# data[].attributes.headline
Ultimately, not enough information has been provided to determine if a trust was intended to be created. However, it is important to consider this. legal principle as it has strong authority in Trident. If successful in its' application, may aid Jack to succeed in his claim. 

# data[].attributes.subject
Ultimately, not enough information has been provided to determine if a trust was intended to be created. However, it is important to consider this. legal principle as it has strong authority in Trident. If successful in its' application, may aid Jack to succeed in his claim. 

# data[].attributes.headline
Counter-counterargument in support of Jack

# data[].attributes.subject
Counter-counterargument in support of Jack

# data[].attributes.body
Toohey J states in Trident General Insurance Co Ltd v McNiece Bros Pty Ltd at [171]:
"To declare that the law permits the respondent to bring action does not frustrate the intentions of those involved; rather it gives effect to those intentions.

# data[].attributes.body
It has been suggested that this may frustrate the law.

# data[].attributes.body
The nature of the contract between Blink and Credit Union is unknown, therefore this is merely a speculative argument.

# data[].attributes.headline
Yes, the language of the parties and commercial necessity suggests that yes, there was a requisite intention. 

# data[].attributes.subject
Yes, the language of the parties and commercial necessity suggests that yes, there was a requisite intention. 

# data[].attributes.body
In Trident General Insurance Co Ltd v McNiece Bros Pty Ltd, it was held at [171] that:
"The appellant entered into a contractual obligation with Blue Circle and did so with the intention that the benefit of that obligation should extend to those involved with Blue Circle as contracts and sub-contractors".

This case can be distinguished on its facts and applied to the present matter.

# data[].attributes.headline
Was there a requisite intention by Credit Union to create a trust with Jack?

# data[].attributes.subject
Was there a requisite intention by Credit Union to create a trust with Jack?

# data[].attributes.headline
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd

# data[].attributes.subject
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd

# data[].attributes.body
Mason CJ and Wilson J at [121]:
"The court will recognise the existence of a trust when it appears from the language of the parties, construed in context, that the parties so intended. In divining intention from the language the courts may look to the nature of the transaction and circumstances, including commercial necessity in order to infer or impute intention".

# data[].attributes.headline
Was the promise to pay the talent (Jack) held in trust by Credit Union for the benefit of Jack?

# data[].attributes.subject
Was the promise to pay the talent (Jack) held in trust by Credit Union for the benefit of Jack?

# data[].attributes.body
Assuming that Credit Union agreed to this in their contract with Blink.

# data[].attributes.headline
Counter-counterargument in support of Jack 

# data[].attributes.subject
Counter-counterargument in support of Jack 

# data[].attributes.body
Agency is not an "exception" to the doctrine of privity, it is an application of legal principle.
See: Brennan J in Trident at [134]-[138].

# data[].attributes.body
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd: Dawson J at [158]:
"It is one thing to expand the law by application of recognised principles to new situations. It is quite another thing to confront the law head-on by rejection of a rule which has stood for a century or more".

# data[].attributes.body
It is clear that Jack was not intended to be a party to the contract. Jack signed a separate agreement with Blink as a sub-contractor.

# data[].attributes.body
Coulls v Bagot's Executor & Trustee Co Ltd: Windeyer J at [493]:
"She was not a stranger to the contract, but a party to it with him".

# data[].attributes.headline
Was there an intention by Blink and Credit Union that Jack be a party to their agreement?

# data[].attributes.subject
Was there an intention by Blink and Credit Union that Jack be a party to their agreement?

# data[].attributes.body
Following Gate Gourmet, the language of the agreement between Blink and Jack it is clear that Blink and Credit Union intended that Jack obtain the benefit of payment for services.

Although it can be distinguished on the facts, in Gate Gourmet it was held by Einstein J at [254]:
"It is clear from the language of the letter, and the circumstances, that the Swiss parent and the Australian holding company intended that the Australian trading company obtain the benefit of the promises contained in the letter; on the faith of the letter, the Australian trading company continued to trade".

