A Case Law is a law which is prevailing in the society and has been created as a part of the rulings made by the judges. Since Case Law is created by the legal authorities, it is thereby called the collection of Legal Precedents. It is also termed as common law since it is a collection of the judicial precedents and holds the authority of the previous judicial decisions over any specific issue or topic of the existing law (Cornell Law School 2020). A Case Law comes is created by the judges when they encounter an issue and find that there is no existing legal provision to decide the case, therefore, the judges decide the case and create a 'new legal rule' through the decision of the case. The new legal rule is primarily based on the moral/ ethical beliefs, community standards, common sense, and other areas of the law that can be compared.
Parliamentary law often known as legislation/ acts/ statutes is a collection of legal provisions and legal rules that have been drafted by the parliament. The parliamentary law is said to be effective for the offenses that will be committed in the future after the enactment of the act that means it operated prospectively and not retrospectively. A parliamentary law cannot hold a person guilty for any offense that has been committed before the date of the enactment of the act.
Both the Case Law and the Parliamentary Law serve the common purpose of the welfare of the people but under any circumstances, if there arises any dispute between the judge-made law and the parliamentary law, then, the parliamentary law is said to prevail over the Case Law.
In the case of Loci v Builder Registration Pty Ltd (Civil Claims)  VCAT 225 (27 February 2020), the applicants were students who got themselves registered in the training course run by the respondent to become Registered Building Practitioners and for the same, they both paid full fees of the course amounting to $11,750.00 each. But before the commencement of the course, the applicant suffered a financial problem and therefore asked the respondent to cancel the registration and provide the full fees in a refund that was paid in advance. To which, the respondent denied the claim mentioning clause 6 and clause 7 of the signed contract which stated that no claims for refund shall be entertained, and if any such claim is made by the applicant then this will amount to a breach of contract. Then the applicants approached the tribunal where it was decided by the tribunal that the clauses 6 and 7 of the contract mentioning no claims and no refund are void under section 23 of the Australian Consumer Law. The tribunal also decided that the respondent did not suffer any loss since the seats could be filled by alternative students and that the course did to commence so no services were provided to the applicants and thus, awarded a refund of $10,000 each to the applicants.
(1). The offer was made by Robyn and was accepted by Frank.
(2). No, Frank’s advertisement in the newspaper was not an offer but, rather it was an invitation to treat or negotiate the offer.
(3). An Offer is the indication of the willingness of one person to another to enter into a contract to agree on the terms and conditions of the contract. However, an invitation to treat or negotiate is defined as the intention of a person to invite other people to come and make an offer against the invitation to treat or negotiate by them. The retail displays, advertisements, auctions, tenders, etc. are the invitations to treat i.e. to come forward and make an offer and not direct offers to sell. The same has been decided by the courts in the cases of Carlill v Carbolic Smokeball Company, Boots Chemist, Patridge v Crittenden, Harris v Nickerson, Kelly v Caledonian Coal Co., etc.
(4). As decided in the case of Routledge v Grant, it was decided that an offer can be withdrawn at any time, before it is accepted by any person. However, in the case of Byrne v Van Tienhoven, it was decided that for the valid revocation of the offer, the intimation of the revocation of the offer must reach the offeree, i.e. the person interested in accepting the offer. Unless the information of the revocation of the offer reaches the offeree, it will be considered as ineffective. In the case of unilateral offers, the valid revocation of an offer can only be done before the offeree commits any act on the offer (Carlill v Carbolic Smokeball Co). The withdraw of an offer can be prevented in the case when the offeree gives the required consideration to the offeror to keep the offer open. The offer in such a case is called an “option” that cannot be revoked. The same was decided in the case of Goldsborough Mort v Quinn.
Tanya cannot sue Joe for selling his house to her as there was no contract between them due to the lack of consideration which was neither paid nor discussed among both the parties. However, Tanya can still exercise the legal right provided to her under the remedy of Promissory Estoppel as she was reasonable in her approach (Legione v Hardy) and relied on Joe’s statement of signing the contract (Beaton v McDivitt) thinking that she has already become the owner of the house and acted detrimentally by quitting the job, terminating the lease, selling all her possessions and wish goodbye to all her friends in Sydney.
ISSUE: Whether Steve and Laura can file a claim for damages against Tony for providing the campervan which was not of merchantable quality?
