7Patty PPTW13 2014_CLAW5001_exam

1、CLAW5001 Legal Environment of Business,Week 13: Revision Patty Kamvounias,Overview of Todays Lecture,Student feedback: on-line unit of study evaluation CLAW5001 final examination: information and advice Case presentations: Chiarabaglio v Westpac Banking Corporation 1989 FCA 266 (topic 8 + topic 11)

2、Grant v Australian Knitting Mills Limited (1935) 54 CLR 49; 1936 AC 85 (topic 8 + topic 9 ) Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 40-441 (topic 9 + topic 11) Crago section 18 ACL,Legal analysis skills reflected in CLAW5001 assessment criteria for test and exam questions,Careful organi

3、sation so that ideas develop logically through the paper Correctness of grammar, spelling etc Adherence to principles of academic honesty with regard to the conduct of examinations,23,CLAW5001 Final Exam,Writing your answer: form Organise ideas (carefully, logically) Plan your answer to ensure you c

4、over all issues Consider how you will deal with each issue Make your answer easy to follow eg use headings if necessary,CLAW5001 Final Exam,Writing your answer: form Articulate own ideas in writing (clearly) Write something; how much? quality not quantity Write well (short simple sentences) Write cl

5、early and legibly (and in pen) Use abbreviations when necessary e.g. Rosalind (R); ACCC Use language and legal terms (correctly, appropriately),CLAW5001 Final Exam,Writing your answer Academic honesty in the conduct of examinations Use only authorised materials in the exam room Do not cheat (or give

6、 the appearance of cheating) Be honest be prepared!,Legal analysis skills reflected in CLAW5001 assessment criteria for test and exam questions,Efficient sourcing of information from own structured notes collated from seminars and readings (self assessment) Efficient use of time to answer questions

7、under exam conditions (self assessment) Management of own workload to meet examination requirements (self assessment ),27,Reflect on your performance in the mid semester test: How well did you manage your workload? Were you adequately prepared for the test? Did you use the time allowed wisely? How w

8、ell did you satisfy the assessment criteria (content of your answer)? How well did you satisfy the assessment criteria ( form of your answer)? What ,if anything, would you do differently for the exam ?,Case presentations,negligent misrepresentation? misleading or deceptive conduct?,29,Chiarabaglio v

9、 Westpac Banking Corporation 1989 FCA 266,Retailer: contract implied terms (SOG Act fitness for purpose merchantable quality) Manufacturer: tort of negligence,30,Grant v Australian Knitting Mills Limited 1935 UKPCHCA 1 ; (1935) 54 CLR 49,Retailer: contract statutory implied terms; Manufacturer: stat

10、utory liability merchantable quality; misleading conduct,31,Jillawarra Grazing Co v John Shearer Ltd (1984) ATPR 41-537,Retailer: contract statutory implied terms; Manufacturer: tort; statutory liability merchantable quality; misleading conduct,32,Crago v Multiquip Pty Ltd (1998) ATPR 41-620,mislead

11、ing or deceptive conduct?,.au/property/2010008758/for-sale/tas/launceston/retail,Targetts Pty Ltd v Target Australia Pty Ltd (1993) ATPR 41-231,Discussion questions see topic and seminar guide,Discussion Question topic 7,Jean is a lawyer and Betty is her client. Jean introduces Betty to her son Pete

12、r who wants to buy Bettys house in Bondi overlooking the beach. Peter is aware from his mother that Betty is an elderly lady who only has a primary school education and, from time to time, drinks excessively. Peter visits Betty and encourages her to sign a contract to sell the Bondi property to him

13、for a sum of $500,000.00 (The market value at the time is $950,000.00). During his visit, Peter explains to Betty that he is Jeans son and several times speaks about the friendship between Jean and Betty which has extended some 35 years. Betty enjoys these stories and also remembers how she used to

14、babysit Peter as a child. She especially appreciates the bottle of Bundaberg rum that Peter brought her as a gift because it is her favourite drink. Betty happily agreed to the sale after drinking three glasses of rum with Peter. After visiting Betty, Peter returned to his mothers legal office and g

15、ave the signed contract to Michael, a third year property lawyer who was to do the legal work for Betty (as seller) as Jean was to act for Peter (as buyer). One day, Betty rings Michael and asks him to bring to my home the legal papers she needs to sign. . Betty is concerned because she now realises

16、 that she does not want to leave the Bondi area and seeks your advice as to whether she can do anything about the sale of her property to Peter. Advise Betty.,35,Discussion Question topic 8,Bill purchased “Royles,” a restaurant with magnificent views overlooking Windsor Bay at an auction in July 200

