Australian School of Business Taxation and Business Law LEGT 1710 Tutorial Program LEGT 1710 BUSINESS AND THE LAW TUTORIAL PROGRAM SEMESTER 1, 2013 © 2013 The University of New South Wales Sydney 2052 Australia The original material prepared for this guide is copyright. Apart from fair dealing for the purpos es of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission. Enquiries should be addressed to the Head of School, Taxation and Business Law, UNSW, Sydney
TUTORIAL PROGRAM FOR LEGT 1710 BUSINESS AND THE LAW Week 1 11 March Introduction: The Role of Law in Business Statutory Interpretation & Legal Reasoning Introduction to Contract Law • • • • • • Week starting Lecture topics Topic information NO TUTORIALS What is law? / Sources of law The Australian Constitution and the separation of powers The Parliament, the Executive and the Judiciary Statutory interpretation Judicial decision making Legal problem solving and conducting legal research Readings Latimer Ch 1 2 Latimer Ch 1 3 18 March 4 5 March • Nature and role of contract law • Requirements for a valid contract ASSIGNMENT 1 DUE WEEK 4 (Hand in to tutor in tutorials) MID-SEMESTER BREAK (1 to 7 April 2013) • Terms of a contract • Conditions and Warranties Exclusion clauses • Vitiating elements: mistake, misrepresentation, illegality, inequality Breach of contract/termination of contract Remedies for breach of contract General principles Negligence and duty of care Statutory modification through the Civil Liability Act 2002 (NSW) Latimer Ch 5 ¶5-010-¶5-485 5 8 April
Socratic Seminar Questions
Contract Law (cont’d) Contract Law (cont’d) Contract Law (cont’d) Introduction to Tort Law Tort Law (cont’d): Professional Negligence and Economic Loss Latimer Ch 6 ¶6-010-¶6-250 6 7 15 April 22 April Latimer Ch 5 ¶5-620-¶5-835; ¶5-510 to ¶5-570; ¶6-260-¶6-275 and Ch 11 Latimer Ch 6 ¶6-280-¶6-510 Latimer Ch 4 ¶4-010-¶4-120 • • • • • 8 29 April 9 6 May • Standard of care for professionals • Recovery for economic loss MAJOR ASSIGNMENT DUE Submit Online via Turnitin on Monday 6 May by 5pm • What is property? Ownership of land Intellectual property • • Latimer Ch 4 ¶4-121-¶4-291
Latimer Ch 3 10 13 May Property Law 11 20 May Competition/ Restrictive Trade Practices Law Applying competitive strategies to business: • Part IV of the Competition and Consumer Act 2010 (Cth) • Authorising anti-competitive activity • Enforcement powers of the ACCC • Remedies and defences available under the Competition and Consumer Act 2010 (Cth) • • • Misleading or deceptive conduct Unconscionable conduct Misrepresentations under the Australian Consumer Law (Sch 2, Competition and Consumer Act 2010 (Cth)) Business structures Risk Management Compliance Due Diligence
Latimer Ch 8 and see also www. accc. gov. au 12 27 May Consumer Protection Law Latimer Ch 7 and see also www. accc. gov. au (a) 13 3 June (b) Business Structures Risk, compliance and due diligence • • • • Latimer Ch 9 Supplementary materials S2-2012 LEGT1710 Tutorial Program Page 2 TUTORIAL CONSULTATIONS Students should note that tutors will hold face-to-face tutorial consultations in the following weeks: Week 3 commencing 18 March Week 7 commencing 22 April Week 8 commencing 29 April Week 12 commencing 27 May Week 13 commencing 3 June
Tutors will let their students know the time and location of their tutorial consultations in the week prior to a tutorial consultation week. Students will also be provided with their tutor’s email address so that if a student has any tutorial-related queries outside of the above weeks, they should contact their tutor with their query by email. Short and straight-forward queries will be responded to by email. A tutor may suggest a student attend at one of the above consultation times if a query requires a detailed response/explanation.
However, as far as possible, students should raise all queries with their tutor during their tutorial class. S2-2012 LEGT1710 Tutorial Program Page 3 ANSWERING TUTORIAL AND EXAM PROBLEM QUESTIONS The problem questions that you are asked to prepare answers to in tutorials are similar in format to the problems that you will be given for Assignment 2 and in the final exam. It is therefore important that you attempt the tutorial questions so that you have sufficient practice in answering legal problems to do well in Assignment 2 and in the final exam.
