CLWM4000 Business and Corporations Law Assignment Sample
Word Count - 2000 Words (+/- 10%)
Weighting: 30 %
Total Marks: 30
Submission: Via Turnitin
Due Date: Week 9
Using the Case Study provided, you will need to undertake an analysis of the various legal issues that are identified, cite relevant rules applicable to the issues, explain the application of the rules to the facts/situation in the case scenario using the IRAC method.
You are required to answer the following three (3) questions, based on the Case Scenario below
• Your assessment is to be submitted via Turnitin in WORD format. “PDF submissions will not be accepted”
• You must follow the KBS presentation guidelines for assignment help
• Please refer to the assessment marking guide to assist you in completing all the assessment criteria and for information on the use of references and legal citations
Julia Brennan is an Australian Super Model who had started on an intensive fitness program to prepare for her new TV Commercial that will advertise a new type of gym equipment. She knows that she needs to be super fit. In addition to her fitness program, she decided to consultant dietician about what sort of food she should eat to accelerate her program. The dietician suggested that she have at least one protein smoothie every day. She had done a bit of research to find out what might be the best type of blender for her to buy. When she went to the local electrical store, she found that the only blenders that they had for sale did not meet her needs as they were no powerful enough for smoothies.
So, she decided that she needed to go to a larger store. She had heard good things about, the “Super Big Brand Store” so decided to go there to purchase a blender that met her needs. She was very happy to find that the blender was on sale at the “Super Big Brand Store” The Sale Sign stated “Buy it today and you will get 50% off” it is high quality, superb, safe and durable. You won’t regret it”.
When she went to the counter to pay for it, she was informed by the Sales Assistant that the blender was not on sale for 50% off as the Sale Sign had stated. The Sales Assistant told her “sorry that was yesterday, and I cannot give you 50% discount!
Julia was in a hurry and she just wanted to get started as soon as possible with her protein shakes, so she bought it and kept her receipt. She went back home, she plugged it in and as soon as the blender started the upper lid came straight off as did the sharp blender blades.
Unfortunately, the blades injured her right hand and she needed to go straight to the Hospital Emergency Department. The Doctor told her that she would need stitches in her hand, and she would be unable to use her hand for four weeks unless the cut had healed, and the stitches could be removed. Julia was very upset when she realized that she would not be able to participate in the planned TV Commercial and that another Super Model would have to take the job. She would also lose the $12,000 that was the agreed payment for the commercial.
Three weeks after the accident, Julia went back to the “Super Big Brand Store” to complain about the blender and about the injury to her hand finger! While she was waiting for the Store Manager, she noticed that the same Sales Sign was displayed “Buy it today and you will get 50% off” it is high quality, superb, safe and durable. You won’t regret it”.
She asked the Sales Assistant whether the blender was 50% off as the Sales Sign had stated. The Sales Assistant responded, “Sorry that was Yesterday”. She realized that the displayed Sales Sign did not mentioned the date, so it was difficult to figure out why the Sales Assistants kept saying “Sorry that was Yesterday”. She started to suspect that there was something wrong with the way that the store was operating. Instead of waiting for the Store Manager,
She decided to call a Solicitor from the firm “Injuries at Law” for legal advice.
QUESTION 1 – Contract Law (10 Marks)
• Please advise Julia, if she entered in a contract with the “Super Big Brand Store.”
o In your answer explain the meaning of Contract and which elements need to be satisfied to be in a simple contract and how to identify if this contract can be invalided.
o You will need to address all the “essential elements of a simple contract” including (Offer and acceptance, intention and consideration) as well as “elements of a valid contract” (Capacity, Legality, Genuine Consent, Mistake, Misrepresentation, Durres, Undue Influence and Unconscionability and explain if Julia can invalidate the contract.
o You will also need to address and explain what sort of remedies she will be entitled if she decides to void the contract under the Contract Law in Australia.
QUESTION 2 - TORT LAW (NEGLIGENCE) (10 Marks)
• Please advise Julia, if she has a claim under the tort of negligence.
o You need to address all the “essential elements under the tort of negligence”.
o You also need to address if the “Super Big Brand Store” has any defences under the tort of negligence.
o Explain what sort of remedies she will be entitled to claim under the tort of negligence in Australia.
