List of Law for answer

List of Law for answer

1. Promissory estoppel

2. Express terms

3. Implied terms

4. Remedies in contract law

5. Negligence

6. Misrepresentation

7. Consumer’s rights and the supply

8. Agency

How to answer theory (Part A) questions

· Don’t open book at the page and write everything on it

· If you simply write everything in front of you irrespective of the question we will think you do NOT understand the topic and penalise.

· Do look closely at what the question asks of you and address that question

· If you do this we will think you understand the topic and award marks

PART A

QUESTION 1

Explaining your reasons with the aid of cases, what would be the most appropriate remedy in the following breaches of contract?

a) for the sale of an extremely rare coin from the 18th Century where the seller changes their mind and refuses to complete the sale

b) for the installation of a swimming pool that subsequently leaks, because of incorrect sealing, and floods the lower basement of the owner’s home and

c) for the installation of an additional oven in a pizza shop whose owner not only anticipated increased normal trade but also had a special lucrative contract to provide 500 pizzas for a university union function. The university function was to be held the weekend after the agreed date of installation but the oven was not installed for a further two weeks

QUESTION 2

The primary function of promissory estoppel is to protect people in certain situations where the promisor changes their mind. Explain the emergence of promissory estoppel in 1947 with reference to the earlier decision in either Stilk v Myrick or Foakes v Beer.

QUESTION 3

If a term is to be included in a contract, surely it should be expressly stated between the parties. Why do we need terms to be implied into a contract? Discuss with the aid of examples.

QUESTION 4

Answer both (a) and (b):

(a) Explain the essential quality required for deciding if an agency relationship exists and provide examples

AND

(b) Explain the nature of a fiduciary duty in the law of agency and provide illustrations.

QUESTION 5

The Australian Consumer Law (ACL) significantly adds to the common law in relation to misleading information. Explain how the ACL has strengthened consumers’ rights.

QUESTION 6

If a term is to be included in a contract, surely it should be expressly stated between the parties. Why do we need terms to be implied into a contract? Discuss.

QUESTION 7

There are situations where common law damages are inappropriate for a breach of contract and the innocent party will seek an equitable remedy. With reference to relevant cases,

1. discuss situations where the Court applies specific performance, and

1. explain why specific performance is not normally applied in contracts for personal services.

1. Explain the alternative remedy available and the limits to its use by the courts.

QUESTION 8

The Australian Consumer Law has significantly altered and improved the consumer protection landscape.

1. Explain how this has been achieved

1. How does it improve upon a consumer’s rights compared to the common law regarding misrepresentation?

QUESTION 9

Explain the development of the ‘salient features test’. And

Regarding the ‘salient features test’ explain, with reference to two cases where the courts reached different decisions, the importance of ‘vulnerability’.

QUESTION 10

Explain why someone in severe financial difficulties might voluntarily seek intervention rather than await a creditor’s petition? Describe the ways in which this intervention might occur?

QUESTION 11

The Trade Practices Act 1974 (Cth) significantly adds to the common law in relation to misleading information. Explain how the Act has strengthened consumers’ rights.

How to answer problem(part B) questions

How to approach

· Issue – what is the problem you as a lawyer need to consider?

· Rule/s and supporting case/s – what is the relevant:

· Common law rule/s + case/s? or

· Section/s of Statute (probably ACL) + case/s?

· Conclusion

· Yes or no (will they succeed or something similar?)

· Reasons

· Use common sense if one problem question gives two or three short scenarios – just split them up

· You have to use headings. They must help you

· Place cases next to rules if it works better for you eg

· Consideration can be present or future but cannot be past (Roscorla’s case)

PART B

QUESTION 1

You must answer both parts of this question.

Part A

Natalia considers herself to be a very good neighbour. Alex, who lives next door to her, is a bachelor who spends all of his holidays on overseas trips. Natalia keeps an eye on his house, although Alex has never specifically made this request of her. She also collects his mail. When Alex comes home from his holidays he goes next door and collects his mail and usually gives Natalia a little gift for her trouble.

One particular holiday, there is a terrible hail storm and several of Alex’s windows are broken. Natalia is concerned that the premises are insecure, so she has the windows repaired at her own expense. When Alex returns he refuses to reimburse her, claiming she had no authority to effect the repairs.

Advise Natalia.

