Queensland University of Technology Law and Justice Journal
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Bruce Clarke and Stephen Kapnoullas[*]
When a document containing contractual terms is signed, then, in the
absence of fraud, or, I will add, misrepresentation the party
signing it is
bound, and it is wholly immaterial whether he has read the document or
not.[1]
This often cited
dicta of Scrutton LJ in L’Estrange v Graucob is
premised on the traditional theories of freedom of contract and the objective
view of contract law.[2] Under these
approaches the courts’ primary function was perceived as being to give
effect to what the parties had agreed.
A party to a written agreement was taken
to have consented to be bound, in a disputed case, by the interpretation which a
court
might place on the language of the instrument.
By and large the
law was concerned with objective appearance, rather than actual
intention.[3] The primary
justification given by the courts in support of such an approach was the need to
ensure the integrity of business
transactions.[4] Thus if a party
signed a document containing contractual terms that party would be bound by the
document, irrespective of whether
or not it had been read.
The rule in
L’Estrange v Graucob has been subject to criticism.
Lord Denning, who successfully argued the case for the defendant, subsequently
wrote that L’Estrange v Graucob (together with
Thompson v London, Midland and Scottish Railway
Co.[5]), represented a
‘bleak winter’ for the law of
contract.[6] The former Chief Justice
of the High Court, Sir Anthony Mason, in a joint article with S J Gageler, has
commented:
Although the principle for which the decision stands has been
said to reflect an estoppel, it is not a true example of estoppel because
the
party who proffers the document does not rely on the signature as an
acknowledgment of the conditions and act on it to his detriment.
That party
knows or has reason to know that the other party has not read and assented to
the specific conditions. Nor does the
principle rest on reliance. Instead it
seems to be based on the importance of a formal signature and the need to
exclude an inquiry
into the reality of assent. The requirements of fairness and
justice may well call for its
re-examination.[7]
One of the
difficulties with L’Estrange v Graucob is determining
whether a document, or transaction, is contractual. For example, Stephen Graw,
in his text, states that a document
will be contractual in nature:
| (a) | if it is of a kind which members of the public generally regard as contractual; or |
| (b) | if the person who receives it knows either that it is contractual or that it contains terms that govern his or her dealings with the profferens.[8] |
The primary purpose of this article is to analyse the recent
decision of the Victorian Court of Appeal in Le Mans Grand Prix Circuits Pty
Ltd v Iliadis (Le
Mans)[9]. The case is
interesting because the court split 2-1 on whether the document, signed by the
plaintiff, or the transaction that he
entered into, was contractual. In so
doing, the court had to consider the applicability of the rule in
L’Estrange v Graucob.
The plaintiff was injured whilst driving a go-kart at the
defendant’s racetrack. The plaintiff was attending a promotional
function
by a local radio station, 3MP, which had booked the defendant’s racetrack
for a ‘corporate function’ night
for staff members, family and
friends. The plaintiff, being an invited guest, did not pay a fee for his
attendance at the track.
In evidence, the plaintiff said that he was
asked to “sign a particular form so that you can register your name to be
able to
do a lap of the go-kart race and once I did that I was qualified to
drive the faster vehicle.”[10]
The plaintiff signed the form without reading it. He stated that he was rushed
into signing it because there were a number of people
waiting and the operators
of the track told him to hurry up and sign the document so that he could get out
on to the track.
The plaintiff also swore that he treated the form as a
“marketing, or probably, registration type
form”.[11] Expanding on this,
he said he thought that his personal details were required for the purpose of
issuing him with a licence and,
as well, for marketing or promotional purposes.
Significantly, in this context, the document that the plaintiff signed commenced
with the words ‘TO HELP WITH OUR
ADVERTISING’.[12] This part
of the form was in capital letters and printed in red, the rest being in black.
The plaintiff’s friend, Miss Bianchi, who was an employee of 3MP,
gave similar evidence. She confirmed being rushed into signing
the document.
When asked what the form was for, she replied, “I guess – we were
there as a group, and it was organised
by 3MP who I work for. Everyone in the
group signed a form to get our licences. You have to get a licence before you
can drive.”[13]
The
plaintiff’s vehicle overturned because of what he alleged was a defect in
the track. He sued for breach of contract, negligence
and breach of s 52 of the
Trade Practices Act 1974 (Cth). However, it appears that at the trial
the only claim pursued was negligence.
Apart from denying negligence the
defendant sought to rely on an exemption clause in the document which the
plaintiff had signed.
