Assessment task 3 will primarily assess your IRAC skills (i.e. the ability to identify the legal issue, the ability to identify legal rules, and the ability to apply the legal rules to solve legal problems). All of the topics of the course are examinable.
LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University ĐỀ: LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University Table of Contents Task 1: Problem-solving questions Case 1: Ria v Maya Case 2: Andrew v Ria…………………………………………………………………….3 Case 3: Maya v Duyen………………………………………………………………… Common Law………………………………………………………………………4 Australian Consumer Law (ACL)………………………………………………….6 Task 2: Case Note questions Introduction Identification of legal issues Critical analysis of the judge’s application of the legal rules to solve the legal issues….8 Conclusion……………………………………………………………………………….9 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University TASK 1: PROBLEM-SOLVING QUESTION Case 1: Ria v Maya Legal issues The main issue here is whether Ria can sue Maya for breaching the modified contract of an extra $2,000 payment considering the original contract? Additionally, supplementary issues are [1] whether there is a binding original contract of $35,000 between Maya and Ria, [2] Whether the binding contract of extra $2,000 payment exists, [3] Whether the agreement had been made, [3] Whether the consideration is valid, [4] Whether both parties had a legal intention to be bound by the contract Rules and Application There is a binding contract between two parties if elements: Agreement 1, Consideration2, and Intention to be bound3 were valid There was a legally enforceable contract of $35,000 payment between Maya and Ria There were no issues in this original contract and both parties performed fully their legal obligations as Ria finished work on schedule and Maya paid $35,000 to Ria Smith v Hughes [1871] LR QB 597 Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87 Mildura Office Equipment & Supplies Pty Ltd v Canon Finance Australia Ltd [2006] VSC 42 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University Due to the water leak, Maya offered to pay an extra $2,000 to Ria for completing work on time The offer was clear and contained all key details and was communicated to Ria (R v Clarke5) Hence, Maya’s offer was valid However, there is no evidence that Ria actually communicated with Maya about whether she accepted the offer Based on Felthouse v Bindley6, Ria’s acceptance was invalid Thus, no agreement was established and no intention to be bound Ria made an insufficient consideration because solving leak problem is also her contractual obligation imposed by the original contract to get Maya’s house ready, which isn’t beyond the scope of this contract7 Ria’s consideration is invalid Overall, there is no binding contract of paying additional $2,000 Conclusion The binding contract of $35,000 payment exists Ria can’t sue Maya for breaching the modified contract of extra $2,000 payment and Maya had the right not to pay extra fee to Ria Case 2: Andrew v Ria Legal issues The main legal issue is whether Andrew can sue Maya for breaching a contract of purchasing curtains from Fab Curtains? The subsidiary issues are: [1] Whether there was a valid binding contract between both parties [2] Whether the Ibid R v Clarke [1927] 40 CLR 227 Felthouse v Bindley [1862] 142 ER 107 Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University revocation is valid, [3] Whether Ria owed Andrew the money for delivered curtains Rules and Application Same rules are mentioned in case Ria v Maya Ria made an offer of purchasing the No 30679 curtain with a 10% discount in Pab Curtains Ria’s offer was clear, complete and well-communicated9 to Andrew by email Therefore, the Ria's offer was valid Andrew accepted her offer by action of delivering the curtains for discussed price on November Ria explicitly remarked that she needed fabrics in two weeks, and Andrew delivered curtains within 10 days that satisfied the requested schedule Thus, Andrew’s acceptance was effective when the original invoice was mailed on October 28 under Postal rule (Adams v Lindsell)10 His acceptance was certain and complete11; that was communicated12 to Ria on 28 October, expressed in the invoice alongside Hence, the agreement is valid Ria arranged to return curtains on November but Andrew accepted offer on 28 October, so Ria failed to communicate her revocation to Andrew before his acceptance (Dickinson v Dodds)13 Mildura Office Equipment & Supplies Pty Ltd v Cannon Finance Australia Ltd above n R v Clarke above n 10 Adams v Lindsell [1818] 1B & A 681 11 Scammell and Nephew Ltd v Ouston above n 12 Felthouse v Bindley above n 13 Dickinson v Dodds (1876) Ch D 463 9 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University Both considerations were valid as they were sufficient 14 to include all legal values to exchange between two parties Andrew would deliver No.30679 curtains to Ria on time, and Ria would pay the discussed price to Andrew There was