Part B

Michael is a barman working at a local hotel. Michael’s boss has made it clear to him that he is expected to eject unruly patrons. One night Helen arrives with a group of friends. The girls have been out all night and are very intoxicated. Helen’s friends dare her to go behind the bar and give Michael a kiss. Helen accepts the dare but is then ejected from the hotel by Michael. As she is removed she slips on an ice cube and hits her head, causing brain damage. Helen sues Michael who claims that he was simply acting as the licensee’s agent.

Ignoring all other issues (e.g. the use of force and tort law) advise Michael about his claim that he was only an agent.

QUESTION 2

Angela enters into negotiations with Jessica to purchase her restaurant. During their discussions, Angela asks Jessica what are the annual profits of the restaurant. Jessica tells her that ‘the restaurant has been making $10,000 per year in profits’. She hands her a box of papers and says ‘Here are the accounts, you can check for yourself if you like’. Angela trusts Jessica and only checks the accounts for 2007, which do show profits of $10,000. Relying on what she has told them, Angela decides to purchase the business. However, after a few months, when business is very slow, she has another look at the accounts and realises that the business has only been making $2,000 per year for the last 5 years (since 2008).

Advise Angela.

QUESTION 3

Bart contracts with Ace Transport Company (ATC) to transport his valuable packages from Sydney to Melbourne. The contract contains an exclusion clause excusing them for liability for any loss while in transit or storage.

The normal practice is for all parcels to be collected and lodged at ATC’s depots where they are sorted and delivered. However, John, the carrier is running late and arrives after the depot closed. He takes the packages to his home and parks his van in his front yard. A fire destroys the van and the packages.

a) Bart sues for breach of contract. Will he be successful?)

b) Explain if your answer would be different if the following clause was contained within the contract:

ATC shall not be responsible, under any circumstances, for damage or injurious acts caused by an employee of the company unless such act could have been foreseen and avoided by the exercise of due diligence on the part of the Company as his employer.

QUESTION 4

Mary is obsessed with looking youthful. She spends large amounts of money on beauty creams. One day she notices dryness around her eyes and goes in search of help to the cosmetic section of the local branch of David James, a large retail chain.

Mary asks the sales assistant for a cream to counter drying around her eyes. The sales assistant finds one, but it is meant only to be used for oily skin and makes Mary’s problem much worse. The eye cream proved to be very painful and exacerbated the dryness around her eyes.

a) As a consumer of goods, Mary now wishes to sue David James under the ACL. What is your advice?

b) Explain if your answer would be different if the sales assistant informed Mary that she usually works in the sporting goods section.

QUESTION 5

Sandra Smith purchased a carton of cola from her local corner store. The following week, on a very hot day her husband, Andy, took a can from the refrigerator and drank it. He became violently ill and was rushed to hospital where he remained for three days. On closer inspection of the contents of the can it was found to contain the remains of a cockroach. The family faced large medical expenses, a problem exacerbated because neither parent could work in their casual jobs for a week.

The corner store has gone out of business due to bankruptcy and the family wishes to sue the Australian manufacturer, Acme Cola Company Ltd. Advise the Smiths as to their chances if they were to sue Acme for negligence.

QUESTION 6

Rebecca has a studio where she runs fitness classes five days a week. Her music system breaks down and she asks Ace Electrical Repairs Pty Ltd to mend it. Ace agrees to return the sound system, completely fixed, in one week. Unfortunately they don’t return the sound system to Rebecca until three weeks pass. Rebecca wants to sue Ace for damages. She seeks damages for the loss of profits for the additional 10 days when she expected to be running her classes. She also wishes to claim damages for the loss of an expected profit of $10,000 from a big aerobics championship event she had planned to hold over a weekend where contestants were coming from throughout Australia but which she has now been forced to cancel.

Advise Rebecca as to her chances of being awarded common law damages.

QUESTION 7

Warwick wants to sell Jane his old car for $2000. In the course of their negotiations Warwick makes a number of statements. Will Warwick be guilty of misleading and deceptive conduct in the following situations, explaining your reasons with reference to relevant cases and sections of the ACL:

· If Warwick stated that his car was the best car in Australia,

· Warwick, who works as a car salesman, stated that in his opinion the car had no rust, a view he honestly held, even though it did have some rust and

· Warwick, a car mechanic, offers to give the vehicle a full service three months later should Jane purchase it. He has already booked flights for a six month holiday in Europe and departs in a two weeks.

QUESTION 8

Theo sells second hand motor vehicles from his Sydney car yard. He hires Eagle Eye Security to patrol his premises at night. One night Serge, the security guard on, patrol lights a cigarette and throws the match into what he thinks is a puddle of water but is, in fact, oil which catches fire and then causes an explosion that destroys the car yard and all its vehicles.

