Form prevailing over substance?

The decision of the Court of Appeal in Kellas-Sharpe v PSAL Ltd [2012] QCA 371 considered a not unusual provision in a loan agreement, being a provision whereby a lender agrees to accept a lower or concessional rate of interest in circumstances of prompt payment by the borrower. The loan agreement in question provided for the borrower to pay a standard rate of interest of 7.5% per month. However, if the borrower was not in default, the lender agreed to accept interest at a concessional rate of interest of 4% per month. The issue for determination by the Court of Appeal (McMurdo P, Gotterson JA and Fryberg J) was whether the clause was subject to the equitable jurisdiction to relieve against penalties, and, if so, if the interest rate provision should be treated as a penalty making the interest rate provision void. In mounting this argument, the borrower was seeking to overturn a long line of authority which has repeatedly upheld the semantic distinction between an increase in the rate of interest (which attracts the doctrine concerning penalties) and an incentive to the borrower by way of a reduction in the interest rate for prompt payment (which does not attract the doctrine)...

The consequences of not taking reasonable steps to obtain finance

In Hauff v Miller [2013] QCA 48 the Queensland Court of Appeal considered an issue that has not previously arisen at appellate level. The case concerned the interaction of the well-known subject to finance clause and other standard contractual provisions...

Insurance and transport law : controlling insurance contract terms : Section 54 of the Insurance Contracts Act – compliance, recovery and accountability

Commonwealth legislation covering insurance contracts contains numerous provisions designed to control the operation and effect of terms in life and general insurance contracts. For example, the Life Insurance Act 1995 (Cth) contains provisions regulating the consequences attendant upon incorrect statements in proposals [1] and non-payment of premiums, [2] provides that an insurer may only exclude liability in the case of suicide if it has made express provision for such contingency in its policy, [3] and severely restricts the efficacy of conditions as to war risks. [4] The Insurance Contracts Act 1984 (Cth) is even more intrusive and has a major impact upon contractual provisions in the general insurance field. It is beyond the scope of this note to explore all of these provisions in any detail but examples of controls and constraints imposed upon the operation and effect of contractual provisions include the following. A party is precluded from relying upon a provision in a contract of insurance if such reliance would amount to a failure to act with the utmost good faith. [5] Similarly, a policy provision which requires differences or disputes arising out of the insurance to be submitted to arbitration is void, [6] unless the insurance is a genuine cover for excess of loss over and above another specified insurance. [7] Similarly clause such as conciliation clauses, [8] average clauses, [9] and unusual terms [10] are given qualified operation. [11] However the provision in the Insurance Contracts Act that has the greatest impact upon, and application to, a wide range of insurance clauses and claims is s 54. This section has already generated a significant volume of case law and is the focus of this note. In particular this note examines two recent cases. The first, Johnson v Triple C Furniture and Electrical Pty Ltd [2012] 2 Qd R 337, (hereafter the Triple C case), is a decision of the Queensland Court of Appeal; and the second, Matthew Maxwell v Highway Hauliers Pty Ltd [2013] WASCA 115, (hereafter the Highway Hauliers case), is a decision of the Court of Appeal in Western Australia. This latter decision is on appeal to the High Court of Australia. The note considers too the decision of the New South Wales Court of Appeal in Prepaid Services Pty Ltd v Atradius Credit Insurance NV [2013] NSWCA 252 (hereafter the Prepaid Services case).These cases serve to highlight the complex nature of s 54 and its application, as well as the difficulty in achieving a balance between an insurer and an insured's reasonable expectations.

Free trade, Gangnam Style: The Korea-Australia free trade agreement

On the 5th December 2013, Australia and Korea announced that they had finalised a new free trade agreement. Is it a fair trade fairytale? Or is it a dirty deal done dirt cheap? It is hard to tell, because the respective governments have not yet published the text of the Korea-Australia Free Trade Agreement (KAFTA). There has been much debate in the Australian Parliament over the transparency of the trade agreement; the scope of market access provided under the deal; and the impact of the investment chapter, with an investor-state dispute settlement clause. KAFTA foreshadows the approach of the new Conservative Government in Australia to other trade deals – such as the Trans-Pacific Partnership.

A Submission to the Joint Standing Committee on Treaties on the Korea-Australia Free Trade Agreement (KAFTA)

Australia and South Korea have signed a new free trade agreement - the Korea-Australia Free Trade Agreement (KAFTA). Is it a fair trade fairytale? Or is it a dirty deal done dirt cheap? Or somewhere in between? It is hard to tell, given the initial secrecy of the negotiations, and the complexity of the texts of the agreement There has been much debate in Parliament over the transparency of the trade agreement; the scope of market access provided under the deal; the impact of the investment chapter, with its investor-state dispute settlement clause; the intellectual property chapter; the environment chapter; its impact upon public health; and the labor rights chapter. KAFTA provides an indication of the approach of the new Conservative Government in Australia to other trade deals – such as the Trans-Pacific Partnership.