The trial Judge found that the defendant had been
negligent on the basis that it had allowed the plaintiff to engage in go-kart
racing, an inherently dangerous pastime, without “sufficient education,
instruction, experience and testing.” On the
issue of the exemption
clause the trial Judge had concluded:
Reliance was placed on a disclaimer
which was apparently signed by the plaintiff ... The disclaimer itself is in
such broad terms
that I quite frankly do not understand unless it purports to be
a blanket disposal of any legal responsibility at all, what it actually
does
mean.
I am well aware in what the High Court has said in the
Darlington Futures case ... nevertheless I do not believe that our law ever
has been that it is permissible to sign away all responsibility for mishaps
which are foreseeable so that a person can be indemnified or exonerated if you
wish from liability for a serious
negligence.[14]
The defendant
appealed. The principal issues for determination by the court were whether the
exemption clause formed part of the
contract, and if it did, the interpretation
of the document. It should be noted that neither party to the appeal sought to
uphold
the trial Judge’s view that it has never been permissible to sign
away liability for serious negligence. With respect, there
is no doubt that the
trial Judge was incorrect in stating this opinion, as it clearly conflicts with
what the High Court said in
Darlington Futures Ltd v Delco Australia Pty
Ltd.[15]
The focus of the majority judgment, Tadgell JA (with whom Winneke P
agreed), was on whether the document signed by the plaintiff was
contractual, or
alternatively if the parties were in a contractual relationship. It is with
this issue, rather than the interpretation
of the document, that this article
concentrates.
Tadgell JA, after reciting the facts and background to
the appeal, referred to the ticket cases where it was held that reasonable
notice was required before an exemption clause could be relied
upon.[16] His Honour then went on
to deal with the defendant’s argument that signing a document denotes an
acknowledgment of the document
and a consent to the written contents.
After briefly examining the basis of the rule in L’Estrange v
Graucob, Tadgell JA noted that it has been subject to criticism. His Honour
referred to Greig and Davis[17] who
argue that if the signing party has reasonable grounds for believing that the
document is not contractual a court should not
hold the party bound by its
contents. The same authors suggest that the rule might also not apply in a
situation where there is
no practical opportunity for a party to read the
document before
signing.[18]
Tadgell JA also
referred to the views of Mason and Gageler, as summarised in the introduction to
this article, and to the criticism
of the rule in L’Estrange v Graucob
by Spencer,[19] who argues that
a defence should be available to a person based on the fact “that he
simply did not agree to the term in
question”.[20]
Tadgell
JA determined that it was not necessary to examine in detail the universal
validity or desirability of the ‘objective
theory of contract’
because of his finding that there was no contractual relationship between the
parties in this case.[21]
“The [plaintiff’s] attendance at the [defendant’s] track, and
his participation in go-kart racing were not obviously
in pursuance or in the
course of a commercial dealing or relationship with the
[plaintiff].”[22]
In
support of this conclusion his Honour observed that there was no evidence that
the plaintiff had paid a fee (it will be recalled
that 3MP booked the
racetrack). Nor were participants given any notice or indication that any
contractual relationship was to exist
between them and the racetrack, only a
licence to drive.[23]
His
Honour referred to the plaintiff’s lack of opportunity to read the form,
the highlighted part of the document (‘TO
HELP WITH OUR
ADVERTISING’) and the lack of explanation from the defendant’s
employees regarding the document, and concluded:
Nor is there any
satisfactory evidence that the [plaintiff] or any other participant was asked to
read the form or to treat it as
anything more than a registration or application
form for the purpose of obtaining a so-called licence to drive a go-kart. It
might
be thought that the information which the person signing was asked to
provide in the form – name, address, telephone number
and date of birth
and date of signing – was consistent with that. It is not easy to see
– at least in the absence of
explanation – why a statement of the
date of birth was otherwise
relevant.[24]
In the light of
this finding his Honour did not need to consider the interpretation of the
exemption clause. In essence, his Honour
found that the document which the
plaintiff had signed was not contractual, bearing in mind the facts surrounding
the obtaining of
the plaintiff’s signature.
