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Question 1 (i) Chapter 8 of the Australian Constitution which is the Alteration of the Constitution, has only one section. Section 128 is the section that describes a basic procedure for altering the Australian Constitution. Under this section, the proposed amendments required to be passed by the both the House of Representatives and the Senate in Australia with an absolute majority votes. This has to be done in order for the approval at the national referendum. A majority of the total commonwealth electorate and electors in major number of states needs to approve the referendum.
Question 1 (ii)
One of the distinguishing features of the general law is that judges decide cases according to the doctrine of precedent. This rule simply states that cases involving the same essential or material facts is bound by the decisions of the higher courts or in the same judicial hierarchy. This is called the doctrine of stare decisis. Therefore, the judge of the Supreme Court in New South Wales is bounded by the decisions of the high court in Australia. Although this is a simple enough rule to understand it is not in all circumstances that one case will be a precedent for another. The High court is the highest court in Australia. Hence, the decision
In general, there must be some key elements in presence before a case to be decided a precedent for another case will be the following factors: (a) the material facts must be the same; and (b) the court whose previous decision is relied upon must be a higher court in the same legal system or hierarchy of courts as the court the present case is before. That is, the doctrine of precedent is limited by the legal system a court is in. Thus a court in one legal system generally must follow a decision of a higher court in the same legal system or hierarchy of courts. Decisions of courts in one legal system may
well be persuasive but are not technically binding on a court in another legal system. For example, while a single judge in the NSW Supreme Court will be bound by the NSW Court of Appeal or Full Court of NSW but will not be bound to follow a decision of the Full Court of the Victorian Supreme Court. In order to apply a precedent it is necessary to find out what the precedent in each particular case is. It is not the whole judgment in a case that creates a precedent. The precedent or ratio decidend (often simplified to "ratio" ) in a case is the reason(s) that the judge gives for making the decision. It is only this part of a case that creates binding law. Comments made by the judge on legal principles that are not the deciding factor in the case are not binding - such comments are called obiter dictum (singular) or obiter dicta (plural).
Question 1 (iii)
Australia is a federation and legislative power is distributed between the Commonwealth and the States. Section 51 enumerates areas of Commonwealth power. These powers are concurrent, and states can legislate on them, or on any topic not specifically prohibited them by the Constitution. The concurrent powers are set out in the many “placita” (singular is “placitum”) within section 51 of the Commonwealth of Australia. The following are examples of the concurrent powers, in which both the Commonwealth and the States may make laws.
Taxation - s.51(ii) Corporations - s. 51(xx) External Affairs - s. 51(xxix) Defence - s. 51(vi) Marriage - s. 51(xxi)
When a State and the Commonwealth each make a law, the one inconsistent with the other, a mechanism is needed to resolve the conflict. Such conflict is dealt with in section 109 of the Constitution of the Commonwealth of Australia, which states as follows:
In criminal law. The vast difference between the two standards is because the punishment is far greater for the criminal act than the civil action. In civil law the standard of proof is by preponderance of the evidence. Each of these three situations requires a different kind of analysis. Standard of Proof is defined as the amount of evidence to be presented by the plaintiff to win the case. the latter shall prevail. Question 1 (iv) a) Federal Court of Australia b) High Court c) Small Claims Division of The Local Court d) Supreme Court Question 1 (v) Civil law and criminal law have certain bedrock principles. 109. "When a law of a State is inconsistent with a law of the Commonwealth. and the former shall. the processes leading to the trial are the most notable differences. be invalid. . One law confers legal right and the other takes it away. but they also differ in various ways.S. the state law stops operating and the commonwealth law is valid and applicable. However. Justice Higgins set out three broad categories of “section 109 inconsistency”: When it is impossible to obey both laws.” In Clyde Engineering Ltd v Cowburn (1926) 37 CLR 466 at 500. in each case. to the extent of the inconsistency. However. to the extent of the inconsistency. which means that the evidence presented creates one clear deciding factor for the judgment to be rendered. but the defendant. When the Commonwealth law evinces an intention to cover the whole field. the judge or jury must believe beyond a reasonable doubt that the defendant was guilty of the act This means. Some of the similarities involve the steps taken before and during a trial. there is almost no doubt that anyone else could have committed the crime.
unless it can be shown to have been executed under such circumstances as preclude the formation of contract. A written contract not under seal (informal contract). and accepted by the other party by performance on his part. . The distinction is important because accepting an offer creates a binding contract while "accepting" an invitation to treat is actually making an offer. Even where statutory requirements for writing exist. however. as well as in the writing. is not the contract itself. or to have been delivered to a third person under conditions which have remained unfulfilled. as under the statute of frauds. The purpose of the Statutes of Frauds is to prevent fraudulent claims from arising. therefore. or partly by one and partly by another of these processes. A written offer containing all the terms of the contract. but only evidence of the contract. Although the laws vary from state-to-state. the writing is nothing more than evidence of the agreement. But in so far as they have reduced their meaning to writing they cannot adduce evidence in contradiction or alteration of it. They put on paper what is to bind them. so that the deed is no more than an escrow. the most contracts must be in writing in order to be enforced legally. and so make the written document conclusive evidence against them. it is optional with the parties to express their agreement by word of mouth. and the difference can sometimes be difficult to determine. . These actions may sometimes appear to be offers themselves. by action. if the instrument is proved.a record of the contract. or by writing. 2) A contract under seal (formal contract) derives its validity from the form in which it finds expression. that a simple contract may have to be sought for in the words and acts. signed by the proposer.QUESTION 2 1) Most states have laws (called "Statutes of Frauds") listing the types of contracts that must be written in order to be enforceable. is enough to enable the latter to sue under the statute of frauds. the contract is proved. of the contracting parties. therefore. And where there is no such necessity for writing. 3) An invitation to treat is an action inviting other parties to make an offer to form a contract. It is always possible.