Agreement Patterns in English : Diachronic Corpus Studies on Common-Number Pronouns

This study reports a diachronic corpus investigation of common-number pronouns used to convey unknown or otherwise unspecified reference. The study charts agreement patterns in these pronouns in various diachronic and synchronic corpora. The objective is to provide base-line data on variant frequencies and distributions in the history of English, as there are no previous systematic corpus-based observations on this topic. This study seeks to answer the questions of how pronoun use is linked with the overall typological development in English and how their diachronic evolution is embedded in the linguistic and social structures in which they are used. The theoretical framework draws on corpus linguistics and historical sociolinguistics, grammaticalisation, diachronic typology, and multivariate analysis of modelling sociolinguistic variation. The method employs quantitative corpus analyses from two main electronic corpora, one from Modern English and the other from Present-day English. The Modern English material is the Corpus of Early English Correspondence, and the time frame covered is 1500-1800. The written component of the British National Corpus is used in the Present-day English investigations. In addition, the study draws supplementary data from other electronic corpora. The material is used to compare the frequencies and distributions of common-number pronouns between these two time periods. The study limits the common-number uses to two subsystems, one anaphoric to grammatically singular antecedents and one cataphoric, in which the pronoun is followed by a relative clause. Various statistical tools are used to process the data, ranging from cross-tabulations to multivariate VARBRUL analyses in which the effects of sociolinguistic and systemic parameters are assessed to model their impact on the dependent variable. This study shows how one pronoun type has extended its uses in both subsystems, an increase linked with grammaticalisation and the changes in other pronouns in English through the centuries. The variationist sociolinguistic analysis charts how grammaticalisation in the subsystems is embedded in the linguistic and social structures in which the pronouns are used. The study suggests a scale of two statistical generalisations of various sociolinguistic factors which contribute to grammaticalisation and its embedding at various stages of the process.

La coordination et les phrases juxtaposées en français

Coordination and juxtaposed sentences The object of this study is the examination of the relations between juxtaposed clauses in contemporary French. The matter in question is sentences which are composed of several clauses adjoined without a conjunction or other connector, as in: Je détournai les yeux, mon c ur se mit à battre. The aim of the study is to determine, which quality is the relation in these sentences and, on the other hand, what is the part of the coordination there. Furthermore, what is this relation of coordination, which, according to some grammars, manifests through a conjunction of coordination, but which, according to some others is marked in juxtaposed sentences through different features. The study is based on a corpus of written French from literary and journalistic text sources. Syntactic, semantic and textual properties in the clauses are discussed. The analysis points to differences so, it has been noted, in each case, if one of the clauses is affirmative and the other negative and if in the second clause, the subject has not been repeated. Also, an analysis has been made on the ground of the tense, mode, phrase structure type, and thematic structure, taking into account, in each case, if the clauses are identical or different. Punctuation has been one of the properties considered. The final aim has been to eliminate gradually, based on the partition of properties, subordinate sentences, so that only the hard core of coordinate sentences remains. In this way, the coordination could be defined similarly as the phoneme is defined as a group of distinctive features. The quantitative analyses have led to the conclusion that the sentences which, from a semantic point of view, are interpreted as coordinating, contain the least of these differences, while the sentences which can be considered as subordinating present the most of these differences. The conditions of coordination are, in that sense, hierarchical, so that the syntactic constraints have to make room for semantic, textual and cognitive factors. It is interesting to notice that everyone has the ability to produce correct coordinating structures and recognize incorrect coordinating structures. This can be explained by the human ability to categorize which has been widely researched in the semantic of prototype. The study suggests that coordination and subordination could be considered as prototypical cognitive categories based on different linguistic and pragmatic features.

