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  • Subject Name : Law

Table of Contents

1st Issue.

1st Rule of Law..

1st Application and Analysis.

1st Conclusion.

2nd Issue.

2nd Rule of Law..

2nd Application and Analysis.

2nd Conclusion.

3rd Issue.

3rd Rule of Law..

3rd Application and Analysis.

3rd Conclusion.

4th Issue.

4th Rule of Law..

4th Application and Analysis.

4th Conclusion.

References.

Contract and Tort Law - Question 1

Issue

Whether Bettina can recover the $30,000 already paid to the vendor for the apartment.

Rule of Law

A contract can be discharged by way of performance or breach, or through the operation of law or maybe an agreement or by the frustration of it. Again, the breach is applicable either by performance or through the way of repudiation.

Application and Analysis

In the instant facts of the case, Bettina and the vendor agreed on certain terms and conditions where Bettina was to pay a certain amount to the vendor at a mutually aggregable date. So, after paying the amount on the first date, Bettini wanted to extinguish the contract. It is pertinent to mention that, in the present scenario, there is the absence of willingness on part of Bettini for not having the desire or the ability to perform her stated contractual duties. Thus, in here repudiation is sought by Bettini through non- performance of the contract, and is expressed through definite actions, as was held in case of (Shevill v Builders Licensing Board, 1982), by immediate calling to the real estate agent. The Court in case of (Laurinda Pty Ltd Capalaba Park Shopping Centre Pty Ltd, 1989), held that repudiation is not determinable by the subjective intention of the parties but through the objective test of it as was also opined in case of (Progressive Mailing House Pty Ltd v Tabali Pty Ltd, 1985).

Conclusion

On repudiation, the innocent party, in here the vendor can insist performance from Bettini, but can also accept the discharge of the contract and thus sue the repudiating party for damages. Thus, not only can Bettini recover the amount already paid, but also will have to compensate the vendor with damages.

Contract and Tort Law - Question 2

Issue

Whether Bettina is liable to pay the vendor the further $30,000 that was due to be paid at a future agreed date.

Rule of Law

When a party repudiates the contract, the party on the opposite side actually have two options. Firstly, they can ignore the repudiation and insist on the repudiating party to perform their contractual obligation. Secondly, the repudiation can also be accepted by the innocent party and thus making themselves discharged from performing their contractual obligations.

Application and Analysis

In the instant facts of the case, Bettini on being informed about a cheaper investment changes her mind and informs about repudiation to the real estate agent. Thus, the agreed amounts at consecutive date also become standstill. However, it is the rule that the innocent party is at the liberty to accept or reject the repudiation done by the repudiating party. Again, the Court in case of (Ankar Pty Ltd v National Westminster Finance (Australia) Ltd, 1987), held that when intermediate or innominate terms are breached then that in itself gives the right to treat the contract as an end to the party who is not at default.

Conclusion

Thus, the liability of Bettina to pay the vendor the further $30,000 an amount that was due to be paid at a future agreed date, is dependable on the vendor. If the vendor does not accept the repudiation, then she will be liable to pay, but on accepting it, she might not be required to pay the amount but there will be consequences of damages as claimed by the vendor.

Contract and Tort Law - Question 3

Issue

Whether Arnold can receive a refund of the purchase price and recover damages from Fabian.

Rule of Law

A negligent misstatement is identified as the information which is not provided with malafide intent and is neither accurate thus has the consequent effect of becoming a misleading action.