QUESTION 3 – Australian Consumer Law (10 Marks)
• Please advise Julia, if “Super Big Brand Store” breached her Australian Consumer Law Guarantees under the Competition and Consumer Act 2010 (Cth) Schedule 2.
o You need to justify your view as to whether these guarantees are available. Don’t forget to explain if Julia will be entitled to claim the remedies and
o You also need to explain if the “Super Big Brand Store” will have to pay
Issues in the prevailing case scenario
Present case scenario contained issue related with contract law. It is required to ascertain whether or not Julia has formed contract with the “Super Big Brand Store”?
Rules and regulations
A contract is a set of promises that are legally enforceable. Australian contract law is primarily governed by the ‘common law’. Some of the essential elements need to be satisfied for formations of valid contract are -
1. Offer and acceptance: When one party accepts the offer of another party it leads to the formation of a contract. Offer can be given to any single person or group of person, which can be observed in the case of Carlill v Carbolic Smoke Ball Co.
2. Legal relations: Contract is not just formed by acceptance of offer but there should be intention of parties for creation of legal relations (Tadros 2020).
3. Consideration: It is the price paid by one party to another; price is not just in terms of money but can also be in terms of risk, interest, rights.
4. Legally capable: Not everyone can enter into a valid contract, persons with issues related to legal consent like bankrupt, prisoners, mental issues cannot enter into a valid legal contract (Werbach & Cornell 2017).
5. Consent: These are the elements under the contract on which both the parties agree mutually it must avoid any miscommunication, misinterpretation, mistakes etc.
Apart from above aspects, a contract is invalid if these conditions are there:
1. Fraud has been committed.
2. Consent in the agreements is not understandable or not possible to be fulfilled.
3. Consent has been obtained through undue influence, duress, mistake, unconscionable conduct, and misrepresentation. In the case of Derry v Peek, contract is considered as void because consent is obtained through fraudulent misrepresentation (Clarke 2010).
One must have to convince the second party to agree on the contract if there is misrepresentation under the contract. Misrepresentation is an inaccurate statement which tries to persuade a person or a group to enter in the contract. It has no such effect until and unless the second party was aware of its existence. Further, duress takes place, when individual enter in a contract because of some force or violence their entry is not voluntary (Lamont, Stewart, & Chiarella, 2019). Undue influence occurs when an innocent party is threatened or misbehaved by the other party or even if someone is forced by their elders or any other ascend person for their own benefits is an act of influencing. In fact, a ‘mistake’ is something which exits but it shouldn’t have.
Liquidated and damages Claims: Liquidating damages means providing a sum of money under a clause in contract for the breach to other party, further the sum mentioned above is not included in penalty. Damages could be viewed as replacement of the performance from the breached contract, which means a plaintiff is placed in a situation where he would have if the contract was performed correctly (Clarke, 2010).
Equitable Remedies: There are two main equitable remedies for breach of contract.
Specific performance – Under this the breaching party is ordered to perform in the way it was supposed to according to the laws. This order is laid only if the compensation could not be provided.
Injunctions – These are the order or you can say warning by court to not perform such breaches in contract.
By application of above rules, it can be said that, there is valid contract has been formed between Julia and Store as all essential elements such as offer and acceptance, consideration, intention, and legal capacity has been satisfied. It should be noted that, there is violation of terms and conditions of the contract by Store as blender was not as per Sale Sign that states about its quality, safe, durable, and excellence. Based on this, Julia would entitle to claim remedies such as 50% discount on blender, medical expenses, and loss of income as damages under contract law designed in a manner to place plaintiff in a situation if the contract has been executed appropriately.
Overall, it has been concluded that, valid contract has been formed between Julia and Store. However, due to breach of terms and conditions by store, Julia can entitle to claim remedies from store.
Issues in the prevailing case scenario
Present case scenario contained issue related with tort law (negligence). In this, it is required to give advice whether or not Julia has a claim by application of tort of negligence?