Advise Theo of his chance of success if he sues for breach of contract and Eagle Eye relies on the following clause contained within the contract:

Eagle Eye Security shall not be responsible, under any circumstances, for damage or injurious acts caused by an employee of the company unless such act could have been foreseen and avoided by the exercise of due diligence on the part of the Company as his employer.

QUESTION 9

Mary is obsessed with looking youthful. She spends large amounts of money on beauty creams. One day she notices dryness around her eyes and goes in search of help to the cosmetic section of the local branch of David James, a large retail chain.

Mary asks the sales assistant for a cream to counter drying around her eyes. The sales assistant finds one, but it is meant only to be used for oily skin and makes Mary’s problem much worse. The eye cream proved to be very painful and exacerbated the dryness around her eyes.

As a consumer of goods, Mary now wishes to sue David James under the ACL. What is your advice?

Explain if your answer would be different if the sales assistant informed Mary that she usually works in the sporting goods section.

QUESTION 10

Michael went to his local computer store (Crazy Jack’s Computers) to get a new computer. He explained to the salesgirl (Sally) that he knew little about computers and was relying on her skill to advise him of what best suited his needs. She advised Michael that she had been selling computers for a number of years and that the 2011 ISIS Direct G74S Laptop was the computer that in her opinion best suited his needs. She explained that it was a very good machine, fast and trouble free.

After buying the computer at the end of March 2012, Michael returned the computer to the store three times in April because of problems. At the start of May, while sitting on his sofa at home marking assignments, the battery in the computer exploded, severely burning Michael and causing major damage to the computer and the sofa.

Advise Michael if he could sue the store, Sally or ISIS for negligence, explaining what Michael needs to prove and whether you think he would win.

QUESTION 11

Acme Canoes Ltd has operated a business in Byron Bay since 2007, with guided canoe tours near dolphins and coral formations proving very popular among tourists. Sometimes the tours are so popular that Acme has to hire extra canoes from competitors, a common practice among all five canoe/kayak operators in Byron Bay.

One sunny day, Acme discovers that it has so many bookings it needs to hire additional canoes from Jack’s Water Adventures, a company it has dealt with twice in the last three years. No terms are discussed on the phone but a hire-form sent with the extra canoes states that Acme is liable for all costs incurred during their hire. A similar term is found in all the other Byron Bay water sports operators’ hire-forms, including Acme’s own forms.

The tour commences. The canoeists have paddled several kilometres from shore before a strong nor-easterly wind stirs up the bay, as is often the case, and the ride back involves dealing with rough seas. A large wave dumps Julie and her canoe very heavily in shallow water near the shore. The canoe, one of those hired from Jack’s, is smashed into several pieces.

Jack’s wants Acme to pay for the damaged canoe but Acme denies that the term in the hire-form regarding liability is effective.

Advise Jack’s as to its position. Your answer should include consideration of previous dealings between the parties and custom or trade usage.

QUESTION 12

Katja, a single parent, is planning to take two weeks annual leave. She visits a local Sydney travel company and searches through the brochures in the hope of finding a holiday package that will give her plenty of rest and fun. She finds an Ace Shipping Company brochure advertising a two-week ‘singles’ cruise aboard the SS Rex where passengers will be treated to wonderful parties involving live rock bands, great food, excellent single sleeping quarters and the opportunity to see humpback whales on their annual migration.

Katja books a place on the cruise and pays her full fare of $3,700. She had also paid $400 for airfares to fly her young son, Jack, to her parents’ home in Wagga Wagga for the duration of the boat trip.

The big day comes when she puts Jack on the plane, excitedly bids farewell to her friends and walks up the gangway to, what she hopes will be, the holiday of a lifetime.

Unfortunately the cruise turns out to be a disaster. She discovers that the other passengers are all married couples, the food is terrible, there is no live band and only recorded eighties music for dancing. Katja also learns that the humpback whales always finish their migration several months earlier and won’t return again for eight months. To make matters worse, her cabin is situated next door to the disco and she gets very little sleep and suffers constant headaches due to her sleep disorder that requires total silence.

Advise Katja concerning the types of damages to which she is entitled under common law for breach of contract.

QUESTION 13

Mary has had a fight with her boss, Tom, so she decides to play a trick on him. She phones the local pizza shop and says she is ringing on behalf of Tom and orders 20 Supreme pizzas ’for a business working dinner’ to be delivered to Tom’s house that evening. When the pizzas are delivered to Tom’s house he does not know what to do. Because he is home by himself, Tom refuses delivery.

