Solution Code: 1EIDI
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Identify the relevant legal issues the facts raise. To do this, ask yourself who wants what from whom; based on what legal grounds and why? The analysis of these questions should lead you to the legal issue which determines in which way the case will be decided or defines what a party has to do to achieve a desired outcome.
The statement of the relevant issue(s) should not be longer than one sentence.
Note the major part of the applicable rule (law) for resolving the relevant legal issue. Give authority—either the relevant statute and/or cases for the propositions or statements you make about what is the relevant law that applies to the particular facts. In some situations eg consumer law, a section of a statute will often be the major source of authority. If you need more than 3 rules to resolve the relevant issue you have either stated the issue too broadly or some of the rules are not relevant to resolve the relevant issue.
Develop the arguments in favour of particular outcomes or resolutions and the counter-arguments that may be raised. In identifying the relevant issues and analysis care must be taken to avoid focusing too narrowly and prematurely on particular issues and their resolution. In some factual situations there can be some temptation to support the "underdog" or apparently weaker party. Try to be more detached and explore various approaches. In the adversarial nature of the common law legal system there are usually at least two sides to every dispute. You need to suggest why the facts are more like some of the major cases and where they differ from other cases. That is, you need to indicate whether cases you have studied should be applied or followed given the facts of the question, or whether they should be distinguished from the facts in the particular question you have been given.
In the end give a short and concise conclusion (1-2 sentences) summing up your key findings and stating the most likely outcome of the problem.
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Whether Bing and Alan can deny the validity of the exclusion clause made part of the contract with Locky and sue Locky for the loss they suffered?
When any contract is made then the parties must comply with the terms of the contract. Non compliance of the contract terms will result in raising consequences against the defaulting party. (E McKendrick & Q Liu, 2015)
However, at times clauses are made part of the contract which tries to exclude or limit the liabilities of the defaulting party with the consent of the other party and such clauses are called exclusion clauses and is analyzed in Darlington Futures Ltd v Delco Australia Pty Ltd (1986). In order to consider the exclusion clause effective it is necessary that the same is made part of the contract mutually by the parties. (P Latimer, 2012)
Now, when the parties enter into the contract and the contract is in writing then the general rule is that any exclusion clause that is made part of a written contract then such exclusion clause is binding upon the parties irrespective of the reality whether the same is read by the parties to the contract or not and is held in L'Estrange v Graucob . It makes no difference whether they are aware of the contract or not. if the contract is signed and the exclusion clause is part of the contract then it is binding. However, it is held in Curtis v Chemical Cleaning Co  it is held that if the contract is signed by the parties under any misrepresentation made in regard to the exclusion clause then such clause is not binding upon the parties and has no relevance. (The law Teacher, 2017)
Now, if any contract is made by the parties which is not signed then the exclusion clause is considered to be valid provided the same is made part of the contract prior the establishment of the contract and the relying party has made all the reasonable efforts to bring the exclusion clause in the notice of the affected party and is held in Olley v Marlborough Court  and Thompson v LMS Railway .
Further, in order to exclude the liability of the party it is necessary that such liability must be covered by the exclusion clause. In Houghton v Trafalgar Insurance Co (1954) it was held that when the clause is not clear the n it is not consider to be effective, if any negligence liability is to be excluded then the wordings must be very precise and clear and is held in White v John Warwick . (Dangeloloegal, 2017)
However, as per section 64A of the Australian Consumer Law, no implied condition or warranties of the consumer can be excluded. If the clause tries to exclude any consumer services then it is in violation of section 60 of the Australian Consumer Law. ( The law hand book, 2017)
The law is now applied to the facts of the case.
Alan and Bing are running a restaurant named Peking Duck. They entered into a contract with Locky as part of the security of the premises. The main tasks of Locky were to make regular checks on the premises and to ensure that the doors, windows and other openings were securely fastened and locked. Locky on one night entered the premises to make coffee and left the back door unlocked. A thief gained access and stole some valuable equipment.
Now, Locky was relying on the clause that was made part of the contract which submits that ‘It is expressly agreed that neither Locky nor any of his employees shall be under any liability whatsoever to any of its customers for any loss of, or damage to, the contents of any premises to which the contract relates whether such loss or damage is the result of any breach of this contract or otherwise’.
Now, Locky was in breach of the contract when he did not take care of the locks and because of which loss is incurred by Alan and Bing. Thus, Locky can rely on the clause as the same was made part of the written contract and the clause covers the liability that is impose upon Locky.