However, as the details of the contract between Blink and Credit Union are not accessible, this argument is limited to what can be ascertained from the agreement between Jack and Blink.

# data[].attributes.body
See: Gate Gourmet Australia Pty Ltd (in liquid) v Gate Gourmet Holding AG.

# data[].attributes.body
Payment for services.

# data[].attributes.headline
Yes, as the agency principle has been made out.

# data[].attributes.subject
Yes, as the agency principle has been made out.

# data[].attributes.body
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd: Gaudron J at [173]:
"A promisor who was accepted an agreed consideration for a promise to benefit a third party comes under an obligation to the third party to fulfil that promise, and the third party acquires a right to bring an action to secure the benefit of that promise".

# data[].attributes.headline
Can Jack enforce the obligation of Credit Union under their contract with Blink?

# data[].attributes.subject
Can Jack enforce the obligation of Credit Union under their contract with Blink?

# data[].attributes.body
Following the authority of Barwick CJ in Port Jackson, Blink may argue that this was a dissenting judgement and therefore should not be followed.

# data[].attributes.headline
The performance of Jack's obligation under the agreement satisfies the consideration requirement to make out an agency argument.

# data[].attributes.subject
The performance of Jack's obligation under the agreement satisfies the consideration requirement to make out an agency argument.

# data[].attributes.body
Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd: Barwick CJ at [244]:
"The performance of the act or acts at the one moment satisfied the need for consideration and attracted the agreed terms".

# data[].attributes.body
Whilst we do not have access to the contract between Credit Union and Blink, it can be ascertained from the agreement between Jack and Blink that Credit Union and Blink entered into a contract. Within this contract, Blink acted as an agent for Jack.

# data[].attributes.headline
Did Credit Union enter into a contract with Blink who was acting as an agent for Jack?

# data[].attributes.subject
Did Credit Union enter into a contract with Blink who was acting as an agent for Jack?

# data[].attributes.body
Where A enters into a contract with B who is acting for C, the contract is really between A and C.

In the present case, A is Credit Union, B is Blink and C is Jack.

# data[].attributes.headline
Can the application of other legal principles provide Jack with a legally enforceable claim?

# data[].attributes.subject
Can the application of other legal principles provide Jack with a legally enforceable claim?

# data[].attributes.body
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd: Brennan J at [134] - [135]:
"The rules which courts have developed to solve problems raised by a third party promisee are sometimes described as exceptions to the doctrine of privity, but are in truth applications of other legal principles... There is no true exception to the doctrine of privity".

# data[].attributes.headline
The doctrine of privity of contract prevents Jack from enforcing an obligation of the contract.

# data[].attributes.subject
The doctrine of privity of contract prevents Jack from enforcing an obligation of the contract.

# data[].attributes.body
Trident General Insurance Co Ltd v McNiece Bros Pty Ltd: Dawson J at [155]:
"The doctrine of privity of contract has long been accepted as inescapable having a regard to the place which promise occupies in our concept of contract".

# data[].attributes.headline
No, Jack is a third party to the contract between Blink and Credit Union. However, Jack is a party to the agreement between himself and Blink.

# data[].attributes.subject
No, Jack is a third party to the contract between Blink and Credit Union. However, Jack is a party to the agreement between himself and Blink.

# data[].attributes.headline
Is Jack a party to the contract between Blink and Credit Union?

# data[].attributes.subject
Is Jack a party to the contract between Blink and Credit Union?

# data[].attributes.body
Hospital Products Ltd v United States Surgical Corporation: Gibbs CJ at [62]:
"What must be ascertained is the intention which reasonable persons would have had if placed in the situation of the parties".

Jack may argue that a reasonable person would objectively view that the parties intended that the statement made by Helena would form part of the agreement.

