Bulaw5914: Commercial Law - Assessment Answer

Assignment Task:

Assessment criteria: 

The assignment will be assessed on the extent to which the student has: 

• Conducted independent research relevant to the topic, including the use of secondary legal sources, in particular a number of legal texts, authoritative materials from internet sites and academic (peer reviewed) journal articles and books. 
• Answered the set question(s) through identification and discussion of relevant legal issues. 
• Demonstrated an understanding of the topic, presented different points of view (if applicable), presented well-constructed arguments and demonstrated critical thinking. 
• Provided proper citations for legal sources in footnotes and a bibliography or reference list. 
• Used clear expression. 

Assignment Topic: 

This assignment requires students to answer based on the material covered in Topic C only. 

Students should refer to relevant case law and legislation in the answer. 

Question 1

Acme Pty Ltd runs a carpark in the city. Acme want to have an exclusion clause that applies to all contracts with carpark customers to ensure that Acme is not liable if a customer’s car is stolen or damaged when parked in the Acme carpark. 

The following is the procedure for customers to use the carpark: 

• The carpark customer receives a small ticket from a machine located at a boom gate at the entrance to the carpark. 
• The customer pays for their car parking by inserting their ticket into a machine and paying with cash or credit card before they collect their car to leave. 
• These machines are located at each level of the carpark. 
• To exit the carpark, the customer inserts the paid-for-ticket into the machine at the boom gate. 
• Usually customers do not meet or speak with any Acme employees at any time during their visit. 
• However, customers can speak to an employee by pushing buttons on either the ticket dispensing machine or the payment machine. 

Required: Provide Acme with legal advice so Acme can put in place an enforceable exclusion clause that would be a term in each contract with their customers. 

Question 2 (15 marks) 

Cathy and Josh are building a house in Ballarat. They have entered into a fixed price contract with a local builder, Wellbuilt Homes Pty Ltd. The total price for the build is $205,000. Included in the contract is an allowance of $4,500 for vinyl plank flooring throughout the house. 

The builder instructs Cathy and Josh to make a selection of vinyl planks from Stylezone Flooring who have a shop at Sebastopol. Cathy and Josh look through the samples and choose the sample called ‘Blackbutt’ for the flooring. The sample board is a rich chocolate brown colour. Cathy and Josh explain to Ernie, the salesperson, that they really like the colour as it will match their furniture and soft furnishings. They even bring some cushions and curtain material along with them. They place these next to the sample board and are happy with the colour match. 

Cathy and Josh sign the order form. Ernie, confirms that the total price of the planks does not exceed the $4,500 allowance and so Cathy and Josh do not have to pay any extra for the flooring. 

Approximately six months later, the house is complete and Cathy and Josh are conducting an inspection. They are horrified to discover that the floorboards in the house have a reddish tinge. Cathy and Josh are very upset. They tell the building supervisor that they think that the wrong floorboards have been delivered and installed. The building supervisor checks the delivery note and also the packaging for the product and confirms that the boards are Blackbutt Vinyl Planks which is the product listed on the order form signed by Cathy and Josh. 

Cathy and Josh return to the Stylezone showroom to complain to Ernie and to look again at the sample board. Ernie shrugs his shoulders and says that sometimes there is some colour variation during the manufacturing process and it is too late to complain as the building supervisor accepted delivery of the boards on behalf of Cathy and Josh and the Wellbuilt Homes have paid for the boards. 

Required: Answer the following questions: 

a) Identify the parties to the contract for the purchase of the vinyl planks.

b) Are Cathy and Josh entitled to any remedy against the supplier of the vinyl planks, Stylezone Flooring?

c) Would your answer to (b) be different if the order form that Cathy and Josh signed included some fine print that Cathy and Josh did not read, including a statement that the statutory terms implied by the Goods Act 1958 (Vic) are not to apply to this contract?

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