Business and Company Law
One of the key factors the courts consider when seeking to establish the existence of a contract is the intention of the parties to create legal relations. In finding
such an intention it has been common for the courts to rely on two presumptions: if the parties to the agreement are in a social or domestic relationship, the
presumption is that they do not intend the agreement to give rise to legal relations;conversely, if the parties are in a business or commercial relationship, the
presumption is that the agreement is meant to be legally binding. Both of these presumptions can be rebutted by evidence to the contrary.
In 2002 the role of these presumptions in finding the requisite intention was seriously called into question by the High Court of Australia in Ermogenous v Greek
Orthodox Community of SA Inc (Ermogenous). Ten years later, in Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (Evans)
the Full Federal Court of Australia clarified the findings of the High Court in this regard. This clarification suggests that, while the relationship between the
parties to an agreement still needs to be considered, the predominant role of the rebuttable presumptions in this area has been extinguished.
Daniel Khoury � Victorian Law Institute Journal May 2014 p45
Discuss and evaluate this statement in the light of decided case law. State, with reasons, whether you agree or disagree with the assertion made by the author that the
rebuttable presumptions have in fact been extinguished.
Fitzpatrick J, Symes C, Veljanovski A, Parker D. (2013) Business and Corporations Law, 2nd Ed., Lexis Nexis Butterworths. Chapter 2 at P 89
General recommended Textbooks:
Sweeney, O�Reilly & Coleman, 2013, Law in Commerce, 5th Ed., LexisNexis.
Stephen Graw, 2011, An Introduction to the Law of Contract, 7th Ed., Thomson Reuters.
Latimer, P, Australian Business Law CC, 2016 Edition.
Vermeesch,R B, Lindgren, K E, Business Law of Australia Butterworths, 12th Edition, 2011.
Graw, Parker, Whitford, Sangkuhl and Do, Understanding Business Law 7th ed LexisNexis Butterworths, 2015.
Lipton P, Herzberg A and Welsh, M, Understanding Company Law, 18th edition 2016 Thomson Reuters.
Harris, J. Hargovan, A. Adams, M. Australian Corporate Law LexisNexis Butterworths 5th edition, 2015.
Vermeesch, R B, Lindgren, K E, Business Law of Australia Butterworths, 11th Edition, 2005.
Pentony, Graw, Lennard & Parker, Understanding Business Law 3rd ed Butterworths, 2009.
Crosling G M, Murphy H M, How to Study Business Law 4th Edition, Butterworths, 2009.
**Please include the edition and page numbers of any used references.
**When referring to cases, please include the full case citation
**Please use footnotes for referencing.