Assignment

This assignment is intended to provide you with the opportunity to consider a range of legal issues that can arise in contract law and tort.
You are expected to think through the issues thoroughly and provide a reasoned solution to the problems posed by the facts. In particular, you must ensure that you cover each of the matters specifically asked for in the question.

For that purpose, you should ensure that before starting the assignment you read both the Guide to Answering Legal Questions in Assignments and Examinations (detailing the IPAC method of legal problem solving) and the Sample Questions and Answers - both of which are on the LearnJCU site for this subject.

The Question

[Note: while this assignment is a continuation of Assignment 1 and is a continuation of that dispute, all relevant facts are contained here. You are not required to, and will not be assessed on, analysis of facts from the first assignment.]

Andy is the father of a a seven-year son called Brian. On 9 January 2018, he entered into a contract with Cockatoo Educational Resources (CER) to purchase school stationery and text books for his seven-year-old son, Brian. The purchase amount was $139 including delivery.

At 1pm on Monday 29 January 2018, Andy (after reading your letter) called CER to find information about the status of the order.

He spoke to a staff member called Melissa, gave the details of the transaction, and she retrieved the transaction details from the CER information system.

Andy asked: "Has my order been posted yet?"
Melissa replied: "No it won't be filled until at least Wednesday"
Andy was confused:"Sorry... It won't arrive until Wednesday?"
Melissa laughed. "No! It won't be made up until Wednesday at the very earliest. I have no idea when it will arrive ... let's see ... you're in Townsville? Possibly by the middle of next week. But I can't guarantee anything"
Andy was furious at this point. He replied: "That is not a reasonable length of time. It has been 20 days already. It's already the second week of school. I want to terminate this contract immediately".
Melissa's tone changed at this point: "You can't cancel your order at this stage. We won't refund your money. The terms on our website are very clear."

Immediately after this conversation, Andy sent an email to CER stating that he is electing to terminate the contract at this point.Very annoyed and angry, he printed a copy of the order, drives to a local office supplies store and purchases stationery (but not the mathematics books) identical to the order for $145. He cannot find any stores in Townsville that sell the specific books required ("qMaths Year 2" and "Pandora Mathematics").
That evening, Andy sees a post in the Townsville Buy & Swap Facebook group from a seller called Cindy. The post has the words "For sale, Year 2 mathematics text books" and Andy notes that Cindy lives only a short walk from Andy's house. Andy calls Cindy up and they have the following conversation:
"Hi, I see that you have some Year 2 mathematics text books. Do you haveqMaths Year 2 and Pandora Mathematics?"
Cindy replies: "Yes. They are $30 each"

Andy then says: "Okay. I'll take both. I only live a short walk away. Can I bring cash and come over?"
Cindy then responded: "Sure. Just be careful of the excavations out the front - we are landscaping the front lawn and there are a few holes. Try to follow the gravel path in the centre and use the torch on your mobile phone if you need to. See you in five minutes."
Andy walks over to Cindy's home. There is a small excavator parked on the front of the property, and piles of stones, soil, and wooden posts scattered haphazardly across the lawn. There are no lights at the front of the property and it is a new moon. He uses the built-in torch function on his mobile phone to see the way. Andy notices several deep holes and he is careful to avoid these in the low light.
He arrives at the door and knocks. Cindy answers, says "Here are the books" and hands them to him. Andy hands $60 to her. He notices that the title of one is "Pandorica Mathematics" and asks Cindy whether the books are the same type and year that the local schools use.
Cindy replies "I think so. I accidently bought a few extra copies from eBay last year. My kids have not used these ones at all".
Andy then thanks her, they shake hands, and hebids her farewell. She closes the door and Andy retraces his steps through the construction area. After about ten steps, he catches his foot on a plumb line approximately 3 cm from the ground. He trips and falls head-first into one of the holes. His spectacles and his mobile phone are both damaged.

The next day, he receives a call from Dave at CER. Dave tells Andy that they have compiled his order and shipped it. Andy protested and stated that the CER person he spoke to yesterday said that the order would not be made up until later in the week.

