TABLE OF CONTENTS

QUESTION 1:....................................................................................................................2

MAYA V DUYEN...............................................................................................................2
Contract law..................................................................................................................2
Australia Consumer Law..............................................................................................7
RIA V MAYA...................................................................................................................10
ANDREW V. RIA.............................................................................................................11

QUESTION 2:..................................................................................................................12

BIBLIOGRAPHY............................................................................................................15

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 QUESTION 1:

MAYA V DUYEN

CONTRACT LAW

MAIN ISSUE: If Duyen breached a contract with Maya by failing to provide food without fish-
ingredients and cleaning service.

Issue 1: Whether Duyen and Maya had a binding contract.

Rule & application:

A contract must have an agreement making of a valid offer and an acceptance; an intention to form a
legal relationship; and a consideration.

Firstly, Duyen made a valid offer to Maya for her catering service with clear and specific and quantity as
required in R v Clarke 1927.1 Maya made a “mirror” acceptance by signing the contract without no
conditional requirement (Masters v Cameron)2. Hence, an agreement was created. Secondly, as Duyen
and Maya made the transaction in the business context, a legal intention was presumed to form. Thirdly,
Maya would pay Duyen $1800 for Duyen's catering service, so a sufficient consideration existed
(Biotechnology Australia Pty Ltd v Pace).3

Conclusion: Duyen and Maya had a valid contract. Therefore, Maya can make litigation against Duyen
related to contract breaching.

1
R v Clarke [1927] 40 CLR 227
2
Masters v Cameron (1954) 91 CLR 353
3
Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130

2
Issue 2: Could the two outside statements about (1) fish ingredients and (2) cleaning service be
incorporated terms in the written contract.

Rule & application:

To be incorporated into a contract, an outside term must be noticed reasonably before the contract was
formed (Causer v Browne).4 Moreover, if the statement is oral, it must be a promise/guarantee being
able to independently verifiable (Handbury v Nolan; Chandelor v Lopus) 5 6

Regarding 1st statement about fish-ingredients, it was verbally discussed between Maya and Duyen
before signing the contract, hence it was reasonably noticed. Moreover, it can be considered Duyen's
guarantee to Maya that the food would have no fish which can be verified independently by checking
the ingredients. Therefore, this statement can be incorporated into the contract.

Regarding the 2nd statement about the cleaning service, it was communicated via email before Maya
coming to Duyen's office for contract signing. Duyen promised Maya about sending staff for cleaning in
the email conversation. Hence both sides were reasonably aware of the statement before contract
formation.

Nevertheless, PER precluded external evidence to adjust a written contract 7. Yet, a statement of
significance to the contract can be considered an exception (Van den Esschert v Chappell).8

The 1st statement was extremely important as it was a celebration party for her parents, while her
mother was seriously allergic to fish, which made her address Duyen carefully during the negotiation.
Hence it can be a valid expectation of PER due to its significance.

The 2nd statement was not fundamental to the contract, since it was a celebration party in which safety
and enjoyment would matter the most. Moreover, she had already decided to enter a contract with
Duyen before asking for cleaning staff. Hence, it cannot be a PER exception to be included in the
written contract.
4
Causer v Browne [1952] VLR 1
5
Handbury v Nolan (1977) 13 ALR 339
6
Chandelor v Lopus (1603) Cro.Jac 4
7
SkyWest Aviation Pty. Ltd. v Commonwealth of Australia (1995) 126 FLR 61
8
Van den Esschert v Chappell [1960] WAR 114 

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Conclusion: The statement about fish-ingredient can be incorporated into the written contract and Maya
can successfully sue Duyen for breaching this contractual term.

Issue 3: What kinds of remedies Maya can claim regarding the breach of the fish-ingredient term.

Rule & application:

To determine the type of remedies, the Essentiality test would be used to classify the breach as a major
or non-major breach. A party, by knowing that the performance of the term would not be ensured, would
choose not to enter the contract, then it would be a major breach (Tramways Advertising v Luna Park).9

If Maya knew that Duyen would not assure the requirement of non-fish food, she would have not formed
a contract since the violation can affect her mother safety. Hence, Duyen breached a contractual
condition.

Conclusion: As the breach was a major breach, Maya can immediately rescind the contract and seek
damages related to the breach, including her mother hospital bills.

Issue 4: Can three disclaimers relieve Duyen of her liabilities.

