Glossary

affidavit: a statement sworn on oath by a witness complying with the rules of evidence. It is a written document in which the court requires all of the party’s evidence be set out. There may be various affidavits for different witnesses and witness may swear a number of affidavits.

applicant: like plaintiff, the party who brings an application to the court, tribunal or arbitration.

assignment clause: sets out the rules by which one party can assign their rights or obligations to another person who is not a party to the contract. It may involve the assigning party being released from any further obligation.

cross claim: a claim in the nature of a counter claim brought by a defendant against the plaintiff. Structured like a statement of claim it may either contain a claim that is related to the subject matter of the dispute on the statement of claim or be a separate claim entirely.

counterparty: the opposing party or parties in a contract negotiation.

cross-examination: the process where the other party tests the evidence of a witness during proceedings. Probing and searching questions may be asked in a more or less polite manner as to the witness’s version of events and the honesty, credibility and truthfulness of it.

clause: a paragraph, part or section of a contract. Generally a clause is numbered or is separated from other parts of the contract by a heading. A term of the contract may have many clauses within it, each usually dealing with a specific issue.

damages: the order the court makes for one person to pay another an amount of money to make good a loss under a contract. It is the sum of money that the breaching party must pay to the innocent party to compensate them for the breach.

examination in chief: a process where written evidence from a witness is not delivered to the court. It is where a party gives oral evidence on the basis of questions asked by its legal representatives.

discovery: a process during litigation where parties in turn disclose documents or written records relevant to the matters in dispute. It is to avoid trial by ambush and allows parties to make a rational assessment of their prospects early on by seeing the other side’s evidence.

express terms: written terms set out in the agreement in contrast with implied terms that are incorporated ‘silently’.

force majeure: a contract statement that neither party will be held to its obligations due to an event outside its control. This generally involves what lawyers call ‘an act of God’ such as a fire, explosion or act of war.

implied terms: terms not explicitly appearing in an agreement but incorporated either by law (that is, the law says they must be in certain types of contracts) or to give the contract ‘business efficacy’ (meaning that without it the contract has no business or commercial effect).

indemnity: a ‘safety blanket’ to make good a loss that a party has suffered as a consequence of the act of another party. This would include a loss suffered as a result of the misconduct of or poor performance by a subcontractor not explicitly named in the contract.

injunction: an order of the court either to compel someone to do something or to stop them from doing something. An injunction is generally only granted by the court when a legal principle is being breached or the rights of one party are being infringed by another.

joinder: joining several courses of action or several parties in a single court proceeding

novation: the replacement of one of the parties to a contract by another by the agreement of both the party remaining in the contract and the new party

plaintiff: the person, company or entity starting court proceedings

re-examination: the process where a party’s own witnesses are re-questioned after cross-examination. Its purpose is to clarify any uncertainties that may have arisen through questioning by the opposing party’s lawyer.

reliance damages: a subset of the general law of damages. They involve the court forming a view as to what loss has been suffered by a party who is a victim of a breach in reliance on the contract. They do not relate to loss of prospective profits or what the party may expect to have achieved during the course of the agreement.

respondent: like defendant, the party who is being sued or joined to the proceedings

restitution: when the plaintiff in a case recovers something from the defendant that belongs, or should belong, to the plaintiff

statement of claim: a document prepared by the plaintiff or applicant that sets out the facts in relation to the dispute and the legal claims made as a result of those facts. It outlines the remedies or damages that the plaintiff or applicant says it is entitled to as a result of the conduct of the counterparty giving rise to the claim.

submissions: matters put to the court by one or other party in support of their case and making direct reference to the evidence that is given either in affidavit form or orally by way of examination in chief

subpoena: requisition issued by the court at the request of a party for another party to appear before the court or to produce documents.

tender: the formal means by which documentary evidence is given and accepted by the court

variation clause: a term of the contract that deals with how the contract itself may be varied by the parties during the course of it. This is open to general agreement and negotiation by the parties. Generally it requires that any variation of the contract be either signed in writing by both parties or at least recorded in a letter from one side to the other.