17、3. He was concerned that the views would be obstructed if another storey was added to any of the neighbouring buildings so, before the auction, he rang the Windsor Bay Municipal Council (“the Council”) to ask whether any applications had been lodged within the past month seeking the necessary Counci

18、l approval for the building of an additional storey on any of those neighbouring buildings. The Council was not under any legal obligation to answer such queries and had no firm policy about whether it would do so. On previous occasions, however, it had supplied such information. When Bill telephone

19、d the Council he spoke to Steven, the Councils Chief Building Inspector. For business reasons, Bill did not tell Steven why he wanted the information. However, Steven had been asked for the same information by two other callers earlier that day who had both explained that they needed it because they

20、 were both considering buying “Royles” at the auction to be held the following day. Steven told Bill that no such application had been lodged. He also told Bill that he was too busy to check the Councils records but that, in any event, this was not necessary because all building applications had to

21、go through him and he was certain that none had been lodged during the past month. A few weeks earlier, the Council had issued a press release stating that it did not intend to approve any building applications in the Windsor Bay area for the next 6 months. Bill remembered reading that press release

22、 in the local newspaper. Unfortunately, Stevens memory had failed him and he had in fact accepted a building application from one of “Royles” neighbours only a week earlier. The Council subsequently approved that application with the result that, when the building work was completed, “Royles” lost m

23、uch of its view. Bill claims that since the loss of the view, the profits from the restaurant have fallen drastically. He wishes to take legal action against the Council and seeks your advice. Advise Bill.,36,Discussion Question topic 9,Catherine loves to start each day with a glass of freshly squee

24、zed vegetable juice. She sees an advertisement in a Sunday newspaper for a new fully imported Sunshine brand juice extractor and reads the description which includes the following words: Everyone can have their own juice bar at home as Sunshine now caters for the discerning fresh juice drinker. The

25、2 cup per minute capacity makes it easier for those with large families or healthy appetites. Gleaming stainless steel construction makes cleaning a breeze. Twelve months guarantee. Catherine visits Domain Department Store (Domain) in Sydney to get further information. She explains to the salesman t

26、hat she really likes carrot juice, as do her three children, so a fast and efficient performance is essential. He assures her the Sunshine juice extractor performs as described in the advertisement. Catherine is concerned that the price is a bit too high but the salesman assures her that Sunshine pr

27、oducts are extremely reliable and while the price may seem high “you have to pay for quality products and Sunshine is the best.”,37,37,Discussion Question continued topic 9,Catherine buys a Sunshine juice extractor for $599 from Domain. When she unpacks the machine at home, she finds a guarantee car

28、d that states: The manufacturers confidently guarantee this product for 6 months (parts and labour) and a further 6 months (parts only) for normal domestic use only. No other warranty of fitness is given Catherine finds the machine is very slow to operate, taking an average of five minutes to produc

29、e 1 small glass of carrot juice (although it is much quicker at extracting juice from oranges). Cleaning is also difficult as the pipes through which the juice flows get clogged if the machine is used to make more than 3 glasses of juice at a time. Last week, when Catherines daughter Anna was using

30、the machine to make tomato juice, her fingers were badly injured when they got caught in the mechanism of the extractor. Anna is still in hospital. In her attempt to extricate her fingers, Anna knocked the juice and the juice extractor against the $10,000 original Pro Hart painting on the dining roo

31、m wall and damaged it beyond repair. There is also a nasty stain on the carpet which Catherine has been unable to remove. Advise Catherine and Anna of their legal rights against Domain and Sunshine under the Competition and Consumer Act 2010 (Cth),38,38,Discussion Question topic 10,Jo Ng and Frances

32、 Ng, a Vietnamese couple, who had been in Australia for 8 years, had been running a small business as market gardeners. They grew a number of Asian vegetables and herbs in their garden and were able to sell everything that they grew. They became well aware of the growth of demand for such vegetables

33、 and herbs and wanted to develop this business further. However their poor English language skills and little understanding of business had prevented them from doing so. Frank Tomisomo, a local businessman with a number of business interests is also the owner of large areas of land in the neighbourh

34、ood. He became aware of Jo and Frances Ngs business through some mutual friends from the local church. Frank contacted Jo and Frances and told them that he has some land that may suit their needs. Although Jo and Frances are satisfied with the land and rental, they were reluctant to enter into a con

35、tract with Frank. However they did go ahead with signing the contract when Frank assured them that they would be able to have the lease for four years on the same terms. The lease that Frances and Jo signed, however, was only for a period of one year.,39,39,Discussion Question continued topic 10,One

