Ange v First East Auction Holdings Pty Ltd

(2011) 284 ALR 638; [2011] VSCA 335

Victorian Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Incorporation of terms
3. › Incorporation by reference
4. › Standard terms not physically attached to signed document
5. › Whether terms previously provided to party incorporated by reference in subsequent agreement
6. › Whether reasonable steps taken to bring terms to attention
1. Contract
2. › Frustration
3. › Express provision for frustrating event
4. › Whether court order restraining sale frustrated consignment agreement
5. › Where contract expressly provided for restraining orders
1. Contract
2. › Penalty
3. › Scope of penalty doctrine
4. › Whether doctrine of penalties applies to sums payable on events other than breach of contract
5. › Whether intermediate appellate court should depart from decision of another state's Court of Appeal
1. Trade Practices
2. › Unconscionable conduct
3. › Trade Practices Act 1974 (Cth), ss 51AB, 51AC
4. › Consignment of paintings for auction
5. › Whether obtaining signature on agreement in circumstances of matrimonial dispute constituted unconscionable conduct
6. › Relevance of legal representation and prior experience

Quick Take

Standard contractual terms previously provided to a party may be incorporated by reference into a subsequent signed agreement even where the terms are not physically attached, provided the agreement expressly refers to them and the party had them in their possession. The doctrine of penalties in Australia remains confined to sums payable on breach of contract; a withdrawal fee triggered by a non-breach event is not subject to the penalty doctrine. A court order restraining performance does not frustrate a contract that expressly provides for that contingency.