Can Alexia Sue The Council For Her Losses? Can The Government Bring An Action For Anticipatory Breach?

1. Whether Alexia can sue the council for the losses that are sustained by her?

2. Can Government bring an action for anticipatory breach for non-completion of work within 12 months?

Whether Alexia can sue the council for the losses that are sustained by her?

The law of Tort (Negligence) is applicable in the given situation.

When any wrongful act/omission is carried out by the defendant which results in any civil action against the wrongful party then it is a tortuous wrong.

The law of negligence is part of the law of tort. In Donoghue v. Stevenson [1932] it was held by Lord Atkin that when any act/omission is carried out by the defendant for which he is imposed with the legal duty that no harm should be caused to the plaintiff, then, if any loss is caused to the plaintiff because of such acts/omission, then, the defendant is held to be negligent in his acts. (Elliott & Quinn 2015)

The law of negligence is also applicable when misstatements are made by the defendant. A negligent misstatement is considered to be incurred when any inaccurate statement is made by the defendant honestly but carelessly to the plaintiff wherein the defendant is possessed with skills and knowledge upon which the plaintiff is relying, then, any loss that is caused by the plaintiff resulting from such advice of the defendant will make the defendant liable for negligent misstatements. (Hocking 1999)

Thus, the main elements that are required to prove negligent mis-statement on the part of the defendant are: (Bill 2010)

1. Duty of care – Every defendant prior furnishing advice must make sure  that the advice furnished by him does not result in any harm to the plaintiff who is relying upon his advice. The duty of care is imposed provided: (Latimer 2009)
2. Proximity - that there must be proximity that exist mid the parties, that is, they are sharing a special relationship wherein the act of the defendant will hamper the plaintiff (Caparo v Dickman[1990]).
3. Reasonable forseeability – there is reasonable forseeability on the part of the defendant, that is, he can foresee that the acts/omission that he is undertaking might cause harm to the plaintiff (X v Bedfordshire County Council [1995];

In Cole V South Tweed Rugby League Football Club Ltd [2004], it was held that when Mrs Cole left the club within the alcohol limit that is provided by the club, then, the duty of care that is imposed upon the club against his visitors are complied with and thus the duty is comply with. Mrs Cole and the club are in the relationship of proximity and the club can forsee the impact of its actions.

In Hackshaw V Shaw [1984], the court held that the use of firearm with the knowledge that the same might incur injuries to the plaintiff is not in compliance of the duty of care that is imposed upon the defendant. The care that is used by the defendant is not adequate and thus the defendant was held to be negligent in his actions .

1. Violation of duty – When the standard of care that is expected from the defendant to comply with his duty of care is not met as per the level of a reasonable prudent man in the similar situations then there is violation of duty (Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited[2009]

• Damages – It is necessary that some loss might have been caused to the plaintiff because the plaintiff has relied on the advice of the defendant. However, it is necessary that:

1. The loss that is caused to the plaintiff is because of the advice that is furnished by the defendant. Thus, there must be presence of causation.
2. That the loss that is incurred is not remote but is reasonably foreseeable by the defendant. In Lindeman Ltd V Colvin [1946], the court held that the loss that is caused to the plaintiff was a separate injury and is not caused because of the breach on the part of the defendant.

Once all the elements are comply with then the defendant is held to be negligent. But, to make a defendant liable for any negligent mis -statement there is requirement of the presence of special relationship amid the parties. To special relationship, the main requirements are: (Latimer 2009)

1. That the defendant is possessed with special skill and knowledge upon which the plaintiff is relying upon and the plaintiff does not have any of such skills and knowledge;
2. That the information or the advice that is provided to the plaintiff is a serious business matter;

• That the defendant is aware that the plaintiff is relying upon the advice of the defendant prior undertaking any action;

1. That it is reasonable that the plaintiff is relying on the information provided.

Relevant Law

In Shaddock& Associates Pty Ltd V Parramatta City Council [1981] HCA 59, a solicitor  (for Shaddock) seek advice from the Parramatta city council to regarding a property and whether the same will be impacted by the road widening proposals. The employee confirms that the property is not under threat but the advice is not made part of the final papers. The plaintiff suffered loss because of the road widening actions. The court held that there is a special relationship that exist amid the parties and the plaintiff is relying on the advice of the council. Thus, there is negligent misstatement on the part of the council and should be held accountable for the loss suffered by the plaintiff.

In San Sebastian Pty Ltd V Minister Adminstering The Enviromental Planning And Assessment Act (1986), when any proposal is made but no assurance is provided then such a statement does not fall under the category of negligent – misstatement. It is necessary that the plaintiff rely upon the assurance given by the defendant.

As per the facts, Alexis is a developer and owns a large tract of land between Ipswich and Toowoomba. She intends to build a new township and thus submits her development application ‘'Torrensvillle' to the local council. She intends to make an assurance that none of her land will be resumed for the proposed freeway which will pass her land and  is included her DA. An advise is furnished by the clerk verbally that there would be no resumption of her land. But, this verbal communication was not made part of the final written approval from the council. But, later when the building commences, the council inspector arrives on site and submitted that there will be a resumption of the 24 blocks of land bordering on the road. This will result in the development lose of $1.5Mil, that is, the profit expected from these blocks. She seeks your advice on the possibility of suing the council for her losses.

