Hire Purchase & Equipment Lease
8. Remedies for Breach
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 23 Jul 2015
- When a breach of contract occurs it can sometimes result in civil litigation. The aggrieved party is entitled to seek remedies. Types of remedies include:
- statutory remedies;
- common law remedies; and
- equitable remedies.
- If there has been a breach of a consumer guarantee under the Australian Consumer Law (ACL) a person may have the following options:
- if the failure or breach relates to a defective item this can be addressed by fixing the defect or replacing the goods with an identical functional item; or
- the money paid by the aggrieved party can be refunded; or
- if money was not exchanged then an amount that is equal to the value of any other type of consideration provided in exchange for the goods can be refunded.
- Examples of breaches that would give rise to statutory remedies under the ACL include situations where the item being hired is not fit for purpose or where the items delivered are different to the items described by the seller.
- If the breach is of a kind not covered by the ACL and is serious enough to have caused the contract to terminate a person may apply for remedies under the common law. These are only available to parties who have suffered actual loss or damage resulting from the breach.
- An aggrieved party may seek damages for breach of contract.
- The purpose of damages is to put the aggrieved party back in the same financial position they would have been in had the contract been properly fulfilled.
- To make a successful claim for damages the aggrieved party must demonstrate that:
- the loss or damage suffered was sufficiently connected to the breach meaning that it must not have been too remote; and
- they had taken proactive steps to mitigate the loss themselves.
- Liquidated damages will only be available if you or the other person inserted a condition stating that a specified sum would be made payable to the aggrieved party in the event of a breach of contract.
- A court may decide to order equitable remedies where common law remedies are inadequate. Equitable remedies address the damage or loss suffered by the aggrieved party. Types of equitable remedies commonly include specific performance or injunctions.
- Specific performance is an order that requires the person who committed the breach to complete the contract in the way specified by the court.
- An injunction is an order that restrains or prevents the person who breached the contract from doing something. For example the court may order that a person stops doing a certain thing that results in breach of the contract.
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