A large part of Batt JA’s judgment was concerned with the
interpretation to be given to the signed document in this case. This
aspect of
the case will not be discussed in detail because, as already mentioned, this
article is more concerned with the effect
a party’s signature has on a
document. Batt JA found that 3MP was not an agent of the plaintiff, or any
other person attending
the track. However, his Honour concluded that this did
not mean that there was no contract between the plaintiff and the
defendant.[25] In fact, he found
that a contract did exist, as evidenced by the signed document [referred to as
Ex.1]:
The circumstances referred to earlier show, in my judgment, that
the [plaintiff’s] completion and signature of Ex.1 was the
price or quid
pro quo for the [defendant’s] consent, licence and permission ... which he
needed. The known circumstances attending
the signing of Ex.1, then, are
eloquent of contract. That Ex.1 is contractual is confirmed by its layout and
by the expressions
used in it. The body of the document commences with a
contractual expression par excellence, ‘in consideration of’.
Thereafter every clause, perhaps every line, contains legal terms of art, which
I do not trouble to rehearse here. Therefore, in
the absence of evidence
proving the existence of a more extensive contract between the [plaintiff] and
[defendant], Ex.1 constitutes,
in my view, a unilateral contract, that is,
promises by the [plaintiff] made binding by the [defendant’s] act or acts
of consent,
licence and permission occurring after the signing of
Ex.1.[26]
The
plaintiff’s evidence concerning his interpretation of the document was
rejected by Batt JA as inadmissible opinion
evidence.[27] With reference to the
top of the form, which stated ‘TO HELP WITH OUR ADVERTISING’, his
Honour was of the view that
many retail documents seek similar information
without detracting from the contractual nature of the
document.[28]
Batt JA
distinguished D. J. Hill & Co. Pty. Ltd. v Walter H Wright Pty.
Ltd.[29] and Rinaldi &
Patroni Pty. Ltd. v Precision Mouldings Pty.
Ltd.[30] on the basis that the
documents in those cases (delivery dockets and cart notes) were not contractual.
Furthermore, the signing of
the documents took place after the contracts had
been concluded.
The plaintiff also argued that no contract existed
between him and the defendant on the ground that the defendant had failed to
perform
all of the acts expressed as constituting consideration in the document
he had signed, in particular, the failure to ‘hire’
the
‘go-kart’ to him. Clearly the ‘hire’ was to 3MP. His
Honour dismissed this argument on the grounds
that the ‘hire’ to 3MP
for delivery to its staff and their friends for their use constituted
consideration.[31]
Batt JA
then proceeded to deal with the exceptions to the rule in L’Estrange v
Graucob and found that there was no evidence of fraud or misrepresentation
by the defendant. His Honour also noted the academic and judicial
criticism of
the rule in L’Estrange v Graucob but concluded that Mason
and Gageler had simply stated that the requirements of fairness and justice may
well call for re-examination
of the principle. He observed that Dr. Finn (as he
then was) in the same text[32]
appeared to accept the correctness of the statement of Scrutton LJ. Batt JA
also referred to the judgments of Dawson J in Taylor v
Johnson[33] and Brennan J in
Oceanic Sun Line Special Shipping Co. Inc. v
Fay[34] as accepting the
principle espoused in L’Estrange v Graucob. Clearly, Batt
JA supports the retention of the rule.
The plaintiff also attempted to
argue that where a clause is onerous or unusual then actual notice is required.
Reference was made
to Interfoto Picture Library Ltd. v Stiletto Visual
Programme Ltd.[35] Batt JA
distinguished that case on the basis that the delivery note was unsigned,
whereas here “signing affords the person
who signs the opportunity to
become aware of the contents of the
document.”[36]
Finally,
Batt JA dealt with the interpretation of the exemption clause and
concluded:
... I do not consider that Darlington Futures and other
decisions of the High Court, at any rate, warrant some different approach,
perhaps relying upon the now rejected doctrine
of fundamental breach, in the
case of a contract with a consumer or other non-commercial contract. For the
rationale in the Australian
cases is that exemption clauses in commercial
contracts are to have applied to them ordinary principles of construction,
admittedly
with clear regard being paid to their context and their nature and
object.[37]
A major difficulty with Le Mans is that the court’s view of
the status of the rule in L’Estrange v Graucob is not clear.
Batt JA leaves us in little doubt that he supports the dicta of Scrutton
LJ. However, Tadgell JA’s judgment is somewhat equivocal. His Honour
refers to criticism of the rule and one
is left with the impression by the
general tenor of his Honour’s judgment that he has some sympathy with this
criticism.
Ultimately, however, Tadgell JA did not need to address the issue
as he found that the plaintiff and defendant were not in a contractual
relationship.
