Description

This paper suggests that contract damages reflect two aims: to encourage the efficient allocation of resources, and to uphold the importance of promising. This gives rise to a “duck-rabbit” situation where on some occasions, contract damages can be best explained as being concerned with the efficient allocation of resources (the “rabbit view”), and on other occasions, contract damages can be best explained as being concerned with upholding promises (the “duck view”). In situations involving commercial contracts where goods or services are readily available on the open market, courts are likely to take more of a rabbit view and the concern is to allow parties to make a clean break and they are deemed to deal with the ramifications of breach as efficiently as possible. On the other hand, in situations where the object of the contract is not for profit but for performance itself, or where substitute performance is not readily available on the market, courts are likely to take more of a duck view, through awards substituting for lost performance, specific performance and gain-based relief.

About the Speaker

Katy Barnett first joined the Melbourne Law School in 2006 as a sessional lecturer and was appointed permanently in 2010. She completed an LLB with Honours and a BA with majors in English, History and Medieval Studies at the University of Melbourne in 1999. In 2010, she completed her PhD at the University of Melbourne on accounts of profit for breach of contract. Prior to commencing postgraduate study, Katy was a Research Assistant to the Court of Appeal at the Supreme Court of Victoria, completed her articles at Freehills, was an Associate to Justice Mandie at the Supreme Court of Victoria, and was a banking litigator at Russell Kennedy. She keeps up her connections to practice as a legal consultant at Sharpe & Abel.

Katy has published widely on Remedies Law and other related aspects of private law, including on disgorgement of profit, the calculation of damages at common law and in statute, the law on penalties, and proprietary remedies for breach of fiduciary duty. She also has interests in comparative law, animal law, behavioural economics and legal history. Her PhD was published in 2012 by Hart Publishing as a monograph entitled ‘Accounting for Profit for Breach of Contract: Theory and Practice’ and it has been cited by the Supreme Court of Canada. She has also written Remedies in Australian Private Law (CUP, 2018) with Dr Sirko Harder, now in its second edition. In 2013, she was a visiting scholar at Brasenose College, Oxford as part of the Melbourne-Oxford Faculty Exchange.