1. advise Tom

1. advise the pizza parlour

1. explain whether your answer would be different if Mary had ordered dinner on numerous other occasions for Tom from the pizza shop .

QUESTION 14

Angelina purchased some “Heaven on Earth” lipstick from the large retail chain, David James. The lipstick proved to be very painful and caused her lips to crack; for Angelina it was more like hell on earth.

1. She now wishes to sue David James under the Australian Consumer Law. What is your advice?

1. Two years after purchasing the lipstick David James goes into receivership and it is found to be insolvent. She decides to sue the manufacturers of the lipstick, Acme Face Products Pty Ltd. What is your advice?

QUESTION 15

Part A

Mary owns an extreme adventure sports business in Newcastle. She sells the business to Frida for $350,000. In the contract, Mary agrees that for the next two years she will not open a similar business within 500 kilometres of the sold business. Three months after selling her business to Frida, Mary sets up an extreme adventure sports business in a southern Sydney suburb, 170 kilometres away from Frida’s business. Frida wants to prevent Mary from doing this.

What is your advice to Frida regarding the legality of her contract with Mary?

Part B

In an effort to reduce bikie-related violence the NSW Parliament passes a law called the Bikies Act and among other things it provides that “no person shall deal in Harley-Davidson motorbikes with any member of a proscribed bikie gang”. Kevin enters into a contract to sell Malcolm his Harley Davidson. Unknown to Kevin, Malcolm is a member of The Invincibles, a bikie gang proscribed under the Act. Malcolm later refuses to accept delivery of the motorbike. Kevin brings legal action against him for breach of contract. Malcolm argues that the contract was prohibited by the NSW statute and was invalid and as a result cannot be enforced against him.

Advise Kevin. (5 marks)

QUESTION 16

Acme Engineers have entered into a contract with Lismore City Council to build a new bridge over the Wilson River. The contract includes a term stating that the construction of the bridge must be completed within 2 years. Acme Engineers anticipate that they will easily be able to complete the project by working normal hours between 8am and 5pm Monday to Friday and, by avoiding overtime for longer shifts and weekend work, will make a handsome profit.

After three months of construction, the NSW Government announces that all activity involving the Wilson River, including bridge building, must be suspended for six months, as a result of severe pollution from an industrial accident further upstream.

Acme Engineers have calculated that to complete the bridge within the agreed period it will now have to work extended daily shifts for seven days per week. Because their wages bill will dramatically increase, Acme now calculates that they will incur a loss.

Acme wants to be discharged from the contract and seeks your advice. What will you tell them? Assuming Acme has not yet been paid for any work, what are they entitled to should they be discharged from the contract?

QUESTION 17

Brian is the star of the Sydney Football Club (SFC). He has recently signed a new three-year contract to play with the Club but after one month into the contracted period he has a major argument with the manager and refuses to play with them again. Even worse, he signs a contract to play with Brisbane Roar. SFC seeks a court order for specific performance to make him continue playing with them.

Advise SFC on their chances of success in court. What other equitable remedy might be available to SFC?

QUESTION 18

Angela and her husband book a room at the Majestic Hotel for the weekend. They register at the reception desk then climb the stairs to their room on the 3rd Floor. There is a sign on the back of the door that reads:

All valuables must be taken to the reception desk where they will be placed in a security safe. No liability will be accepted by the hotel for any loss or damage involving guests’ property left in their room.

Due to the staff forgetting to close the door after cleaning the room, Angela’s very expensive gold watch is stolen. She now sues the Majestic Hotel for damages for the loss of her watch.

Advise the Majestic Hotel as to its defense.

Would your answer be different if Angela and her husband had been to the Majestic eight times over the past four years? Give reasons.

QUESTION 19

Jack offers to sell Tim his MacBook Pro computer for $2000. He tells Tim that the computer will include iTunes, iPhoto, iMovies and a DVD program. Tim says he will think about it and get back to Jack soon. Two weeks pass before Tim tells Jack he accepts the offer. When he collects the computer and pays Jack the money, he discovers that the computer does not have iPhoto. Tim hopes to sue Jack for a breach of contract but is unsure if the promise of iPhoto was a term of the contract or not.

Advise Tim

Would your answer be different if Jack had told Tim that he hadn’t actually ever used the computer and that maybe he should check it out himself, which Tim chose not to do. Explain your reasons.

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