However. Genuine consent to enter into a contract can be affected by a number of issues. 6) The trade of restraints is enforceable if they are reasonable in between the point of view of parties and in the public interest. Otherwise it will be considered void. This type of term in a . Maher had reasonably relied on Waltons’ representations and had suffered a significant loss as the lease agreement was not enforced. Auctions are sometimes invitations to treat which allows the seller to accept bids and choose which to accept. there may have been undue influence. Maher successfully won the case as he was able to use the promissory estoppels to enforce a non-contractual obligation between him and Waltons. Therefore the Court held that Waltons had an obligation to inform Maher within a reasonable time after receiving the signed contract that it did not intend to proceed. Advertisements can also be considered offers in some specific cases. during the contractual negotiations. the auction will be considered an offer accepted by the highest bidder. This is the issue that is faced by Maher in this situation. 4) In the case Walton v Maher.Advertisements are usually invitations to treat. misrepresentation or duress. which allows sellers to refuse to sell products at prices mistakenly marked. The court will examine the clauses in order to: Type of trade or business Geographical extent Duration 7) An exclusion clause is a clause in a contract which excuses a party to the contract of liability in situations covered by the exclusion clause. mistake as to the terms and identity of the person. if the seller states that there is no reserve price or the reserve price has been met. For example. 5) A party's genuine consent is an essential element of a legally binding contract. promissory estoppels operate to prevent a party from breaking a promise without consideration if this would be a grossly unfair or a promise believed the promise and will suffer loss.
gives rise to a claim for damages. car. if necessary. If a contract has exclusion clauses. before agreeing to the contract. is part of the root of the contract and allows the injured party to rescind and/or seek damages. however. a warranty. business. where a seller sold a stolen motor vehicle. In a simple example of an exclusion clause. Rowland v Divall  2 KB 500. 8) In a contract for the sale of goods. and health insurance. once breached. Someone who burns a house down by leaving a lit candle on the table. could not file a claim because the insurance company would not be liable for the damages. These are deemed legal uses of this type of clause because they protect the insurer from unreasonable risk. but not a right to reject the goods sold and treat the contract as repudiated. an insurance company could say that it will not provide coverage in the event of negligence.g. -A warranty of quiet possession. This right arises because the seller is the owner of the goods or because the seller has the authority to sell the goods as the owner’s agent. it is important to get familiar with them before signing and to contest them. then the buyer has the benefit of the following five implied terms. defining situations in which the insurer is not liable. for example. 9) Section 6 of the Act defines a contract for the sale of goods as: “a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration called the price”. If a contract comes within the above definition. e. ~ Title -A condition that the seller has the right to sell the goods.contract can be illegal in certain settings. A condition. Exclusion clauses can be seen on home. it may be in common and widespread use. while in other cases. .
For the meaning of a “sale by description” see Ashington Piggeries Ltd. such as a charge or bill of sale. v Christopher Hill Ltd  AC 441. Dictating how a job is to be done or limiting the actions of the worker may establish an employer-employee relationship. ~Description A condition that the goods shall correspond to their description or if a sale by sample and description. shall correspond to the description and that the bulk shall correspond to the sample. ~An independent contractor: Operates under a business name Has their own employees Maintains a separate business checking account Advertises their business' services Invoices for work done Has more than one client Has their own tools and sets their own hours Keeps business records ~An employee: Performs duties dictated or controlled by others Is given training for work to be done Works for only one employer QUESTION 3 .-A warranty that the goods are free from any encumbrances. 10) Whether a person is an independent contractor or an employee generally depends on the amount of control exercised by the employer over the work being done. For example see Beale v Taylor  3 ALL ER 253.
According to the contract law. It is also a question whether Rat is liable in this situation or not.The facts of the problem need to be considered in relation to the law of contract. A dispute arises in between four of them. The case can be solved by referring to the case. the defendant is liable and have to share the winning amount equally among the three of them as there was a contract formed even though it was not a written agreement but the intension have been expresses by three of them. . In detail. When Rat. one of the workmates won a large sum of $2million he refused to share it equally among the four of them. refused to share it with the other two contributors claiming there was no intention to create legal relations. They all contributed one-third of the stake in entering a competition in the defendant's name. in whose name the entry was submitted. and the plaintiff. Simpkins v Pays  1 WLR 975. the workmates also expressed their intention and agreed to form a lottery syndicate. Referring to the case which has an almost same situation as the problem stated in the question. They also agreed consciously to share the winnings equally and did share certain small amounts that was won a several times after the agreement. The entry won a prize and the defendant. Rat. a dispute arises and the problem have to be solved. When Rat won an amount of $2 million and he refuses to share. It was a joint enterprise to which each contributed in the expectation of sharing any prize that was won. Badger and Mole have legal intention to be legally bound in this agreement to form a lottery syndicate. As time goes. There was a contract. They also agreed to take turns to buy lottery tickets each week and to share any winnings equally among the four of them. According the problem stated in the question the four workmates have expressed their intention to form a lottery syndicate. The facts of the case was the defendant. they won small amounts several times and did share the winnings equally. The issue was is there an understanding between the parties that their agreement amounted to a contract? The court held that. the workmates must have legal intention to be bound legally bound by writing or expressing their intention to enter into the agreement. Whereas in the problem given in the question. the main issue of the problem in the question is whether Toad. a paying lodger shared a house. The entries were made in one name only. her granddaughter.