Application and Analysis

In the instant facts of the case, Arnold bought a yacht from Fabian based on the information given by the later about the yacht winning a certain race during the year 2000. However, Arnold was further informed by Georgia, an expert about races and boats, that the information provided by Fabian was entirely wrong. The case of (Derry v Peak, 1889), did not consider negligent misstatement as sufficient when there is no contract giving rise to any fiduciary obligation, thus not having the force to establish the duty of care. However, the decision in (Hedley Byrne & Co v Heller & Partners, 1964), opined that liability in tort for negligent misstatement can be affixed on the information provider where the person providing it is in possession of certain special skills or knowledge. Furthermore, the Court also held that the information provider must be aware that the person seeking information, will be placing the reliance on that piece of information. The Australian High Court in case of (Mutual Life & Citizens’ Assurance Co Ltd v Evatt, 1968), was in acceptance of the (Hedley Byrne & Co v Heller & Partners, 1964), and also in case of (Howard Marine and Dredging Co. Ltd v. A. Ogden & Sons (Excavations), 1978). However also held that the for determination of the special relationship between the information provider and the party placing reliance on it do not have to have any actual possession of special skills to form a judgement about the statements so provided, was also further approved in cases of (San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (NSW), 1988), (Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288, 2014), (Bryan v Maloney, 1995), (Geju Pty Ltd v Central Highlands Regional Council (No 2), 2016), (Mid Density Developments Pty Ltd v Rockdale Municipal Council, 1993), (Precision Products (NSW) Pty Ltd v Hawkesbury City Council, 2008), (Raftopoulos v Brisbane City Council, 2012), (Woolcock Street Investments Pty Ltd v CDG Pty Ltd, 2004). The Court in case of (Shaddock &Associates Pty Ltd v Parramatta City Council, 1981), also maintained that the determinable is to arise from information so supplied to the party relying on it.

Under the law of torts, to bring an action under negligent misstatement, there are certain elements which need to be satisfied. Firstly, a legal duty which must be owed by the tortfeasor to the plaintiff, that is the innocent or the aggrieved party. Secondly, that legal duty is to have adhered to the standard of conduct where the risk was foreseeable by the defendant and that precaution was taken towards protecting the plaintiff from the foreseeable risk, as was held in case of Caparo Industries Plc v Dickman [1989] QB 653. Thirdly, the aggrieved party must suffer the breach, that the duty of care which was owed to was failed by the defendant, and lastly, based on the breach or the failure on the part of the defendant, the plaintiff suffered material losses. But, the Court in case of (Esanda Finance Corp Ltd v Peat Marwick Hungerfords, 1997), held that, for establishing the duty of care as against the defendant providing negligent misstatements, there must be the assumption of responsibility, and thus reasonable foreseeability of harm alone is not sufficient. In the case of (Norris v. Sibberas, 1990), the Court was of the opinion that skills and expertise can be categorised under the duty to take reasonable care. In the instant scenario, it is true that Arnold did place reliance on Fabian and based on that reliance he purchased the yacht from him. The statement provided by Fabian is wrong but at the same time, it is also true that Fabian is the store owner. It can thus be presumed that Fabian has the knowledge, skills and expertise as to the yachts present in his shop for selling. So, Arnold being the reasonable person which is defined in the cases of (McHale v Watson, 1964) and (Chin Keow v Government of Malaysia, 1967), will place reliance on someone who is knowledgeable and have sufficient skills regarding the yachts. Hence, negligent misstatements by Fabian will be sufficient to prove that the duty which was owed by him was breached and based on that breach, Arnold suffered material losses and thus can return the yacht to Fabian, receive a refund of the purchase price and recover damages from him.

Conclusion

The grounds on which Arnold can return the yacht to Fabian, receive a refund of the purchase price and recover damages from him, are that a duty was owed to him by Fabian, being the shopkeeper. Secondly, that duty was breached by providing negligent misstatement, thirdly Arnold suffered losses out of the breach caused by Fabian. Hence, Fabian is liable to refund the purchase price and must also compensate Arnold for the material losses so suffered by him, though damages.

Contract and Tort Law - Question 4

Issue

Whether Arnold Bettina and Charlene have any rights and obligations with respect to Arnold’s decision for not to set aside the mentioned amount towards paying of fees for Charlene.

Rule of Law

The unintended consequences do often accrue from the conduct of the parties within the perspective of the commercial negotiations. The statements or that of the action of the parties or can also arise from silence, being represented, have the possibility of increasing the level of expectation or that of assumption to the other party. A party is induced as to the occurrence of certain events, and the unfulfillment of which might require compensating the party placing the reliance on it. The doctrine of promissory estoppel has the applicability within those contracts which have the continuing nature provided that, reasonable notice was provided to the party placing reliance for suspending the promise. Promissory estoppel helps in recognising the very action of a party, where one party gains out of the unconscionable conduct thereby causing the detrimental outcome to another party to it.

