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This seminar is also being delivered via webinar.
It is a longstanding and common drafting technique for contracts (and other forms of agreement) to contain an agreed remedy clause which one party (A) can enforce against the other (B) in the event that B fails to fulfil his side of the bargain.
The task of English and Australian courts has been to decide what should happen when A invokes the clause on B’s default. Like the confident merchant Antonio in Shakespeare’s The Merchant of Venice, B may never have considered this a likely possibility. Furthermore, if A does invoke the clause, this may result in dire financial consequences for B. It has been the task of the penalties doctrine to govern and restrict the enforcement of agreed remedies for over six centuries.
Yet although the penalties doctrine is a rule of great antiquity, the law in this area has been dynamic: the doctrine has passed through many iterations in the course of its history and it is still evolving. Between 2012 and 2016, the legal principles preventing a contracting party from enforcing a penal agreed remedy clause were reformed once again in a series of decisions of the highest courts of the United Kingdom and Australia. These decisions have caused the English and Australian law of penalties to diverge in significant ways.
The purpose of this presentation is to provide commercial practitioners with an update on these recent developments in the law of penalties.
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Senior Lecturer, University of Western Australia
Nicholas is a Senior Lecturer in Private Law at the University of Western Australia. He previously worked as the High Court of Australia’s Legal Research Officer (working out of the Chambers of the Hon Chief Justice Robert French AC) and practised as a solicitor in Melbourne. On moving into the legal academy Nicholas initially worked as a Teaching Fellow at the Faculty of Laws at University College London where he completed his PhD as the inaugural Peter Birks Memorial Scholar (supervised by Professor Ben McFarlane and Professor Charles Mitchell QC). On completion of his doctorate, Nicholas worked as a Lecturer in the Faculty of Law at the University of New South Wales. He holds a Master of Laws (Dist) from University College London (where he was ranked first in his year and studied on the Sir John Salmond Scholarship) and a Bachelor of Laws (Hons I) from the University of Western Australia. Nicholas publishes and teaches in the areas of contract law, equity, remedies, unjust enrichment, legal history and jurisprudence.
Date & Time:
Thursday, 3 March 2022
1.00pm – 2.00pm
The Law Society of Western Australia
Level 5, 160 St Georges Terrace
PERTH WA 6000
At Your Desk
Delivered Live Online
1 Point Competency 4: Substantive Law
Date & Time:
Thu, 3 March 2022 1.00pm - 2.00pm
Level 5/160 St Georges Terrace Perth waGet Directions on Map
none Points Professional Management
none Points Professional Responsibility
none Points Ethics