each party is discharged from future obligations under the contract and neither party may sue for breach. When a contract is found to be frustrated. in social agreements there is a presumption that the parties did not intend to be legally bound. The offer and acceptance formula. It was held that. The key case is Krell v Henry (1903) (2 KB 740). The procession was cancelled and the plaintiff sued for the rent. This classical approach to contract formation . developed in the 19th century. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943. Offer and acceptance analysis is a traditional approach in contract law used to determine whether an agreement exists between two parties. despite the fact the room was available. The contract may then be set aside. Frustration occurs in cases where an unanticipated event makes the contract impossible to perform or it is something fundamentally different from that envisaged. The contract was frustrated. The plaintiff let a flat to the defendant on a particular day so that he could watch the coronation of Edward VII. A contract is said to come into existence when acceptance of an offer (agreement to the terms in it) has been communicated to the offerer by the offeree and there has been consideration bargained-for induced by promises or a promise and performance.Comparing the problem with the case facts of Simpkins v Pays  1 WLR 975 which is loosely based on. The court would most probably hold that the presumption is rebuttable as the court has enforced lottery syndicates between friends and workmates. Agreement consists of an offer by an indication of one person (the "offerer") to another (the "offeree") of the offerer's willingness to enter into a contract on certain terms without further negotiations. the cancellation of the coronation fundamentally affected the basis of the contract and the defendant did not have to meet the claim. QUESTION 4 Part 1 If a contract cannot be completed due to circumstances beyond the control of either party. identifies a moment of formation when the parties are of one mind. it will be considered discharged by means of frustration.
but after a few days of ordering the local council declared her suburb a smoke free area which was an unforeseeable event and beyond the control of both parties. This would be an example of frustration of that part of the contract and no breach would be held as long as the goods were delivered at the nearest possible time. Part 2 My answer would still remain the same even though its recorded in an answering machine and have been recorded in the order book by the Great Choppers because the situation have been frustrated as the local council announced Sophie’s suburb as a smoke free area out of a sudden. . a contract become unenforceable. i.has been weakened by developments in the law of estoppel. It is beyond the control of Sophie. her suburb was still not announced as a smoke free area. misrepresentation and unjust enrichment. Frustration is an act outside the contract that makes it completion impossible. In some cases. Hence Sophie will still not be liable in this situation too. Due to the presence of a sudden frustration the contract have been discharged and hence Sophie is not legally obliged to take the delivery of the wood and pay for the order.e. Great Choppers also did not inform Sophie before writing down in their order book. third parties etc. nature etc. a good example of this is in marine contracts where a delivery is specified for a certain date and time but the crossing is so bad that the delivery cannot be made on time. impossible to perform. Other examples of what may frustrate a particular contract may also be present also. Frustration of a contract and what it constitutes is usually seen via exclusion clauses. misleading conduct. Therefor the Great Choppers cannot sue Sophie for what has happened. unforeseen acts. such as advising that liability will not be held for incomplete contracts or damage due to acts of God. illegal or futile due to unexpected or unforeseen event that happened after the contract was made. This is known as a frustration. When Sophie ordered wood from Great Choppers. Great Choppers will still not be able to sue Sophie for damages.
and whether the minor may avoid the contract depends on the nature of the contract. marriage and partnerships. Minors are permitted to enter into contracts for limited purposes. such as shares. The general law states that contracts entered into by children that are for 'necessaries' are binding on children. employment. . which includes contracts for debts and the sale of goods that are not for necessaries. even if they would be enforceable against an adult. land. and the test is one that focuses on the nature of the transaction. Fresh consideration is not required for the ratification to be complete. Minors are those who have not attained the age of 18. A Court may also confirm contractual capacity on a minor (s 26). One of those exceptions is for minors. Contracts for minors are generally necessaries like supply of food. however this was reduced to the age of 18 in 1969 by Act of Parliament. and whether the minor is of an age such that they capable of understanding it. As a general rule a minor is not bound by a contract except as provided by the Act (s 17). as are those for apprenticeship. Restraints of trade may be unenforceable against a minor. It is a presumption at law that every person is entitled to enter into a contract unless an exception applies. The age of contractual capacity for individuals is the age of 21 at common law. Reaching the age of 18 is known as attaining 'majority'. The ratification must take the form of an acknowledgement that the debt is binding after attaining the age of 18. Contracts where the minor may avoid the effect of the contract are for the acquisition of a legal or equitable interest in property of a permanent nature. amongst other things but generally it excludes supplies of convenience. Minors may also affirm acts when attaining the age of capacity (s 30). accommodation. Beneficial acts are presumptively binding (s 19). Section 8 defines a minor as a person under 18 years of age. Other contracts require positive ratification in order to be enforceable. education and service where they are rightly said to be for the benefit of the child. Commercial or 'trading' contracts are excluded. These latter contracts are voidable at the option of the minor. clothing. medicines.Question 5 Under Minors (Property and Contracts) Act 1970 (NSW). and products and services for comfort or pleasure.