The course is designed to give students skills in recognising the interaction of a range of commercial laws and how they impact on business activity. Merely addressing a single issue in your answer is unlikely to be sufficient and will attract a poor mark. The commercial world rarely presents problems that only raise one issue. How to answer exam and tutorial questions When answering exam and tutorial questions you should: 1. READ THE QUESTION CAREFULLY 2. Be sure you understand what is asked. . Then: O Identify relevant facts of the problem Unlike judges, when you answer a problem or case study you do not need to summarise the facts of a problem. What you should do is identify the key facts that are relevant to the issues in the problem you are considering. O Identify key, relevant statutory provisions and case law principles This involves asking: (a) does a statutory provision apply to this situation and does it provide a specific answer to the problem?
AND (b) are there any cases which have dealt with a similar fact situation to the one you are considering? You should provide the name/section of any relevant legislation and the names of any relevant cases in your answer. O Note similarities to (follow) or differences from (distinguish) prior cases When reading a problem it is a good idea to jot down the names of cases that you have studied, where the facts were similar, if not identical to the ones in the problem you are considering.
Often the facts of a problem may be similar to but a little different to those in a decided case. Think about whether any factual differences matter. Whether or not any differences matter will depend on the scope of the legal S2-2012 LEGT1710 Tutorial Program Page 4 principle that the relevant case stands for. differences matter to your problem. It is important to note any factual differences from previous cases and to state whether or not you consider that the
O Apply the relevant statutory provisions and case law principles to the facts This is probably the key aspect of answering a legal problem question. After identifying the relevant facts, and referring to the relevant statutory provisions and case law, you then have to apply the relevant statutory and/or case law principles to the facts of your problem. This important step comes after you have identified the key facts and the key legal principles from relevant statutes/case law and noted their interpretation, and before you draw a conclusion.
This step involves saying what the legal principles you have identified mean to the facts of your problem and what the effect of these legal principles will be on the rights and obligations of the parties in your problem. This is the key part of the process of reasoning that leads to a conclusion both in a legal problem question and in an actual court case. O Reach a conclusion based on the application of the statutory provisions and case law principles to the facts In your answers you will generally need to reach a definite conclusion.
More important than the conclusion you reach however, is the process of reasoning that led you to that conclusion. The fact that a subsequent court can overrule the decision of a previous court demonstrates that there is no absolutely correct answer to legal problem questions. You will receive more marks for your process of reasoning than you w for ill getting what is considered at the time to be the ‘correct’ answer. Remember: in your discussion/answer, you must include references to relevant statutory provisions (legislation name and, where possible, section numbers) and case names. . What NOT to do: When answering questions, either for a tutorial or for the assignment or in an exam, DO NOT: • • • restate the facts of a question; copy your notes, the text etc without explaining their relevance; make emotional statements; S2-2012 LEGT1710 Tutorial Program Page 5 • • • • provide non-legal material (instead make sure you include the “relevant” law); address issues that are not raised in the question asked; provide a conclusion which is not supported by legal argument; forget to provide references where required (in other words, do not plagiarize) . Review Your Answers Once you have written your answer, you should review it carefully. Appropriate expression, tone and formatting are important to legal writing. Use plain English and not slang or text language. Prior to printing out your assignment for the last time, read it carefully, and then read it out aloud to ensure it flows and makes sense. A proper review includes careful checking of the: • • • • spelling, grammar & formatting; argument flow; bibliography; and footnotes. S2-2012 LEGT1710 Tutorial Program Page 6 NOTE: THERE ARE NO TUTORIALS IN WEEK 1
Week 2 11 March Introduction: The Role of Law in Business (Lecture 1) Key learning outcomes from Lecture 1: • • • • • • • The legal effect of English settlement in 1788 How laws are classified The different meanings of the terms “common law” and “civil law” What happens if there is a conflict between common law and statute law What is a ‘federal” system of government and how this operates in Australia The doctrine of “separation of powers” and division of power under the Commonwealth Constitution How a law is made through the Australian Parliament
Tutorial Questions 1. Australia was originally governed from London. Can the British Parliament still pass laws that apply to Australia? 2. Briefly explain the distinction between “enacted” and “unenacted” law. 3. What does the term “common law” mean? 4. If there is a conflict between common law and statute law which law prevails? 5. Explain the doctrine of separation of powers. 6. What are the key steps involved in making a law? S2-2012 LEGT1710 Tutorial Program Page 7 Week 3 18 March (Tutor Consultation Week)
Legal Reasoning and Statutory Interpretation (Lecture 2) Key learning outcomes from Lecture 2: • • • • • • The court system in Australia and what an appellate court is Ways of resolving disputes outside of the court system (ie alternate dispute resolution) What the doctrine of precedent is How courts interpret laws or statutes How to solve legal problems An introduction to legal research Assignment 1 Assignment 1 is based on the weeks 1 and 2 lectures. There are 2 questions: Question 1 worth 10 marks and Question 2 worth 5 marks (total 15 marks).
