Peter Smythe v Vincent Thomas [2007] NSWSC 844 (3 August 2007)

LAWS11030/TERM ONE/2015

 

Part A

 

  1. Go to the following website http://www.austlii.edu.au/ and locate this case:

Peter Smythe v Vincent Thomas [2007] NSWSC 844 (3 August 2007)

Explain briefly how you found it.                                                                                    2 marks

 

  1. What particular circumstances led Rein AJ to doubt the credibility of the defendant’s version of events?       2 marks

 

  1. The defendant argued there was no binding and enforceable agreement, what were the components of this argument?      2 marks

 

  1. How is agreement reached in a traditional auction?   2 marks

 

  1. What did Rein A J regard in an eBay auction as the equivalent of the fall of the hammer in a traditional auction; and what is the significance of each? 2 marks 

 

  1. Why was the final order not made in this hearing?      2 marks

 

  1. Why was the matter heard in the Supreme Court?    2 marks

__________________________________________________________________________

 

 

  1. Locate this journal article:

Rares, Justice Steven “Striking the modern balance between freedom of contract and consumer rights” (FCA) [2013] FedJSchol 21

(Paper presented to the 14th International Association of Consumer Law Conference
Sydney, 2 July 2013). It is available on: http://www.austlii.edu.au/

Explain briefly how you found this journal article.                                                       2 marks                                                                         

 

 

  1. In the article Rares J refers to caveat emptor. What is meant by this term? 1 mark                                                        

 

 

  1. Rares J noted that GameStation’s April Fools Day joke had a serious side – explain what he meant by this.                                                   2 marks

 

 

 

 

In the journal article go to the final section (from para 61 onwards) and answer the following questions:

 

  1. Rares J noted that the common law rules on the formation of a contract apply to on-line dealings. What did he cite as authority for this assertion; and was the authority a primary or secondary source? What is the significance of this source?                                2 marks                                                                   

 

  1. Big Day Out’s promoter had a condition against resale printed on each ticket. In which case did Rares J decide that use of this condition was misleading? 1 mark

 

  1. What did the condition against resale say and what was eBay’s argument? 1 mark

 

  1. Rares J concluded that consumer protection legislation should fulfil certain requirements – explain what he regarded as necessary requirements. What do you think the requirements of consumer protection legislation should be?                                    2 marks                                                                                                                                                                     

 

___________________________________________________________________________

 

Part B

 

  1. a) What the advantages of statute law?

                                                                                                                                                                                                                                                           5 marks

                                                                                                                     Up to 500 words

 

 

 

 

 

 

 

b)

Alice: I am selling my 2008 Toyota Yaris are you interested?

Jack: I could give you $9,000 for it. 

Alice: No, that’s not enough, I was hoping for $10,500 at the very least. 

Jack: The highest I can go is $10, 200.

Alice: Ok that is probably the best I can get.  

 

In this above conversation identify the following: an invitation to treat; an offer and counter-offer; a new offer; a rejection and an acceptance. At what stage was agreement reached?

 

(Copy each line of the question and say what it is with a brief explanation of how you came to that conclusion).

                                                                                                                                        5 marks

                                                                                                                          Up to 200 words

 

 

 

 

  1. c) Baldrick has inherited an extensive collection of antiques and plans to start an antique business. He has found a small shop which he would like to lease. Baldrick asks his father Bill to lend him $50,000 so that he might establish the business and take on the lease. Initially Bill thought this a good idea and agreed to lend him the money at 4 per cent below the current bank interest rates. On the strength of Bill’s loan Baldrick began lease negotiations and signed the lease. Bill has now changed his mind and Baldrick is concerned he might have to borrow from the local bank at the current commercial lending rate.

Explain the law to Baldrick and advise him what he could do.                                     5 marks                                                                    

                                                                                                                          Up to 500 words

 

                                                                                                                  Total marks 40 mark

 

 

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