There is another aspect of Tadgell JA’s judgment
which merits discussion. His Honour said:
Counsel for the [defendant]
was disposed to concede in his reply that contractual documents containing an
onerous exemptive provision
must be brought to the notice of the party against
whom they are to be enforced, and contended that in this case the provision in
question was so brought. Assuming, without deciding, that the term on which the
[defendant] sought to rely is onerous in the relevant
sense, and that the
concession was well made (as to which see, for example, the judgment of Bramwell
LJ in Parker v South Eastern Railway Co. at 428, the judgment of
Jacobs J referred to above and Interfoto Picture Library Ltd. v
Stiletto Visual Programmes Ltd. [1989] QB 433)
...[38]
This obiter
appears to be a guarded acceptance of the view that something extra must be
done to bring onerous provisions to the notice of parties who are
presented with a document to sign. The mere provision of an opportunity to read
the document
may not be enough. Such an approach clearly constitutes a
departure from the rule in L’Estrange v Graucob, but one which has
been flirted with in the past. In MacRobertson Miller Airline Services v
Commissioner of State Taxation
(W.A.)[39] Jacobs J suggested
that if an unreasonable clause is included in terms that are not read and are
not likely to be read, that term
should not be accepted, irrespective of whether
or not the document containing the terms has been signed. Similar approaches
have
also been adopted in foreign jurisdictions. In a Canadian case, Tilden
Rent-A-Car Co. v
Clendenning,[40] Dubin
JA in the Ontario Court of Appeal commented:
In modern commercial
practice, many standard form printed documents are signed without being read or
understood. In many cases the
parties seeking to rely upon the terms of the
contract know or ought to know that the signature of a party to the contract
does not
represent the true intention of the signer, and that the party signing
is unaware of the stringent and onerous provisions which the
standard form
contains. Under such circumstances, I am of the opinion that the party seeking
to rely on such terms should not be
able to do so in the absence of first having
taken reasonable measures to draw such terms to the attention of the other
party, and,
in the absence of such reasonable measures, it is not necessary for
the party denying knowledge of such terms to prove either fraud,
misrepresentation or non est
factum.[41]
Despite
these observations, it must be said that on this issue the law in Australia
remains uncertain. As noted in the judgment of
Batt JA, referred to earlier,
there is substantial authority to suggest that the rule in L’Estrange v
Graucob still prevails, and that knowledge of the written contents of a
document will be presumed if it is signed by a party. It is only
where a
contractual document has been received by a party and not signed that a
different rule applies, namely, that the party relying on the document’s
terms must establish that reasonable
or sufficient notice of those terms was
given to the other party. This approach is supported by Batt JA in this case,
who referred
to the Interfoto case but distinguished it on the basis that
the document involved in that case was unsigned.
Whilst there may be
some doubt as to whether the failure to bring onerous clauses to the notice of a
party prior to signing a document
avoids the rule in L’Estrange
v Graucob, an acknowledged exception to the rule is the existence of a
‘misrepresentation’. In Le Mans it is interesting that both
Tadgell JA and Batt JA concluded that there was no misrepresentation by the
defendant in relation to the
document which the plaintiff had signed. Yet in
evidence the plaintiff said that he was advised that his signature was required
so that he could drive a faster vehicle. Unfortunately, because of the paucity
of evidence the authors are unable to comment further,
except perhaps to say
that this aspect could have been examined in more depth by the court, bearing in
mind cases like Curtis v Chemical Cleaning & Dyeing
Co.[42]
Furthermore, the
failure to pursue the alleged breach of s 52 of the Trade Practices Act
also seems surprising. Obtaining the signature of a party to a contract on the
basis of misleading statements or promises has consistently
been adjudged as
constituting misleading conduct in breach of s 52, as in Dibble v Aidan
Nominees Pty. Ltd.[43]
and Lezam Pty. Ltd. v Seabridge Australia Pty.
Ltd.[44] Misleading a person
into signing a document on the basis that it is an application form for a
licence or a ‘marketing’
document when in fact it purports to be a
contractual document containing exemption clauses would, if established as a
fact, appear
to be a breach of s 52.
There are two further issues that
were not even argued before either the trial Judge or the Appeal Court in Le
Mans, namely, the applicability of the implied terms of the Trade
Practices Act and the doctrine of ‘unconscionability’. Section
74 of the Trade Practices Act provides, inter alia, that in a contract
for supply by a corporation of services to a
‘consumer’[45] there is
an implied warranty that the services will be rendered with due care and skill.
