Explain the doctrine of separation of What happens if only one arm of the government exercises legislative, executive, and judicial roles?
The doctrine of separation of powers refers to the three category of powers, exclusive, shared, and residual power. They refer to what power can be used by whom. Exclusive power refers to power than can only be exercised by the federal government and not the states. Shared powers are powers shared by both the federal government and the state which include creating/collecting taxes. Residual powers are any area that is not covered in the constitution and the power that is left for the states including urban planning and civil law. If only one arm of the government exercises, it is then to be followed by the rest as the role of legislates such as congress make laws which are to be carried out by the executive or government of the day. The law is then evaluated by the supreme court which puts the law in place.
When Charles initially inspected a property in Bundoora Square, he was impressed by the in-built air-conditioning throughout the factory; the large refrigerated room at the rear of the factory; the polished timber floor boards in the offices; the pot plants outside near the entrance of the factory; the portable outdoor seating ;and BBQ set on the lawn in the back garden of the When he again inspects the property on the morning of the day of settlement, he is alarmed to discover that all of these items have been removed by the seller. Can Charles insist that any of these items be included in the sale?
The issue is whether the items are included in the purchase of the property.
Rule: Any items that is attached to the land in any other way than resting on its own free weight such as being drilled, attached by a nail is considered a fixture to the land which may become part of the land, and therefore sold with the land.
Application: Since the in-build air-conditioning, large refrigerated room, polished timber floorboards and garden are considered fixtures, they lose their independent property and become part of the land which is then sold with the land. However, items such as the portable seating and BBQ set are considered chattels which are objects on the property but are not considered part of the property do not need to be sold with the factory unless otherwise stated in the contract.
Conclusion: Charles can insist that part of the items he mentioned are included In the purchase of the property such as built in air conditioner and timber floors etc.
However, items that are not considered fixtures are not part of the property and are not sold with the property unless it is stated so by the owner.
Explain how can an employer be liable for the wrongs committed by their employees?
An employer can be liable for the wrong doings committed by their employees through vicarious liability which refers to one person having the liability for the negligence of another. This is a common situation where an employer is held liable for the wrong doings committed by an employer. However, two things must be shown for an employer to have liability; that the tortfeasor was in fact an employee and not an independent contractor and that the wrong doings committed by the employer occurred during the course of their employment.
It is said that rescission is an equitable and discretionary Explain what this means to you and discuss circumstances under which rescission may be lost?
Rescission refers to setting a contract aside and restoring parties to before the contract was made. Rescission being referred to an equitable and discretionary remedy means it is at the court’s discretion, being that the judge has taken consideration of all factors involved rather than deciding based on a legal guideline. To me, this means that the judge has the choice to decide whether to grant rescission or not based on all the factors and not on the law in order to make a fair and reasonable judgement. However, rescission is not available if parties cannot be restored to their pre-contractual positions, party has signed the contract knowing of the problem or party seeking rescission has ‘unclean hands’ and has acted unconscionably.
Part B (40 marks)
Would the contract of sale between Super Star Second-Hand Cars Pty Ltd and Benjamin be considered a ‘consumer’ contract under the Australian Consumer Law? (3 marks)
Issue: Whether the sale between Super Star Second-Hand Cars Pty Ltd and Benjamin is considered a customer contract under the Australian consumer law.
Rule: A consumer refers to a person who acquires goods or services that are priced under $40,000 and the purchase must be for personal, domestic, or household use or consumption. However, Benjamin’s intention for the purchase was for his business so he cannot be considered a ‘consumer’ but instead a small business.
Application: Although Benjamin’s purchase of the station wagon was under $40,000, his intention for the vehicle was not for personal use but instead to serve as a transportation need for his business. Since the contract is one of a standard form which are contracts that are made between two parties where one party (Super Star Second-Hand Cars Pty Ltd) creates the contract not giving the second party (Benjamin) no chance to negotiate the terms.
Conclusion: Although Benjamin is not considered a ‘consumer’ under the Australian consumer Law (ACL), he still is considered a small business, which is covered under the ACL which prevents any unconscionable conduct by Super Star Second-Hand Cars Pty Ltd.
Has Super Star Second-Hand Cars Pty Ltd breached any relevant statutory guarantee under the Australian Consumer Law? (10 marks)
Issue: Did Gregory of Super Star Second-Hand Cars Pty Ltd breach statutory guarantee?
Rule: Section 18 of the Australian Consumer Law states that a person must not in trade or in commerce engage in a conduct that is misleading or deceptive.