Rules and regulations
Essential elements as per the tort of negligence are as follows -
Duty of care: It’s a legal responsibility to take reasonable care generally the scope of care not much it depends upon the relationship of the two parties. The duty of care involves the care which is not to harm intentionally or unintentionally to other party. In the legal case of Donoghue v Stevenson, it was held that, even if there is not any contractual relationship, an individual should be capable to sue another who assisted losses to them (Taylor 2020).
Breach: Under this the ‘duty of care ‘is breached that whether the occurred situation is reasonable or not, which means the plaintiff is not entitled to all the risks but if there is an obvious risk involved the plaintiff has to cover (Stoyanova 2020).
Causation: Under this the plaintiff has to prove that the injury which is occurred or the sufferings is the part of breach of duty of care. In the legal case, Amaca Pty Ltd v Ellis, there was inadequate causation to provide negligence.
Damages: The final element of the negligence is the damages. After the plaintiff proves the duty of care, breaching and causation they can receive the compensation for the loss.
The compensation is made on the basis of how the impact of lossinjury is on the plaintiff, like severity of injury, loss in financial terms or the impact of injury on the future of the plaintiff.
There are two defences a defendant can use where they are found liable for negligence:
Volenti non fit injuria: It means that the claimant has agreed that he had accepted the involvement of risk. Under this if the party successfully proved the acceptance he would not be liable for the loss (Armstrong 2019).
Contributory negligence: Under this the partial liability is taken away if the defendant can prove that there was the contribution of the claimant too in their losses.
Remedies for Negligence Claims
First remedy for negligence claims is the compensation. The claimant will be provided with the sum of compensation he had to suffer from the damages. Damages could be provided for both financial and non-financial losses (Gibbs Wright Litigation Lawyers 2020).
In case of personal injury, the claimant will be provided with additional damages like the loss of his income due to the injury or medical expenses (Eldar 2020).
By application of above rules and regulations in the prevailing case scenario, it can be said that, Julia is eligible to claim as per tort of negligence as sales assistance owned duty of care towards Julia and due to violation of such duty of care, she has suffered from losses, and such losses was also not too remote. Further, there is not any defenses available to store as there is not any voluntary acceptance of risk by defendant and concept of contributory negligence would also not applied. Therefore, Julia would entitle to claim monetary compensation for the losses suffered by her along with loss of $12000 that was agreed payment for commercial performance.
Overall, conclusion can be drawn from above analysis that, Julia would be entitled to claim under tort of negligence and consequently remedies can be claimed by her, which includes loss of income as well as medical expenses.
Issues in the prevailing case scenario
Issue in the given case scenario is based on Australian Consumer Law. It is required to provide advice to Julia whether or not provisions of consumer guarantee as given in the schedule 2 of the Competition and Consumer Act 2010 has been violated by the “Super Big Brand Store”. In addition to this, suggestions should also be provided with respect to remedies of Julia and what is required to be paid by “Super Big Brand Store”.
Rules and regulations
Australian Consumer Law is explained in the schedule 2 of the Competition and Consumer Act 2010. As per the cited law, it is required by organizations to offer consumer guarantee for most of the products and services sold by them. It is essential that, organizations that are engaged in selling of goods must provide guarantee as explained in section 51 to 59 of the cited Act that such goods are –
• Goods must be as per the acceptable quality. It suggests that, products should be secure, has no mistake, seems acceptable, and performs all aspects that are expected generally.
• Goods should be appropriate for the purpose that customer made recognized to the company prior to purchasing.
• Goods should be described reliably (Bianchi 2018).
• Goods should be match as per demonstration.
• It should comply with any express warranty.
• They should have a clear title.
• There should not be any hidden charges.
• It should have repairing facility for a rational period of time except the advised is provided to customer otherwise.
If an organization sells goods to consumer that fails to fulfill above prescribed guarantee, then in such case, consumers are entitled for the remedies, such as repair, refund, replacement of goods, and monetary compensation for any significant losses, based on the situations (Pearson 2018). If the issue is significant or it could not be fixed, then in such case, customer can select to reject the product and gain a refund of whole amount or replacement of goods, or retain the product and avail compensation for the decrement in the value of product. In the legal case ACCC v Valve Corporation (2016), it was held that, Australian Consumer Law would also implement on the foreign companies. Therefore, company has liability for misleading customers through demonstrating that refund was not entitled to them and not including any guarantee connected to the quality of services.
