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Question 1: Negligence
After a rather long and boring lecture, Jessie and her friend Charlotte went to the Mizuna to have lunch. It had been raining for a couple of days and this day it was raining even harder. Charlotte was getting over surgery on her knee and needed Jessies help over the puddles.
It seemed as if all of the other students also needed lunch as the Mizuna seemed almost full.
Jessie saw someone getting up, and hurried Charlotte through the doors to get to the just vacated table. They had just gone through the front doors when Charlotte slipped and fell on a very wet floor. Jessie, who was holding Charlottes elbow also fell trying to keep Charlotte upright.
Charlotte suffered a serious injury to her healing knee, which now required further complex surgery resulting in her being unable to participate in competitive hockey for the entire season. Apart from embarrassment, Jessie twisted her wrist and was unable to sit her final exam during the examination timetable.
The owner of the Mizuna apologised to both Jessie and Charlotte and ensured they were both properly looked after until the ambulance arrived, but claimed she had no responsibility whatever. He said the wet floor was the result of several rainy days, which of course he had no control over at all. He also said that the caf has a good system in place to minimise injuries to patrons on wet days. He said that the staffs are on a rotating half hourly roster to mop the entry area and that they keep a mat just inside the door to stop the wet spreading.
Although Jessie decided not to pursue this any further, Charlottes hockey, to whom Hockey is very important realised that having to undergo further surgery means she will miss out on what was pretty certain pre-selection for the Commonwealth Games, and would also mean that she will have to sit deferred exams for all four of her units an undesirable outcome all around.
Advise Charlotte of her rights and of the requirements for bringing a successful action against the Mizuna. You must support your answer with case law and/or legislation.
Question 2: Consumer protection
After carefully reviewing and analysing the brochures given to him by the caravan dealer, Peter bought a new off-road model 1800 kilogram weight caravan to tow behind the V8 Toyota Sports Utility vehicle (SUV), which he had just purchased (also after reviewing the manufacturers sales brochure). The Toyota was fitted with the Heavy Duty Towing Deluxe package recommended to match the caravan which he bought
The relevant Toyota SUV brochure stated that it could
easily pull a 2000kg caravan all day through the blazing sun,
and the caravan brochure stated that it was
built to the most exacting specification and could handle the roughest terrain you could throw at it.
Both the Toyota and the caravan had 12 month unconditional warranties which excluded unreasonably harsh use.
Peter set off on a trip around Australia, and after two months of driving over unmade dirt roads, he pulled into a caravan park at Uluru in the middle of Australia and noticed a clunking noise under the caravan. On inspection he found that the suspension has suffered a major failure and had broken almost into two parts.
He rang the nearest dealer who said that they would not do anything unless he brought to caravan to the nearest dealership which was in Alice Springs, which is a distance of 445 kilometres. He read the warranty terms which appeared to say that no repairs could be conducted by other than Toyota dealership trained staff and there were of course none of these at Uluru.
He reluctantly towed the caravan at the instructed speed of no more than 40 kilometres per hour (which meant that the trip would take over 10 hours of continuous driving), but after two hours the Toyota overheated due to the slow speed and lack of cooling air going through the radiator and the engine exploded in a cloud of steam and smoke.
He received help from a passing truck driver heading south, who loaded the SUV and the caravan onto his large truck and took them to the major city of Adelaide:
The caravan manufacturer subsequently denied responsibility saying that the caravan was supposed to be taken to Alice Springs and it was not, and also that it was not supposed to be taken off the sealed road; and
The Toyota dealer said the SUV was not covered as it had been driven abnormally by driving too slowly.
1. Advise Peter on his legal options
2. Advise the Toyota dealer
In your answer you must consider both relevant legislation and case law as appropriate.
Question 3: Property
Margaret, in her will, left a farm to her three children, James, Jordan and Tom jointly and to share amongst themselves, that is, as joint tenants. Ever since they were children, the boys have always had their differences. Jordan and Tom had always been closer, and would often turn against James. When the boys grew up, James moved overseas to work.
Taking advantage of James being such a long way away, Jordan and Tom transferred their interest in their mothers property to each other and did not tell James anything about it. Two years later, when James returned to Australia he wanted to buy a flat. He wanted to use his interest in his mothers property to secure a mortgage. Advise James of:
a. what interest each of the brothers has in their mothers property,
b. whether his two brothers can transfer each others interest to the other and
c. whether James is able to use his share to get a mortgage on a flat of his own.
Question 4: Property
A freelance photographer took a series of photographs of an international model and a film actress and sold them for an article about her in Mode, a magazine owned by Australian Publishers. The magazine subsequently supplied the photographs to another publisher, who in turn sold them to a third publisher, who used them in their own magazine. The photographs were supplied to subsequent publishers without the consent of the photographer or for any fee to him.
Advise the photographer.
Question 5: Intellectual property
Romeo and his wife Juliette own The Lucky Dip restaurant in Gungahlin. The restaurant is located directly across from McDonalds, and Romeo thought it would be funny if he put a large sign in the front of his restaurant with the words Mmmmm.try our vegie burger instead, with each if the ms in the shape of the McDonalds golden arches.
