Discuss about the Corporations and Associations for Cases and Materials Management.
The issue in this case is if a contract has been created between John and Vanessa and Li Wu. For this purpose, it has to be considered if the elements that are necessary for the formation of a valid contract between the parties are present in this case or not. The law of contract requires that an agreement between the parties can be considered as a valid contract if elements like offer, acceptance and consideration etc. are present (Smith v Hughes (1871) LR 6 QB 597). Therefore it is required that an offer should be made by one party. The same offer should be accepted by the other party. At the same time, consideration should also be present to support the promise that has been made by the parties to the contract. Apart from it, the agreement should be created for a lawful purpose. In the present case, the flyer issued by John is only an invitation to treat and it is not an offer. The offer has been made by Vanessa and Li when they went to the website of John for the purpose of making the booking. A return of this offer, they received an e-mail in which their booking was confirmed. At this point, a consideration of $80 has also been agreed upon by the parties. In this way, in the present case, the contract was created between John and Vanessa and Li Wu when both of them had received an e-mail from John in which their booking was confirmed. This was also the time when the consideration for the present contract in the form of $80 was given by Vanessa and Li.
The terms of a contract can be described as express terms and implied terms. Express terms of the contract are the terms that have been expressly mentioned by other parties before or while entering into the contract. On the other hand, there are certain terms that can be implied in a contract. Such terms can be implied in the contract as a result of statute or on the basis of the facts of the case. In the present case, John had stated in his flyer that he was going to provide a chance to have some fun at the waterfalls of diamond cascades. John also claims to be a professional. At the same time, he also stated in this advertisement the first 50 customers from Melbourne will receive a certificate of Adrenalin Junkie and also a new pair of bathers and a bottle of sunshine. However, when Vanessa and Li got the e-mail confirming your booking, John told them that he was only kidding about these items. At the same time, there is an implied condition that the services shall be provided by John with due care and skill. This implied condition requires that John should keep in mind the safety of his customers. But this implied condition was breached when John used worn and torn equipment. In the same way, John had mentioned that he was a professional but he failed to notice that at the time of the year, the river was particularly dangerous, especially after the heavy rainfall. Similarly, in this case, there has been a breach of the express term when John had mentioned in the advertisement that he was going to give a new pair of bathers and a bottle of sunshine along with a certificate from Adrenalin Junkies. In this case, although John gave the certificate but he failed to give the bathers and bottle. Hence in this case, there is also a breach of the express terms of the contract. That was created between John and Vanessa and Li.
Since January, 2011 there is a unified national consumer Law under which all Australian businesses have to operate. The new law is known as the Australian Consumer Law. This law is applicable to the consumer transactions taking place in all Australian states and territories whether such a transaction has taken place face-to-face or online. Therefore it is important for the Australian businesses to understand the impact of Australian Consumer Law on their present operating practices. The Australian Consumer Law has introduced a new set of protections that are known as the consumer guarantees. These are available to the consumers who are going to buy goods or services from the businesses. The consumer guarantees provided by the ACL have replaced the conditions and warranties that were earlier implied in consumer contracts under the state legislatures and the Trade Practices Act. The consumer guarantees provided by the ACL comprises a comprehensive set of rights and remedies that are applicable in case of defective goods and services. These guides are available to all consumer, irrespective of the fact that any other warranty has been provided by the business. In case of the services provided by business, the following consumer guarantees are applicable to a transaction related with the supply of services. It is required that the services should be provided with due care and skill. The services are required to be fit for purpose if the purpose was made known to the supplier by the consumer. Unless the parties have agreed upon a specific time, the service needs to be provided in a reasonable time.
Similarly, the Australian Consumer Law provides that a consumer can seek refund, repairs or replacement if any of the consumer guarantees have been breached by the supplier. However, the exact remedy that may be available to the consumer depends on the guarantee that has been breached by the supplier and also of the nature of the breach.
In the present case, John can be held liable for damages as a result of the breach of statutory guarantee according to which the services to be provided with due care and skill. As a result, Vanessa and Li can seek a refund from John and at the same time, they can also claim damages for the broken camera as well as the injuries suffered by Vanessa.
Baxt, R, Fletcher, K &Fridman, S 2008, Corporations and associations: cases and materials, 10th edn, LexisNexis, Butterworths, Sydney, New South Wales
Harris, J, Hargovan, A & Adams, M, 2013, Australian corporate law, 4thedn, LexisNexis Butterworths, Chatswood, New South Wales
McDonald, Barbara (2005). "Legislative Intervention in the Law of Negligence: The Common Law, Statutory Interpretation and Tort Reform in Australia". Sydney Law Review. 27 (3): 443
Deakin, S., Johnston A and Markesinis B (2003) Markesinis and Deakin's Tort Law, Oxford University Press
Kujinga, Benjamin (2009). "Reasonable Care And Skill — The Modern Scope Of The Auditor's Duty". GAA Accounting
Tomasic, Roman; Bottomley, Stephen; McQueen, Rob (2002) “Audits and Auditors”, Corporations Law in Australia, Federation Press
BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1978) ALJR 20
Liverpool City Council v Irwin  UKHL 1