Section 259 offers the right of Consumers to seek compensation for the losses sustained by them because of the issues in goods and services, consisting of repair, replacement, and refund of defective goods. Section 259(4) provides remedy for the consequential losses caused to the customer as a consequence of the issue in goods and services as decision is given in case of Barton v Transmissions and Diesels Ltd (Consumer rights obligation 2020). Normally; it is financial like expenses of repairing, transportation, inspection. Additionally, lost time and productivity could also be included in the damages.
By application of above rules, it is advisable to Julia that Australia Consumer Law Guarantees has been violated by the store. It is because, there is implied guarantee given under cited Act, that goods must be as per reliable quality, however as soon as blender started by Julia, she has suffered from injury because store’s failure to comply with guarantee stated under the Act. It is mainly because of bad quality of blender. Since, problem in goods is major in nature, therefore Julia has right to reject the goods and obtain the refund of whole amount or replace the goods. She may also retain the goods and claim compensation for reduction in amount of goods. In addition to this, $12000 can also be claimed as it is consequential losses taken place from violation of consumer guarantee.
In a nutshell, store has breached the guarantee provided under schedule 2 of the cited Act, and therefore Julia is entitled to claim remedies, which may be either replacement of goods or refund the amount. Additionally, she also claims loss of income of $12000. Therefore, store is required to replace or refund the amount of blender along with losses of income suffered by Julia.
Armstrong, A 2019,’Negligence and prescribing’, Journal of Prescribing Practice, vol 1, no. 10, pp.512-516, https://doi.org/10.12968/jprp.2019.1.10.512
Bianchi, L 2018, ‘Consumer law: Changes to Australian consumer law: Key benefits for vulnerable consumers’, LSJ: Law Society of NSW Journal, vol. 50, no. 3, pp.71-73, https://search.informit.org/doi/abs/10.3316/agispt.20181108003624
Clarke, J 2010, ‘Australian contact law’, Available through<https://www.australiancontractlaw.com/law.html> .[ Accessed on 27th August 2021].
Consumer rights obligation 2020, Available through < https://www.accc.gov.au/business/treating-customers-fairly/consumers-rights-obligations> . [Accessed on 27th August 2021].
Eldar, S 2020, ‘Cross-Victim Defences’, Criminal Law and Philosophy, pp.1-17. https://link.springer.com/article/10.1007/s11572-020-09552-7
Gibbs Wright Litigation Lawyers 2020, ‘Remedies for negligence claim’ ,Available through <https://gibbswrightlawyers.com.au/publications/negligence-disputes-australia> . [Accessed on 27th August 2021]
Lamont, S, Stewart, C, & Chiarella, M 2019, ‘Capacity and consent: knowledge and practice of legal and healthcare standards’, Nursing Ethics, vol 26, no. 1, pp.71-83, https://doi.org/10.1177/0969733016687162
Pearson, G 2018, ‘Enforcement and Effectiveness of Consumer Law in Australia’, In Enforcement and Effectiveness of Consumer Law (pp. 75-97), Springer, Cham, https://link.springer.com/chapter/10.1007/978-3-319-78431-1_3
Stoyanova, V 2020, ‘Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights’, The International Journal of Human Rights, vol 24, no. 5, pp.632-655. https://doi.org/10.1080/13642987.2019.1663342
Tadros, E 2020, ‘Elements of a contract’, Available through <https://fls.org.au/law-handbook/consumers-contracts-the-internet-and-copyright/how-contract-law-works/elements-of-a-contract/>. [Accessed on 27th August].
Taylor, 2020, ‘Elements of negligence’, Available through <https://www.taylorandscott.com.au/compensation-lawyers/four-elements-make-negligence-claim/>. [Accessed on 27th August 2021].
Werbach, K. & Cornell, N 2017, ‘Contracts ex machine’, Duke LJ, 67, p.313, https://heinonline.org/HOL/LandingPage?handle=hein.journals/duklr67&div=11&id=&page
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