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Ong on Rescission

Ong on Rescission

By Denis SK Ong

CONTENTSREVIEWS

Ong on Rescission is Professor Denis SK Ong’s fifth treatise in the field of equity. With its rigorous, yet accessible, approach to this complex area of law Ong on Rescission is a perfect supplement to his earlier acclaimed works: Trusts Law in Australia (now in its 4th edition), Ong on Equity, Ong on Specific Performance and Ong on Subrogation.

The text offers a thorough study of rescission ab initio both at common law and in equity. As in his earlier works, the book offers a succinct exposition of all the key relevant principles of law, facilitated by a careful, and on occasion critical, analysis of all the leading authorities. To assist the reader, the essential passages of judgments under consideration are reproduced.


CONTENTS

* View Detailed Table of Contents

Preface
Table of Cases
Table of Statutes

1. Types of Rescission

2. Rescission Ab Initio: Restitutio in Integrum at Common Law compared with Restitutio in Integrum in Equity

3. Equity’s Concurrent and Exclusive Jurisdiction in Relation to Rescission Ab Initio

4. Intention-based Election and Estoppel-based Election

5. Third Party Interests

6. Partial Rescission

7. Executed Contracts

8. Grounds for Rescission

Index


REVIEWS

The book belongs to an important genre — an exposition and analysis of legal doctrine.
          Professor Ong’s method is that of discussing the principles underlying a small number of leading cases in considerable detail, in some instances over several pages. … In assessing the language in which leading judgments have been expressed, Professor Ong does not shy away from criticism where he detects a departure from doctrinal purity and orthodoxy. This offers a benefit to the reader because it forces the reader to test the correctness of both the reasons for judgment themselves and the author’s criticism of them.
          Ong on Rescission will be of particular benefit to students of the law of contract, but also to practitioners who wish to gain an understanding, or better understanding, of this important, indeed fundamental, area of contract law.

The Hon Kevin Lindgren AM, QC, FAAL, Journal of Contract Law (2016) 33

The book is a traditional monograph on rescission with a distinct Anglo-Australian focus. It revisits the lessons of the classics in some detail such as Alati v Kruger, Bell v Lever Brothers, Leaf v International Galleries and McRae v Commonwealth Disposals Commission. … Ong on Rescission provides a compact Australian hardback focus, and will be a worthwhile addition to the shelf. Read review...

Paul Latimer, InPrint, Law Institute Journal Victoria, July 2016

... Professor Ong’s work is a new and very timely, detailed, analytical monograph on rescission in the Australian jurisdictions.
          The book provides detailed, yet succinct analysis of relevant legal principles, supported by thorough and appropriate quotation, explanation and evaluation of the authorities. Professor Ong assists the reader by adding emphasis to particularly important phrases within judgments. The work is extensively and appropriately referenced, and includes a comprehensive table of cases and statutes, and a useful index. Read full review...

Dominic Katter, Hearsay, June 2016, 75

This slim volume provides an outline study of the doctrine of rescission ab initio at common law and in equity.
          It commences with an examination of the distinction between rescission and termination for fundamental breach with illustrations drawn from contracts for the sale of land, those involving an arbitration clause, contracts containing an exclusion clause and partnership contracts.
          It then considers the requirement that rescission is only available where restitutio in integrum is available, that is, that the parties are, so far as possible, restored to pre-contract positions. This requirement is considered both at common law and in equity; the important distinction being that a court of equity may make orders effecting adjustments that may be necessary in cases where a simple handing back of property or the payment of money would not place a party in as good a position as before they entered into the transaction in issue.
          Chapter 3 contains a consideration of equity’s concurrent and exclusive jurisdiction in relation to rescission.
          Having considered the circumstances in which relief by way of rescission may be available at law and in equity, the author turns his focus on disentitling conduct such as intention-based or estoppel-based election to affirm and to the interests of third parties which may impact upon the availability of a remedy.
          Somewhat oddly, the author leaves it to the concluding chapter to examine the non-statutory grounds for rescission: common mistake; unilateral mistake; misrepresentation; breach of fiduciary duty; undue influence; and unconscionable conduct.
          The work contains a useful summary of the essential legal principles by reference to the latest primary source material and, in doing so, provides a basis for further detailed research if required.

Anthony Lo Surdo, Australian Banking and Finance Law Bulletin, March 2016

Professor Ong is based at Bond University and has produced a number of books on equity, trust law, specific performance and subrogation. Ong on Rescission is a study of rescission ab initio at common law and in equity. Professor Ong provides a clear, pithy and rigorous analysis of the distinction between rescission ab initio and the prospective termination of a contract at the election of one party for breach by the other with the consequence that the contract so far as it remains executory is determined and damages for breach may be recovered. Chapter 6 explores the oddity of “partial rescission” found in the decision of the High Court in Vadasz v. Pioneer Concrete (SA) Pty Limited. Professor Ong carefully demonstrates that the decision in Vadasz was wrongly decided by reference to the accepted jurisprudence that if a contract cannot be rescinded in its entirety, then it cannot be rescinded at all. This is a book that will attract a wide readership from students to practitioners alike.

Queensland Law Reporter 11 December 2015 [2015] 48 QLR

   

Published 9 October 2015
Publisher The Federation Press
Hardback/288pp
ISBN 9781760020361
Australian RRP $125.00
International Price $115.00
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Law - Equity & Trusts
Law - Contract
Law - Remedies


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