1. In what court was this case heard and how did the case reach this court?

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1. In what court was this case heard and how did the case reach this court? 2 marks

Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 (29 July 2015) was a case that was heard in the District Court and the principal judge, Armitage DcJ made a decision in favor of GVOA based on the argument that the plaintiff has speeded the bike causing self-injury. However, the case was presented in the Court of Appeal of New South Wales.

2. Is this case a civil or criminal case? Which party bears the onus of proof in the

present case? 2 marks

Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 (29 July 2015) is a civil case that aims at victim redress like recompensation in terms of money of asset transfer. Besides. It handles private actions where people safeguard their rights with rare interaction of public bodies. Furthermore, there is a high level of control to an individual presenting a civil claim as in the case of the infant plaintiff against GVOA.

3. In your own words briefly outline the main legal issues in this case. The case, prescribed

textbook, and other research will be helpful. 2 marks

The main legal issue in the case of Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015]

NSWCA 219 (29 July 2015) is negligence to the duty of care in the recreational facility on the basis of the amenity claiming to train the clients to avoid the inherent dangers of quad biking and failing to declare not being liable where injury could arise in the process before the client paid for the services.

4. Identify the legal arguments of the appellant 2 marks

The legal arguments of the appellant is that is that GVOA owed the plaintiff a contractual duty of care yet the district court had considered that based on ss60 and 60 of the ACL and 5N of the CLA that rendered the amenity not liable because the plaintiff’s injury never resulted from ‘the materialism’ of the event and that the plaintiff was not a ‘consumer’ under legislation.

5. Explain how the doctrine of precedent and the hierarchy of Australian courts are

illustrated by this case. 2 marks

The doctrine of precedent is an essential restraint on judicial administrative process in Australia. The overall concept behind the doctrine of precedent indicates that when judges, offer verdicts on cases, they must consider appropriate esteem for the past judicial decisions. It is therefore vital that the judges apply the rational thoughts of judges in past cases which raise similar facts; occasionally the judges must take a serious consideration of the decisions of the judges in past cases despite not being bound to apply that reasoning. The doctrine of precedent has a moral value in its service to the political model of the rule of law; conferring to that ideology in the state institutions, like the courts, must work had to ascertain the development of the law and its application in a reliable and conceivable way, for the citizens may order their issues with sureness as to their duties and rights. The case of Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 (29 July 2015) illustrates the doctrine of precedent and the hierarchy of Australian courts in the following ways; The judges referred to ÊMacfarlan_JA, Simpson JA and JC_Campbell AJA, to define consumer, CCA, Schedule 2 Ð ACL to check on loss pursuant the infant plaintiff was entitled, Section 5L(1) of the CLA., Paragraph_43, and Section 60 of the ACL in checking waiver language, negligence of GVOA and language of contract to establish liability and make a ruling.

6. Explain how this decision’s treatment of exclusion of liability clauses could affect business in its operations adversely. 5 marks

If there was decision treatment exclusion of liability in the case, it could have affected business in its operation in the following ways; Without liability in the contract the legitimacy of the institution is questionable because its public good is missing. Through exclusion, the creation of rights within the contract or transfer of the same are undermined, meaning its intrinsic value to the ‘acquirer’ and pecuniary advantage for his cannot be acquired. Limited rights eliminate obligations and become counterproductive.

Besides according to Maharaj (n.d.) when these are excluded them there is a unilateral alteration of the risk allocation with cases of misadventure and other legal consequences.

Finally, it might result in a bargain or risk allocation that is not free where the strong part imposes unfavorable terms upon the weaker

7. Do you think the outcome of this case is fair? What business law lessons did you learn

from reading this case? 5 marks

I believe the decision outcome of Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219 (29 July 2015) is fair. I have learned the following business law lessons based on the case reading. First, any form of exclusion of liability in service commerce requires that it is done before payments are made by the clients. Failure to consider this and show the exclusion in a form, later on, does not form part of the contract.

Besides, even where there is the exclusion of liability, a business offering service must have a broad scope that extends to its negligence instead of referring to general others because that includes other participants, the business and its workforce, hence could result in the need to compensate clients.

In case of e-advertising, it is important for a service business to consider the language used in dealing with issues of safety and danger so that they do not sound to make the activities ‘surprisingly easy’.

Any service business is entitled under the Australian Consumer Law and duty of care precluded in section 5M CLA, hence failure to comply results in compensation of clients.