literacy of the parties. compliance with any or all of the provisions of the contract. whether or not legal or expert advice was sought. non-compliance with. relative economic circumstances. As a minor. harsh or oppressive. Archie may be lack of necessary understanding because of his youth. an IPhone is not a necessity for him and does not benefit him from a reasonable person’s point of view. the court would most probably held that Archie who is a 16 year old boy is not a major yet. educational background. or b. where relevant. QUESTION 6 Contracts Review Act. In the age of 16. The CRA operates concurrently with the Uniform Consumer Credit Code. including such consequences or results as those arising in the event of: a. Sub-section 9(1) of the CRA sets out the matters which the court must consider in determining if the contract or a term is unjust: the public interest and … all the circumstances of the case. but also substantive issues such as: .Referring to the Sections and Act above. “Unjust” is defined as include[ing] unconscionable. Therefore. Archie is not legally liable to pay the huge debt to STAR-fone as the contract formed between Archie and STAR-fone is void. or contravention of. under sub-section 9(2) is also to have regard to procedural issues such as material inequality of bargaining power. any unfair pressure. 1988 (NSW) provides that a court can grant relief in relation to a consumer contract if it finds the contract or a provision of the contract to have been unjust in the circumstances relating to the contract at the time it was made. any or all of the provisions of the contract. Hence STAR-fone should be aware that Archie is still a minor and does not have a legal capacity to enter into contract that does not benefit the minor. The court. too.
Where the court finds a contract or a provision of a contract to have been unjust. the bank tried to enforce the guarantee but the Amadios claimed that the guarantee was unconscionable and therefore unenforceable. if it considers it just to do so. the bank hadn't encouraged them to seek independent advice. the compensation of a person who is not a party to the contract and whose interest might otherwise be prejudiced by a decision or order under the CRA. because the Amadios understood little English. for the disposition of property. and d. where the contract is wholly or partly in writing. When making an order under section 7 it may also make orders. vary any provision of the contract. third. second. in whole or in part. the payment of money (whether or not by way of compensation) to a party to the contract. inter alia. For example in the case of Commercial Bank of Australia Limited v Amadio (1983) 151 CLR 447. the bank did not tell the Amadios that there was no limit on their liability under the . in whole or in part (effective from the time of the making of the contract unless otherwise specified). the bank knew that the son's business was faltering and they also knew that the Amadios were not aware of this fact. A person’s rights under the Act cannot be excluded or restricted in any way. and the intelligibility of the language in which it is expressed.c. or require execution of an instrument that varies or terminates a land instrument (section 7). and the supply or repair of goods or the supply of services. Sub-sections 9(2) (c) and (d) in particular lean towards the substantive. it may. declare the contract void. and for the purpose of avoiding as far as practical an unjust consequence or result: refuse to enforce any or all of the provisions of the contract. the physical form of the contract. First. The CRA is not limited to “standard” terms although whether a term was negotiated or not is a consideration for the court. When their son's business collapsed. whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract. fourth. The court took the view that it was unconscionable for the bank to rely on the guarantee on four grounds. The Amadios guaranteed their son's debt to the Commercial Bank by providing the bank with a mortgage over one of their properties.
a court of law will consider evidence that one party to the contract took advantage of its superior bargaining power to insert provisions that make the agreement overwhelmingly favor the interests of that party. Therefore they did not fully understand the extent of their liability under the guaranty given by them to their son. Upon finding unconscionability a court has a great deal of flexibility on how it remedies the situation. However. and Mrs. interest payments. such a contract is held to be unenforceable because the consideration offered is lacking or is so obviously inadequate that to enforce the contract would be unfair to the party seeking to escape the contract. Wings will not be liable as the guarantor as both of them have been misled by their 25 year old son. Damages are usually not awarded. superior bargaining position or knowledge. It may refuse to enforce the contract. In and of itself. The substantive problem will usually be the consideration. In this instance. and other circumstances surrounding the bargaining process. Procedural issues that a court could consider include a party's lack of choice. The principle established in this case was that relief on the ground of unconscionable conduct will be allowed when unfair advantage is taken of an innocent party. Usually for a court to find a contract unconscionable the party claiming unconscionability will have to prove both that there was a problem with the substance of the contract and the process through which that contract was formed. the courts will set aside the contract or refuse to order specific performance of it. but could also be the terms. Typically. The court . They are not liable because neither parent had a good understanding of English language nor they did receive any independent legal advice from a legal person.guarantee. Mr. Referring to the discussions above. or other obligations the court finds unfair. refuse to enforce the offending clause. inadequate consideration is likely not enough to make a contract unenforceable. or take other measures it deems necessary to have a fair outcome. Unconscionability or unconscientious dealings is a term used in to describe a defense against the enforcement of a contract based on the presence of terms that are excessively unfair to one party.