It makes no difference that when the contract was made and signed Bing nor Alan had read the details. Since the contract is in writing and is signed by the parties thus the clause is operative and is binding upon both the parties.
The clause can only become inoperative only when there is some kind of misrepresentation that is incurred by Locky upon Alan and Bing.
It is now submitted that the exclusion clause is valid and is operative upon Alan and Bing and thus they cannot sue Locky for the loss incurred as the same is made part of the exclusion clause by the parties by making it part of a written contract and is signed by all the parties.
Whether Alan can get compensation from the manufacturer for the supply of faulty electrical appliances?
When the goods and services provided to the consumer are not satisfactory then there are remedies that can be availed by the aggrieved consumer under section 259-277 of the ACL. However, the remedy that can be availed depends upon the defect that is found in the faulty goods
As per section 260 of ACL, a fault in the goods is considered to be major when: (Hobartlegal, 2017)
It is submitted that when the goods are found to be of major failure then the consumer: (Hobartlegal, 2017)
The law is now applied to the facts of the case.
It is submitted that Alan suffered injuries on his right arm and was not able to use the same for one week. The injury is sustained by Alan when he was working in the restaurant using one of the electrical appliances and he received an electric shock from it. He later discovered that the electrical appliance was faulty.
It is submitted that as per ACL, any goods supplied by the manufacturer to the consumer must be of acceptable quality, if the goods are not of acceptable fault then it is considered to be a major failure as per section 260 of ACL.
So, the fault in the goods was a major fault and thus Alan can either return the goods or seek repairs within reasonable time.
It is thus concluded that Alan can return the goods or can seek repairs; he can also seek cone uncial losses that is suffered by him because of the faulty goods.
Whether Alan and Bing are in violation of the ACL when they imported goods from Spain and Queensland?
Every manufacturer as per the ACL must comply with certain conditions and warranties and any non compliance will make them answerable for the losses that are sustained by the aggrieved consumer. Two of the most important provisions of ACL that must be complying with every manufacturer, retailer or supplier are:
The defaulter can be imposed with a fine of $220,000 (individual) and upto $1.1 million if corporations. Damages can also be claimed.
The law is now applied to the facts of the case.
Both Alan Bing has developed a main course dish ‘Superiffic’. There were few representations that were made by them, that is;
However, it was found that both the representations were false as the ingredients were imported from Spain and they often had to order the fresh vegetable ingredients from Queensland.
It is submitted that there is violation of section 18 of ACL as they specifically make representations in order to induce the consumers knowing the fact that the consumers will rely on their representation prior making the decision.
also, there is violation of section 29 of ACL as there were false and deceptive statements that are made regarding the origin, quality and origin of the ingredients.
Thus, there is clear violation of section 18 and 29 of ACL.
Both Alan and Bind are in violation of section 18 and 29 of ACL and thus they can be imposed with a fine of $220,000 and damages can also be claimed from them.
Whether Bert has contravened any sections of the Australian Consumer Law and whether he can defend himself if Alan and Bing allege that he has.
Every manufacturer has a right to promote his goods and services with the help of advertisements. However, every advertiser must advertise his goods and services in such manner so that there should not be any kind of hardship that is caused to the consumer. Some of the key essential and provisions that must be kept in mind are: (Horvath, 2009)
However, there are few defenses that can be availed by the seller or manufactures in order to protect him from the consequences. The same are:
As per the facts, Alan and Bind decide to take a holiday and thus contacted Bert (travel agent). Bert advertised a tour to China and make several promises. However, it is submitted that the promises that are made are in violation of provisions of ACL. The same are:
Thus, a false and misleading representation is made by Bert and thus he is in violation of section 29 of ACL.
Also, Bert has with misleading intent and in order to deceive Alan and Bind had promises statements which he is aware cannot be fulfilled. Thus, there is clear violation of section 18 of ACL.
Bert also promised a tour of the Great Wall but it was cancelled on the day due to the incompetence of the local bus driver. It is submitted that there was no misleading, false or deceptive act on the part of Bert and thus the cancellation was a force majeure.
However, Bert can protect himself by proving that there is no intentional deception that is incurred by him and that the truth of the promises that are made by him already within the knowledge of Alan and Bind
It is submitted that Bert is in violation of section 18, 2 and 35 of the ACL and thus must face consequences of the same. However he can avail the defuse and can protect him from the liabilities is imposed.
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