Students will need to do some research (using the textbook, lecture notes or other books or materials you might wish to refer to) to find the answers to these questions. Word limit: maximum of 1000 words. The aim of this assignment is to assess students on the materials covered in topics 1 and 2, to get students to use the textbook and lecture notes and to provide students with the opportunity of practising their writing skills. STUDENTS ARE NOT REQUIRED TO PROVIDE REFERENCES OR A BIBLIOGRAPGY FOR THIS ASSIGNMENT. Assignment 1 is due in week 4 (to be handed to your tutor in your tutorial).
Tutorial Problem Questions Problem 1: Statutory interpretation You are trying to work out if ‘scissors’ are a ‘weapon’ with the meaning of the Weapons Act 1990 (Qld). That Act states: ‘Weapon means: (a) a firearm; or (b) another thing prescribed under regulation. ’ Scissors are not a firearm. You check the regulations and find that scissors are not listed. S2-2012 LEGT1710 Tutorial Program Page 8 However, the principles and object section deals with ensuring public and individual safety through restricting possession of weapons and requiring safe and secure storage of weapons to prevent their misuse.
How can you be sure that scissors will not be considered as a ‘weapon’ within the meaning of the legislation? Problem 2: Parts of a case and how to read a case The case: FISCHER v STUART – (1979) 25 ALR 336 SUPREME COURT OF THE NORTHERN TERRITORY Forster CJ 25, 26 June 1979, 25 July 1979 Darwin Animals — Liability for — Ferae naturae — Dingo — Canis familiaris dingo — Whether ferae naturae or mansuetae naturae — Onus of proof — Damages for personal injury The plaintiff was attacked and injured by a young dingo bitch kept by the defendant.
The animal had escaped from the collar and chain securing it and had attacked the plaintiff on open land near the defendant’s premises, which were unfenced. The dingo, canis familiaris dingo, is a sub-species of the species dog, canis familiaris. Held: (i) the onus of proving that wild animals of a particular class are not dangerous to man rests upon the party asserting that they are not. (ii) The evidence established that dingo is an animal ferae naturae. (iii) The plaintiff would be awarded $5000 general damages and $110. 4 special damages. Action: This was an action for damages for personal injury suffered by the plaintiff when she was attacked by a dingo kept by the defendant. The facts and nature of the proceedings appear sufficiently from the judgment of Forster CJ. J B Waters, for the plaintiff. J Harrison, for the defendant. Forster CJ. The plaintiff, then a child aged four years, was attacked and to some extent savaged by a young dingo bitch, towards which the defendant acted in all respects as an owner.
The dog had escaped from the chain and collar which secured it under the defendant’s unfenced house and the attack took place on some open land referred to as an easement near to the defendant’s house where the plaintiff was playing. The dingo had come into the possession of the defendant when it was four to six weeks old, its mother having been killed and the puppy having been found in the bush. The dingo was kept by the plaintiff in and about an ordinary suburban house in Sanderson, a suburb of Darwin, which house, as I have said, was unfenced.
The house where the plaintiff lived was nearby…. The plaintiff sues by her mother as next friend for damages in respect of the injuries suffered by her in the attack by the dingo and the other consequences of the attack. The claim is put upon a number of alternate bases. First, on the basis of simple negligence. Secondly, on the basis that a dingo is an animal ferae naturae and is also a dangerous animal to the bringing S2-2012 LEGT1710 Tutorial Program Page 9 on to land of which absolute liability attaches and thirdly, pursuant to s 29 of the Registration of Dogs Ordinance.
In view of the conclusion to which I have come on the second basis it is unnecessary to decide the questions of simple negligence and the provisions of the Registration of Dogs Ordinance, but it is my view that the claim based on negligence is not made out …. , and also that s 29 of the Registration of Dogs Ordinance has no application in the present circumstances as it does not create a liability, but simply provides that if a dog does damage in circumstances that attract liability to its owner then damages may be recovered in certain ways.
