https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg Susanna Gourlay en-us 2020-09-05 10:46:19 UTC 2020-09-06 10:08:57 UTC hello@padlet.com susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722548988 Blink (Jack's employer and the defendant) has terminated the contract under s15 of the contract on the basis that Blue Botanicals submitted a complaint about Jack that they later withdrew. The termination of contract prevents him from obtaining payment for the work he did for the local credit union and Blue Botanicals Pty Ltd.

The issue is if the statement 'You are entitled to expect to be paid for the work that you do and in those circumstances, I guess Blink would cover your fees"  made by Helena prior to Jack signing the contract can be incorporated into the contract. 

Jack wants to be paid $2352.00 for his work with the local credit union.

There is not enough information to state what is owed with Blue Botaical gardens and if he invoiced Blink. ]]> 2020-09-05 10:48:33 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722548988 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722550725 2020-09-05 10:55:37 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722550725 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722551481 There has not been any act of illegality or immorality in the terms in this contract. This is not an appropriate tool for Jack to use. ]]> 2020-09-05 10:58:46 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722551481 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722551959 There is insufficient details in the text to suggest that Jack could make a successful claim on the basis of being a third party to the contract between the client and Blink.  ]]> 2020-09-05 11:00:46 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722551959 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722553553 2020-09-05 11:07:05 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722553553 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722556039 In cl 29 of the contract, it states that the contract is the entire agreement and supersedes any previous agreement by the party. In Equuscorp Pty Ltd v Glengallen Investments [2006] stated common law estoppel was not able to trump the parole evidence rule. Common law estoppel would require Jack to accept that he signed an entire agreement clause and he would be unsuccessful in his claim. Jack should try for promissory estoppel. ]]> 2020-09-05 11:12:59 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722556039 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722557077 Jack could argue that Helena was promising that Blink would pay. The use of her language is assuring and convincing 'you can expect to be paid'. This created an assumption that as long as he does the work, he will get paid even if the client does not pay.
This is not just an opinion or mere representation. Jack was asking Helena about the contract conditions and if someone didn't pay, how would he. Jack expressed that he was concerned about his rent. He wasn't asking for her opinion but the fact of what would happen. Unlike in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] 260 CLR 1 Helena's statements are not vague, but they are clear and reassuring. A reasonable person would be able to identify that her statement is promissory. As Jack and Helena are exchanging contracts, it could be found that Helena is giving an explanation to the terms of their agreement. 

]]> 2020-09-05 11:16:06 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722557077 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722557485 If Jack is using common law estoppel, the parole evidence rule would apply and Jack cannot use estoppel as the courts can not look at extrinsic evidence other than the written contract. If Jack utilises promissory estoppel Saleh v Romenous supports that promissory estoppel trumps parole evidence rule. ]]> 2020-09-05 11:17:28 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722557485 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722560788 Jack relied on Helena's oral statement that Blink would cover his fees. When Jack called Helena he reminded her of the oral conversation, demonstrating that he had relied on what she said in regards to being paid. In regards to being induced, Helena's language was determinative stating 'you can expect to be paid' states that the well established company would ensure he was paid. This was assuring Jack that either way he was safe to get paid and he didn't need to worry about the client not paying Blink. This helped Jack feel safe about being able to pay his rent and allowed him to rely on the assumption created by Helena.
In Construction Technologies Australia Pty Ltd v DOUEIHI [2014] NSWSC 1717  carelessness did not preclude the opportunity to use estoppel.  It is not relevant that Jack did not ask for the oral agreement to be in the contract as he relied on the assumption that Helena had made. ]]> 2020-09-05 11:30:29 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722560788 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722561603 M K & J A Roche Pty Ltd v Metro Edgley Pty Ltd [2005] states that the detriment suffered cannot be just from what they would lose if the promise was departed from but must be another significant or material detriment. In Jacks's case, the detriment suffered is his inability to work at the cafe due to the reliance that he had income coming from Blink. He may not be able to pay his rent and possibly faces being evicted out of his house due to no income. In addition, his university studies have been effected. ]]> 2020-09-05 11:32:23 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722561603 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722568369 Promissory estoppel trumps the parole evidence rule. Hence, there can be an exception to the entire agreement clause allowing the judge to look at extrinsic evidence such as the context of the contractual agreement. 
This would lead to Jack using promissory estoppel to estop Helena from denying her oral agreement that Blink would pay in the event that a client did not pay Blink. Jack is likely to establish the required elements set out in Walters v Maher of an assumption created, induced reliance and unconscionability.

Jack is likely to be successful in a promissory estoppel claim. ]]> 2020-09-05 11:54:42 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722568369 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722568999 Blink could argue that the statements made were only Helena's opinion. As Helena said she 'guesses' that Blink would cover it, Blink could state that Helena was just stating her opinion and it was not a promise. 
They could argue that there was not a significant detriment caused to Jack as they did not cause him to lose his job at the cafe or ask him to leave.