The court took the view that it was unconscionable for the bank to rely on the guarantee on certain grounds. no matter what form it may take. Breach of contract may be either actual or anticipatory. Anticipatory breach occurs where one party announces. The second repudiatory breach occurs where the party in default has committed a breach of condition. that he intends not to perform his side of the bargain.would most probably grant them a relief based on the above reasons. QUESTION 7 A breach of contract occurs when a party to a contract fails to perform precisely and exactly. in advance of the due date for performance. The principle established in this case was that relief on the base of unconscionable conduct will be allowed when unfair advantage is taken on the innocent parties. because the pair have no good understanding in English. A breach of contract. the failure to supply goods or perform a service as agreed. Wings that there was no limit on their liability under the guarantee. his obligations under the contract. second. always entitles the innocent party to maintain an action for damages. the bank did not tell Mr. This can take various forms for example. the court would highly set aside the contract or refuse to order specific performance of it. and Mrs. Actual breach occurs where one party refuses to form his side of the bargain on the due date or performs incompletely. First. the bank hadn't encouraged the couple to seek independent advice from a legal person. The third repudiatory breach is where the party in breach has committed a serious (or fundamental) breach of an innominate term or totally fails to perform the contract. A repudiatory breach does not automatically bring the contract to an end. The innocent party has two options: He may treat the contract as discharged and bring an action for damages for breach of contract immediately. Renunciation occurs where a party refuses to perform his obligations under the contract. . but the rule established by a long line of authorities is that the right of a party to treat a contract as discharged arises only in three situations. In this situation. third.
is another example of an equitable remedy. Sometimes damages are not an adequate remedy and this is where the equitable remedies (such as specific performance and injunction) may be awarded. It is a common law remedy that can be claimed as of right by the innocent party. The judge then uses his discretion to decide what is and isn't fair. In order to recover substantial damages the innocent party must show that he has suffered actual loss. There are also several other remedies considered equitable.In common law. 341. Another good example of an equitable remedy is equitable estoppel which means that the defendant may be stopped or prevented from doing something if it wouldn't be fair. and what each person's state of mind and behavior was. The facts of the case was that a shaft in Hadley’s (P) mill broke rendering the mill . One of them is remoteness are for what consequences of the breach is the defendant legally responsible? The measure of damages are the principles upon which the loss or damage is evaluated or quantified in monetary terms. Generally. They are also available to prevent unjust enrichment. In equity law. Specific performance. 145 (1854). Baxendale. The second consideration is quite distinct from the first. The major remedy available at common law for breach of contract is an award of damages. which mandates that the terms of a contract actually be fulfilled. damages is the basic remedy available for a breach of contract. In making an award of damages. The object of damages is usually to put the injured party into the same financial position he would have been in had the contract been properly performed. Equitable remedies look at how the defendant acted. Rep. 9 Exch. and can be decided by the court only after the first has been determined. 156 Eng. how the plaintiff acted. the court has two major considerations. the equitable remedies are Equitable remedies are available if there has been a breach of contract that cannot be adequately compensated by a legal remedy. See for example the case of Hadley v. if there is no actual loss he will only be entitled to nominal damages in recognition of the fact that he has a valid cause of action. This is a monetary sum fixed by the court to compensate the injured party. the remedies are any non-monetary or noncriminal remedies or penalties imposed by the judge to try to make the situation right.
Hadley told Baxendale that the shaft must be sent immediately and Baxendale promised to deliver it the next day. then any breach of the contract would result in damages that would naturally flow from those special circumstances. The court held that if there were special circumstances under which the contract had been made. The court held that in this case however the rule should be that the damages were those fairly and reasonably considered to have arisen naturally from the breach itself. Baxendale was negligent and did not transport the shaft as promised. the plaintiff is placed in the same position she would have been in had the breaching party performed.e.inoperable. Hadley hired Baxendale (D) to transport the broken mill shaft to an engineer in Greenwich so that he could make a duplicate. and these circumstances were known to both parties at the time they made the contract. i. causing the mill to remain shut down for an additional five days. Baxendale did not know that the mill would be inoperable until the new shaft arrived. . The issue of the case was what is the amount of damages to which an injured party is entitled for breach of contract? The court held that the usual rule was that the claimant is entitled to the amount he or she would have received if the breaching party had performed. Hadley had paid 2 pounds four shillings to ship the shaft and sued for 300 pounds in damages due to lost profits and wages. or such as may be reasonably supposed to have been in the contemplation of both parties at the time the contract was made. Under this rule. Hadley would have been entitled to recover lost profits from the five extra days the mill was inoperable. The jury awarded Hadley 25 pounds beyond the amount already paid to the court and Baxendale appealed.
