Australian law for a number of decades, what is meant by ‘consequential loss’ has been clarified by a recent decision delivered by the Court of Appeal in Victoria. Despite this clarification,

    Consequential Consequences: Contractually ... - Field Law

    Canadian law distinguishes between “direct damages” and “indirect and consequential damages” based on an English case from the 1800s, known as Hadley v. Baxendale. That case has long been part of the Canadian law of contracts and defines the difference between the two types of damages. “The 2008 decision by the Victorian Court of Appeal in Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd 1 (Peerless) and the 2009 decision of the New South Wales Court of Appeal in Allianz v Waterbrook 2 (Waterbrook) are important cases because they demonstrate a significant change in the way Australian courts approach the definition of “consequential loss”.

    What Is Consequential Loss? - Lawpath

    Consequential loss doesn’t have a precise definition in Australian law. This is because what constitutes consequential loss depends on the context of the contract. Generally, consequential loss (also called indirect loss) is the non-dominant loss from a breach of contract. English judges, without the benefit of evidence, have imagined that the reasonable businessperson would understand “consequential loss” in the same way as they do. That seems unlikely, since most businesspeople have not mastered the law on indirect and consequential loss in awarding damages as an English judge must do. ‘consequential loss’ in a contract must be taken as a rule to mean the second limb of Hadley v Baxendale, unless defined otherwise. Is Australian law defining a new era? The Australian courts seem to agree and have expressly rejected the suggestion that the words ‘consequential loss’ in a contract should necessarily

    Consequential loss – what is it and is my business liable ...

    This was the generally accepted position for a number of years and contracts that expressly excluded consequential loss were generally understood to mean that the types of losses within the second limb were excluded. However, Australian law (at least at state level) has been moving away from the approach in Hadley v Baxendale for some time. liability for consequential loss. HOW DOES IT AFFECT YOU? • In light of the Australian and English cases on what comprises ‘consequential loss’, considerable care is required in negotiating and drafting clauses that exclude or limit liability for consequential loss. • It is important to be as specific as possible about the type of loss



    The loss in a contract which both parties reasonably foresee at the time they enter into the contract is called consequential loss and is typically limited or excluded from liability in the contract. Australian courts have emphasised that parties should define the consequential loss they seek to exclude in specific terms. The Australian case law on consequential loss has changed considerably over the past ten years and produced some surprising results. Loss of profits can be direct loss. 1 Economic loss can be direct loss. 2 Additional construction costs associated with a delay can be consequential loss. 3. On the other hand, certain consequential losses may not be insurable, or may be costly to insure, and may in fact amount to significant loss or damage to a party's business if the other party were to do the wrong thing, so it is not always appropriate to include a blanket exclusion of consequential loss. It is common for construction contracts to limit indemnities to direct loss (and to exclude consequential loss) and for exclusion clauses to seek to limit or exclude liability for consequential or indirect loss. However, the Australian law is in a state of uncertainty regarding the determination of the meaning of the expression "consequential . There is no longer a clear line between direct and consequential loss. In the 2008 decision of Peerless, the Victorian Court of Appeal distinguished between normal loss and consequential loss, finding that some consequential loss could still be direct loss. Courts in Western Australia and New South Wales have followed suit, looking at the . A common type of loss that is often completely excluded in technology contracts is 'consequential' loss (sometimes also referred to as 'indirect' loss). Until recently, a rather ancient line of English cases had been followed by Australian courts in interpreting the meaning of 'consequential loss'. - fewer disputes over the interpretation of consequential loss clauses. The writers hope that this article provides a useful summary of the main issues in this area and welcome any feedback or comment that readers may have. Michael Bywell is a Partner at Johnson Winter & Slattery, an Australian law firm: www.jws.com.au The law on the meaning of the term ‘consequential loss’ is currently unsettled in Australia. There are three possible approaches arising out of the case law that may be relevant to construing a clause that attempts to exclude ‘consequential loss’: Stoppila sunzu reading fc wikipedia. Consequential loss doesn’t have a precise definition in Australian law. This is because what constitutes consequential loss depends on the context of the contract. Generally, consequential loss (also called indirect loss) is the non-dominant loss from a breach of contract. If you provide a service, but cause damage or loss you can be held liable for that loss. Some great examples for tradies. . Avoiding Consequential loss - Australian Law TopNotch Legal. Loading. What does this mean? This article unpacks the concept of consequential loss, and how the courts have interpreted its meaning to date. What is Consequential Loss? Much of the discussion around consequential loss is whether a contract can exclude another party from claiming lost profits or the costs incurred from remedying a breach.

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    Australian Law And Consequential Loss © 2020 It is common for construction contracts to limit indemnities to direct loss (and to exclude consequential loss) and for exclusion clauses to seek to limit or exclude liability for consequential o