It's Time Exemplary Damages Were Part of the Judicial Armory in Contract
IT'S TIME EXEMPLARY DAMAGES WERE PART OF THE JUDICIAL ARMORY IN CONTRACT * LAUREE COCI This article challenges the traditional approach that exemplary damages 1 are unavailable for breach of contract. Given the exceptional nature and infrequent use of the remedy, the principles relating to exemplary damages are often misunderstood. A survey of key arguments in support of the traditional approach reveals that such arguments are, in fact, weak and unpersuasive. This article briefly examines other jurisdictions' positions on awarding exemplary damages in contract, placing particular emphasis on Supreme Court of Canada jurisprudence, which has employed exemplary damages in this context. Ultimately, this article recommends that exemplary damages be available for, at least, intentional and deliberate breaches of contract in Australia.2 * Senior Associate, Clayton Utz, Perth. 1 Exemplary damages are sometimes referred to as punitive, penal, retributive and vindictive damages. However, the term 'exemplary damages' has found judicial favour in Australia: see Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118; Lamb v Cotogno (1987) 164 CLR 1; XL Petroleum (NSW) Pty Ltd v Caltex Oil (Aust) Pty Ltd (1985) 155 CLR 448; Trend Management Ltd v Borg (1996) 40 NSWLR 500; Blackwell v AAA [1997] 1 VR 182; Gray v Motor Accident Commission (1998) 196 CLR 1; Gardiner v Ray [1999] WASC 140; Digital Pulse Pty Ltd v Harris (2002) 166 FLR 421; Chen v Karandonis [2002] NSWCA 412; Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298; Amalgamated Television Services Pty Ltd v Marsden (No 2) (2004) 57 NSWLR 338; Fatimi Pty Ltd v Bryant (2004) 59 NSWLR 678; Knight v State of New South Wales [2004] NSWCA 791.
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