Question 1 [15 marks]
- Manuel Schmick graduated from the National University of Hairdressing with a major in hairstyling for spunky lads. After attending his graduation, Manuel watched a youtube video that inspired what he deemed to be his true calling; opening and owning a chain of hairdressing salons in Western Sydney specialised in male grooming. In early 2019, Manuel decided to expand his business across New South Wales. He scheduled and attended a meeting with Loren Knowsitall, an accountant and financial adviser, for the purpose of discussing his financial position and the prospects of business expansion. They discussed Manuel’s expansion plans and Loren agreed to prepare a business plan for Manuel and his alleged hairdressing empire. Loren advised Manuel that he was in a sound position to expand the business and recommended that he borrow money to set up five salons in Sydney’s Eastern suburbs. Manuel relied on Loren and acted on his advice. In July 2019, he borrowed $2,500,000 from Ripoff Credit, a small credit union that provided a loan and overdraft facilities. Manuel then signed five three-year leases, bought hairdressing equipment, employed two international celebrity hairstylists, and hired Tracey’s Designs & Graphics to design a webpage for his growing business. Then things went sour and financial tragedy stroke. Loren admitted that she had not adequately factored in Manuel’s pre-existing debts, had underestimated the significant establishment costs associated with setting up businesses in Sydney’s Eastern suburbs. Loren explained to Manuel that in addition to reviewing his financial position, she also consulted her tarot cards on the matter and the reading showed that Manuel’s business would reach financial glory. Manuel has suffered great losses as a result of this advice and is unable to pay Ripoff Credit. Advise Manuel on any rights and liabilities arising from these facts, citing relevant statutory and case law authority, using the ILAC format of legal problem solving.
- Manuel’s husband, Cecil, and Cecil’s long term lover, Roger, decided to rekindle their long term open relationship after attending their second appointment with relationship expert, Dr Holy Moly. Immediately after leaving their couple’s session, the pair decided to go to the club where they first met, ‘The Joyful House of Ill Fame’. There is a pedestrian path that leads directly to this renowned hot club but it would take them about one hour and a forty five minutes to make the journey. As they were impatiently looking forward to spending quality time alone, the couple decided to borrow two push bikes from their friend Sweet Brownie to ride along the cycleway which runs parallel to the freeway to the city. The cycleway enables them to reach the club in about 25 minutes. Sweet advised them to use the cycleway as opposed to the actual freeway but they are feeling adventurous and decide to disregard Sweet’s advice and ride along the freeway. There are several signs which read “DANGER ! DO NOT WALK OR RIDE ALONG THE FREEWAY”. They are not wearing fluorescent or reflective garments and Cecil’s bike is missing its red rear reflector. Both bikes lack front lights although Roger’s has a flashing taillight. In the meantime, a Holden Barina displaying red Ps, driven by Bob comes around a bend in the freeway. Bob takes his eyes off the road for a moment as he rummages through his man-bag to grab his phone which alerted him that he had received a hot snap from his crush, Tallulah. His car veers to the left, and crashes into Cecil and Roger’s bikes, breaking 12 of Roger’s bones. Advise Bob on any liabilities arising from these facts, citing relevant statutory and case law authority, using the ILAC format of legal problem solving.
Question 2 [15 marks]
Cecil Sagdiyev owns several Kyrgyzstani restaurants in New South Wales. He and his family has solicited your advice as to their contractual liabilities and rights arising out of these circumstances:
- On 22 September, Cecil meets Ranie over lunch. Ranie owns a small dairy farm called ‘The Mighty Cow’’. After some negotiations, Ranie offers to sell Cecil 100 kgs of Wagyu beef and 20 kgs of lamb-shanks for $4600. She also tells him that she will keep the offer open for the next 24 hours. Four hours later, Ranie receives a call from Angel who offers $4900 for the meat. She immediately accepts Angel’s offer. Cecil calls five hours later ( within the 24 hours period) and informs Ranie that he accepts the offer, want his meat delivered and that he will sue her for breach of contract if she does not comply with their deal.