Apart from that. Ledger and Co can apply an injunction to prohibit Maurice from attending the same seminar on 12 August for the rival accounting firm. the court would most probably held that Maurice can be sued for damages as he breached the contract and the damages that was suffered by Ledger and Co. He refused to carry on with the public seminar he was supposed to present on 12 of August. The court held that in this case Baxendale did not know that the mill was shut down and would remain closed until the new shaft arrived. Moreover. Due to the refusal from Maurice. breach and damage have to be discussed in order to answer whether the Shopping Centre in Sydney is liable or not in this situation. the reputation of Ledger & Co also been effected because of the breach contract by Maurice. Not only that. the accounting firm has to refund the amount paid for the tickets. On the other hand. The court ruled that the jury should not have taken the loss of profits into consideration. there was a contract formed between the both parties Ledger and Co and Maurice. is foreseeable by a reasonable person. Hence. he also accepted the offer from the rival party on the same day itself which was August 12. It was breached by Maurice. Loss of profits could not fairly or reasonably have been contemplated by both parties in case of a breach of this contract without Hadley having communicated the special circumstances to Baxendale.Damages for special circumstances are assessed against a party only when they were reasonably within the contemplation of both parties as a probable consequence of a breach. In the problem given. . duty of care. QUESTION 8 Part 1 Issues like negligence. the company also lost a large sum of money by hiring a theatre and advertising in the newspaper for the seminar.
the existence or extent of any cleaning system. In some instances. negligence is determined by failure to comply with the statutory requirements. There is no liability in negligence unless there is a duty to take care." however. Such duties are widely recognised. referred to as negligence per se. This establishes the necessary link between the claimant and the defendant. a trier of fact needs to determine what a "reasonable" person would do or not do in the given situation. A person is negligent if he fails to act as an ordinarily prudent person would act under the circumstances. In such cases. the frequency with which spillages occur or the place gets wet due to rain. caused by his or her negligence. known about or complied in negligent acts. Every person is responsible for injury to the person or property of another. ." Passive negligence is usually defined as mere failure to act. Negligence per se may also be declared when a person does or omits to do something which is so beyond reasonable behavior standards that it is negligent on its face. In cases of doubt the modern test is whether there was foreseeability and proximity and it was fair. She slipped and suffered from a fractured leg due to the wet floor. What constitutes negligence will depend on the facts of each individual case. Courts often construe general indemnity provisions as granting protection to people only from damages caused by their "passive negligence. Generally. such as failing to discover a dangerous condition or to perform a duty imposed by law. "Active negligence. occurs when someone has personally participated in an affirmative act of negligence. The duty of care required by the occupier of the premises to avoid or minimise the risk of injury to occupiers depends on the particular circumstances of the case. the gravity of the danger. Negligence may consist of action or inaction. the size of the area to be supervised and any explanation (or absence thereof) by the occupier. the number of people using the premises. Relevant considerations include the nature of the premises. negligence is defined by statute. or failed to perform a precise duty which he/she agreed to perform.The facts of the problem in the question are Sarah slipped down on the wet floor when she was trying to chase her two years old daughter who was trying to run away. Negligence is the failure to use reasonable care.
whether personal harm or property.20am on a Monday. some of the main changes are the Act contains statements of general principle on matters that the court has to take into account and that may excuse someone who might otherwise have been liable there may be no liability where the risk of injury was obvious. then the plaintiff should not sue in tort of negligence. The Plaintiff slipped not far inside the automatic doors giving entry from the outside car park to the concourse of the shopping centre at about 8. · The Court held that:- “In wet weather water would get on to the floor inside the automatic doors through which the Plaintiff entered and give rise to a risk of customers slipping. 27 November 2000). There are a number of other provisions in the Act that may be relevant in deciding whether someone can be sued for negligence in a particular personal injury case. which had to be guarded against. If there is no damage. The Defendant was the occupier of the Pialba Place Shopping Centre at Hervey Bay. an injury occurred as a result of ‘the materialisation of an inherent risk of injury’ (that is. The Act is complex. The Civil Liability Act 2002 has modified the way in which liability for negligence is determined in many cases. Ultimately the Court accepted that the Plaintiff had slipped on water which had been walked into the centre. something happened that could not be avoided by the exercise of reasonable care and skill) there may be no liability where the person was involved in a recreational activity and the risk of injury in the activity was obvious. It was raining outside at the time. or a warning of the risk was given. Damages is that the plaintiff must suffered loss or damages. The floor was polished terrazzo of creamy colour which it was agreed would be slippery when wet. Water was also not easily detectable on this type of floor. The precautions available included constant mopping of the floor (to . An example of case that coincides with the situation is Scott v Patterdale Pty Ltd (Queensland District Court. No one at the time was able to identify any substance or particularly slippery area on the floor which might have explained the accident.just and reasonable to impose the duty. Briefly.
