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In Australia, punitive damages are not available for breach of contract, [5] but are possible for tort cases.. The law is less settled regarding equitable wrongs. In Harris v Digital Pulse Pty Ltd, [6] the defendant employees knowingly breached contractual and fiduciary duties to their employer by diverting business to themselves and misusing its confidential information.
Under common law, a liquidated damages clause will not be enforced if the purpose of the term is solely to punish a breach (in this case it is termed penal damages). [23] The clause will be enforceable if it involves a genuine attempt to quantify a loss in advance and is a good faith estimate of economic loss.
Damages for breach of contract is a common law remedy, available as of right. [1] It is designed to compensate the victim for their actual loss as a result of the wrongdoer’s breach rather than to punish the wrongdoer. If no loss has been occasioned by the plaintiff, only nominal damages will be awarded.
Exemplary damages, also known as punitive damages, have long been controversial in English law. It was criticised on the ground that it confused civil and criminal justice: the former's purpose is to compensate and to restore, while the latter's purpose was to punish and to deter.
Scholars and lawyers have identified conflicting aims for the law of tort, to some extent reflected in the different types of damages awarded by the courts: compensatory, aggravated and punitive or exemplary. In The Aims of the Law of Tort (1951), [47] Glanville Williams saw four possible bases on which different torts rested: appeasement ...
Consequential damages go beyond the contract itself and into the actions that arise from the failure to fulfill. The type of claim giving rise to the damages, such as whether it is a breach of contract action or tort claim, can affect the rules or calculations associated with a given type of damages. [3]
The award of specific performance requires that the two following criteria must be satisfied: [9] (i) Common law damages must be an inadequate remedy. For instance, when damages for a breach of contract found in favour of a third party are an inadequate remedy. [10] (ii) No bars to equitable relief prevent specific performance. A bar to relief ...
Donselaar v Donselaar [1982] 1 NZLR 97 is an often cited case in New Zealand regarding the legal issue of exemplary damages which held that although the ACC law prohibits damages for compensation, it does not exclude liability for punitive damages (exemplary damages).