# data[].attributes.headline
Was the objective intention of the parties to include the statement into the formal agreement?

# data[].attributes.subject
Was the objective intention of the parties to include the statement into the formal agreement?

# data[].attributes.body
See the judgments in Hospital Products Ltd v United States Surgical Corporation to ascertain a test regarding objective intention.

# data[].attributes.body
"You are entitled to expect to be paid for the work you do, and I guess that in those circumstances Blink would cover your fees".

# data[].attributes.headline
Yes, following the decision in Hospital Products Ltd v United States Surgical Corporation.

# data[].attributes.subject
Yes, following the decision in Hospital Products Ltd v United States Surgical Corporation.

# data[].attributes.headline
Does the pre-contractual conversation between Helena and Jack form part of the agreement?

# data[].attributes.subject
Does the pre-contractual conversation between Helena and Jack form part of the agreement?

# data[].attributes.headline
Can Blink be estopped from enforcing the entire agreement clause?

# data[].attributes.subject
Can Blink be estopped from enforcing the entire agreement clause?

# data[].attributes.body
Clause 29 of the agreement is an entire agreement clause, precluding the inclusion of any previous agreement or extrinsic evidence.

# data[].attributes.headline
Is the agreement between Blink and Jack the entire agreement?

# data[].attributes.subject
Is the agreement between Blink and Jack the entire agreement?

# data[].attributes.body
See: Hospital Products Ltd v United States Surgical Corporation.

# data[].attributes.headline
Jack wants the agreement to incorporate the statement made by Helena, on behalf of Blink, regarding the fact that he would be paid for his work even if the client did not pay

# data[].attributes.subject
Jack wants the agreement to incorporate the statement made by Helena, on behalf of Blink, regarding the fact that he would be paid for his work even if the client did not pay

# data[].attributes.body
Express terms: incorporation.

# data[].attributes.headline
Was there a ground to terminate the agreement according to clause 15 of the agreement?

# data[].attributes.subject
Was there a ground to terminate the agreement according to clause 15 of the agreement?

# data[].attributes.body
No there was not. Therefore, Blink did not possess the discretion to terminate the agreement.

# data[].attributes.headline
Blink is to be estopped from enforcing their contractual right as to terminate the agreement with Jack, per clause 15.

# data[].attributes.subject
Blink is to be estopped from enforcing their contractual right as to terminate the agreement with Jack, per clause 15.

# data[].attributes.body
See: Commonwealth v Verwayen. Dawson J at [45]:
"The equity is "not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon".

# data[].attributes.headline
Yes, therefore detriment will be suffered by Jack. 

# data[].attributes.subject
Yes, therefore detriment will be suffered by Jack. 

# data[].attributes.body
Commonwealth v Verwayen by Dawson J at [455]:
"He may be estopped from departing from the assumption if departure would amount to unconscionable conduct and operate to the detriment of the other party by reason of his reliance on the assumption".

# data[].attributes.headline
Would enforcement of Blink's contractual right, per clause 15 of the agreement, be unconscionable? 

# data[].attributes.subject
Would enforcement of Blink's contractual right, per clause 15 of the agreement, be unconscionable? 

# data[].attributes.body
Jack undertook work as a sub-contractor as per the agreement, relying on the entirety of the contract.

# data[].attributes.body
The complaint was revoked as further investigations revealed that the allegations made against Jack were "without merit and baseless".

Ultimately, a true complaint was never made about Jack by a client.

# data[].attributes.body
A complaint was made by BB.

# data[].attributes.body
Jack understood the clause. He signed the agreement and undertook work as a sub-contractor for Blink. The promisor's intention is found through the inclusion of clause 15 within the agreement.