Advice Romeo whether his sign would infringe any intellectual property rights. You must support your answer with relevant legislation and/or case law.
Question 6. Property
Nicole recently entered into a contract to sell her house in Canberra to Lakeview Developments Pty Ltd for $750,000. She was told by the receptionist in Lakeview’s office that Lakeview Developments is a development company which plans to demolish the house and build some apartments. The contract was signed by Nicole and was also signed ‘for and on behalf of Lakeview Developments Pty Ltd’ by Anthony Blunt, who showed her his business card describing him as the ‘Developments Manager’ of Lakeview Developments.
Nicole has just been informed by the company that, as Developments Manager, Anthony did not have authority to enter into the contract and the company will not complete the contract.
The next best offer Nicole received for the house is $200,000.
Advise Nicole on her legal options.
Question 7: Business structure
John works as the Chief Clerk for the large and prestigious law firm Sue, Grabbit &Runne in Canberra City.
As Chief Clerk with a staff of seven, he is accustomed to running the office. He has a range of duties that include arranging for and supervising staff, liaising with debtors and receiving payments and banking them on behalf of the firm, and also occasionally booking and paying for catering for office functions, such as the annual Christmas party and when special clients are being hosted by the Partners in the firm.
In late October he notices that Christmas is rapidly approaching and asks the Managing Partner what he should do. He is told to make inquiries, and to ensure that he gets the best possible deal (which he takes to mean the lowest reasonable price) by getting three quotations from quality establishments that John has made bookings with before.
The Managing Director then goes off on a sailing trip to the Antarctic and is uncontactable for three weeks. This has happened before and there have never been any problems with John acting on behalf of the firm.
John’s enquiries reveal that there is limited availability in the quality establishments favoured by the Managing Partner, and after getting the three required quotations. He finds that only the second cheapest (the middle of the three in price) has appropriate availability. Unfortunately, if he wants to secure the booking, he will have to book immediately, with a non-refundable full pre-payment required. Being a responsible man of action, he does this and books and makes the full pre-payment using moneys he had received on behalf of the firm hut not yet banked signing the form “John, Chief Clerk for Sue, Grabbit &Runne”.
The Managing Partner, on her return hears what has happened and says that she had food poisoning at that very restaurant just the month before and, flying into a rage, fires John on the spot and denies any responsibility for the restaurant debt.
Advise John of any legal liability that he might have, giving your reasons
Question 8: Intellectual property
Bella learned how to play a piano and organ to a very high standard while she was at school. After she started at University studying Law, she found relation playing keyboards with four other students with similar tastes in rock music. After a while the group realised that they were getting on very well and entered a Battle of the Bands competition, which had as its prize a recording contract with a major recording label.
To their absolute amazement they won the competition, and were soon contracted to play at various venues and to record the promised album. Once this was complete they resumed their Law studies, balancing the demands of studying with their newfound fame as rock musicians. They started making very good money not just from the appearances that they made as a band, but on the royalties they were receiving for the recordings they made together.
Over the years they managed this balancing very well, and became well known and in great demand to appear at festivals and on the TV. This continued well after their graduation and commencement of their various careers, which saw two of the band leave and be replaced by new musicians, all the time making sure that their sound never changed.
After twenty years, they decided to retire the band and enjoy the flow of royalties.
Twenty six years after they started out, they were inducted into the Rock and Roll Hall of Fame and this kick-started an interest in their work from a whole new generation of fans. The group was asked to re-form and play a series of festivals and to tour overseas.
Emma, a new member recruited some five years ago to replace one of the original members who had left for personal reasons, didnt fit in with the bands sound and despite their best efforts to point out the problems she was causing to their sound, Emma didnt want to change her singing to ensure that she would fit in. The band decided not to include Emma in their new touring plans nor any new recordings they made. The band did not subsequently recruit any new members.
Emma has now threatened legal action, seeking an injunction aimed at preventing the band undertaking the tour, on the basis that she is a partner in the band and as such is entitled to be included in everything the band does, including touring and recording.
Se is also threatening an application for damages and a share of the profits the band may make if they do go ahead with the tour and recordings.
Advise Bella on the rights she and the band each have under Australian intellectual property law.
Lucy, Felix and Kevin are students who are keen to earn and income in their spare time to finance their studies. Lucy has a truck, Felix owns a lawnmower and Kevin has a computer. They print out flyers advertising LFKs Mowing Services, their registered business name. They drop the flyer in the neighbourhood letter boxes.
Within a short time they have a list of regular clients. Felix cuts the grass, Lucy removes the clippings and Kevin keeps the accounts. Felix decides that life would be much easier if they had a ride-on mower and orders one from Lawn and Garden Suppliers in the name of LFKs Mowing Services. Neither Lucy nor Kevin were consulted about this purchase.