A disclaimer is effective if it is a contractual term10 or being reasonably informed before the forming
contract (Thornton v Shoe Lane Parking Ltd)11 , and the breach must be within the disclaimer's scope
(Pegler v Wang (UK) Limited).12

The first disclaimer was written in the signed contract, thereby it was the contract’s term no matter
whether Maya knew it. The scope of the disclaimer was unclear since it did not define what reasonable
substitution meant. As Duyen already informed Maya about her mother circumstance, a reasonable
service provider should avoid using fish as a substitution. Hence, based on White v John Warwick & Co

9
Tramways Advertising v Luna Park (1938) 61 CLR 286
10
L’Estrange v F Graucob Ltd [1934] 2 KB 394
11
Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163
12
Pegler v Wang (UK) Limited (2000) BLR 218

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Ltd that interpretation of ambiguous disclaimer would be in-favour-of disadvantaged party 13, this
disclaimer cannot cover the breach.

The second and third disclaimers in the email and in the box were communicated after the contract was
made, and they did not include in any contractual documents for reasonably notice. Therefore, these
disclaimers were ineffective.

Conclusion: None of the three disclaimers can support Duyen relieve her contractual liabilities due to
breaching the fish ingredient term.

Issue 5 (Subordinated): If Duyen breached a collateral contract regarding the cleaning service
statement.

Rule & application:

One can seek legal litigation against an outside statement, which cannot be incorporated in the contract,
by proving a collateral contract was made. The statement of cleaning staff was promissory in-nature as
required in (De Lasalle v Guildford)14, however, it was not likely due to the promise that Maya entered
the contract with Duyen as discussed in Issue 2. Hence, Maya was not induced by the statement to enter
the main contract, so there was no collateral contract.

Conclusion: There was no collateral contract between Maya and Duyen for the cleaning service
statement

Issue 6 (Subordinated): Whether Duyen’s statement regarding the cleaning staff is a

misrepresentation.

Rule & application:

A misrepresentation is a false statement of fact which induce the other side to form an agreement (Derry
v. Peek).15

13
White v John Warwick & Co Ltd (1953) 2 All ER 1021
14
De Lasalle v Guildford [1901] 2 KB 215
15
Derry v Peek (1889) LR 14 App Cas 337

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As discussed in Issue 5, Maya was not induced by this statement to enter the catering service with
Duyen.

Conclusion: Duyen's statement of clean staff to Maya was not a misrepresentation.

MAIN CONCLUSION: Maya can successfully sue Duyen for breaching the contract term related
to fish ingredient requirement and seek damages which Duyen cannot relieve her liabilities.
However, Maya cannot successfully seek litigation against Duyen for the cleaning person.

AUSTRALIA CONSUMER LAW

MAIN ISSUE 1: Whether Duyen breached the consumer guarantees required in ACL section 54,
55, 60 and 61 for causing food positioning for Maya and food allergy for her mother.

Issue 1: Whether Maya was eligible for protection of consumer guarantees in ACL.

Rule and application:

For an individual to be protected by consumer guarantees, there must be a consumer service and/or good
contract under s 23(2)16. A service/goods contract was formed when a business offers services/goods for
consumers within its business operation and the service/goods cost no more than $40,000 and/or for
personal purposes.17

Duyen provided the catering service with food and beverage valued $18,0000 to Maya as as part of her
business. The catering was for the celebration party for Maya’s parents which was purely personal.

Conclusion: There was a consumer service contract and consumer good contract between Maya and
Duyen, hence Maya was protected by consumer guarantees.

16
Australia Consumer Law section 23 no 2
17
Ibid

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Issue 2: Whether Duyen breached the consumer service guarantees under ACL section 60 & 61 when
her food caused food poison to Maya and food allergy to her mother.

Rule & application:

ACL s 60 requires service to be exercised with skill and due care. 18 Duyen failed to store the food in the
fridge, which was a basic requirement of food storage, and accidentally put fish ingredients into food
despite being informed of Maya's mother fish allergy. These implied the service was not delivered with
sufficient skill and care by Duyen.

ACL section 61 requires service to fit with the disclosed purpose if consumers implicitly/explicitly made
known to the business about the service purpose.19 Maya communicated to Duyen about her mother’s
allergy and required non-fished food which Duyen agreed. Hence, Maya explicitly made known to
Duyen that she wanted food without food and Duyen failed to do so meaning her service was unfitted
for the disclosed purpose.

Conclusion: Duyen breached ACL sections 60 & 61 when provided service for Maya.

Issue 3: Whether Duyen breached the consumer good guarantees under ACL sections 54 & 55 when her
goods caused food poison and allergy.

Rule & application:

Under s 54, goods must meet acceptable quality.20 Hygiene is a key indicator of food quality; food was
not well-preserved deteriorating the hygiene which caused food poison. This indicates it was not of
satisfactory quality.

Under s 55, goods must align with the expressed purpose. 21 Maya informed Duyen to have non-fish-
contained food for the purpose of avoiding her mother's allergy. Duyen's food contained fish which
caused Maya's mother allergy. Hence, her good was unfitted for the disclosed purpose.