Application: Gregory of Super Star Second-Hand Cars Pty Ltd has breached
18 of the Australian Consumer Law which prevents businesses from being misleading and/or deceptive when it comes to the sale of goods or services. Gregory’s statement that the vehicle he supplies will ‘meet [Benjamin’s] needs right down to the ground’ which has lead Benjamin to believe his words and trust Gregory, a car dealer who is knowledgeable about cars whereas Benjamin may not be. Gregory’s misleading and deceptive statement and lack of information stating the history and defects of the vehicle is a breach of the Australian Consumer Law 2010.
Conclusion: Super Star Second-Hand Cars Pty Ltd is liable for breaching section 18 of the Australian Consumer Law (Misleading or deceptive conduct). Gregory mislead and deceived Benjamin, making him believe that the vehicle suggested for him will satisfy all his needs and hiding information about the history and past accidents of the car knowing that Benjamin is relying on the car dealer for information and can be punishable by law.
Can Gregory rely on the exclusion clause on the receipt ‘As seen and Super Star Second-Hand Cars Pty Ltd is not liable for any defects in the vehicle’ to exclude his liability for breach of statutory guarantees under the Australian Consumer Law? (2 marks)
Issue: Does the receipt that states ‘As seen and inspected. Super Star Second-Hand Cars Pty Ltd disregard their liability of the breach of statutory guarantee?
Rule: Section 64 of the Australian Consumer Law renders void any term of a contract the attempts to exclude a consumer’s rights to the consumer guarantee.
Application: The receipt stating Super Star Second-Hand Cars Pty Ltd is not liable for any defects is deemed void as it restricts Benjamin to rely on the Consumer act. Thus Super Star Second-Hand Cars Pty Ltd is still liable for breach of misleading and deceptive conduct and is liable for compensating Benjamin for his loss and injury.
Conclusion: Super Star Second-Hand Cars Pty Ltd is liable for breaching the statutory of guarantees as no information of the previous accidents and/or defects were shared to Benjamin, the consumer which implies that there is a warranty for the vehicle.
Has Gregory misled and deceived Benjamin by breaching section 18 of the Australian Consumer Law? (8 marks) Use only common law principles to answer questions 5 and 6. Do not use legislation
Issue: Has Gregory breached section 18(misleading or deceptive conduct) of the Australian Consumer Law?
Rule: A person must not in trade or in commerce engage in a conduct that is misleading or deceptive.
Application: Gregory, a car dealer from Super Star Second-Hand Cars Pty Ltd has breached section 18 of the Australian Consumer Law by Deceiving Benjamin leading him to believe that he will ‘guarantee’ that his needs would be met and ‘knowing the reliability’ of the vehicle which has mislead Benjamin to believe that the vehicle has no issues and is reliable, which is misleading and deceptive and is a breach of contract under the Australian Consumer Law.
Conclusion: Gregory’s deception towards Benjamin was done with the intention for Benjamin to purchase the vehicle from him. Furthermore, Gregory left out important information he knew about the car’s history and accidents and proceeded with the contract without acknowledging the defects of the vehicle. This is a breach of misleading and deceptive conduct indefinitely.
Can Benjamin successfully sue Jacob in negligence, to claim damages for his serious injuries? (12 marks)
Issue: Can Benjamin sue Jacob for negligence?
Rule: The harm done can only be compensable if it includes personal injury, serious mental harm, or financial loss, and includes causation and remoteness.
Application: The ‘for test’ can be applied in the situation where the if it wasn’t for Jacob’s breach, either Benjamin would not have purchased the vehicle or Benjamin would be aware of the defects and the issue would be fixed, avoiding the accident.
Conclusion: Jacob is liable for the accident caused by his breach of the Australian Consumer Law and deceiving Benjamin to believe the vehicle had no such defects where the accident would be avoided. Jacob can sue Star Second-Hand Cars Pty Ltd for compensation for both the vehicle and his hospital bills, as well as declare an injunction to prevent future incidents.
Has Gregory misrepresented Benjamin? If Gregory made misrepresentation, what type of misrepresentation was it?
The misinterpretation induced by Gregory towards Benjamin was one of negligent where he carelessly made statements about the vehicle that were honest but careless. Negligent misstatement is established where Benjamin was seeking for advice about the purchase of the vehicle and trusting Gregory to provide a vehicle that met his needs. Gregory is a car dealer who had information about the vehicle which gave Benjamin a reason to believe he could rely on Gregory to provide information and suggest a vehicle for him whereas Benjamin did not which is shown from his lack and attention to the specifications of the vehicle such as the history and asking questions about previous accidents.
Gregory should have known that Benjamin was relying on him to provide a suggestion of a vehicle that satisfied Benjamin’s needs as well as provide relevant information about the previous history of the vehicle.