# data[].attributes.headline
Was a complaint ever made about Jack by a client?

# data[].attributes.subject
Was a complaint ever made about Jack by a client?

# data[].attributes.headline
Was this clause intended by the promisor and understood by the promisee?

# data[].attributes.subject
Was this clause intended by the promisor and understood by the promisee?

# data[].attributes.body
See: Priestley JA at [607] in Austotel Pty Ltd v Franklins Selfeserve Pty Ltd.

# data[].attributes.body
Clause 15 of the agreement explicitly states "if a complaint is made by The Client relating to any booking that The Talent attends, then Blink may, at its complete discretion, terminate this agreement".

# data[].attributes.headline
Was there a promise made by Blink that the agreement would only be terminated if a client made a complaint about Jack?

# data[].attributes.subject
Was there a promise made by Blink that the agreement would only be terminated if a client made a complaint about Jack?

# data[].attributes.headline
The court must have regard to the objective intention of the parties in entering the contract.

# data[].attributes.subject
The court must have regard to the objective intention of the parties in entering the contract.

# data[].attributes.body
See: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd: Gleeson CJ, Gummow, Hayne, Calling and Heydon J at [41] (with reference to Pacific Carriers Ltd v BNP Paribas (2004) 78 ALJR 1045): "It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe".

# data[].attributes.headline
If yes, it must be determined if the statement was in fact promissory.

# data[].attributes.subject
If yes, it must be determined if the statement was in fact promissory.

# data[].attributes.body
See: Hospital Products Ltd v United States Surgical Corporation. In this case Wilson J accepts that the statements made by Blackman at the restaurant were promissory and not merely representational.

# data[].attributes.headline
Did the parties objectively intend for the oral promise to form part of the contract?

# data[].attributes.subject
Did the parties objectively intend for the oral promise to form part of the contract?

# data[].attributes.body
This allows the court to look at extrinsic evidence, including the promise made by Helena to Jack prior to the commencement of the legal contractual relationship between Jack and Blink.

# data[].attributes.headline
Does this overcome the entire agreement clause as per clause 29 of the agreement?

# data[].attributes.subject
Does this overcome the entire agreement clause as per clause 29 of the agreement?

# data[].attributes.headline
Promissory estoppel can trump the parol evidence rule.

# data[].attributes.subject
Promissory estoppel can trump the parol evidence rule.

# data[].attributes.body
See: Saleh v Romaneous.

# data[].attributes.headline
Can a promissory estoppel overcome the parol evidence rule?

# data[].attributes.subject
Can a promissory estoppel overcome the parol evidence rule?

# data[].attributes.headline
Blink may be required to "make good the assumption".

# data[].attributes.subject
Blink may be required to "make good the assumption".

# data[].attributes.headline
Counter-counterargument in support of Jack

# data[].attributes.subject
Counter-counterargument in support of Jack

# data[].attributes.body
Waltons Stores (Interstate) Ltd v Maher held that a pre-existing contractual relationship is "not a prerequisite to the application of the doctrine of promissory estoppel".

# data[].attributes.body
See: Anaconda Nickel Ltd v Edensor Nominees Pty Ltd & Gutnick and Austotel v Franklin. "Unconscionability enlivens equity".

# data[].attributes.body
Dawson J at [454] in Verwayen was referring to parties in a pre-existing contractual relationship. The promise was made prior to the commencement of the legal contractual relationship between Blink and Jack.

# data[].attributes.headline
The equitable doctrine of estoppel adopted by the High Court would provide relief for Jack 

# data[].attributes.subject
The equitable doctrine of estoppel adopted by the High Court would provide relief for Jack 

# data[].attributes.body
Relief would be in the form of estopping Blink from denying that the promise made by Helena was a term of the contract.

The development of this doctrine is held in Legione v Hateley (1983) 152 CLR 406, extended in Commonwealth v Verwayen by Dawson J at [455]:
"He may be estopped from departing from the assumption if departure would amount to unconscionable conduct and operate to the detriment of the other party by reason of his reliance on the assumption".