Is the dingo an animal ferae naturae which should be regarded as inherently dangerous to man? Dr Begg, the biologist, Mr Williams, the head ranger at the Yarrawonga Wild Life Park, Mr Stephens, the Wild Life Control Officer and Mr Lindner, a well-known Northern Territory wild life ranger, and indeed the defendant herself, are unanimous that the dingo is a wild animal. Mrs Padgham-Purich regards the dingo as simply another breed of dog requiring no more special treatment than some other breeds of dog require and she does not agree without considerable qualification that the dingo is a wild animal.
The dingo is a sub-species of the species dog, canis familiaris — canis familiaris dingo and the evidence satisfies me that it is capable of a degree of domestication. I note that the Oxford English Dictionary defines “dingo” as “the wild or semi-domesticated dog of Australia”. The test to be used for classifying animals for the purposes of defining the liability of the person who owns or keeps or harbours them, is whether the animal is of a class which constitutes a special danger to mankind… What is the evidence with respect to the dingo? It is plainly regarded as being dangerous to stock.
There are dog-proof fences and a bounty paid on scalps of dingoes. The evidence as to danger to man is not unanimous… With great respect to Mrs Padgham-Purich, I find that although dingoes are capable of being tamed and can be in many respects attractive, intelligent dogs to own, they must always be treated with extreme care and suspicion and are prone for no apparent reason to attack the humans with whom they are associated. If, as I have said, the onus is upon the defendant to satisfy me on the balance of probabilities that the dingo, which is plainly a wild animal, is not dangerous to man, she has failed to discharge that onus.
On the contrary I am satisfied that the dingo is by its nature notwithstanding Mrs Padgham-Purich’s skill and experience, inherently dangerous to man. This finding really concludes the question of liability in favour of the plaintiff:… The dingo was secured by a chain and collar, the latter of which proved to be inadequate. In view of the absolute liability which I have found to exist the plaintiff is entitled to succeed… taking everything into account, the appropriate sum for general damages is $5000. Special damages have been agreed at $110. 24 and there will be judgment for the plaintiff in the sum of $5110. 4 with costs to be taxed. I will hear counsel as to the form of an order for the payment of the judgment moneys. Solicitors for the plaintiff: Waters, James ; O’Neil. Solicitor for the defendant: David Winter. S2-2012 LEGT1710 Tutorial Program Page 10 Please answer the following questions in relation to the case: 1. What is the full case citation? 2. What are the names of the plaintiff/defendant? 3. In which court was this case decided and and what was the name of the judge? 4. What is the case about – give a brief summary of facts? 5. What are the legal issues raised in this case? 6.
What happened in this case: what is the decision/reasons for the decision? S2-2012 LEGT1710 Tutorial Program Page 11 Week 4 25 March ASSIGNMENT 1 DUE (Hand to tutor in tutorial) Introduction to Contract Law (Lecture 3) NOTE: UNSW MID-SEMESTER BREAK FROM 1 APRIL to 7 APRIL 2013 Key learning outcomes from Lecture 3: • • • • Role of contract law in business Formation of contracts Concept of a binding contract Need for offer and acceptance; consideration. How to answer a legal problem question Overview by tutor Tutorial Problem Questions Problem 1: A writes to B to sell his stamp collection to B.
B, who has stopped saving stamps, gives A’s letter to another collector C, and C writes a letter of acceptance to A. Is there now a contract between A and C? Problem 2: Offeror wrote to offeree offering to buy offeree’s car for $1,999 adding: “If I hear no more about it, I consider the car mine at that price. ” Offeree did not reply to this letter although it appeared from later dealings that offeree had decided to accept. Is there a contract? Problem 3: Brunhilda loses Fifi, her rare and often threatened French poodle. The poodle is found hunting rats in a sewer by a council worker and is returned ith a pair of tongs. Brunhilda, who has no sense of smell, is overjoyed, and promises to pay the council worker $50 for the return of the dog. Can the council worker enforce the promise? S2-2012 LEGT1710 Tutorial Program Page 12 Week 5 8 April Contract Law (Lecture 4) Key learning outcomes from Lecture 4: • • • • Is there ‘intention’ to enter into a contract Terms of the contract Whether a contract is in existence Principles of construction and determining the scope of the contract: representations vs terms; incorporation of terms; implied terms; collateral contracts; uncertain terms; exclusion clauses
How to approach the Major Assignment Overview by tutor NOTE: ONLINE SUBMISSION ONLY VIA TURNITIN (see Blackboard) You can review your plagiarism score, amend and resubmit as required but the FINAL VERSION of your assignment is due Monday 6 May by 5pm Tutorial Problem Question Richard was in the third year of an arts degree, and was finding his social life limited by his very limited financial means. He complained of this to his parents one weekend, hoping that they would give him an allowance. He continued on that theme for the whole weekend, until his father, Bill, eventually grew sick of it.