In this case the defendant was a corporation.
‘Services’ is defined
in s 4(1)(a)(ii) as including “the provision of, or of the use or
enjoyment of facilities for, amusement, entertainment, recreation or
instruction”,
which would appear to cover the use of a go-kart track.
Significantly, s 68 of the Act renders the use of exemption clauses in
‘consumer’ type contracts void.
Section 74 was not pleaded
by the plaintiff and was not considered. However, in the authors’ view
this would have presented enormous
obstacles for the defendant, because if the
judgment of Batt JA is accepted as correct, that is to say, that there was a
contract
for hire of the go-kart, then the Trade Practices Act would
apply and the exemption clause would be void. If on the other hand the judgment
of Tadgell JA represents the correct view
there would be no contract and the
exemption clause would be inapplicable.
As noted
earlier,[46] the doctrine of
‘unconscionability’ has emerged as another clear exception to the
rule in L’Estrange v Graucob. A court will set aside a harsh
bargain, even if freely entered into, if the terms can be seen objectively to
offend good conscience
and equity. This equitable doctrine now has statutory
backing in the form of Part IVA of the Trade Practices Act. In
particular, s 51AB of the Act prohibits unconscionable conduct in connection
with the supply or possible supply of goods or
services to persons who acquire
“goods or services of a kind ordinarily acquired for personal, domestic or
household use or
consumption.”[47]
The
Victorian Supreme Court case of George T. Collings (Aust.) Pty. Ltd. v H.F.
Stevenson (Aust.) Pty. Ltd.[48]
lends some support to the argument that documents of the type signed by the
plaintiff in Le Mans are unconscionable. Without going into the facts in
detail, in the George Collings case a signed agreement was set aside on
the grounds that the document was “incorrectly and unfairly
entitled”[49] and because
onerous provisions had been “submerged in the fine print of the
contract”. It will be recalled that in Le Mans the bold red print
highlighted at the start of the document signed by the plaintiff suggested that
it was a ‘marketing’
document, when in fact it purported to be
contractual and contained an ‘onerous’ exemption clause. Whilst not
necessarily
suggesting that the document was ‘unconscionable’ in
this case, as the plaintiff was not under any apparent
disability,[50] it would at least
seem to have been an argument worth raising.
Le Mans highlights the importance of the legislative provisions
incorporated in the Trade Practices Act, and parallel State legislation,
which are designed to counter the use of exemption clauses in
‘consumer’ contracts.
Furthermore, the attention given to
L’Estrange v Graucob in the case underlines the tension between the
need for certainty as compared to fairness in contractual transactions.
Spencer has argued in relation to L’Estrange v
Graucob:
The truth is that whatever may have been Graucob Ltd.’s
intentions disreputable companies put harsh clauses in minute print
in order to
‘put one over’ people like Miss L’Estrange. Then why should
people in her position not be allowed
to deny their apparent consent to the
clause because the company either knew or ought to have known that their mind
did not go with
their apparent
consent?[51]
In
Pondcil v Tropical Reef Shipyard Pty.
Ltd.[52] Cooper J referred to
the ‘reasonable objective expectation test’ in relation to the
question of incorporation of an exemption
clause in the context of prior
dealings. However, the Le Mans case shows the difficulty of such a test.
Batt JA refers to the fact of signature and the contents of the document,
whereas the judgment
of Tadgell JA examines the circumstances surrounding the
signing of the document and concludes that the parties were not in a contractual
relationship. Ultimately, in the authors’ view the question that must be
asked is similar to that posed by Graw at the beginning
of this article: Would
the person signing the document expect it to contain contractual terms? In the
Le Mans case we believe the answer given by Tadgell JA was correct
because the circumstances attending the signing of the document did not
indicate
the existence of a contract. However, the fact that the court was split
illustrates the inherent difficulty of determining
the outcome of this type of
dispute.
Whilst there is no doubt that the significance of the rule in
L’Estrange v Graucob has generally been diminished in Australia by
the use of s 52 of the Trade Practices Act and the doctrine of
‘unconscionability’, in cases like Le Mans where such laws
were not raised, or at least not pursued, the status of the rule remains an
important issue.
It must be said, however, that such cases will be
rare. In this day and age, the bottom line is that even when a contractual
transaction
has been entered into, if it involves a ‘consumer’
acquiring goods or services, the ‘consumer’ is protected
against the
unfair use of exemption clauses by the other party, and has non-excludable
rights guaranteeing the quality and standard
of the goods or services pursuant
to Div 2 of Pt V of the Trade Practices Act and equivalent State legislation.