an intention to be bound in business context because they engaged in a purchasing agreement All elements are satisfied so this legitimate contract was established Conclusion Andrew can successfully sue Ria for breaching the contract of purchasing curtains from his business Therefore, Ria still must pay money to Andrew for curtains delivered on time from Pab Curtains Case 3: Maya v Duyen I COMMON LAW Legal issues The main legal issue is whether Maya can sue Duyen for breaching the contract of providing food and drinks service? Besides, supplementary issues are [1] Whether there was a binding contract between Maya and Duyen, [2] Whether outside statements can be incorporated as terms into the contract, [3] Whether Duyen breached any the outside statement, [4] Whether the breached term is a condition, [5] Whether disclaimers help Duyen escape liability from breach of contract Rules and Application Formation contract 14 Biotechnology Australia Pty Ltd v Pace above n 10 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University Same to case Ria v Maya, there was a binding written contract between two parties since Maya signed the written contract prepared by Duyen Moreover, Duyen did provide food and drinks on schedule to Maya Breach of contract a Outside statements In this case, there were verbal statements 1st is that no food would contain fishingredient and 2nd is that cleaning-staff would be provided to help Maya after the party Regarding 1st statement, this is a guarantee from Duyen that no food will contain fish (Chandelor v Lopus15), that can be verified easily (Handbury v Nolan)16; communicated via phone-call and agreed by both parties (Causer v Browne)17, before the contract was formed18 Hence, reasonable notice was given Maya stated specific request about no fish in food as her mother would be allergic to fish seriously To ensure her mother’s safety, this statement is very significant, which entitles it to be first exception of PER19 Hence, it is incorporated into the contract as an express term20 The incorporated term was breached because Duyen included fish-ingredient in food 15 Chandelor v Lopus (1603) 79 ER Handbury v Nolan (1977) 13 ALR 339 17 Causer v Browne (1952) VLR 18 Thornton v Shoe Lane Parking (1971) WLR 585 19 Van den Esschert v Chappell [1960] WAR 114 20 L’ Estrange v F Graucob Ltd [1934] KB 394 16 11 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University For 2nd statement, Duyen promises to send cleaning-staff21, that is verified22 and communicated to Maya23 before the contract formation24, expressed a reasonable notice However, it isn’t significant enough for the contract since Maya still enters the contract, even if she knows the cleaning-staff is absent As what Maya really needs is the presence of appropriate food, not cleaning-staff This statement can’t fall into the first exception of PER25 so it can’t be incorporated into the contract as legal term26 b Essentially test Applying “Essentiality test”27, Maya wouldn’t enter the contract if she knew incorporated term would be breached, hence the breached term was a condition that Maya can terminate the contract and claim damages28 c Disclaimer Determining whether three disclaimers in this case satisfy conditions for effectiveness The first disclaimer, involving Duyen being irresponsible for food allergies caused by reasonable substitutive ingredients, is mentioned as a legal term in the written contract29 Maya requests no fish-ingredient food so a reasonable person would know that fish wasn’t reasonable substitution Thus, the breach of the contract went beyond the scope of the disclaimer, making disclaimer be ineffective 21 Chandelor v Lopus above n 15 Handbury v Nolan above n 16 23 Causer v Browne above n 17 24 Thornton v Shoe Lane Parking above n 18 25 Van den Esschert v Chappell above n 19 26 L’ Estrange v F Graucob Ltd above n 20 27 Tramways Advertising v Luna Park (1938) 61 CLR 286 28 Poussard v Spiers and Pond [1876] QBD 410 29 L’ Estrange v F Graucob Ltd above n 20 12 22 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University The second disclaimer for no duty about allergies via email and the third, a sign in “the box”, were also ineffective because they were communicated after contract formation30, so there wasn’t any reasonable notice Besides, the 3rd disclaimer wasn’t a contractual document where a reasonable person is expected to figure out contractual terms Conclusion Maya can sue Duyen for breaching the incorporated term Maya can have some remedies as terminate the contract and require damages, which included $5,000 for her mother’s medical bill Disclaimers were ineffective to protect Duyen from liability for contract breaching Collateral contract Legal issues Whether the collateral contract is valid for the outside statement that can’t be incorporated into the contract Rules and Application The second verbal statement can be enforceable as a collateral contract following De Lasalle v Guildford31 because Duyen promises that she would send people to help