Application and Analysis

In the instant facts of the case, Arnold and Bettini formally agreed to pay the Charlene a certain sum of money which was to be borne by Arnold. But Arnold went into debt and was unable to keep that money for Charlene. In here Arnold being the promisor conveyed about not exercising the liability which was to be borne by him. On the other hand, if it can be presumed that, Charlene has already left the 2nd job she was doing, by placing reliance on the fact that, Arnold would provide her with the agreed sum of money. Thus, it can be understood that, if Arnold does not keep his promise, then that might have detrimental effects on the person who placed reliance on it, since the very action on part of Arnold amounts to unconscionable conduct, as was decided in case of (ACN 074 971 109 Pty Ltd (as Trustee for the Argot Unit Trust) v The National Mutual Life Association of Australasia Ltd, 2008) and also in case of (Australian Communications Corporation & Anor v Coles Group Ltd, 2011). The reliance so placed by Charlene in the instant facts of the case was not unreasonable and hence is beyond the scope and purview of the case of (Legione v Hateley, 1983). Again, for satisfying the elements of the promissory estoppel, there is no requirement of the pre-existing legal relation as was held in case of (Central London Property Trust Ltd v High Trees House Ltd, 1947). However, the decision in the case of (Waltons Stores (Interstate) Ltd v Maher, 1988), held that the proof of estoppel is always favoured for the plaintiff. But, the fact that unconscionability is a major element in establishing estoppel, can be deduced if defaulting party causes encouragement to the innocent party in such a way that the later places reliance based on that encouragement, was held in case of (Thompson v Palmer, 1933). Thus, it can be stated that reliance was placed by
Charlene on the amount to be received from Arnold, and hence the latter is promissory estopped to go back to the original position.

Conclusion

To answer the issue, it can be stated that, Arnold has the promissory estoppel and it also true that, Charlene placed reliance on it, hence, Arnold is liable to compensate and Charlene have the right to receive the said sum. Bettini also has the right to sue Arnold for not performing the contractual duty as was formally agreed between them.

References for Contract and Tort Law

ACN 074 971 109 Pty Ltd (as Trustee for the Argot Unit Trust) v The National Mutual Life Association of Australasia Ltd (2008).

Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987).

Australian Communications Corporation & Anor v Coles Group Ltd (2011).

Brookfield Multiplex Ltd v Owners Corporation Strata Plan 61288 (2014).

Bryan v Maloney (1995).

Central London Property Trust Ltd v High Trees House Ltd (1947).

Chin Keow v Government of Malaysia (1967).

Derry v Peak (1889).

Esanda Finance Corp Ltd v Peat Marwick Hungerfords (1997).

Geju Pty Ltd v Central Highlands Regional Council (No 2) (2016).

Hedley Byrne & Co v Heller & Partners (1964).

Howard Marine and Dredging Co. Ltd v. A. Ogden & Sons (Excavations) (1978).

Laurinda Pty Ltd Capalaba Park Shopping Centre Pty Ltd (1989).

Legione v Hateley (1983).

McHale v Watson (1964).

Mid Density Developments Pty Ltd v Rockdale Municipal Council (1993).

Mutual Life & Citizens’ Assurance Co Ltd v Evatt (1968).

Norris v. Sibberas (1990).

Precision Products (NSW) Pty Ltd v Hawkesbury City Council (2008).

Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985).

Raftopoulos v Brisbane City Council (2012).

San Sebastian Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 (NSW) (1988).

Shaddock &Associates Pty Ltd v Parramatta City Council (1981).

Shevill v Builders Licensing Board (1982).

Thompson v Palmer (1933).

Waltons Stores (Interstate) Ltd v Maher (1988).

Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004).

Remember, at the center of any academic work, lies clarity and evidence. Should you need further assistance, do look up to our Law Assignment Help

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