However, in the final lesson, I learned that in recreational business, a supplier can limit, modify, or exclude liability for personal injury using contractual waivers as long as the waiver is effectively worded and forms part and parcel of the contract for providing the recreational activity.

Part B

1. (a) Minu offered to sell her car to Jake for $40,000. Jake said that he would need some time to think about it and would get back to her. After 4 days Jake called and said that he accepted Minu’s offer. Minu informed Jake that since she had not heard from him she had sold the car to Ken. Advise Jake as to whether or not he is entitled to the car. 5 marks (approx. 300 words)

Legal Issue

In the case of Jake and Minu who offered a 40,000 D vehicle, Minu offers a vehicle but Jake takes some time to establish the opportunity in the offer. He only makes a promise of getting back to Minu. He takes 4 more days before getting back to him. In an offer, there should be a specified time by an offeror when time expired the offer is revoked based on price fluctuation issues or perishability of products.

Legal Rules

A contract is a legally enforced settlement that gives rise to compulsions for the people involved. A contract can become enforceable once there is an agreement, consideration, and contractual intention. An agreement offers impartiality, an offer displays invitation of treatment through communication, whereas acceptance is afforded through an objective expression to have the item or product (Allen & Overy, 2016). When an agreement happens, the individuals that willfully take the responsibility must carry out their duties as needed. Nonetheless, the contract may never have legal bounds in cases where no offer, consideration, acceptance, and mutuality of obligation was sustained. Regardless of the fact that all contracts lay their foundation on, not all agreements are contracts. It is only when the individuals involved have that intention to come up with a legal relationship that a contract is formed (Allen & Overy, 2016). A contract could be written or oral since the seller designates that they can only convey what is accessible meaning they settle on a binding agreement.

Application

As such, in the case of none of them offered a specified period. The terms some time is quite unclear and could be lacking commitment in a contract. In the case, the breach of contract might not hold because there was a promise to think they might be indefinite. Clear communication was missing that means there was no contract at all (Pearson, n.d.).

Conclusion

Jake should not make an attempt to pursue the vehicle because his case will not lead him to acquire the vehicle.

(b) Jenny misplaced her phone at work and looked everywhere but could not find it. Annoyed with herself Jenny placed a reward notice, for $100, on the office notice board. The next day her fellow worker, Chloe, found the phone and returned it to Jenny. Chloe was not aware of the reward notice. Jenny is very pleased and agreed to pay the full amount of the reward to Chloe. However overnight after thinking things over Jenny changed her mind and advised Chloe that no reward would be paid. Is Chloe legally entitled to the reward?

5 marks (approx. 300 words)

Legal issue 1

There are two situations in this case. At first, Chloe could be said not to be entitled to the reward. Despite the fact that the reward was communicated, it never reached the offeree and they never accepted before findings and returning the lost phone to Jenny who had misplaced it.

Application 1

The oferee, therefore, can be said to never have accepted the offer because she was not aware of its existence and since in Australian law no acceptance can be committed where one is not intending to do so and cannot intend to accept an offer that she is not aware of, the reward does not apply here.

Application1

Just as in the case of Fitch v Snedaker (1868) 38 NY 248, Chloe cannot claim the reward and win, she will be told she was not entitled to it for when she was returning the phone to Jenny she had not been made aware of it.

Issue 2

However, considering that even after Chloe returned the phone, Jenny, still said she could give the reward and Chloe accepted to have it, the decision not to offer it might build a strong case for Chloe.

Application 2

The contract was set once communication was passed and received. Any offer can only be revoked before Chloe accepted it (Casrilanka, n.d.).

Conclusion 2

However, now that it was accepted by Chloe, Jenny has no ground of rejecting it. If only she had not mentioned to Chloe as a promise, an appreciation for what she had done for her she should give her the reward or else it in the court of law, she will be forced to give it. The ground of argument will be settled on her promise later on and not the reward note per se.