Bill said that his brother Fred owed him a favour, because Bill had once helped him out with the milking for a month while Fred was in hospital. He said that Fred might be able to employ Richard on the farm. He said, finally, that if Fred couldn’t help he would give him some money himself. Bill contacted Fred and said: “Fred, you know that favour you owe me? Now I need something in return. I have a boy here anxious to earn some money. Will you employ him? ” Fred happened, at that time, to need some labour, so he agreed to employ Richard on weekends and semester breaks.
S2-2012 LEGT1710 Tutorial Program Page 13 Bill then continued: “And Fred I need something else. I’m going to be hauling some rubbish away over the next few weeks and I need your truck. When can I pick it up? ” Fred replied that the truck would be available from Tuesday 4 July 2010. However, when Bill went to pick up the truck Fred refused to give it to him, saying that he needed it. Bill was furious, and since he had already paid a fair bit of money over to contractors, relying on the fact that he would have the truck, he was out of pocket as well.
He threatened to sue Fred, saying that they had a contract. Richard started working on the farm, milking every weekend and doing general fencing, hay carting and pasture maintenance work during the semester breaks. However, after three months of work he still had not been paid. He asked Fred for the money and Fred said that, since they were family, he didn’t owe him anything. Richard now wants his father to pay him, saying that he had promised to do so if Fred couldn’t help. Discuss by reference to the common law of contract whether: 1.
Bill is contractually entitled to the use of the truck; 2. Richard is contractually entitled to be paid by Fred; and 3. Richard is contractually entitled to be paid by Bill. Please also consider and apply any the decision from any relevant cases you have studied in lectures. S2-2012 LEGT1710 Tutorial Program Page 14 Week 6 15 April Contract Law (Lecture 5) Key learning outcomes from Lecture 5: • Vitiating elements: mistake; misrepresentation; illegality; inequality between the parties Tutorial Problem Question Ernest had heard that the current owner of Absynth Hall was thinking of selling.
On 28 April he wrote a letter to the owner, Jack, in the following terms: “Are you interested in selling the Hall? If so, at what price? ” Jack received the letter on 29 April and replied that day by facsimile addressed to Ernest as follows: “I will sell you Absynth Hall for $200,000. The terms and conditions will be those in the Law Society of New South Wales standard form real estate contract. Please reply in writing before 5 May. ” Unfortunately, Jack’s secretary Giles, when sending the facsimile, misdirected it, and it was received by Gwendolyn.
Realising his mistake immediately, Giles re-sent the facsimile to Ernest and telephoned Gwendolyn to tell her that the facsimile was sent by mistake. On 1 May, Ernest sent a letter to Jack, saying: “I accept your offer to sell the Hall and surrounding grounds for $200,000. ” However, on the same day the market went into a spectacular dive, and by 5 pm Ernest had lost a lot of money. Feeling that he could no longer afford the Hall, he sent a facsimile to Jack, which Jack received at 6 pm, saying that he no longer wished to purchase the property. At this point Jack had not received Ernest’s letter of 1 May.
Gwendolyn had been extremely interested in purchasing the Hall and, ignoring Giles’ advice to disregard the facsimile, she had faxed an acceptance of the offer immediately upon receipt of Jack’s mis-sent fax. S2-2012 LEGT1710 Tutorial Program Page 15 On 1 May, Jack received Ernest’s facsimile and decided to follow up on Gwendolyn’s fax. He sent her a reply by fax, saying: “I am in receipt of your facsimile of 29 April. I advise that the price is $250,000 for the Hall alone. ” Gwendolyn received that fax on 1 May and replied that she would purchase the Hall for $235,000.