In response to this, promissory estoppel could fail, Jack would have to rely on estoppel by convention. However, as the parole evidence rule applies in common law estoppel, the courts would not be allowed to take into account the oral statements prior to the written contract and Jack would be unsuccessful in estopping Blink from denying the oral agreement. ]]> 2020-09-05 11:56:51 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722568999 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722570110 This contract concerns express terms of contract. ]]> 2020-09-05 12:00:45 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722570110 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722570367 The entire agreement clause shows intent that the parties intended for this to be the full summary of the clause (Toll (FGCT) v Alphapharm [2004]).
Blink is likely to claim that the contract was the full summary of the agreement due to cl 29 of the contract. The Hospital Products v United States Surgical Corporation (1984) case states that if the parties intended the contract to be the full and final summary of their agreement than no other evidence is admissible.
In Toll the courts reiterated that a signature on a contract is a signal of intention of agreement with the document. It is no excuse not to have read the whole thing, but an expectation that someone would read the whole document. Jack would need to prove that there was ambiguity in the contract in order to have extrinsic evidence used to interpret his intent in signing the agreement. Then Jack could rely on the assumption created by Helena as to why he entered into the contract.
C. Mitchell ‘Entire Agreement Clauses: Contracting Out of Contextualism’ (2006) 22 Journal of Contract Law 222  proposes that judges are increasingly looking at extrinsic evidence to support the intentions of parties entering into a contract. If a judge looks at the extrinsic evidence they would be able to see that Jack signed the contract under the assumption that the oral agreement was incorporated into their contract.]]> 2020-09-05 12:01:37 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722570367 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722572548 2020-09-05 12:08:16 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722572548 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722573016 Jack could claim that as Blue Botanicals had withdrawn their complaint,  Blink do not have the right to withdraw their contract as no one had actually made a complaint about him.]]> 2020-09-05 12:09:42 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722573016 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722573070 yes, when there is ambiguity you can trump parole evidence rule and look at extrinsic evidence.]]> 2020-09-05 12:09:53 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/722573070 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723107366 Unfortunately for Jack, there is no ambiguity in the express terms. The facts presented are similar to those in Saleh v Romenous [2010] where prima facie it appeared that the written contract and entire agreement clause would prevent the plaintiff from enforcing their pre contractual agreement. However, promissory estoppel was held to estop the defendant from denying their earlier agreement. Likewise, Jack should use promissory estoppel to enforce the pre contractual agreement with Blink. ]]> 2020-09-06 06:20:13 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723107366 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723116768 In Walton v Maher a promise must have intended to effect the legal relations. In the facts we are told that Jack is concerned about implications of the contract and seeks clarification with what happens under the circumstances the client does not pay Blink. Helena ensures him that he can expect to be paid and under those circumstances she guesses Blink would pay. This creates an assumption for Jack that he will be paid regardless if Blink gets paid. He then enters the contract on the basis of that assumption. In Saleh v Romenous [2010] promissory estoppel was the appropriate tool to stop the defendant from denying a pre contractual agreement. ]]> 2020-09-06 06:32:25 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723116768 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723124252 As promissory estoppel is an equitible remedy, the judge would have the discretion to make good the assumption and order Blink to pay Jack for his modelling work or to offer another compensation. The judge is likely to make good the assumption. 
Promissory estoppel is likely to be the most successful tool for Jack to recover payment. Jack is likely to be successful in estopping Blink in denying their pre contractual agreement that Blink would cover his payment if the client did not pay Blink. ]]> 2020-09-06 06:41:13 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723124252 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723134892 In Queenfield Pty Ltd v Gordon Finance Pty Ltd [2019] VSC 857 a mistake to not incorporate pre-contractual negotiations was found and able to be rectified by a judge based on a mutual assumption on both parties. If Jack can prove there was a mutual assumption that Blink would pay him and there was a mistake in the contract then it is possible he could rely on rectification. Both parties could submit to the judge that there was a mistake and ask the judge to rectify the terms of the agreement.

When Jack called Helena and reminded her that she said Blink would pay him in the event that the client did not pay, Helena told Jack to "read the fine print". Her statement clearly relied on the express terms of the contract and seems confident in the intention of the written document and not in the earlier oral statement. 
It is unlikely that mutual intention to incorporate the oral contract will be found. Rectification would not be a tool available to Jack. 

]]> 2020-09-06 06:54:27 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723134892 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723145775 2020-09-06 07:08:06 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723145775 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723146128 2020-09-06 07:08:32 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723146128 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723146621 2020-09-06 07:09:11 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723146621 susannagourlay1 https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723147956 It is likely that Blink could claim that the express termination clause in cl 15 is not able to be interpreted differently. The word 'any complaint' covers any complaint whether true or not. As Jack initially had a complaint made against him, Blink are exercising their strict legal right to terminate the contract and not pay Jack the money. Blink would be relying on a 'hard' approach to the parol evidence rule as mentioned in Hon J J Spigelman, ‘Contractual Interpretation: A Comparative Perspective’ (2011) 85 Australian Law Journal 412.]]> 2020-09-06 07:10:45 UTC https://padlet.com/susannagourlay1/2fnab2apnuwyr0dg/wish/723147956