It is submitted that there exist a  special relationship amid Alexia and the clerk of the council;

1. That the clerk is in possession of the knowledge regarding the road widening programme and is aware that Alexia is  relying upon the advice that will be furnished by him as she does not have the requisite knowledge
2. That the advice that is provided to Alexia is a serious business matter because it is upon the advice that she needs to decide whether she needs to build a township or not which will cost her much;

• That the clerk is aware that Alexia is relying upon the advice prior undertaking any action;
• That it is reasonable that alexia is relying on the information provided.

Thus, there is a duty of care that is imposed upon the clerk to furnish the advice in a reasonable manner.

However, the advice that is furnished by Alexia is not as per the required standards as the same is not made part of the final documents that are supplied to her.

Because of the negligent misstatement, Alexia suffered loss.

Application of Law

Thus, the clerk is negligent in his actions for making mis-statements and thus is held liable for the same.

Conclusion

Alexia can sue the council for negligent misstatements that is made by the clerk.

Can Government bring an action for anticipatory breach for non-completion of work within 12 months?

The law of frustration is applicable.

When any contract is made then the contract cease to exsits when:

1. There is performance of contract;
2. Breach of contract;

Frustration is one of the reasons wherein the contract stands terminated amid the parties. When there is no fault of the parties and the contract is discharged because the contract become

1. Impossible to perform – When there is impossibility of performance then the contract is frustrated. That is, one of the parties dies and the contract cannot be carried out by the representatives, destruction of subject matter, etc. (Taylor v Caldwell (1863);
2. Foundation of the contract cease to exists – When it becomes practically inappropriate to perform the contract or when the basis upon which the contract was made cease to exist then the contract is terminated on account of frustration (Krell v Henry[1903]. When any unforeseen evened resulted in hampering the purpose for which the contract is entered then the contract is frustrated. It is necessary that the main reason for the formation of the contact must have hampered to consider the contract as frustrated and is held in  Brisbane City Council v Group Project Pty Ltd (1979) and  Codelfa Construction v State Rail Authority of New South Wales (1982) 149;

• When the unforeseen events alters the state of things then the contract is terminated on account of frustration. It is necessary that the event on account of which the contract is terminated is not made part of the contract and is held in Davis Contractors Ltd v Fareham Urban District Council[1956].

When a contract is frustrated then the rights and liabilities that have already been complied with remains active but the future rights and liabilities are discharged. But, if the event was already made part of the contract or is reasonably foreseeable or when the party who is seeking frustration is at fault, then the law of frustration is not applicable and is held in Bank Line Ltd v Arthur Capel & Co [1919].

The law is applied to the facts of the case.

As per the facts, Alexia had a discussion with the state government regarding the length of time the work would commence. RoadRus Ltd, contractors, are appointed by the government who assured that the work will be commenced in next 12 months as there are no new homes built.  Since they are o residents thus they can work 24 hours, in three shifts and complete the work. the same was made part of the contract.

Now, the main essence of the contract to complete the work in 12 months.

However, within 6 months, most of Torrensvillle' homes were built and people start moving in. The resident complained and thus the work was reduced to 2 shifts in a day @7AM-9PM.

Thus, an unseen event, which was not made part of the contract, exist which has rendered alteration in the situations in which the contract was made amid the parties. Thus, the alteration has varied the essence of the contract for which it is established, that is, completion of the contract within 12 months. Now, the contractor needs extension of another 4 months and thus tries to negotiate the contract.

It is submitted that because of neither party fault the contract becomes practically difficult to compete in 12 months. Thus, the contract ceases to exist in account of frustration. So, the government cannot bring an action of anticipatory breach because the contract is suffered from frustration on the part of the Supreme Court action.

Conclusion

It is submitted that on account of unseen event the time length of the contract was increased to further 4 moths and thus there us alteration in the contract. Thus, the contract ceases to exist on account of frustration.

Books/Articles/Journals

Bill, W. (2010). Law management 252 Curtin Handbook, Chapter three.

Elliott & Quinn (2015) Tort law. Pearson Higher Ed.

Hocking, B. (1999) Liability for Negligent Words. Federation Press.

Latimer, P. (2009). Australian Law Handbook . Chapter 4- Torts.

Case Laws

Bank Line Ltd v Arthur Capel & Co [1919] AC 435, 452.

Brisbane City Council v Group Project Pty Ltd (1979) 145 CLR 143, 162;

Codelfa Construction v State Rail Authority of New South Wales (1982) 149 CLR 337;

Caparo v Dickman [1990] HL.

Cole V South Tweed Rugby League Football Club Ltd [2004] HCA 29.

Davis Contractors Ltd v Fareham Urban District Council [1956] AC, 696, 731.

Donoghue v. Stevenson [1932] All ER Rep 1.

Hackshaw V Shaw [1984] HCA 84;

Krell v Henry [1903] 2 KB 740, 749

Lindeman Ltd V Colvin [1946] HCA 35.

Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009];

San Sebastian Pty Ltd V Minister Adminstering The Enviromental Planning And Assessment Act (1986) HCA 68.

Shaddock& Associates Pty Ltd V Parramatta City Council [1981] HCA 59.

Taylor v Caldwell (1863) 3 B & S 826, 839

X v Bedfordshire County Council [1995] HL