# data[].attributes.headline
Yes, but Jack may not be entitled to the full benefit of the assumption on which he relied

# data[].attributes.subject
Yes, but Jack may not be entitled to the full benefit of the assumption on which he relied

# data[].attributes.body
See: Commonwealth v Verwayen. Dawson J at [45]:
"An estoppel in equity may not entitle the party raising it to the full benefit of the assumption on which he relied. The equity is "not to compel the party bound to fulfil the assumption or expectation; it is to avoid the detriment which, if the assumption or expectation goes unfulfilled, will be suffered by the party who has been induced to act or to abstain from acting thereon".

# data[].attributes.headline
Would departure from the assumption be unconscionable?

# data[].attributes.subject
Would departure from the assumption be unconscionable?

# data[].attributes.body
This is viewed through Jack working as a sub-contractor for Blink as per their agreement. In acting on this belief, Jack acted to his detriment.

Anaconda Nickel Ltd v Edensor Nominees Pty Ltd & Gutnick: Buchanan JA at [16]:
"Detriment would be occasioned to both Edensor and Gutnick if the assumption or expectation induced in them was not fulfilled".

# data[].attributes.body
No, Jack relied on the content of the agreement which he signed. Jack's signature and enforcement of the agreement concludes that Jack was aware of the "entire agreement" clause and what was meant by this.

# data[].attributes.headline
Yes, Jack's reliance can be viewed in the form of him undertaking work as per the agreement.

# data[].attributes.subject
Yes, Jack's reliance can be viewed in the form of him undertaking work as per the agreement.

# data[].attributes.body
Austotel v Franklins: Priestley JA at [603]:
"...there must be creation or encouragement... that a promise will be performed, and reliance on that promise".

# data[].attributes.body
Blink may argue that Helena was not authorised to make such a promise. Further, Helena's intention requires consideration.

# data[].attributes.body
Jack understood the promise - he signed the agreement after the statement was made. Jack proceeded to undertake work as a sub-contractor for Blink. Helena made the promise on behalf of Blink.

# data[].attributes.headline
Jack wants to estop Blink from being able to enforce their strict contractual right, so as to not terminate their agreement

# data[].attributes.subject
Jack wants to estop Blink from being able to enforce their strict contractual right, so as to not terminate their agreement

# data[].attributes.headline
Was the promise intended by the promisor and understood by the promisee as to effect their legal relations?

# data[].attributes.subject
Was the promise intended by the promisor and understood by the promisee as to effect their legal relations?

# data[].attributes.body
Austotel Pty Ltd v Franklins Selfserve Pty Ltd: Priestley JA at [607]:
"For equitable estoppel to operate there must be the creation or encouragement by the defendant in the plaintiff of an assumption that a contract will come into existence or a promise be performed or an interest granted to the plaintiff by the defendant, and reliance on that by the plaintiff, in circumstances where departure from the assumption by the defendant would be unconscionable".

# data[].attributes.headline
Is Blink estopped from enforcing their contractual right as to terminate their agreement with Jack in regard to clause 15?

# data[].attributes.subject
Is Blink estopped from enforcing their contractual right as to terminate their agreement with Jack in regard to clause 15?

# data[].attributes.body
Estoppel as a shield, not a sword.

# data[].attributes.body
"You are entitled to expect to be paid for the work that you do, and I guess that in those circumstances Blink would cover your fees".

# data[].attributes.headline
Was there a promise made by Helena, on behalf of Blink, that Jack would be paid for his work even if the client did not pay?

# data[].attributes.subject
Was there a promise made by Helena, on behalf of Blink, that Jack would be paid for his work even if the client did not pay?

# data[].attributes.body
Deane J at [436]:
"A representation of future fact and a representation of law will often, on analysis involve no more than a representation of an opinion. Where that is so, any estoppel will ordinarily be of no use to the represented since it will extend no further than precluding a denial that the represented opinion was truly held".