On 3 May Jack replied that he would accept that price. On 4 May Ernest recovered all of his losses on the stock market and made a profit. He telephoned Jack to say that he would now purchase the hall for $200,000. Discuss by reference to the common law of contract whether there is an enforceable contract between: 1. Jack and Ernest 2. Jack and Gwendolyn for the sale of Abysnth Hall? Please also consider and apply any the decision from any relevant cases you have studied in lectures. S2-2012 LEGT1710 Tutorial Program Page 16 Week 7 22 April (Tutor Consultation Week)
Contract Law (Lecture 6) Key learning outcomes from Lecture 6: • • Termination of the contract Remedies available for contractual breaches Tutorial Problem Question Lizzy was interested in buying a television. She didn’t have very much money, so she thought that she would have to buy one second-hand. She advertised in the local newspaper. The advertisement said: Wanted: LCD Plasma television in good condition. Will pay a good price. The next morning Darcy rang, saying that he had a television fitting the description. He said he would bring it around to Lizzy’s house at 4 pm.
A few minutes later Bingley rang. He said he had a good television for sale, but it was a television/video unit combined. Lizzy, however, was interested. She drove around to Bingley’s house. Bingley showed Lizzy the television. Lizzy was very interested. The television was very good looking, finished in rather nice matt black finish and with soft, fluid lines. She said to Bingley: “Have you ever had any difficulties with the picture? ” Bingley told her that the television had always worked well, and that he had never had any difficulties with it.
Bingley set the television up in the lounge room and showed Lizzy how it worked. Lizzy asked how much he wanted for the television. He replied that he would want $575. Lizzy said she would pay $550 and Bingley said that it was a deal. Lizzy took the television home and found Darcy waiting at the door. He said that he had the television and wanted the $600 that it was worth. Lizzy was confused, and said that she never said she would buy the television. Darcy became very angry, and told Lizzy that she S2-2012 LEGT1710 Tutorial Program
Page 17 would have to buy the television. If she didn’t she might find herself seriously harmed. Lizzy was frightened, and agreed to buy the television. She said Darcy could bring it around the next day and she would have the money. When Lizzy got inside she set up the television which she had just purchased from Bingley. She watched it for a couple of hours to calm her nerves. After that time, the television started to smoke and the picture flickered and faded to black. Lizzy was upset, and took the television to an electrician.
The electrician said that there was a major fault in the television and that it had most certainly been faulty when she purchased it. Discuss by reference to the common law of contract whether there is an enforceable contract between: 3. Lizzy and Darcy 4. Lizzy and Bingley in relation to the purchase of the television. Please also consider and apply any the decision from any relevant cases you have studied in lectures. S2-2012 LEGT1710 Tutorial Program Page 18 Week 8 29 April (Tutor Consultation Week) Introduction to Tort Law (Lecture 7)
Key learning outcomes from Lecture 7: • • • • • • Some of the different types of torts and some areas of business where tort law may be relevant How the law of contract and the law of torts interact What is the “duty of care” and to whom is it owed? What is the “but for” test? Some of the defences to torts Relevant statutory provisions of the Civil Liability Act 2002 (NSW) Tutorial Problem Question Theresa runs her own Asian restaurant in Randwick. One morning, a delivery man accidently dropped and spilt a can of cooking oil on the floor of the restaurant as he was entering from the street.
Theresa immediately mopped up the oil and scrubbed the floor with detergent, but the surface remained slightly oily and quite slippery. Consider the following possible situations: a) After the accident, Theresa went to get some rubber mats to lay down over the area from the back of the restaurant and the phone rang. Not wanting to miss the call, she answered the call. Her back was turned from the entrance for a minute or two. During that time Damien, a customer, entered. He slipped on the oily floor and broke his leg. ) Damien’s girlfriend Ivy, who was a very nervous person, was walking behind him. She became very upset and suffered nervous shock when she saw Damien fall because she feared that Damien might be seriously injured. c) After the accident, Theresa wrote out a sign in very large bright letters which said ‘Warning—slippery floor. Do not enter’ and displayed it at the front of the restaurant entrance. Clark, a customer with very poor eyesight, missed the sign, walked in, slipped on the oily floor and broke his leg. S2-2012 LEGT1710 Tutorial Program Page 19 ) Clark screamed loudly after his fall. This caused Russell, who was driving past the restaurant, to take his attention off the road, causing him to run off the road and smash into a nearby wall. Russell was uninjured but the smash caused $20,000 damage to his car. e) Immediately after the spill, Theresa walked outside, pulled down the shutter of the restaurant but forgot to lock it, and went for a coffee. A thief entered through the unlocked door to steal money, but slipped floor, crashed into the shutters. The fall caused him to break his jaw and suffer possible long-term brain damage.