RULE: S 19(a) and s 19 (b) of the Sale of Goods Act 1923 (NSW). (SGA)
APPLICATION: Steve and Laure mentioned their requirements and purpose of buying the campervans to Tony in the beginning, which according to s 19(a) of the SGA is an essential condition to be fulfilled. After Tony’s suggestion bought the brand new “Winnebago Transporter Deluxe” campervan for $106,500 considering that the suggestion was given by Tony out of his business skill and experience. If the faults emerging in the product are because the product was unfit for the said purpose and was not of “merchantable quality” then, Tony is liable to be held against the violation of s 19 (a) and 19 (b) of the SGA since it impliedly provides that the goods sold under merchantable quality are reasonably fit, serve the purpose at the time of the sale, and have no effect on the circumstances of the case.
CONCLUSION: Steve and Laura can exercise their legal right to claim for the damages incurred from Tony since he has violated his duty as provided under s 19 (a) and s 19 (b) of the SGA.
1(1). Joe is not bound to go through with the contract as the contract is a result of the unconscionable conduct by Fran. She was well aware of the special disability of intoxication of Joe and thus willingly took unfair advantage of his vulnerability to secure her benefit of buying the house. The same was decided in the cases of Commercial Bank of Australia v Amadio and Blomley v Ryan that when the disadvantage of any special disability of a person has been taken then the court can award the remedy of Rescission followed by compensation under ss 236 and 243 of the ACL and both criminal penalties under s 151 and 225 of ACL and civil penalties under s 248 and 232 – 234 of the ACL.
1(2). As decided by the court in the case of Astvilla v Director of Consumer Affairs Vic, it was provided by the court that a real estate agent or any business must not take any unconscionable advantage of the special disabilities of the consumer. No such conduct is allowed to be conducted under s 21 of the ACL. Therefore, in case of any such incident where the supply of goods and services and the acquisition of goods or services is involved followed by any unconscionable conduct then the court may award the remedies for the injured party appropriately as provided under s 239, 243, 243(a), 243(d), and 243(g) of the ACL.
(a) The cause of action that could be raised by Tarquin against Anaconda Pty Ltd as a seller shall be under s 54 and s 55 of the ACL. The Guarantee of Acceptable quality provided under s 54 states that the breach of the guarantee is said to be done when the product sold to the consumer is not fit for the purpose mentioned by the customer at the time of purchasing the goods. The guarantee as to fitness for any disclosed purpose is also a breach by the salesperson since Tarquin mentioned the purpose of the product at the time of buying itself and still the product did not serve the purpose for which it was purchased. Therefore, Anaconda as a seller becomes liable to pay damages to Tarquin under the ACL.
(b) The manufacturer of the product holds the liability against the consumer to ensure the fitness of the product according to the standards of acceptable quality, free from defects, safety, and durability of the product which in this case was not exercised by Anaconda while in the case of the pair of shoes purchased by Tarquin as the ankle support strap snapped resulting in the damage caused to Tarquin as his ankle broke. The safety and durability of the product were not up to the mark thus, the product failed to be of acceptable quality. Therefore, Anaconda as a manufacturer can be held liable for the cause of action by Tarquin under section 54 of the ACL. The guarantee as to fitness for any disclosed purpose provided under s 55 doesn't apply here because as a manufacturer, Anaconda creates the product, and not every product is meant to fulfill the requirements of a particular customer.
(c) The suggestion of the product to be purchased was given by Sung, but the decision to purchase the product in the desired color was taken by Tarquin himself. Therefore he doesn’t have any cause of action in such a scenario where he steps on a snake rather than a loose rock and he realizes that he should have purchased the shoes in red color and not green. The defense could be taken by Anaconda after referring to the case of Carpet Call Pty Ltd v Chan, where Chan ordered heavy-duty carpets for his night club and the seller sent those “heavy duty” carpets to him. But later on, the carpets were damaged due to cigarette burns, and unusual patches were formed on the carpets. However, the court decided that the claim by Chan stands rejected since he asked only for the heavy-duty carpets and the same were provided to him by the seller. He did not ask for any advice or suggestions from the seller which could have kept him in the jurisdiction of s 55. Similarly, Tarquin asked for suggestions regarding the model of the shoes and not the color therefore, he hold no cause of action against Anaconda in this scenario.
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