He owes duty of care towards all the customers that enters his shopping centre. given the large size of the Pialba Centre. the exigencies of the job. might preclude this. such as spills or messes elsewhere. the court would most probably hold that the owner of the shopping centre owes a duty of care towards Sarah who is a customer because it is reasonably foreseeable that the negligence would likely to injure the plaintiff. 1 think the deficiency which leads to the Defendants liability was in its system and that it. The Court found against the Defendant shopping centre owner that the Defendant issued third party proceedings against the cleaners asserting a failure by the cleaners to comply with their contractual obligations as cleaners of the Centre to keep the Centre in such condition as to be safe for the use of members of the public. With regard to the third party claim the Court said:“It seems to me to have been established that during the relevant day shift.7m mat placed to straddle both sides of the automatic door with long runners hired from a local dry-cleaner. 2m x 1. I do not think the third party was in any sense guaranteeing or committed to achieving a Pialba Centre which was safe for the public.the extent that the Defendant on some days might engage a person over and above the ordinary cleaning staff to attend to it). The likelihood of water being “tracked” onto the terrazzo floor in all kinds of ways including by shopping trolleys and by dripping .from customers clothing and umbrellas was well known to the Defendant and furthermore I would think is notorious generally”. According to the case that has been cited above the defendant which is the owner of the Shopping Centre in Sydney has also been negligent in carrying own his duty. bears responsibility for the deficiencies”. In a nut shell. only one cleaner was to be provided. placement of at least one of the now familiar yellow cones which warn of a slipping hazard. What he or she could achieve was necessarily limited. While there might have been an expectation that cleaning staff would get to the Hunter Street entrance roughly every 15 minutes. and not the third party. the owner of the shopping . and replacement or supplementation of the usual 1. Besides that.
A statement of opinion may be treated as a statement of fact if it carries the implication that the person making it has reasonable grounds for his opinion. . Second is to reduce rights for criminals. A negligent misstatement is only actionable in tort if there has been breach of a duty to take care in making the statement that has caused damage to the claimant. Part 2 One of the significant reform (change) to the common law introduced by the Civil Liability Act. the topic of negligent misstatement have to be raised and discussed. There is no general duty of care in making statements. A false statement of fact made honestly but carelessly. QUESTION 9 Part 1 As stated in the problem that given in the question. intoxicated persons and nervous shock claimants. Responsibility for negligent misstatements is imposed only if they were made in circumstances that made it reasonable to rely on them. Third is saying “sorry” will not make you liable. the statement may be actionable as a term of the contract if the parties intended it to be a term or it may give rise to damages or rescission under the Misrepresentation Act 1967.centre is also liable and negligent as a proper step reasonable care had not been taken to avoid a foreseeable risk in this issue. Lastly is reduced liability for specific group and occupations. the shopping centre did not owe a higher duty of care towards Sarah because as a customer she was a invitee to the shopping centre. particularly in relation to statements on financial matters. However. 2002 (NSW) is reduced damages amounts and legal costs. to identify whether Enrico is liable or not in this situation. If a negligent misstatement induces the person to whom it was made to enter into a contract with the maker of the statement.
negligent misstatements and breaches of s. The case that can be cited for this problem is the Shaddock v Parramatta City Council the duty was extended to giving information as well as advice and it was held that "the person giving the information to another whom he knows will rely on it in circumstances where it is reasonable for him to do so." S 52 (1) of the TPA provides: "A corporation shall not. Reliance is an essential element Given the fairly narrow ambits of both fraud and negligent misstatement to give relief to plaintiffs. is under a duty to exercise reasonable care that the information is correct. it was only a matter of time before Parliament acted to give statutory protection to consumers for misrepresentations in the form of the Trade Practices Act ("TPA") which was enacted in 1974 for the protection of corporations acting in trade and commerce and later the Fair Trading Act in 1987 for the protection of non-corporate traders.52 all involve false statements.A negligent misstatement action is brought at common law in tort and may be brought provided a statement is made carelessly and the relationship between the parties is such that it gives rise to a duty of care on the part of the representor. The fact that the person to whom the misrepresentation was made was careless and could have discovered the truth does not absolve the make of the . Fraud and breaches of s 52 also involve misrepresentation by conduct." S 42 of the Fair Trading Act. The ambit of this section is much broader than either fraudulent or negligent misrepresentations. in trade or commerce. In all cases it is necessary that the plaintiff relied on the misrepresentation and was induced to pursue a particular course of conduct as a result of that reliance. engage in conduct that is misleading or deceptive or is likely to mislead or deceive. In both fraud and breaches of s 52 the misrepresentation can occur by silence. Section 2 of the TPS provides: the object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection. to act in reliance on the representation. 1987 is in identical terms and applies to noncorporate traders. It is not necessary that the statement was made in response to a specific request for information. Similarities Fraud. It is sufficient if the representation is made with the intention of inducing members of the class of which the plaintiff is one." The Plaintiff must belong to a limited class of people to whom the defendant owed a duty of care.
Peer professional opinion does not have to be universally accepted to be considered widely accepted. The fact that there are differing peer professional opinions widely accepted in Australia concerning a matter does not prevent any one or more (or all) of those opinions being relied on for the purposes of this section. The club members suffered damages and lost a large sum of money. person practising a profession ( "a professional") does not incur a liability in negligence arising from the provision of a professional service if it is established that the professional acted in a manner that (at the time the service was provided) was widely accepted in Australia by peer professional opinion as competent professional practice. peer professional opinion cannot be relied on for the purposes of this section if the court considers that the opinion is irrational.misrepresentation from liability under s 52. However. Comparing the problem with the case cited above. Section 5O possesses Standard of care for professionals. Hence Enrico is liable in this case and he may be sued for damages. In general. the court would most probably that Enrico is liable as he gave a statement negligently and he owes a duty of care towards the club members. In all cases the plaintiff must have suffered damage as a result of acting upon the misrepresentation. Part 2 Civil Liability Act does not specifically deals with negligent misstatement. QUESTION 10 Part 1 owners of a partnership have unlimited personal liability. The first one. each partner in a partnership is jointly liable for the partnership's obligations. Joint liability means that .