Assume that the above events a) to e) took place as a separate set of facts. Considering each scenario separately, discuss whether Theresa could be liable for the resulting injuries and damage under the laws of negligence. Refer to both the common law and the Civil Liability Act 2002 (NSW). Please also consider and apply any relevant statutory provisions and any relevant decisions from any relevant cases you have studied in lectures. S2-2012 LEGT1710 Tutorial Program Page 20 Week 9 6 May ASSIGNMENT 2 DUE BY 5PM: ONLINE SUBMISSION VIA TURNITIN Tort Law: Professional Negligence and Pure Economic Loss (Lecture 8)
Key learning outcomes from Lecture 8: • • • • • The essential elements of negligent misstatement How the test for negligent misstatement relates to the test for negligence resulting in personal injury Why courts are reluctant to make awards for pure economic loss How the Civil Liability Act 2002 (NSW) applies to professional negligence What an accounting firm can do to reduce the risk of liability for negligence Tutorial Problem Question Sam and Samantha have just moved into an old terrace house in Bondi which they purchased in October, 2012.
Before deciding to buy the property, they obtained a building report on the condition of the house from a professional building inspection company, Inspectcorp. The report stated that the floorboards needed to be replaced at a cost of around $5000, as they were full of dry rot. In addition, Inspectcorp reported that there was evidence of termite infestation in the roof. The report recommended a pest report be obtained on the termite problem. Sam and Samantha were short of cash so decided to proceed with the purchase without getting a pest report.
After they moved in, the couple employed a contractor to replace the floorboards. While doing the work, the contractor found that the beams supporting the floorboards were rotten due to termite infestation, and the estimated cost of replacement of the beams is $50,000 in addition to the $5000 to replace the floorboards. On another matter, last week the local council served a notice requiring the house to be fitted with electric smoke detectors, under new fire safety laws that came into effect in November, 2012. The estimated cost to fit the detectors is $2000. S2-2012 LEGT1710 Tutorial Program Page 21
Sam and Samantha say they would not have purchased the property if they’d known that they’d have to spend $50,000 to replace the beams, and another $2000 to install the smoke detectors. They say Inspectcorp should have detected and reported both these items in their report. Consider whether Sam and Samantha may have any rights to claim compensation against Inspectcorp under the laws of negligence in NSW. Refer to both the common law and the Civil Liability Act 2002 (NSW). Please also consider and apply any relevant statutory provisions and any relevant decisions from any relevant cases you have studied in lectures.
S2-2012 LEGT1710 Tutorial Program Page 22 Week 10 13 May Property Law (Lecture 9) Key learning outcomes from Lecture 9: • • • • • • • The difference between a joint tenancy and a tenancy in common The meaning of Real Property/Personal Property/Intellectual Property/a Chose in Action How real property under Torrens Title is transferred The difference between a mortgage and a charge The different types of intellectual property The preconditions necessary for a work to be protected by copyright How a company can protect its confidential information
REMINDER: MAJOR ASSIGNMENT IS DUE ON MONDAY 6 MAY by 5pm This Assignment is to be submitted online only – via Turnitin (see Blackboard) Tutorial Problem Question Jack and Jill, a middle aged married couple, are registered as co-owners of their freestanding family home in Kensington. The property is held under Torrens Title and they are registered as joint tenants. They have paid off the loan they had taken out from the Eastpac Bank to purchase the property, which is now worth over one million dollars.
The marriage is going through a difficult time, and Jack recently became friends with a single woman living in the USA through an online dating service. He has decided to travel to the US by himself to meet his new friend and start a new life, taking as much money as possible with him. Having very little cash in the bank, Jack successfully applied to Eastpac bank for a new loan of $500,000, with a mortgage over his house as security. The bank manager told Jack he and Jill would need to attend his office to sign a mortgage agreement, but Jack made up a story that Jill was unable to come to the bank to sign personally due to illness.
As a long term reliable customer, the manager allowed Jack to take the documents home for his wife Jill to sign. Without telling Jill about the loan, Jack forged his wife’s signature on the mortgage document. The bank accepted the signed mortgage not knowing Jill’s signature was forged, and registered it at the Land Titles Office. S2-2012 LEGT1710 Tutorial Program Page 23 Taking the $500,000 with him, Jack disappeared to the USA, never to return, and made no repayments of the loan. When the loan defaulted, the bank followed the usual procedure and exercised its power of sale over the property to recover the outstanding loan.