The existence of these rights is perhaps still not widely appreciated.
[*] Bruce Clarke Deputy Head of
Studies, Swinburne University of Technology, LLM, BEc, GradDipMktg (Mon);
Stephen Kapnoullas Senior
Lecturer in Law, Swinburne University of Technology,
LLM, BA, DipEd (Melb).
[1]
L’Estrange v Graucob [1934] 2 KB 394 at 403 per Scrutton
LJ.
[2] Nevertheless, the law
recognises some exceptions including non est factum, misrepresentation
and, in limited circumstances, mistake. In addition, the expanded doctrine of
‘unconscionability’
has also emerged as an exception to the rule in
L’Estrange v Graucob by recognising the undesirability of enforcing
a contract (even if it has been signed) in circumstances where to do so would be
manifestly
unfair: see Commercial Bank of Australia Ltd. v Amadio [1983] HCA 14; (1983)
151 CLR 447. This issue is discussed briefly later in this article.
[3] A Mason & S J Gageler in
‘The Contract’ in P D Finn, Essays on Contract,
3rd edn Law Book Co 1987 at
1.
[4] See Life Insurance Co.
of Australia Ltd. v Phillips [1925] HCA 18; (1925) 36 CLR
60.
[5] [1930] 1 KB
41.
[6] In George Mitchell
(Chesterhall) Ltd v Finney Lock Seeds Ltd [1982] EWCA Civ 5; (1983) 1 QB 284 at
296-7.
[7] Supra n 3 at
11-12.
[8] S Graw, An
Introduction to the Law of Contract, 3rd edn Law Book Co 1998 at
181.
[9] [1998] 4 VR
661.
[10] Ibid at
662.
[11] Le Mans Grand Prix
Circuits Pty Ltd v Iliadis, supra n 9 at
663.
[12] The full text of the
document is set out at 669 of the court’s
judgment.
[13] Supra n
11.
[14] Ibid at
664.
[15] [1986] HCA 82; (1986) 161 CLR
500.
[16] Reference is also made
by his Honour, at 666, to Causer v Browne [1952] VR
1.
[17] D W Greig & J L R
Davis, The Law of Contract, Law Book Co Sydney 1987 at
605.
[18] Ibid at
611.
[19] J R Spencer,
‘Signature, Consent and the Rule in L’Estrange v
Graucob’ [1973] CLJ
104.
[20] Ibid at
105.
[21] Supra n 11 at
667.
[22]
Ibid.
[23] Ibid
at 668.
[24]
Ibid.
[25] Ibid
at 670.
[26] Ibid at
671.
[27]
Ibid.
[28]
Ibid.
[29] [1971] VicRp 92; [1971] VR
749.
[30] [1986] WAR
131.
[31] Supra n 11 at
672.
[32] Supra n 3 at
133.
[33] [1983] HCA 5; (1983) 151 CLR
422.
[34] [1988] HCA 32; (1988) 165 CLR 197 at
228.
[35] [1989] QB
433.
[36] Supra n 11 at
674.
[37] Ibid at
676.
[38] Ibid at
667.
[39] [1975] HCA 55; (1975) 133 CLR 125 at
142.
[40] (1978) 83 DLR (3d)
400.
[41] Ibid at
408-9.
[42] [1951] 1 KB
805.
[43] (1986) ATPR
40-693.
[44] [1992] FCA 206; (1992) ATPR
41-171.
[45] In this context a
‘consumer’ is a person who acquires services at a price which does
not exceed $40,000, or if the
price exceeds $40,000 the services are of a kind
which are ordinarily acquired for personal, domestic or household use or
consumption:
s 4B(1)(b).
[46]
Supra n 2.
[47] Section
51AB(5).
[48] (1991) ATPR
41-104.
[49] Ibid at
52,622.
[50] The same thing
could be said about the plaintiff in the George Collings case, which is
the reason why the decision in that case is open to some criticism.
[51] Supra n 19 at 116. Although Tadgell JA refers to Spencer’s criticism it is unfortunate that his Honour does not give any clear indication as to whether he endorsed the authors’ view. Tadgell JA felt there was no need to do so because of his ultimate finding that there was no contractual relationship between the parties.
[52] [1994] FCA 1206; (1994) ATPR Digest 46-134.
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