Contractual Penalties in Australia and the United Kingdom: History, Theory and Practice

It is a longstanding and common drafting technique in Australia and England for contracts to contain an agreed remedy in which one party (A) can claim against the other (B) if B fails to fulfil their side of the bargain.

This book aims to provide a comprehensive answer to a vital question that affects consumer, commercial and government contracting: when will a court refuse to enforce A’s right to an agreed remedy because it impermissibly punishes B? In doing so, this book provides readers with:

• a detailed and accessible guide as to how the penalties doctrine operates in practice, taking account of the growing body of case law following the landmark decisions in Andrews v Australia and New Zealand Banking Group Ltd; Paciocco v Australia and New Zealand Banking Group Ltd; Cavendish Square Holding BV v Makdessi; and ParkingEye Ltd v Beavis;
• a historical overview of the key developments in the law of penalties from the 14th century to the present day which links historical analysis with modern debates concerning the scope of the penalties doctrine;
• a clear overview of the potential underlying reasons for the law of penalties in both England and Australia which accounts for the key divergences between the jurisdictions;
• a comprehensive comparative analysis between the English and Australian penalties doctrines, showing sharp divergences between the approaches adopted in these two jurisdictions notwithstanding that the jurisdictions share a common historical starting point; and
• a quick reference guide to assist legal practitioners in identifying potentially contentious issues that may arise from the application of the penalties doctrine.

The book also contains a foreword written by the Hon Justice James Edelman (High Court of Australia).