Grammar and disciplinary culture : a corpus-based study

The present study provides a usage-based account of how three grammatical structures, declarative content clauses, interrogative content clause and as-predicative constructions, are used in academic research articles. These structures may be used in both knowledge claims and citations, and they often express evaluative meanings. Using the methodology of quantitative corpus linguistics, I investigate how the culture of the academic discipline influences the way in which these constructions are used in research articles. The study compares the rates of occurrence of these grammatical structures and investigates their co-occurrence patterns in articles representing four different disciplines (medicine, physics, law, and literary criticism). The analysis is based on a purpose-built 2-million-word corpus, which has been part-of-speech tagged. The analysis demonstrates that the use of these grammatical structures varies between disciplines, and further shows that the differences observed in the corpus data are linked with differences in the nature of knowledge and the patterns of enquiry. The constructions in focus tend to be more frequently used in the soft disciplines, law and literary criticism, where their co-occurrence patterns are also more varied. This reflects both the greater variety of topics discussed in these disciplines, and the higher frequency of references to statements made by other researchers. Knowledge-building in the soft fields normally requires a careful contextualisation of the arguments, giving rise to statements reporting earlier research employing the constructions in focus. In contrast, knowledgebuilding in the hard fields is typically a cumulative process, based on agreed-upon methods of analysis. This characteristic is reflected in the structure and contents of research reports, which offer fewer opportunities for using these constructions.

Mauwake reference grammar

This dissertation provides a synchronic grammatical description of Mauwake, a Papuan (Trans-New Guinea) language of about 2000 speakers on the North Coast of the Madang Province in Papua New Guinea. The theoretical background is that of Basic Linguistic Theory (BLT), used extensively in analysing and writing descriptive grammars. The chapters from morphology to clause level are described from form to function; in the later chapters the function is taken more often as the starting point. Any theory-specific terminology is kept to the minimum and formalisms have been avoided in accordance with BLT principles. Mauwake has a classic 5-vowel system and 14 consonant phonemes. With its simple phonology it is a typical representative of the Madang North Coast languages. For a Papuan language there are relatively few morphophonological alternations. Nouns are either alienably or inalienably possessed. There is no obligatory number marking in nouns or noun phrases. Pronouns have several different forms: five for case and three for other functions. The dative pronouns are treated as [+human] locatives, and they have also grammaticalised as possessives. The verbal morphology is agglutinative and mainly suffixal. Unusual features include two distributive suffixes, and the interaction of the derivational benefactive and the inflectional beneficiary suffixes. The applicative suffix has either transitivising or causative but not benefactive function. The switch-reference system distinguishes between simultaneous and sequential action, as well as same or different subject in relation to the following clause. There are several verbs denoting coming and going, and they may combine with one of three prefixes to indicate bringing and taking. Mauwake is a nominative-accusative type language, and the basic constituent order in a clause is SOV. Subject and object are the only syntactic arguments. There is no indirect object, but a clause can have two or even three objects. A nominalised clause with a finite verb functions as a relative clause or a complement clause; one with a nominalised verb has several different functions. Functional domains described include modality, negation, deixis, quantification, possession and comparison. As there are four negators, Mauwake has more variation in negative expressions than is usual in Papuan languages. Clause chaining is the preferred strategy for joining clauses into sentences, but coordination and subordination of finite clauses are also common. The form of a complement clause depends on whether it is of the fact, action or potential type. Tail-head linkage is used as a cohesive device between sentences. The discourse-level features described are topic and focus.

A Sketch of the Phonology and Grammar of Rajbanshi

This dissertation is a synchronic description of the phonology and grammar of two dialects of the Rajbanshi language (Eastern Indo-Aryan) as spoken in Jhapa, Nepal. I have primarily confined the analysis to the oral expression, since the emerging literary form is still in its infancy. The grammatical analysis is therefore based, for the most part, on a corpus of oral narrative text which was recorded and transcribed from three informants from north-east Jhapa. An informant, speaking a dialect from south-west Jhapa cross checked this text corpus and provided additional elicited material. I have described the phonology, morphology and syntax of the language, and also one aspect of its discourse structure. For the most part the phonology follows the basic Indo-Aryan pattern. Derivational morphology, compounding, reduplication, echo formation and onomatopoeic constructions are considered, as well as number, noun classes (their assignment and grammatical function), pronouns, and case and postpositions. In verbal morphology I cover causative stems, the copula, primary and secondary agreement, tense, aspect, mood, auxiliary constructions and non-finite forms. The term secondary agreement here refers to genitive agreement, dative-subject agreement and patient (and sometimes patient-agent) agreement. The breaking of default agreement rules has a range of pragmatic inferences. I argue that a distinction, based on formal, semantic and statistical grounds, should be made between conjunct verbs, derivational compound verbs and quasi-aspectual compound verbs. Rajbanshi has an open set of adjectives, and it additionally makes use of a restricted set of nouns which can function as adjectives. Various particles, and the emphatic and conjunctive clitics are also considered. The syntactic structures studied include: non-declarative speech acts, phrase-internal and clause-internal constituent order, negation, subordination, coordination and valence adjustment. I explain how the future, present and past tenses in Rajbanshi oral narratives do not seem to maintain a time reference, but rather to indicate a distinction between background and foreground information. I call this tense neutralisation .