2. (a) Clint was illiterate and living on a pension when he allowed Joe, a vacuum cleaner salesman into his home. Joe, who knew about Clint’s disability, did not give Clint the chance to get independent advice before a contract to buy an $850 cleaner was signed. The salesman filled in the contract details and did not explain them to Clint. Advise Clint as to whether he can obtain a remedy under the Australian Consumer Law. Do not discuss the common law. 5 marks (approx. 300 words)

Rules

Despite the fact that contracts and other legally binding documents become enforceable once there is an agreement, intention, and offer, there are particular rules to protect people who are young or with disorders. In legal terms, illiteracy and mental incapacitation negatively results in one lacking deep comprehension and discernment of the effects of a contract (McSherry, 2015). Clint’s illiteracy and disability delineate his right and responsibility within a contract that makes an individual able to lawfully engage in a contract. A proficient witness should be accessible where he is signing a contract. There is the need for a close care taker or a barrister or an attorney, before such a client makes a contract with a seller of any product. As a trader, Joe is supposed to have understood and applied that. Besides, in Consumer law, a client should have full information about products, their state, and the service such items could render them (Australian Competition & Consumer Commission, n.d.). Proper advice on both the losses and benefits must be supplied. In the case where joe, a cleaner salesperson comes to Clint’s home, independently signs a contract and sells to Clint an $850 cleaner, there are legal issues in the contract.

Application

It is in order for Client to recall and provide the promises Joe offered on the products, issues of quality and description of what he wanted because of that issues a ground for reusing the products supplied to him and claiming remedy in the court of law. According to the Australian Competition & Consumer Commission (n.d.) products should be safe, lasting, faultless, look acceptable and offer all the expected services. They should also match the descriptions of the salesperson and demonstration model fitting the business purpose.

Conclusion

The client should sue Joe for wrongfully advising him and making him enter a contract that aimed merely at selling the product regardless of the challenges it gives to him.

(b) Talisman Pty. Ltd operated a retail clothing store and in September ran print and television sales’ advertisements offering “25-40% off every item of clothing for the month of October.” The advertisements contained a warning in very small print that the “offer” excluded underwear, socks and sports clothes. Could the ACCC take action against Talisman Pty. Ltd and advise whether it could obtain remedies under the Australian Consumer Law. Do not discuss the common law. 5 marks (approx. 300 words)

ACCC has all the room to take action against Talisman Pty. Ltd that used advertisement in which all key principles were not considered.

Issue

In the ad by Talisman Pty. Ltd, the warning on excluded underwear, socks and sports clothes was hidden from the reader because they were written in mall prints and could not easily be seen.

Rules

According to NewsMediaWorks (2018) in Australian Consumer Law, it is suitable that all advertising informs the target clients every information about the service or product and permit the client to make well-informed decisions. Such a guide is easy to adapt through publishing material in a way that all published materials are made. The information should be clear and accurate as well as fair for every audience. During such preparation, a company should be aware that the target audience can be gullible, illiterate, with issues of visual ability, and diverse levels of experience of the commercial transaction. Therefore, the purchaser should never be made to ‘read between the lines’ or have inaccurate, or incorrect information. An ad is perceptive as it misleads the buyer and it certain specific issues cause a problem to the purchaser. For example, the language of advertisement must be clear, the printed information should be in clear and easily visible print so that it does not hide from the buyer. In fact, NewsMediaWorks (2018) states that it must not be concealed in the fine print.

Application

Similarly, NewsMediaWorks (2018) opines that an advertiser must not advertise a discounted saving of a certain percentage on products if they are only giving for certain items and others have little or no discount at all. And if advertising, the test must make it clear that not every item in the stock is discounted.

Conclusion

Where there is a fine print, it must be qualified as to why it is there and must not be that which is contradicting the former offer information (NewsMediaWorks, 2018). Thus, ACCC stands a strong case against Talisman Pty Ltd.

References

Allen & Overy. (2016). Basic principles of contract law. 1-14. Retrieved from http://www.a4id.org/wp-content/uploads/2016/10/A4ID-english-contract-law-at-a-glance.pdf

Australian Competition & Consumer Commission. (n.d.). Consumer guarantees. Retrieved from https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees

Casrilanka. (n.d.). Law of contracts. 1-17. Retrieved from https://www.casrilanka.com/casl/images/stories/EDBA/contract%20law.pdf

Maharaj, K. (n.d.). Limits on the operation of exclusion clauses. 635-652. Retrieved from https://www.albertalawreview.com/index.php/ALR/article/viewFile/111/111

McSherry, B. (2015). Decision-Making, legal capacity and neuroscience:implications for mental health laws. Laws, 4, 125-138. doi:10.3390/laws4020125

NewsMediaWorks. (2018). Publishers advertising playbook misleading and deceptive conduct. 1-10. Retrieved from https://newsmediaworks.com.au/wp-content/uploads/2018/11/ADVERTISING-PLAYBOOK-RETAIL_2018.pdf

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