Dave tells Andy that:

1. He cannot terminate the contract

2. He cannot get a refund

3. Both parties are bound by the terms of the contract stated on the website; and,

4. If he returns the goods, CER will not accept them
Andy checks on the website and discovers a section labelled "terms" which (amongst other things) contains the following:

3.2 Timing Estimates Only. The times that we quote for supply or delivery are estimates only. Delay in supply or delivery will not affect your obligation to accept or pay for the products. ...
6.1 Title Passes on Full Payment. Title to the products will not pass to you until we receive your full unconditional payment for them. ...
8.2 Time. With the exception of the time for delivery, time shall be of the essence.

Andy recalls one key phrase that appeared on the page while he was placing the order(you were not sure whether it was a term or merely a representation):

"Any student pack order placed may take 3 weeks to deliver from time of order"

Andy also discovers some issues with the books he purchased from Cindy:
1. The "qMathematics" book is the 2014 version and has different page numbers
2. The "Pandorica Mathematics" book is an unauthorised counterfeit of the official "Pandora Mathematics" book and contains spelling mistakes
3. Both books have some handwriting in them where a child has written in them; and,
4. Brian can use them, but he is upset because some parts are confusing, and he occasionally does exercises from the wrong page

Andy calls Cindy (from a borrowed phone as his is broken) and tells her about theversion mismatch, the handwriting, and the counterfeit as well. Cindy tells Andy that:
1. She did not look at the year on the books
2. She was not aware that these were counterfeits
3. She bought the books second-hand but her own kids never opened them; and,
4. She will not return his money

Andy also tells Cindy that his glasses and phone were broken by falling in her hole. Cindy tells Andy that:
1. It was an accident
2. He should have been more careful; and,
3. He will have to claim for it on his own insurance

Andy, who by this stage is feeling distraught, visits the optometrist at the local mall who informs him that his glasses (which were new) will need to be completely replaced. He paid $800 for them last week but there is a promotion on so that he can instead replace them for $600. He also visits a retail outlet of his mobile phone provider. They inform him that the phone will cost $300 to fix. The phone originally cost $500 but was reaching the end of its useful life and the store estimates it was worth $100 before being damaged. Andy wants a new phone anyway and so purchases a similar model for $700.

Andy comes to you again for advice on legal options that he may have against Cockatoo Educational Resources and/or Cindy.

Please note that this assignment is designed for you to express your knowledge of the subject matter from week 5 (vitiating factors), week 6 (breach and remedies), week 7 (statutory rules for contracts), and week 8 (the tort of negligence).

When analysing the contract between Andy and Cindy, you must analyse the statements made by Cindy between accepting money and shaking hands. You are not required to use the contractual intention test from week 4. Instead, you must analyse both alternative. That is, you must consider the impact of these as terms (in terms of performance and breach) and explain their legal significance if they are not terms (for misrepresentation).

Similarly, you must analyse the phrase "Any student pack order placed may take 3 weeks to deliver from time of order" as if it were a term AND you must analyse it as if it were not a term (for misrepresentation and misleading & deceptive conduct).
Do not discuss vitiating factors rules

You can also assume that:
1. All of the elements of a contract are satisfied.
2. Cindy is not a second-hand dealer or in the business of selling text-books.
3. CER is a large supplier of stationery and school supplies.
4. CER is not a listed company.
5. Brian has started using the books.

For this assessment, you will need to address the following areas:
1. Relevant common law vitiating factors (contract with Cindy)
2. Relevant SOGA rules (both contracts)
3. Relevant ACL rules (contract with CER)
4. Repudiation (contract with CER)
5. Substantial performance (contract with Cindy)
6. Breach of contract (both contracts)
7. Elements of negligence (against Cindy in tort)
8. Contributory negligence (against Cindy in tort)
9. Damages (for loss and/or disappointment)
10. Limits to damages (mitigation, causation, remoteness)

In your conclusion, you will need to explain to Andy what amounts (in dollars) you believe he can receive as compensation from CER and/or Cindy (ignore all court-related issues such as costs, filing fees, and timeframes).