Infinitiivi ja sen infiniittisyys : Tutkimus suomen kielen itsenäisistä A-infinitiivikonstruktioista

"Infinitive and its infinity" advocates an approach to infinitives that differs from most previous descriptions in several ways. Infinitives are generally considered to be an illustrative example of an inherently subordinated verb category. This is due to the fact that they are morphologically reduced and are allegedly not able to function as the only predicate of an independent clause. While former descriptions have thus treated infinitives as a linguistic category heavily dependent on the finite verb, my claim is that Finnish A-infinitives (e.g. juosta to run , olla to be ) can be used as independent grammatical units: they need not be either dependent or subordinated, but can have an equal status with finite constructions. In other words, they can be conceptually and interactionally non-dependent. Theoretically, the main objective of the thesis is to discover the nature of non-finite conceptualization and the ways in which it is utilized in everyday interactions. This is accomplished by contrasting finite and non-finite conceptualization with respect to the morphosyntactic marking of person, tense and modality. I argue that the morphologically reduced nature of infinitives can be used as an interactional resource. Independent A-infinitive constructions designate verbal processes that profile no participants, lack any connection with time, and present states of affairs as intensional, structural spaces. Consequently, they provide the interactants with a conceptual alternative in contrast to finite predications that are in Finnish always grammatically anchored to time, modality and person. The deictically unanchored character of A-infinitive constructions makes them highly affective and reflexive in nature. I discuss my findings primarily in the light of Cognitive Grammar. I have drawn insight from various other fields, too: among the theories that are touched upon are interactional linguistics, functional-typological linguistics, and studies on the poetic and metapragmatic use of language. The study is based on empirical data interpreted in qualitative terms. Analyses are based on 980 examples coming mainly from written language. Some 20 examples of spoken data are analyzed as well. In sum, the thesis presents a critical statement towards the finite-verb centred outlook on language and shows that analyzing non-finite elements as such reveals new aspects of grammar and interaction. This is to acknowledge the fact that infinitives, albeit prototypically participating in the coding of dependent events, can also be used outside of the context of the finite verb. Such a view poses several new research questions, as a linguistic category generally seen to code dependent, less prominent states of affairs , now is viewed on as possessing a full cognitive and pragmatic potential.

Kuvan ja tekstin välissä : Kuvateksti uutiskuvan ja lehtijutun elementtinä

The study focuses on picture captions: their grammar and interplay with photographs and their position as semi-independent elements of the news stories. The research was conducted in the framework of critical discourse analysis, social semiotic visual theory and fennistic syntactical research. The data consist of 441 press photographs, 1,815 captions and a number of news items from Finnish dailies. The generic structure potential of the caption includes the caption headline, the caption proper, i.e. the verbalization of the picture content, and the frame. In the data, 41 per cent of the captions have a headline, and 44 per cent contain a caption proper. Characteristic of the caption proper is omission of the finite verb and the use of the present tense, both of which have decreased in Finnish papers during the 20th century. The caption proper is typically a main clause, and both subordinate clauses and participal phrases occur mostly in the frame. While comparing caption variants attached to the same pictures, the processes and their participants proved to be identified considerably identically, following the news agency captions. Instead, the reader?s interpretations of a picture could be directed by framing it in different ways. For example, the caption may focus on the only person depicted, deal with a whole group, or give an abstract account of the situation. The caption is a paratext, a typographically marked, semi-independent element of a news story. Between the headline and the caption, four semantic relations have been identified. The caption may be a paraphrase of the headline, or a close-up illustrating an abstract headline with a concrete example. If the name of the person depicted is their only common factor, the relation between the caption and the headline is additive. A specifying caption will give more details than the headline. The caption may complete, repeat, or summarize the body copy. Naturally, most captions completing the story verbalize the content of the picture. As the caption is often based on the story, it may even repeat the body copy verbatim. The summarizing function is probably becoming increasingly important, as most Finnish newspapers have abandoned the use of a separate standfirst.