# data[].attributes.headline
It will be argued that it was only a statement of opinion 

# data[].attributes.subject
It will be argued that it was only a statement of opinion 

# data[].attributes.body
The statement of opinion was made by Helena on behalf of Blink.

# data[].attributes.headline
Was there a representation as to the existing fact that Jack would be paid by Blink regardless of whether the client had paid for the sub-contracting of the talent?

# data[].attributes.subject
Was there a representation as to the existing fact that Jack would be paid by Blink regardless of whether the client had paid for the sub-contracting of the talent?

# data[].attributes.headline
Minimum required to minimise the damage.

# data[].attributes.subject
Minimum required to minimise the damage.

# data[].attributes.body
M K & J A Roche Pty Ltd v Metro Edgely Pty Ltd: Hodgson JA refers to Giumelli and states at [71]: "It is appropriate for this Court to proceed on the basis that here is still an all-or-nothing doctrine of common law estoppel by representation and conventional estoppel".

This doctrine means that you either enforce the assumption or you do not. Here, detriment can only be removed if Blink makes good the assumption.

# data[].attributes.headline
Ineffective form of relief within this matter.

# data[].attributes.subject
Ineffective form of relief within this matter.

# data[].attributes.body
M K & J A Roche Pty Ltd v Metro Edgley Pty Ltd provides that a common law estoppel by convention requires that the assumption be made good.

# data[].attributes.body
Anaconda Nickel Ltd v Edensor Nominees Pty Ltd & Gutnick: Buchanan J cites Deane J in The Commonwealth v Verwayen at [44]:
"Prima facie, the operation of an estoppel is to preclude departure from the assumed state of affairs. It is only where relief framed on the basis of that assumed state of affairs would be inequitably harsh, that some lesser form of relief should be awarded".

# data[].attributes.body
Jack can argue that this is not binding authority as it was stated in the NSW Court of Appeal.

# data[].attributes.headline
It may be argued that not enough detriment was suffered.

# data[].attributes.subject
It may be argued that not enough detriment was suffered.

# data[].attributes.body
M K & J A Roche Pty Ltd v Metro Edgley Pty Ltd: Hodgson JA at [72]:
"Common law estoppel by representation or conventional estoppel still requires that the party relying on the estoppel must have "placed himself in a position of significant disadvantage if departure from the assumption be permitted".

# data[].attributes.headline
Is a court likely to view this as significant detriment?

# data[].attributes.subject
Is a court likely to view this as significant detriment?

# data[].attributes.body
Jack is struggling to pay rent. It is mentioned that his worry has impacted his university studies.

# data[].attributes.headline
Has Jack suffered significant or material detriment as a result of his reliance on the assumption? Would further detriment be caused if Blink was permitted to depart from the assumption?

# data[].attributes.subject
Has Jack suffered significant or material detriment as a result of his reliance on the assumption? Would further detriment be caused if Blink was permitted to depart from the assumption?

# data[].attributes.body
Jack entered into the contract and completed work that he was sub-contracted to do as per the agreement.

See: Michael Spence, 'Australian Estoppel and the Protection of Reliance' (1997) 11 Journal of Contract Law 203 for a discussion of reliance.

# data[].attributes.headline
Did Helena, acting for Blink, intend that Jack act in reliance on the assumption?

# data[].attributes.subject
Did Helena, acting for Blink, intend that Jack act in reliance on the assumption?

# data[].attributes.headline
Did Jack act in reliance on the assumption?

# data[].attributes.subject
Did Jack act in reliance on the assumption?

# data[].attributes.headline
Blink may argue that reliance on the assumption was not reasonable.

# data[].attributes.subject
Blink may argue that reliance on the assumption was not reasonable.

# data[].attributes.body
The assumption was not mentioned within the written contract. Jack signed and completely understood the terms of the contract. This included an "entire agreement" clause and detailed clauses about the payment system.

See M K & J A Roche Pty Ltd v Metro Edgley Pty Ltd for discussion about reliance.