It sold the property at auction to Mr. Chan, who became registered owner of the land. Jill has had to vacate the property, but knew nothing about the loan to Jack. She claims the mortgage to the Eastpac bank is void because her signature was forged. She claims she still legally owns the house and should not have to suffer due to Jack’s dishonesty. Mr. Chan says he is entitled remain owner as he legally bought the property at the auction, and knew nothing about the forged mortgage. Advise Jill and Mr Chan as to their legal position under the Torrens Title system.
S2-2012 LEGT1710 Tutorial Program Page 24 Week 11 20 May Competition Law (Lecture 10) Key learning outcomes from Lecture 10: • • • • What are the key provisions of Part IV of the Competition and Consumer Act 2010 (Cth) What anti-competitive conduct can be authorised The enforcement powers of the ACCC What remedies and defences are available under the Competition and Consumer Act 2010 (Cth) Tutorial Problem Questions Consider whether the following conduct breaches any sections of Part IV of the Competition and Consumer Act 2010 (Cth): 1.
Representatives of four major widget distributors enter price fixing agreements to fix maximum customer discounts. 2. A manufacturer refuses to supply a retailer for two reasons: a. The retailer insists on buying from other manufacturers; and b. The retailer is located in an unfashionable part of a shopping centre and has poor retail facilities. 3. A retailer has 45% of the retail biscuit market. Can the retailer acquire a competitor that has another 15% of the cake market? (ABL ¶8-572) A publisher distributes a textbook to book retailers on condition that the retail price is no less than $35. ABL ¶8-440 to ¶8-500) S2-2012 LEGT1710 Tutorial Program Page 25 Week 12 27 May (Tutor Consultation Week) Consumer Protection Law (Lecture 11) Key learning outcomes from Lecture 11: • • • • • • What is the Australian Consumer Law (found at Sch 2, Competition and Consumer Act 2010 (Cth)? What does s 18 of the Australian Consumer Law state? Can “silence” or an “opinion” amount to misleading or deceptive conduct? False representations under s 29 of the Australian Consumer Law Unconscionable conduct under ss 20, 21 and 22 of the Australian Consumer Law Defences and remedies available under the Australian Consumer Law
Tutorial Problem Questions Problem 1: Randy inherited a collection of early Australian paintings from his rich uncle Archibald. Randy supports himself by his winnings from poker machines and other forms of gambling. When he is short of cash he usually sells off a painting from his inheritance. In the past two years he has sold 10 works of art. Bettina is keen to purchase one of the paintings in Randy’s collection, but wants to have it authenticated first as a genuine work of the famous Australian artist, Norman Lindsay. Randy agrees to have this done.
The expert who examines the painting is not prepared to acknowledge that it is the actual work of Norman Lindsay, but is confident that it is most likely the work of one of the Lindsays from the same artistic family. He communicates this conclusion to Randy. Before she decides to make the purchase Bettina rings up Randy on the telephone and enquires, “Are you sure that it is actually the work of Norman Lindsay? ” Randy replies, “The expert is confident it is a genuine Lindsay. ” Bettina purchases the painting and sometime later it is authoritatively established that it is not a genuine work by the famous Australian artist Norman
Lindsay, but that of his lesserknown cousin, Larry Lindsay, who imitates Norman Lindsay’s style. Identify whether Bettina is able to obtain any remedy for misleading or deceptive conduct. S2-2012 LEGT1710 Tutorial Program Page 26 Please also consider and apply any relevant statutory provisions and any relevant decisions from any relevant cases you have studied in lectures. Problem 2: A computer company advertised computers in the newspapers and in this way sold them directly to the public. It maintained no shopfront and did not sell through any distributors.
It advertised computers in the daily newspapers, but neglected to state that a delivery charge of $99 had to be paid. What sort of remedies is the court likely to order? S2-2012 LEGT1710 Tutorial Program Page 27 Week 13 3 June (Tutor Consultation Week) THIS WILL BE A REVISION CLASS: DON’T MISS IT! • • Come prepared to discuss the sample problem exam questions with your tutor (see sample questions uploaded on Blackboard) Bring any queries you have about any of this session’s tutorial questions S2-2012 LEGT1710 Tutorial Program Page 28
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