Meanwhile, Lucy develops a separate business relationship with LFKs clients by removing rubbish from their properties on weekends while Felix and Kevin are busy studying. These clients pay Lucy cash that she deposits into her personal bank account. Lucy does not disclose this to Felix and Kevin.
When the bill for the ride-on mower arrives, there are insufficient funds it the account to pay for it, as Lucy has been buying petrol for the truck from LFKs account. To make matters worse, while operating the ride-on mower, Felix hits a stump, falls off the ride-on mower and suffers serious injuries caused by the rotting blades. He later dies as a result of these injuries.
Please advise Lucy and Kevin:
a) what are the implication of their dealing through their registered business name including any obligations they have to Lawn and Garden Suppliers ; and
b) what effect, if any, Felixs death will have on their business venture.
In your answer you must consider case law and or legislation as appropriate.
Question 10: Negligence
John is an architect, currently working on a project that has the potential to open doors for his company into the overseas market. He is designing some apartments for a European firm who has specific requirements that John is finding challenging. John decided to leave work earlier than usual. He gets into his car to drive to the gym. He hits peak hour traffic and to alleviate the stress, he puts on his noise cancelling ear phones to listen to music.
He is sitting at the traffic lights when he hears the sound of a siren. Before he has a chance to determine where the sound is coming from and what is making it, he feels an impact as his car is rammed on the left hand side by an ambulance.
John is seriously injured and has to spend some time in hospital. While he is recovering in hospital, he receives a legal demand, accompanied by a statement of claim, requiring him to pay the cost incurred in repairing the ambulance. To make matters worse, he is required to compensate Edith, the driver of the ambulance, for the shock she received.
The statement of claim is prepared by Edith and states that she had switched on her siren seconds before entering the intersection. The statement admits that she exceeded the speed limit, bit that it was necessary in all of the circumstances.
John suspects that as the statement makes no reference to any emergency or even details of patients, or Ediths destination, she was on her way to a nearby Subway store and had used all of the privileges associated with the use of sirens, to save time.
Advise John :
1. as to what Edith will need to prove to establish a claim in negligence against him; and
2. what potential defences he has available to him
Question 11: Consumer Protection
Getting ready for his well-deserved holiday at the coast, Adam took his Toyota to the dealer for a regular service. He told them, he intended to take the SUV to the South Coast for a couple of weeks and do some off road driving, and wanted them to make sure the car is serviced accordingly, he didnt want to be looking for a mechanic during the holiday period, neither did he want to be stranded in the middle of nowhere and have to be towed.
The dealer said that they would check everything and ensure there were no potential problems left unchecked. When Adam collected his car later that day, the dealer went over a checklist of all the work that was done and told Adam there were no problems, his car was in good condition and there was no reason to believe Adam should have anything but a great holiday. The dealer further drew Adams attention to a clause in the repair checklist stating that if the vehicle experienced problems over the next three months, the dealer would arrange for immediate repairs. Satisfied, Adam left to pack for his trip.
A week into his holiday, whilst Adam was driving on a designated dirt road, the suspension failed, Adam lost control and crashed his car into a tree. Although shaken up and terribly disappointed, Adam remembered the clause in the dealers repair invoice. He called the dealer and explained what happened. But the dealer referred Adam to a subsequent clause which stated that this guarantee only applied to damage sustained while the vehicle was driven in the ACT. Adam had not read the clause previously.
Adam is less than happy having his holiday ruined and his car damaged and the dealer unwilling to honour their repair guarantee. When he finally gives his statement to the police and arranges for his car to be towed to a garage, he comes to seek your advice as to his consumer rights.
You are to advice Adam what, if any, rights he may have under the ACL.
Question 12: Contract
Toby is a shop owner in a small town in Western Australia. He regularly buys the goods which he then sells to the local population from a wholesale supplier in Perth, under an arrangement which has suited both parties for many years.
He has become well known in the district for the purity of the flour which he sells and which includes special and secret ingredients, such that other trades people come from hundreds of kilometers around to buy it to use it for “home made” bread and scones.
Bandar has a small bakery and specialises in “home made” scones and bread rolls. He attributes much of the popularity of his business to the quality of the flour which he helped Toby to develop, and which he buys from Toby under a written contract.
Toby’s supplier in Perth is subjected to a raid by the health inspectors and is closed down because several large cockroaches were found in the flour bins. As a result, Toby has to find a new supplier, and quickly. He is unable to find one capable of making the special blend of flour he is famous for, and he elects to purchase regular flour in bulk from a large supermarket, at a significantly lower price than he had previously paid. He decides not to tell anyone, and reaps a significantly increased profit as a result.
Bandar’s business starts to falloff, and after 6 months he does some market research which indicates that it is because his food “no longer tastes as good”. He does some further checking and discovers that Toby has been supplying different flour to that specified under the contract.
When he raises the issue with Toby, the answer that he receives leaves him dumfounded. Toby indicated that perhaps the presence of the cockroaches gave the flour its distinctive flavour, and that if Bandar kept silent on this, they could share the increased profit.
a) what rights, including compensation, does Bandar have against Toby?
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