but if A has no money it would not be worth the effort. and for the debts and obligations of the partnership. . each partner is both jointly and severally liable for the damages resulting from the wrongdoing of other partners. B. suppose there is a partnership formed by partners A. then A alone has unlimited personal liability. This means that each partner has the power to bind all partners to business transactions entered into within their actual or apparent authority. The apparent authority is set out in s5 PA 1890. If partner A accidentally runs over somebody while making a delivery for the partnership. Thirdly every partner is liable for the actions of the employees of the business. and only partner B has the money. let’s say employee E. then B would have to pay the judgement. Secondly every partner is liable for the actions of the other partners. As an example to illustrate liability in a partnership. Hence Claude and Jacky have unlimited liability towards each other’s action. but all three partners would be jointly and severally liable. then A still has unlimited personal liability. then the partnership is liable since the employer is responsible for the actions of an employee within the scope of business. If the accident happened while the employee stopped for something personal. accidentally runs over somebody during the course of the work. S5 PA 1890 states that every partner is the agent of the firm and of the other partners. In some states. and C. each partner is acting as the agent of all the partners are the actual authority of a partner is set out in the partnership agreement.the partners can be sued as a group. If partner A accidentally runs over somebody while driving on a personal trip to the grocery store one weekend. Whereas in the Authority of the partners there is an agency Relationship between them. Three rules for liability in a partnership are every partner is liable for his or her own actions. If an employee of the partnership. If the victim wins a judgement of $1 million against the partnership. When entering into a contract to carry out the business. then the employer would not be responsible (frolic and detour). Partner B could assert a right of contribution against partner A. Several liability means that the partners are individually liable.
Mrs. Part 2 As with any business structure. notwithstanding that it is done fraudulently and for his own benefit: Lloyd v Grace Smith & Co.For example the case of Polkinghorne v Holland (1934). Polkinghorne was a client of a solicitor’s firm and received advise from one of the partners about an investment in which the partner was financially interested. . Firms may be liable to a transaction entered into by a partner notwithstanding that the firm does not enter into transactions of that type. The main issue was whether the two innocent partners were liable for her loss. it is not enough that a partner utilizes information obtained in the course of his duties. The HC stated at 156-157: “ If. Shareholders and directors can be employed by the company under normal salary and wage conditions and their income taxed at personal rates. Shareholder's personal assets are not under threat if the company incurs financial loss and debts. Polkinghorne incurred heavy losses and brought an action claiming damages. The liability of shareholders is limited to the share capital they have subscribed and any debts which they may have personally guaranteed. to make his copartners answerable. Something actually done in the course of his duties must be the occasion of the wrongful act. But. this is usually where the transaction is of a kind that is usually entered by other firms in the same industry.” It was held that the giving of financial or investment advise was within the usual course of business of that firm of solicitors. in assuming to do what is within the course of that business. he is guilty of a wrongful act or default. Advantages can include the following statements. This investment was a failure and Mrs. or relies upon the personal confidence won or influence obtained in doing the firm’s business. his partners are responsible. there are certain advantages and disadvantages and the benefits of a proprietary limited set-up will depend on your individual circumstances.
and errors and omissions insurance.Company taxation is at a fixed rate. This insurance policy aims to protect business owners and employees when they are found to be at fault for a specific event such as misjudgment. the transfer of company ownership can be relatively simple. For example. Likewise. Compared with other business structures. can take up to six weeks. Increased recordkeeping is required. while deferred compensation indemnity insurance has become popular as a way for company executives to protect future money owed to them. Forming a proprietary company can be a complicated task and with the level of legal paperwork required. the insurance agent selling you the coverage must disclose the critical information you need to know about your contract and its terms. A company's income tax is calculated as a percentage of the taxable income earned by the company during the financial year. Typical examples of indemnity insurance include professional insurance policies such as malpractice insurance. and will cover some (but not all) expenses. In the insurance market. the doctrine of utmost good faith requires that the party seeking insurance discloses all relevant personal information. Health indemnity insurance is sometimes used when a person is in between health plans. even if the company has filed for bankruptcy. Part 3 Errors and omissions insurance is commonly sought (and often required) in financial industries. The company does not have to be wound up in the event of the death. There are greater regulations to adhere to under the Corporations Act and through the Australian Securities and Investment Commission. you are required to disclose any previous health problems you may have had. disability or retirement of any on the persons involved. The current rate is 30 percent. Disadvantages can include the following statements. A minimum standard that requires both the buyer and seller in a transaction to act honestly toward . if you are applying for life insurance. which indemnify professionals against claims made in the workplace.
The covenant of good faith and fair dealing implied in every contract of insurance requires an insured to answer honestly all questions on an application for insurance and if the insured learns of a change in circumstance before the policy is issued the insured has a duty to inform the insurer of the change. . Failure to do so will provide the insurer with a ground to declare the policy void.each other and to not mislead or withhold critical information from one another. The doctrine of utmost good faith applies to many common financial transactions.
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