18
Australia Consumer Law section 60
19
Australia Consumer Law section 61
20
Australia Consumer Law section 54
21
Australia Consumer Law section 55

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Conclusion: Duyen breached ACL sections 54 & 55 when provided goods for Maya.

Issue 4: Whether the breaches of ACL s 54, s 55, s 60 and s 61 by Duyen were minor or major.

Rule & application:

ACL section 260 determines a major breach occurred when a reasonable consumer, when fully
acknowledged the nature and extent of the violation, would not acquire the service or goods.22

Health and safety normally come first when it comes to any type of event, thereby a reasonable
consumer would not acquire the services and goods if acknowledging that they could put them under
health and safety risk. Hence, Maya would have not chosen Duyen’s catering service and products if
knowing that Duyen could not provide food meeting hygiene and safety requirement.

Conclusion: Duyen's breaches were major.

MAIN CONCLUSION: Duyen committed major breaches of the consumer guarantees under
ACL sections 54, 55, 60 and 61. Hence Maya's awarded damage can be a refund of the catering
and recovery of her mother's medical bills.

Main issue 2: Whether Duyen’s provision of fish-contained food and cleaning service was a
misleading/deceptive conduct under ACL s 18

Rule & application:

A misleading/deceptive is made if a business within its commercial operation performed conduct that
made a person into error in ACL s 18.23 Duyen, as part of her business, agreed to provide no-fish food

22
Australia Consumer Law section 260
23
Australia Consumer Law section 18

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for Maya's party. As a normal consumer, Maya would believe the service providers to perform so.
However, Duyen failed to do so, meaning Maya was caused to believe what was untrue.

Conclusion: Duyen committed misleading/deceptive conducts in ACL s 18. Thus, Maya can seek
damages or terminate the contract.

Main issue 3: Whether Duyen provided Maya defective goods under ACL s 138

Rule & application:

A good is considered defective if a manufacturer, in trade, provides a good which has a safety defect and
that defect generated injuries/death to a person.24 Duyen, as part of her business, made and provided
contaminated food which resulted in Maya's food positioning, thus it was unsafe.

Conclusion: Duyen supplied defective goods to Maya, hence should be liable for Maya's food
poisoning.

RIA V MAYA

Issue: Whether there was a contract between Ria and Maya for the $2000 for hiring additional workers.

Rule & application:

Rules of contract are mentioned in Maya v Duyen.

When Maya asked Ria if more workers could solve the problem, Ria answered that it would incur
additional cost of $2000. These were merely request and supply of information.25 Maya’s later email to
Ria in which she said to pay extra $2000 for on-time work completion was her offer directly addressed
to Ria. However, Ria read the email, yet did not reply. Consequently, there was no acceptance despite
Ria's performance, because silence cannot constitute a valid acceptance26 and Maya's offer was not
24
Australia Consumer Law section 138
25
Harvey v Facey [1893] AC 552
26
Felthouse v Bindley [1862] 142 ER 107)

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unilateral27. Also, there was no sufficient consideration from Ria for $2000 since it was her
responsibility to finish work on-time under her existing contract with Maya.28

Conclusion: There was no contract between Ria & Maya, so Maya was not obliged to pay extra $2000.

ANDREW V RIA

Issue: Whether Andrew and Ria had a sale contract of the curtain.

Rule & application:

Rules related to the contract are stated in Maya v Duyen; Ria v Maya

Ria's offer was communicated to Andrew via email, but Andrew did not respond. On 3rd November, Ria
received and read Andrew's invoice which can be considered Andrew's acceptance. However, the work
must be finished within two weeks and after one week of making offer Ria had not heard back from
Andrew which meant a reasonable time passed and Ria's offer can lapse without revocation
communicated.29 Overall, Ria's offer was no longer effective when Ria received Andrew’s acceptance.

Conclusion: There was no contract between Andrew and Ria, so Ria was not required to pay.

QUESTION 2:

27
Carlill v Carbolic Smoke Ball Co [1892] EWCA Civ 1
28
Stilk v Myrick (1809) 2 Camp 317
29
Ramsgate Victoria Hotel v Montefiore (1866) LR 1 Ex 109

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Introduction

The judge's verdict on the case Nguyen and Sy v The Trustee for the Nero CKD Unit Trust in October
2017 caused contention regarding its accuracy. Therefore, this case note shall analyse the judge's
identification and application of legal rules to evaluate the Judge’s decision.