36、 year later, Frank changed the terms of the lease. He raised the rent by 75% and imposed a limit on the amount of water that could be used by the tenants. Frank had sold the water rights to another neighbour for an extra fee. Without understanding the changes to this new lease, Jo and Frances signed

37、 it. At the end of the year Frank demanded that they pay $38,000 which comprised the excess water rates that had been incurred ($16,000) as well as the extra rent that was due ($22,000). When Jo and Frances queried this they were pointed to clause 24 in their contract which stated “the parties waive

38、 any rights they may have under any law in Australia”. Advise Jo and Frances on their rights in these circumstances.,40,40,Discussion question topic 11,After working in the catering industry for many years, Nick decided he wanted to run his own restaurant. He saw an advertisement in the local newspa

39、per that “The Little Snail” restaurant was for sale. “The Little Snail” was described as a French restaurant with about 120 seats located on the main street of Newtown. He obtained financial statements from the business agent and arranged an inspection. At the inspection of the restaurant, Nick met

40、the owner, Sam, and told him that this was the first time he was buying a restaurant business. Sam assured Nick that the restaurant was operating successfully at its current seating capacity as disclosed in the financial documents. Sam also told Nick he had nothing to worry about because Dominic, th

41、e head chef, would be staying on after the business was sold. Nick noticed that there were 120 chairs arranged at 40 separate tables both inside the restaurant and outside in the terrace area. On 5 July, Nick signed an agreement to purchase “The Little Snail” restaurant business from Sam. The purcha

42、se agreement included the following clauses:,Discussion question continued topic 11,Clause 6: The purchaser acknowledges that it accepts the premises in their present condition and as a result of its own inspection of the premises. In entering this agreement, the purchaser acknowledges that it has n

43、ot relied on any statements representations warranties or conditions made or given by or on behalf of the vendor in respect of the subject matter of this agreement, other than those expressly set out in this agreement. Clause 7: Notwithstanding and without limiting the provisions of any other clause

44、 or special condition of this agreement the parties hereto agree that the agreement constitutes the whole of any promises, representations, warranties and undertakings and also the whole of the conditions of the sale. Dominic stayed on as head chef for one week and then resigned to set up his own re

45、staurant in Newtown. Within a month, Nick discovered that for many years, the restaurant had been operating with a seating capacity that exceeded its entitlement under its council approval. The local council limited the maximum seating capacity to 80 people to be seated at 26 tables inside the resta

46、urant. Sam had applied for council approval to set up tables in the terrace area but this approval had not been granted. Nick seeks your advice as to what action, if any, may be taken against Sam in these circumstances. Advise Nick.,Discussion Question topic 10,2. Selinas old phone stopped working.

47、She needed to buy a new phone so that she could stay in contact with her friends. She heard that there was a new firm that offered very good deals so she looked online and sure enough there was the site for Telecomfortable, along with their tag, the phone to make you feel at home. Selina saw that sh

48、e could enter into a mobile phone and service contract for unlimited calls and downloads for $50 a month. She thought this sounded good and decided to go ahead. She clicked and up popped the accept terms and conditions with the button to accept. Selina had just finished studying business law so she

49、knew that you should always read a contract and she looked around to find it. She could find no way to navigate towards it. She thought the deal was worthwhile so after much effort she found a telephone number for Telecomfortable. She called them and was put on hold for forty-five minutes. She expla

50、ined that she could not accept unless she saw the contract. Telecomfortable said: “Oh thats alright well send it out to you. Which language?” She replied “English” and gave her address in a Sydney suburb. After one week, the document arrived with a foreign postmark. She started reading the contract

51、and saw that one of the terms said “In addition to your individual monthly fee, you also agree that you will be liable for $200 attributable to international calls per annum.” Selina called Telecomfortable again. They said “It just means that in one year you have to make or receive $200 dollars wort

52、h of calls overseas.” Selina was planning to go on an overseas holiday that year so she thought that sounded alright.,Discussion Question continued topic 10,Selina clicked on the accept button, her new phone arrived and she started to make calls. Four months later she went overseas and because she h

53、ad $200 worth to play with she did not get a local sim card. Her friends continued to call her from Australia and she used her phone in the countries in which she travelled. She also stayed in touch with her workplace because she was the only person in the office who knew about a particular matter.

54、When she returned to Australia she received a telephone bill for $1,000. She queried this with Telecomfortable. They said “Yes thats right. Because you made more than $200 dollars in international calls your overall rate increased by 500%. Didnt you read the small print in the contract?” Selina went and checked and sure enough next to the term about $200s worth of international calls there was a small asterisk which took her to a different part of the document which set out what she had just been told and which also said “Telecomfortable have the right to vary any terms