- Cecil agrees to buy a new motorbike for home deliveries. He approaches The Speedy Brothers Bikes & Motors Pty Ltd and makes enquiries about a couple of bikes. He agrees to purchase a Honda CBR 500, 2019 model for $8,000. After the contract is signed he asks Gus, the sales manager, if they will provide the first service free of charge. Gus agrees. Two months after the purchase, the bike needs to be serviced and Gus is reluctant to honour his promise.
- Cecil commenced negotiations to lease some commercial premises to be used for their new restaurant in Leura. Part of the negotiation concerned the ability of Cecil to demolish a wall in order to remodel the interior and build a pizza oven. Nano, the landlord, shook Cecil’s hand and told him they had a deal and that he could go ahead and get started. Cecil took a large bank loan to finance the re-modelling. Four weeks later, Cecil received a letter from Nano indicating that he did not intend to proceed with the lease. Cecil has already spent $120 000 on the remodelling but has not received a signed lease as yet. He has also hired two International chefs to work at the new restaurant.
- Cecil’s parents, Mr and Mrs Sagdiyev, migrated to Australia from Kyrgyzstan in 1957. They are dependent on their two sons, Cecil and Borat, for advice and support. They have limited education, no business acumen and poor language skills. Their only income is their age pension. They own their home which is valued at around $550,000. Borat is a charming but feckless business man who is always on the verge of something great. In 2018, he needed $265,000 to pursue a dot com opportunity that would make him as rich as his brother Cecil. He is able to borrow money from The Con Bank but only after he persuades his parents to act as guarantors. He misleads his parents as to the extent and purpose of the loan. The bank is unaware of this. After investigating their financial position the bank manager meets with Mr and Mrs Sagdiyev and go over the guarantee contract. He asks whether they had any questions and when they do not, they signed the documents as required. Borat uses the money in an internet company. The company becomes insolvent and Borat loses his entire investment. When he is unable to repay the loan, Com Bank looks to the parents to honour their obligations as guarantors.
Assume that you are Cecil’s solicitor and that he has asked you for legal advice. Advise him as to what contractual liability, if any, he and, or his family have in the above circumstances, citing relevant case law authority and using the ILAC format.
SUBJECT LEARNING OUTCOMES
This assessment task will assess the following learning outcome/s:
- be able to synthesise knowledge of the doctrine of precedent with knowledge of the hierarchy of the courts – at a state and federal level – to explain which court has jurisdiction in a particular matter.
- be able to investigate the different sources of Australian law in order to contrast these sources and explain their significance and interrelationships when applying them to legal problems.
This assignment is designed to assess the following subject learning outcomes:
- be able to investigate the different sources of Australian law in order to contrast these sources and explain their significance and interrelationships when applying them to legal
- be able to demonstrate knowledge of tort and contract law by identifying the relevant issue(s) arising out of novel factual situations, stating the relevant legal principles, and explaining how these relate to the legal issue(s), in addition to suggesting potential remedies when providing a conclusion;
- your ability to conduct basic legal research.
Question 1 – please answer the entire question using one ILAC:
Issues – (Two dot points – be concise – formulated as questions)
Law – legal principles and sections of the Civil Liability Act dealing with duty of care, breach, damage and relevant defence. Please discuss one element per paragraph.
