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LAW5CNB-Contract Law B

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1.All of Megan’s friends are joining the latest fitness craze of piloxing (pilates and boxing) by hiring a piloxing machine, so they can use it in the comfort of their own homes. The local supplier of the machines is the ‘Foxy Ladies Gym Supplies Pty Ltd’ (hereinafter ‘Foxy’) in New Street, Toorak. Not only does Foxy hire, sell and provide maintenance services on all kinds of fitness equipment, but, it now stocks the piloxing machines that are highly sought after by many Toorak housewives. At the reception desk of Foxy, Megan is given a thirteen page document, with a signature clause on the final page. She is feeling a little frazzled after a whole day at tennis and brunch and does not read the document before signing. There is no discussion with the counter attendant as to its contents, and Megan is more than happy paying the sixty dollars a month fee for the hire of a piloxing machine to be delivered to her home within two business days. Megan is delighted with her machine and uses it daily.
 
A month later, Megan receives an email from Foxy advising her that the monthly hiring fee for her piloxing machine has now increased to $110. If she wishes to make use of the maintenance services available for the piloxing machine, the fee is $130. In addition, the email stipulates that a late fee of $15 per day will apply relating to any amounts outstanding on any fees owed.
 
On reading the contract, Megan discovers the following clauses:
 
4.1: Foxy reserves the right, at any time and at the sole discretion of Foxy, to alter any services provided pursuant to this Agreement and any other terms.
 
4.2: Foxy reserves the right, at any time and at the sole discretion of Foxy, to amend the monthly hiring fee, or any other fee, cost or charge relating to any or all services provided pursuant to this Agreement.
 
4.3: Foxy may at any time, for whatever reason, terminate this Agreement.
 
4.4 The member shall indemnify Foxy in relation to any claims or actions arising out of or in connection with this Agreement, including but not limited to claims or actions in relation to any act or omission of Foxy’s employees or agents.
 
4.5 This Agreement is deemed to have been entered into in a jurisdiction not subject to laws relating to unfair contract terms. Advise Megan as to her rights pursuant to the Australian Consumer Law.
 
2.Marie is a Swiss Olympic skiing champion who has fallen in love with an Australian and has come to Melbourne to meet his family for the first time. Before they venture out to ski in Mount Hotham together, she wants to go shopping for some new ski gear. She has heard about a ski wear shop in Melbourne called “Ski with Us” (a pty ltd company), that has some stylish designs in women’s ski wear. She walks into their glamourous Toorak store and tells the manager Sven, that she wants a ski suit which will look great around the fireplace, while keeping her warm and being lightweight and durable for the competitive Olympic skiing events she participates in. She also tells him she wants new skis, the toughest available on the market, thinking to herself that it would be easier to leave them here in Melbourne than to bring them from Switzerland each time she travels to Australia. After taking a few photos for Sven’s social media bragging rights, Sven shows her the new “X-Design” brand of skis and ski suits. Marie is shown a pair of skis from X-Design for $2000 that fit her feet well. Sven tells her that they are the most durable skis he has ever seen and that even an Olympic skier like Marie, will not be able to wear them out for at least 10 years with daily skiing practice. She also selects a ski suit from the X-Design brand and pays $2500.00 for it. 
 
Marie is delighted with the ski suit and new skis until she decides to ski a few days later. The new skis bent whilst she was skiing causing her to fall and sustain a broken leg. As for the suit, although the suit was warm, the blue dye ran when it came into contact with the snow. When Marie tried to take it off, the zip broke and she had to be assisted to take the suit off. When Marie returns the ski suit and skis to Sven, Sven says she was probably too rough with them. Marie is furious and demands a refund, arguing that the skis and ski suit are not even good enough for non-competitive skiing. Sven points to her receipt which states “The seller is not liable for any loss or damage to the purchaser howsoever caused”. Marie leaves Sven’s store in disgust and tells him that she will post about this on her social media which has a huge following.
 
While about 60% of X-Design brand ski wear is used by professional skiers, the remainder is purchased by amateur competitors and ski enthusiasts.
 
Advise Marie as to her rights under the Australian Consumer Law. If there is insufficient information to form a clear conclusion as to any part of the question, you should indicate what type of information it is, and how it might affect your answer.
 
3.Golden Land Pty Ltd (hereinafter ‘GL’) has been trading for the last twenty years in sourcing and selling land to both individuals and property developers. GL had recently found some land in the growth corridor of Melbourne, about 50 km from the CBD. GL bought the 264 hectares of land at a bargain price, as it was a former rubbish landfill site. GL had it subdivided and has recently commenced its sales campaign. The cheapest price for the smallest block was priced at $295,000, to the most expensive being $550,000. Jim the managing director of GL arranged for advertising of the land release in the prominent newspapers of Melbourne. Part of the advertising read as follows:
 
Your great Australian dream is here. You too can now own your own home.’
 
‘Price Guide: $180,000 Plus Buyers Should Inspect’
 
‘Metro railway to be built in the next 3 years’.
 
Following the advertisements, there were many inquiries from prospective buyers. One of them was Juliette who was working in New Zealand, but, had recently accepted a new job in Melbourne’s CBD. She was planning to return to Australia in the next 9 months and was searching for some land to build a house on. Juliette arranged an appointment with Jim to inspect the land on the 22nd of November 2017. She flew over from New Zealand where she was still based at the time, to attend the inspection. Part of the conversation was as follows:
 
Juliette: ‘In your ad, it was stated that a railway will be built in the next 3 years. Is that definite?’
 
Jim: ‘Absolutely. We have very good relationships with people in the Victorian government and although it’s not officially out there, we know about it. It’s the advantage of being well connected you see.’
 
Juliette: ‘That means that by the time I get a house built on this land and move in, I’ll be able to commute to the CBD for work.’
 
Jim: ‘It’s a no-brainer Juliette. You’ll have a spacious home and garden and be a quick train ride from your work’.
 
Jim then shows her the land Juliette is interested in buying and tells her the price had to be increased, because GL had to pay for the national broadband network (NBN) to be connected to the land. He tells her that the land she is interested in, is now priced at $295,000. Unbeknown to Juliette, the land does not have NBN connection. It is also too contaminated for human habitation. Juliette has applied for a loan from her bank and was very keen on buying the property, but is now very disappointed that the price is much higher than what it was originally advertised for.
 
Advise Juliette as to her rights under the Australian Consumer Law
 
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