Maya clean up However, there was no evidence that providing cleaningstaff was significant enough to induce Maya to enter the primary contract 30 31 Causer v Browne above n 17 De Lasalle v Guildford [1901] KB 215 13 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University Conclusion The collateral contract for the verbal statement of sending cleaning-staff was invalid Hence, Maya can’t sue Duyen under breach of collateral contract since its insignificance Misrepresentation Legal issues The main issue is whether any misrepresentation is valid for Maya to terminate the contract Rules and Application The statement of providing food without containing fish, and sending cleaningstaff after party were false which made wrong material fact, and directly addressed to Maya, after considering Derry v Peek32 However, only statement of no fish in food was important enough to cause Maya to enter into main contract Conclusion Misrepresentation of no fish-ingredient statement is valid and Maya can terminate the contract and claim damages II ACL General protections Legal issues The main issue is whether Maya can sue Duyen under general protection of ACL? 32 Derry v Peek (1889) LR 14 App Cas 337 14 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University Subsidiary legal issues are: [1] Whether Maya was consumer, [1] Whether Duyen’s conduct was misleading or deceptive breaching s18-ACL? [2] Whether Duyen’s conduct was unconscionable under ACL-s20? [2] Whether the unfair term is established under s23 of ACL by Duyen’s business? Rules and Application Disclaimer is ineffective in ACL In this case, Maya had paid $18,000 for food and drinks service supplied by Duyen, which was below $40,000 and Maya acquired it for domestic purposes Hence, Maya is a consumer as per s3-ACL33 and can receive the protections under the ACL Misleading or deceptive conduct Duyen has made a promise to Maya to provide foods without fish-ingredients and cleaning-staff34 Duyen’s business was an ongoing business, operated to earn profits35 Duyen pledged there wouldn’t have fish-ingredients in food and provide cleaning-staff, but the reality is the opposite Applying “Objective test”36, an ordinary reasonable person would be induced to believe Duyen’s statement and enter the error Thus, Duyen has engaged in misleading conduct under s18ACL37 Unconscionable conduct 33 Australian Consumer Law (Cth) section Ibid 35 Ibid 36 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 37 Australian Consumer Law (Cth) section 18 15 34 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University Duyen made clauses that she can replace the substantive ingredient 38, and her business is in trade/commerce (mentioned previously) Maya didn’t read the last page of the contract so she didn’t know it authorized Duyen to reasonably substitute ingredients in her judgment This is Maya’s weakness because she lacks contract information to deal with Duyen However, there was no evidence that Duyen was aware and took advantage of Maya’s weakness Hence, Duyen didn’t engage in unconscionable conduct under s20-ACL39 Unfair term The clause given by Duyen that she had the right to terminate the contract if she could not prepare enough food for the party, expressed unfairness that caused a significant imbalance in the party’s rights and obligations when the mistake was caused by business Furthermore, there was a standard form contract since it was prepared by Duyen and accepted by Maya Under s23-ACL 40, unfair term was established Remedies: Maya can sue the business, terminate the contract with Duyen (s237ACL41) and aware damages under s236-ACL42 Conclusion Maya can successfully sue Duyen for general protections under s18 about misleading or deceptive and s23 regarding unfair terms in ACL Specific protections 38 Australian Consumer Law (Cth) section Australian Consumer Law (Cth) section 20 40 Australian Consumer Law (Cth) section 23 41 Australian Consumer Law (Cth) section 237 42 Australian Consumer Law (Cth) section 236 39 16 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University Legal issues The major issue is whether Maya can sue Duyen under the specific protection of ACL? secondary legal issues are: [1] whether the consumer service contract exists?, [2] Whether Duyen breached the guarantees under s60-ACL?, [3] Whether Duyen’s service violates any disclosed purpose under s61-ACL? Rules and Application Under s23 (3)-ACL43, there is a consumer service contract because Duyen supplied food and drinks service to Maya44, as a part of her ongoing business45 (mentioned previously) and this is consumer service with $18,000 payment (less than $40,000), acquired for domestic use46 Duyen supplied food with inaccurate state for the consumer, causing her poison since she negligently forgot to preserve foods in the fridge Hence, Duyen breached s60-ACL47 about due care and skill guarantee Duyen breached the guarantee under s61 of ACL48 because she supplied fishbased food and failed in sending cleaning-staff, which dissatisfied Maya’s