Application – Use two subheadings: Manuel v Loren and Bob v Roger
Conclusion (Two dot points, one per each legal issue identified)
Question 2 – please answer the entire question using one ILAC:
Issues – ( Four dot points – be concise – formulated as questions)
Law – (Do not discuss legislation only case law related to agreement, intention to create legal relations, consideration and consent – this is not a research task so use cases discussed in your textbook, learning modules and other learning materials – discuss each one of the elements of a contract in a separate paragraph – ensure that your paper has academic flow – do not discuss the facts of other cases, only their rationes are relevant)
Application – use for subheadings ( Cecil v Ranie; Cecil v Gus; Cecil v Nano, and The bank v The Sagdiyevs )
Conclusion – (Four dot points, each one should be a precise response to the legal issues identified)
STYLE GUIDEPlease comply with the following rules: 1. Do not re-state the question. 2. Use in-text referencing. Do not use footnotes. 3. Names of statutes should be italicised, and followed by the jurisdiction not in italics, for example: Acts Interpretation Act 1901 (Cth). Note the abbreviation for ‘Commonwealth’ is ‘Cth’ not ‘Cwlth’. 4. The names of the parties must be italicised, but the citation must not, for example: Smith v Jones (1967) 345 CLR 34. You must give the full citation of a case on every occasion that you mention it. 5. An in-text reference to a book should be structured as follows: (Latimer, 2010, p. 75). There is no need to put the author’s initial. Note the positioning of brackets, stops and commas. You use ‘pp.’ only if referring to more than one page. If you are referring to a book with more than one author, the in-text reference would be as follows: (Smith et al, 2002, p. 78). 6. Do not start a new line simply because you are starting a new sentence. 7. Be careful of apostrophes: directors = of a director, directors’ = of many directors, directors = many directors. Also particularly prevalent is confusion between its (it possessive) and it’s (contraction of “it is”). 8. The following words always start with a capital letter: Commonwealth, State, Act, Bill, Regulation, Constitution, Parliament. Do not unnecessarily capitalise other words. 9. One should not use terms such as can’t, won’t, don’t and shouldn’t, neither should one use “i.e.” and “e.g.” in formal writing. 10. A sentence must always begin with a full word and a capital letter – so a sentence would start ‘Section 55 says…’ not ‘S 55 says…’ or‘s 55 says…’ 11. Start each paragraph on a new line, and leave a clear line gap after the preceding paragraph. 12. You must put page numbers on your assignment. 13. Quotations and excerpts from legislation which are longer than two lines should be indented from the rest of the text in a separate paragraph. The text in quotations should not be in italics. 14. You must end your assignment with a bibliography that is divided into three parts, listing statutes, cases and books / articles. 15. A listing of a book in a bibliography should appear in accordance with the following format: Latimer, P (2010). Australian Business Law, 29th ed, North Ryde: CCH. If listing a book with multiple authors, do so as follows: Heilbron, G, Latimer, P, Nielsen, J and Pagone, T (2008). Introducing the Law, 7th ed, North Ryde:CCH. 16. When listing statutes at the end of your assignment you should conform to the format: Acts Interpretation Act 1901 (Cth). List the statute only once – you do not list individual section numbers relied on. You should not list textbooks as the source of Acts – the Act itself is its own source. 17. When listing cases conform to the format: Gordon v Richards (1976) 123 CLR 32. 18. When listing article conform to the format: Jones, J ‘The new analysis of law’ (2010) 4 Journal of Recent Law 34. 19. Make sure that your sentences are grammatically correct –it may be useful to read your assignment out loud if you have any doubts about this.
Please do not consider the Competition and Consumer Act 2010 (Cth) or the Sales of Goods Act 1923 (NSW) in answering these questions, as we have not yet covered that topic. Be advised that the word limit of 2,000 words is a total for both questions (not 2,000 words for each question). Please make sure you follow the presentation and stylistic rules contained under ‘Presentation’ below.
Familiarise yourself with the ILAC model by complying with the weekly activities. These activities have been designed to teach you how to structure a legal analysis of a problem based question. ILAC stands for Issue, Law, Application, and Conclusion. It allows us to structure legal analysis. Use ILAC as a tool for organising your thinking and your writing. Think of it as a weaving loom that allows you to support the threads of your argument. Remember that when using ILAC you must:
1. Identify the legal issue. The issue is the most important element in the analysis and must be stated in a way to show what is in controversy. You are required to articulate the issue by creating the legal question presented by the facts. To find the issue, ask: “what is in controversy in these facts.” You should use the following language: “The issue is whether …”
2. State relevant law (cases and legislation). After you have identified the issue, you must state the relevant law. The law and the facts are inextricably linked. Your analysis of the facts will not make sense unless you identify the law that is required to answer the question that contains the legal issue.
3. Apply the law to the facts. You simply match up each element you have identified in the law (in order) with a fact. You may use the word “because” to make the connection between law and fact. Using the word “because” forces you to make the connection between law and fact. You may also use the words “as” and “since”. These serve the same function as “because”.
4. Conclude each issue before drawing your final overall conclusion. There is no right or wrong answer, only logical analysis based on the rule and the facts that then leads to a reasonable conclusion.
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