Law Extension Committee Case Study Assignment Answers
Assignment Details:-
- Number of Words: 3000
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Compulsory Assignment Question
Part A
Question 1
Roberto and Susan are divorced and two months ago their property settlement was finalised in which the Court awarded Susan the couple’s former house and Roberto the couple’s former yacht, “The Kraken”.
Susan was enraged – she wanted the house and the yacht.
Susan decided to take matters into her own hands on the basis that the Court “got it wrong”.
Immediately following the property settlement, Roberto sailed The Kraken to Melbourne, where he wanted to start a new life which he decided to fund partly by leasing out The Kraken on weekends.
Last Saturday, whilst the Kraken was moored at Roberto’s spot at the marina, Susan’s new lover, Valero, at her request, took The Kraken and sailed it to Sydney.
Roberto saw Valero, whom he knew to be Susan’s new lover, taking The Kraken but he was too late to stop him.
Roberto called Susan and made an unequivocal demand for the return of the yacht.
Susan saw sense and knew that she should not have taken the yacht, but she could not contact Valero to ask him to return The Kraken until it arrived in Sydney.
The Kraken was caught in a storm as Valero sailed it from Melbourne to Sydney and the mainsail was torn.
Roberto had contracted to hire The Kraken to Swedish tourists on the day that it was taken by Valero for $10,000. Roberto had to hire his friend’s boat for the tourists at a cost to him personally of $5,000.
Roberto comes to you for advice. He wants to know what common law causes of action are available to him to either recover the yacht or damages or both. Advise Roberto.
Question 2
Mary is the lessee of a house in Newtown.
Last week a handyman, Josh, came to the house to fix the old chimney which was blocked.
After listening to him banging around with his tools for around an hour, Mary noticed that everything went suddenly quiet, so she went into the living room to see what was happening. On entering the living room, Mary saw that Josh had removed four bricks from the panel wall next to the fireplace to reveal a small jewellery box which was open with a key still in the lock.
Jim Josh had a gold brooch in his hand and Mary could see written on the back of the brooch the words, “With Complements, British Airways”. Mary had never seen the brooch before but, quick as a whip, she said “that’s mine”. Josh did not hand Mary the brooch and he comes to you for advice. Josh wants to know if he can keep the brooch.
Please advise Josh with reference to case law.
Part 2
Question 1
Avaricious Enterprises Pty Ltd owned an investment street front shop in Queens Square. Under the local zoning and development approvals, the only permitted use of the shop was to make and sell take-away fried foods and roast chickens.
Avaricious Enterprises had found it difficult to let the shop because of the limits to the permitted use and the fact that it did not have any shop fittings or cooking equipment installed.
Eventually, with the assistance of Mr Wily of Wily Real Estate Pty Ltd, Avaricious Enterprises leased the shop, without any shop fittings or cooking equipment, to Burgers & Chooks Pty Ltd.
The Burgers & Chooks’ sole shareholder and director was Mr Fryer. Mr Fryer was a recent immigrant to Australia. His formal education had ended at about the age of 11. His comprehension of spoken English was poor and his ability to read English was almost non-existent. Nevertheless, Mr Fryer had a natural commercial instinct – he knew what he needed to run the shop, he knew the relevant prices and understood the cashflow needs and capacities of the intended business.
Having learnt from its experience, Avaricious Enterprises had insisted that the lease contain a term to the effect that, at the end of the lease, the title to all shop fittings and cooking equipment installed by Burgers & Chooks would pass to the lessor and remain in the shop when the lessee vacated it.
The lease was for five years with a lessee’s option to renew it for another five years. The option could only be exercised by the lessee giving written notice to the lessor within the period commencing six months before the expiry of the lease and expiring three months before the expiry of the lease. That is, only during months 55, 56 and 57 of the 60 months lease.
During the pre-lease negotiations, Mr Wily told Mr Fryer “You don’t need to worry about remembering when to exercise the option. We’ve been appointed as the managing agent by the lessor. We have a computer system which sends out reminders to both the lessor and the lessee at the appropriate time”.
About a year after the lease began, Avaricious Enterprises and Wily Real Estate had a falling out and Avaricious Enterprises handed the letting agency to another real estate agent. Wily Real Estate therefore closed its computer file in relation to this lease.
After about four years into the lease, the useful life of the originally installed cooking equipment had come to an end. Burgers & Chooks replaced that equipment and upgraded some of the other fixtures at great expense and had borrowed heavily to do so. Avaricious Enterprises knew this.
The option exercise period passed without the option being exercised.
Avaricious Enterprises realised that it could fetch a much better rent on the open market with near new equipment owned and supplied by the lessor. Two months before the lease expired, Avaricious Enterprises gave Burgers & Chooks notice to quit and the end of the lease. In the same envelope, Avaricious Enterprises offered Burgers & Chooks a new lease of the premises which included a lease of the shop fittings and cooking equipment at the market rent for such a combined letting. If Burgers & Chooks accepted that offer, it would effectively be paying extra rent to use the shop fittings and cooking equipment it had already paid for.
Advise Mr Fryer what causes of action under the ACL, if any, Burgers & Chooks has against:
- Avaricious Enterprises;
- Wily Real Estate; and/or
- Mr Wily.
Question 2
Ms Emerita was an elderly retired commercial solicitor. She supplemented her superannuation pension by selling secondhand goods on the internet. She had a good eye for the value of secondhand commonly used household goods. She would spend her days walking through suburban streets in the days immediately before the local council conducted its half-yearly ‘bulky goods’ rubbish collection. When she found goods which were marketable, she would take them home, clean them up, if necessary, photograph them and advertise them for sale on social media marketplace websites. Typically, she would make about two sales a month.
One of the things she found was a formal cutlery set for 12 people. It appeared to be an antique set with hand-crafted bone handles. Ms Smith Emerita genuinely thought they were bone handled and dated from about 1900. In fact, they were excellent modern reproductions with plastic handles. She advertised them on the internet with photos. The photos were accompanied by the description “Very rare, beautifully made, complete set”. Those three descriptions were true. The price Ms Smith Emerita put on the cutlery set was one which an informed collector would only pay if they were, in fact, antique and bone handled.
At the foot of the website’s sale page were the words “Ts & Cs – click here”. Those words and that hyperlink was on the foot of every sale page on that website. A click on the hyperlink opened a pop-up window with about 20 paragraphs of text. Two of those paragraphs say:
“What you see is what you get. The seller makes no representation about the goods beyond those appearing in the photographs and their accompanying words.”
“The seller makes no warranty as to title.”
Mr Green paid full price for the cutlery set believing them to be antique hand-crafted bone handled silverware. As soon as they were delivered, he realised they were not what he had expected them to be.
Advise Mr Green what causes of action under the ACL, if any, he has against Ms Emerita and which of those causes of action would be the strongest.
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