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Alistair

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QUESTION THREE

Alistair wants to build a new restaurant in Sherbrook Forest in the Dandenong Hills in Victoria. He finds a piece of land which is perfect for his purposes and which he wishes to buy so that he can build the restaurant on it.

He telephones the local council and asks to be put through to the Planning Department. David answers the call and Alistair tells him of his plans and asks if the Council has any plans regarding the land he wants to purchase. David says that as far as he is aware there are no proposals by the Council regarding the land but suggests to Alistair that he seek legal representation. Alistair says that he has been in the restaurant business for many years and has dealt with councils during that time and ‘everything has always turned out fine’. David says ‘I’ll check again to make sure’ and asks Alistair to wait on the line. David comes back and confirms that there are no proposals and the parties terminate the conversation.

Alistair buys the land, hires an architect, Peter, to do plans of the proposed building and the plans are completed. When he submits them for approval, he learns from the Council Planning Department that the Council will not permit the building of a two-level restaurant and that the building must be single level only. The alterations to the plans, the structure of the building and the way it is now going to have to be built, will cost Alistair $250,000.

He also learns that on the day of his initial enquiry, he was mistakenly put through to the Surveyor’s Department and not to the Planning Department as he had requested.

Alistair wants to take legal action against the Council and seeks your advice.

REQUIRED:
Advise David of his likelihood of success and give reasons for your advice. Discuss all relevant law. (15 marks)

QUESTION FOUR

Jeremiah is a Victorian farmer who needs a new tractor. He visits a company, Tractor Specialists Pty Ltd, which specialises in the sale of many types of tractors. The tractor is manufactured by Just Tractors Pty Ltd, a Victorian company. Jeremiah tells Ryan, the company manager, that not only does he need a tractor for farming purposes, but he needs a tractor with a special capacity to handle his property which has a number of hills on it. He needs the tractor to be able to negotiate its way up and down those hills.

Ryan shows Jeremiah a tractor which he says will definitely meet Jeremiah’s needs. A logo exists on the side door of the tractor. The logo says: ‘Super Tractor designed for the hills’. The cost of the tractor is $39,000 and the parties enter into a written contract which provides that ‘all statutory provisions which would otherwise apply to this transaction are hereby expressly negated’.

Shortly after its purchase and use, the tractor proves to be entirely inappropriate for Jeremiah’s use. It cannot negotiate the hills on his property and has stalled on many occasions. Jeremiah wants to commence legal action.

REQUIRED:
Advise Jeremiah of all his rights and remedies against both Tractor Specialists Pty Ltd and Just Tractors Pty Ltd under the relevant Federal law. Give reasons for your answer and discuss all relevant law. (15 marks)

Question 3
The problem in this question deals with tort law in particular to Negligence which is the liability that may arise for failure to take reasonable care in particular circumstances to prevent foreseeable harm.
From situation it is like that there is a duty of care as omissions or act would be likely to harm Alistair economically under the neighbour test (Donoghue v Stevenson). There can also be a duty of care when giving information, base on circumstances Alistair would rely on the information being provided (Shaddock & Associations Pty Ltd v Parramatta City Council). The link of omission of being informed of information about land closely relate to the damages of Alistair having to replan the structure (Cork v Kirby Mclean) The damage that may have arise from the initial enquiry on the phone would be unlikely to be liable by the Council as information given on the phone was informal and hence it should not had been relied on, Alistair should had gotten a certificate if there was any plans in regards to the land(Donoghue v Stevenson).
Alistair had also advise to seek legal representation by David, it is likely that a proper procedure of land planning would required proper legal representation and Alistair’s losses may be considered contributory negligence as he should had hired a legal representation under certain circumstances (Imbree v Mcneily) .
From the information given, Alistair would be likely to be unsuccessful as the information given by the council should not had been relied on as it was informal and from situation given, Alistair should had hired a legal representative to ensure that there would be an approval for his two-level restaurant and if there was any plans council had for the land hence Alistair might be partly negligent on his behalf for not hiring a legal representative.
Question 4
The problem here relates to consumer law in particular to Jeremiah rights and remedies in regards to the tractor. The relevant federal law to this case would be the Australian consumer Law
Firstly we must establish whether or not Jeremiah is a consumer. As the price of the good is less than $40000, and good is not use for production or commercial manufacturing, Jeremiah would be the criteria of a Consumer (ACL s3).
At the time of sale, Jeremiah mentions to Ryan that he needed the tractor for going up and down hills, however the tractor is not suitable for Jeremiah’s use, under guarantees of the ACL, the good must fit customers purpose disclosed (ACL s55).
As good is a complete failure, for Jeremiah’s use he is entitled to notify the supplier he is rejecting the goods or keep the good and bring action against supplier to recover compensation for lower value of goods below agreed price. He is also entitled to damages that may had occurred as a result of contravention of provision of Ch 3 (ACL s236).
Based on the situation, Jeremiah would be eligible for losses occurred as a result of transaction under the Australian Consumer Law

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