Identification of legal issues

Nguyen & Sy were the plaintiffs who made litigation against the defendant, The Trustee for the Nero
CKD Unit Trust. The plaintiffs hired the defendant as the organiser of their wedding reception. On the
day of the plaintiffs wedding reception, there was a water leak in the venue where their wedding
reception occurred, which delayed the event and provoke several inconveniences during the event.
Hence, the plaintiff claimed damages of $20,000 for their non-economic and economic loss due to this
issue.

The judge identified the major issues to be if the defendant contravened ACL section 61 consumer
service guarantee of fitness for the disclosed purpose 30; and the awarded damages related to the breach
governed in section 267(4), 236(1), 16 and Tralee Technology Holdings Pty Ltd v Yun Chen. The judge
also discussed minor issues about the possible breach of ACL section 60 “due care and skill” 31 and force
majeure disclaimer.

The legal rule application of the Judge

Consumers are entitled to consumer service guarantees if there is a consumer service contract. A
contract is a consumer service contract if a business offers a service to a consumer for
household/personal purposes within its business operation, and the service’s value does not exceed
$40,000.32 However, the judge only discussed that the plaintiff could be considered a consumer under
ACL section 3 and omitted the other factors. Therefore, although the decision that consumer guarantees

30
Above n 19
31
Above n 18
32
Above n 16

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can be implied into the contract was accurate, it could be more thorough when all requirements were
discussed.

Concerning consumer guarantee in ACL section 61, no failure was established as ruled by the judge on
the basis that the defendant had put effort to mitigate the water leak and its associated problems. I think
this judgement was persuasive since the evidence did suggest that the event manager swiftly took action
to stop the water leak and employed various tactics to diminish the effects of water leaking impeding the
event. However, the judge’s discussion, regarding the unnecessity to consider section 60 when section
61 was established, without further justification, created confusion, because the result of section 60
related to the assessment of damages in section 267(4).

To determined damages of violating section 61, section 267 and section 236(1) were rigorously
employed by the judge. As section 60 was unsuccessfully established while the occurrence of water leak
was not attributed to defendant's actions nor omissions, damages cannot be awarded under section 267. I
find it convincing since the leak was caused by water pine burst as provided by evidence. Accordingly,
section 236(1) was exercised to proceed with the damage award. Regarding the non-economic damage,
the judge dictated that the plaintiffs’ establishment of “distress, anxiety and disappointment” was
insufficient compared to the requirement in ACL section 16. 33 For the damage related to service quality,
the judge adjudged that the breach of section 61 caused diminution in the service quality, hence the
plaintiffs were eligible for award of damages instituted in Tralee Technology Holdings Pty Ltd v Yun
Chen. Thereby, the plaintiffs were compensated with 25% refund of service full and additional
photography cost. I find this decision was reasonable because the defendant had put effort into fulfilling
their obligations despite the inconveniences caused by water leak.

Moreover, the judge decided that the water-leak was not a force majeure to waive the defendant from the
breach. This argument was reasonable, yet to strengthen the final decision, the judge could also mention
the fact that disclaimer was not effective under ACL.

Conclusion

33
Australian Consumer Law section 16

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In essence, the judge's final determination of the defendant's contravention of ACL section 61 and the
plaintiff's remedies was accurate and satisfactory. Nevertheless, the soundness of legal decisions can be
elevated if more evidence, facts, and explanations were incorporated in the judge's legal application.

BIBLIOGRAPHY

Case law

13
Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130
Causer v Browne [1952] VLR 1
Chandelor v Lopus (1603) Cro.Jac 4
De Lasalle v Guildford [1901] 2 KB 215
Derry v Peek (1889) LR 14 App Cas 337
Felthouse v Bindley [1862] 142 ER 107)
Handbury v Nolan (1977) 13 ALR 339
Harvey v Facey [1893] AC 552
L’Estrange v F Graucob Ltd [1934] 2 KB 394
Masters v Cameron (1954) 91 CLR 353
Pegler v Wang (UK) Limited (2000) BLR 218
R v Clarke [1927] 40 CLR 227
Ramsgate Victoria Hotel v Montefiore (1866) LR 1 Ex 109
SkyWest Aviation Pty. Ltd. v Commonwealth of Australia (1995) 126 FLR 61
Stilk v Myrick (1809) 2 Camp 317
Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163
Tramways Advertising v Luna Park (1938) 61 CLR 286
Van den Esschert v Chappell [1960] WAR 114
White v John Warwick & Co Ltd (1953) 2 All ER 1021

Legislation
Australia Consumer Law section 23 no 2
Australia Consumer Law section 60
Australia Consumer Law section 61
Australia Consumer Law section 54
Australia Consumer Law section 55

14
Australia Consumer Law section 260
Australia Consumer Law section 18
Australia Consumer Law section 138
Australian Consumer Law section 16

15