disclosed purpose before signing the contract Remedies: The failure providing unsafe foods including both rancid food and fish-ingredient food, was critical enough that a reasonable person wouldn’t enter the contract if she identifies failure, it become a major failure under s260-ACL49 43 Australian Consumer Law (Cth) section 23 (3) Australian Consumer Law (Cth) section 45 Ibid 46 Australian Consumer Law (Cth) section 23 (3) 47 Australian Consumer Law (Cth) section 60 48 Australian Consumer Law (Cth) section 61 49 Australian Consumer Law (Cth) section 260 44 17 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University Therefore, Maya can require a refund deposit of $1,000, and claim recovery for her damages.50 Conclusion Maya can successfully sue Duyen for breaching guarantees of specific protections under ACL-s60 and s61 TASK 2: CASE NOTE QUESTION Introduction This case “Nguyen and Sy v The Trustee for the Nero CKD Unit Trust t/as View by Sydney [2017] NSWCATCD 98” was judged by G.J Sarginson on 31 October 2017 Identification of legal issues Applicants were Anh-Lan Nguyen & Walter SY, and the respondent was The Trustee for the Nero CKD Unit Trust t/as View by Sydney, with Ms Hobbs as respondent representative Applicants held a wedding reception on 15 January 2017, for which the respondent was the event organizer There was a water leak when the wedding reception happened that caused inconvenience and dissatisfaction for applicants and their guests The applicants argued that due to respondent’s bad service, their wedding was delayed and more costly for photographs, they can sue respondents and seek damages of $20,000 50 Australian Consumer Law (Cth) section 259 18 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University The case’s primary legal issues were whether the consumer service contract exists, whether the respondent breached consumer guarantees under s6051 and s6152 of ACL The subsidiary was whether plaintiff have any remedy under s26753, s23654 and s1655 established in ACL Critical analysis of the judge’s application of the legal rules to solve the legal issues Firstly, it’s important to determine a consumer service contract's existence before applying consumer guarantees The Judge only examines whether the plaintiff is a consumer under s356-ACL To apply consumer guarantees, the Judge should mention elements of a consumer service contract under ACL’s s23 (3)57 Particularly their business is ongoing, the payment of wedding reception is $13,043.06 (less $40,000) and used for personal purposes According to s6058-ACL rules, all service providers must use acceptable skills and take all necessary care to avoid damages when providing services to satisfy due care and skill guarantee In this case, the respondent tried to alleviate the effect of the water leak on events by reasonable conducts as use bucket to collect dripping water or put tablecloth on the floor to absorb water Hence, I agree with the Judges that there was no breach under s60-ACL by the respondent Australian Consumer Law (Cth) section 60 Australian Consumer Law (Cth) section 61 53 Australian Consumer Law (Cth) section 267 54 Australian Consumer Law (Cth) section 236 55 Australian Consumer Law (Cth) section 16 56 Australian Consumer Law (Cth) section 57 Australian Consumer Law (Cth) section 23 58 Australian Consumer Law (Cth) section 60 51 52 19 LAW2447_ Assignment 3_Individual Written Assignment_ RMIT University The judge applied ACL’s s6159 to determine whether respondent breached the guarantee for applicant’ disclosed purpose Applicants implicitly disclosed that they wanted the wedding to run on a reasonable schedule at the venue without water leak However, the wedding reception happened in an unexpected state since the venue had a water leak significantly, creating a significant delay (for hours) and inconvenience for guests Obviously, services supplied by respondent didn’t satisfy the applicants’ disclosed purposes under s6160-ACL Hence, I agree with the judgment that respondent breached the consumer guarantee under s61 61ACL After considering legal rules in s267(1)(c)(i)62-ACL, this is a logical and convincing decision from the judge when deciding the plaintiff is not allowed to be aware of damages because the respondent didn’t breach s6063-ACL I disagree a successful refund for plaintiff under s236 64 from Judge’s decision because under s23665, applicants must loss or damage due to the conduct of respondent but the water leak wasn’t failure of defendant About s1666-ACL, I agree with judgment that no damages can be awarded following “non-economic loss damages” standards If applicants know about failure, they wouldn’t enter the contract so the failure is major I agree with the judges that applicants can receive refund, but can’t reject Australian Consumer Law (Cth) section 61 Ibid 61 Ibid 62 Australian Consumer Law (Cth) section 267 (1) 63 Australian Consumer Law (Cth) section 60 64 Australian Consumer Law (Cth) section 236 65 Ibid 66 Australian Consumer Law (Cth) section 16 59 60 20