Nonverbal predication in Erzya : Studies on morphosyntactic variation and part of speech distinctions

This dissertation consists of four articles and an introduction. The five parts address the same topic, nonverbal predication in Erzya, from different perspectives. The work is at the same time linguistic typology and Uralic studies. The findings based on a large corpus of empirical Erzya data, which was collected using several different methods and included recordings of the spoken language, made it possible for the present study to apply, then test and finally discuss the previous theories based on cross-linguistic data. Erzya makes use of multiple predication patterns which vary from totally analytic to the morphologically very complex. Nonverbal predicate clause types are classified on the basis of propositional acts in clauses denoting class-membership, identity, property and location. The predicates of these clauses are nouns, adjectives and locational expressions, respectively. The following three predication strategies in Erzya nonverbal predication can be identified: i. the zero-copula construction, ii. the predicative suffix construction and iii. the copula construction. It has been suggested that verbs and nouns cannot be clearly distinguished on morphological grounds when functioning as predicates in Erzya. This study shows that even though predicativity must not be considered a sufficient tool for defining parts of speech in any language, the Erzya lexical classes of adjective, noun and verb can be distinguished from each other also in predicate position. The relative frequency and degree of obligation for using the predicative suffix construction decreases when moving left to right on the scale verb adjective/locative noun ( identificational statement). The predicative suffix is the main pattern in the present tense over the whole domain of nonverbal predication in Standard Erzya, but if it is replaced it is most likely to be with a zero-copula construction in a nominal predication. This study exploits the theory of (a)symmetry for the first time in order to describe verbal vs. nonverbal predication. It is shown that the asymmetry of paradigms and constructions differentiates the lexical classes. Asymmetrical structures are motivated by functional level asymmetry. Variation in predication as such adds to the complexity of the grammar. When symmetric structures are employed, the functional complexity of grammar decreases, even though morphological complexity increases. The genre affects the employment of predication strategies in Erzya. There are differences in the relative frequency of the patterns, and some patterns are totally lacking from some of the data. The clearest difference is that the past tense predicative suffix construction occurs relatively frequently in Standard Erzya, while it occurs infrequently in the other data. Also, the predicative suffixes of the present tense are used more regularly in written Standard Erzya than in any other genre. The genre also affects the incidence of the translative in uľ(ń)ems copula constructions. In translations from Russian to Erzya the translative case is employed relatively frequently in comparison to other data. This study reveals differences between the two Mordvinic languages Erzya and Moksha. The predicative suffixes (bound person markers) of the present tense are used more regularly in Moksha in all kinds of nonverbal predicate clauses compared to Erzya. It should further be observed that identificational statements are encoded with a predicative suffix in Moksha, but seldom in Erzya. Erzya clauses are more frequently encoded using zero-constructions, displaying agreement in number only.

Integrated semantic processing of complex pictures and spoken sentences - Evidence from event-related potentials

It has been suggested that semantic information processing is modularized according to the input form (e.g., visual, verbal, non-verbal sound). A great deal of research has concentrated on detecting a separate verbal module. Also, it has traditionally been assumed in linguistics that the meaning of a single clause is computed before integration to a wider context. Recent research has called these views into question. The present study explored whether it is reasonable to assume separate verbal and nonverbal semantic systems in the light of the evidence from event-related potentials (ERPs). The study also provided information on whether the context influences processing of a single clause before the local meaning is computed. The focus was on an ERP called N400. Its amplitude is assumed to reflect the effort required to integrate an item to the preceding context. For instance, if a word is anomalous in its context, it will elicit a larger N400. N400 has been observed in experiments using both verbal and nonverbal stimuli. Contents of a single sentence were not hypothesized to influence the N400 amplitude. Only the combined contents of the sentence and the picture were hypothesized to influence the N400. The subjects (n = 17) viewed pictures on a computer screen while hearing sentences through headphones. Their task was to judge the congruency of the picture and the sentence. There were four conditions: 1) the picture and the sentence were congruent and sensible, 2) the sentence and the picture were congruent, but the sentence ended anomalously, 3) the picture and the sentence were incongruent but sensible, 4) the picture and the sentence were incongruent and anomalous. Stimuli from the four conditions were presented in a semi-randomized sequence. Their electroencephalography was simultaneously recorded. ERPs were computed for the four conditions. The amplitude of the N400 effect was largest in the incongruent sentence-picture -pairs. The anomalously ending sentences did not elicit a larger N400 than the sensible sentences. The results suggest that there is no separate verbal semantic system, and that the meaning of a single clause is not processed independent of the context.

Assignments of non-retail commercial leases: Some contentious issues

Assignment clauses in non-retail commercial leases are as infinitely varied as the circumstances in which disputes arise. Each clause must be individually interpreted as part of the lease in which it is embedded. Whilst the assignment of a lease is one of the most commonplace transactions between lessor and lessee, the case law reveals few unifying principles. This article seeks to cautiously identify a set of principles which should be in the mind of any lawyer when a dispute relating to an assignment arises. It concludes with a short checklist of matters which must be considered by such a person to encourage the application of principles in the first instance towards a resolution of the dispute.