Page 1 XXXXXXXXXXKaplan Business School Assessment Outline
Assessment 2 Information
Subject Code: BUS107
Subject Name: Commercial Law
Assessment Title: Assignment
Assessment Type: Assignment
Choose an item.: 1,200 Words (+/-10%)
Weighting: 40 %
Total Marks: 40
Submission: Via Turnitin
Due Date: Week 10
.
Assessment Description
• There will be a webinar to assist you with preparing this assignment. Watch out for the
webinar time and date details to be posted in the Subject Announcements.
• This assignment covers the Law of Torts (Week 5).
• You will need to identify the issues in the question, cite the relevant rules applicable to the issues,
explain the application of the rules to the facts/situation in the problem and draw a conclusion as to
the best advice for the person/s you are providing advice (IRAC).
Assessment Problem Based Question
Peter is a real estate developer. He develops residential apartment complexes in the Wollongong local
area. He purchases a large block of land for $2 million and plans to build a large apartment complex on
the block at a considerable profit. But Wollongong Council denies his development application on the
asis of a road widening proposal that will substantially reduce the size of the block. This road widening
proposal reduces the value of the block of Peter’s land to $1 million.
Peter reads the council certificate he obtained from Wollongong Council. If the block of land had been
subject to a road widening proposal then it should have been disclosed by Wollongong Council in the
certificate. There is no such disclosure in the certificate. As Peter didn’t bother to read the certificate
efore he purchased the land, he is relieved to find the council has made this mistake. He secretly knows
that if Wollongong Council had been careful and included the road widening disclosure in the certificate,
he would not have seen it and gone ahead with the land purchase anyway.
Peter now wants to sue Wollongong Council in negligence for economic loss. Wollongong Council claims
that negligence only applies to physical actions, not written words, and is only applicable to physical
damage to people or their property, not economic loss.
Advise Peter.
Page 2 XXXXXXXXXXKaplan Business School Assessment Outline
Important Study Information
Academic Integrity Policy
KBS values academic integrity. All students must understand the meaning and consequences
of cheating, plagiarism and other academic offences under the Academic Integrity and Conduct
Policy.
What is academic integrity and misconduct?
What are the penalties for academic misconduct?
What are the late penalties?
How can I appeal my grade?
Click here for answers to these questions:
http:
www.kbs.edu.au/cu
ent-students/student-policies/.
Word Limits for Written Assessments
Submissions that exceed the word limit by more than 10% will cease to be marked from the point
at which that limit is exceeded.
Study Assistance
Students may seek study assistance from their local Academic Learning Advisor or refer to the
esources on the MyKBS Academic Success Centre page. Click here for this information.
http:
www.kbs.edu.au/cu
ent-students/student-policies
https:
elearning.kbs.edu.au/course/view.php?id=1481
Microsoft PowerPoint - BUS107_T2_2018_Tutorial_08_v1
4/07/2018
1
Consumer Protection
Tutorial Eight
BUS107 Commercial Law
Melissa purchased a swimming pool from a sales representative named
Grant from a company called Westside Pools. She paid $50,000. The pool
has a number of problems and Melissa wants a refund.
Grant has told Melissa that she does not meet the definition of a consume
under the Australian Consumer Law (ACL) and is not entitled to consumer
law protections.
Question 1
Advise Melissa whether or not she meets the definition of a
consumer under the ACL
Issue
Grant has told Melissa that she has no rights under the law because she does not fit
the definition of a consumer.
Rule
Consumer protection legislation addresses the inequality between sellers of goods
and services and their consumers by prohibiting sellers from taking advantage of
consumers. Consumer protection legislation in Australia is called Australian
Consumer Law (ACL).
A consumer is a person if they buy goods or services for no more than $40,000 unless
the goods or services are normally purchased for personal, domestic, or household
use: see s.3 ACL
Application
Melissa has purchased a swimming pool for more than $40,000 but a swimming pool
is normally purchased for personal, domestic, or household use. Melissa is a
consumer as defined by the ACL.
Conclusion
Grant is wrong. Melissa is a consumer and is entitled to protection under the ACL.
Question 1
4/07/2018
2
Westside Pools advertised on their website that that they sell
and new
pools. But the pool they sold to Melissa was second hand.
Question 2
Advise Melissa whether or not Westside Pools have engaged in
misleading and deceptive conduct
Issue
Westside Pools are advertising on their website that the pools they are selling are new
when they are not.
Rule
It is against the law to mislead or deceive consumers: see s.18 ACL.
You can mislead and deceive consumers by saying something is new when it is not:
see Annand and Thompson Pty Ltd v Trade Practices Commission.
The basic test is whether the conduct would mislead or deceive an ordinary person.
Consider the market for the good and determine whether an ordinary person from that
market would be misled or deceived: see Campomar Sociedad, Limitada v Nike
International Ltd
Question 2
Application
Westside Pools are advertising the pools as new when they are not. The market for
the pool would most likely consist of men and women aged between 20 and 40 with
young children. It is probable that an ordinary person from this market would be
misled and deceived by such advertising.
Conclusion
Westside Pools have engaged in misleading and deceptive conduct.
Question 2 cont.
4/07/2018
3
The pool that Westside Pools sold Melissa does not match the
photographs and description of the pools advertised for sale on the
Westside Pools website.
Question 3
Advise Melissa whether or not Westside Pools have
eached
any statutory guarantees under the ACL
Issue
The pool that Melissa purchased does not co
espond to the description given on the
company’s website.
Rule
Statutory guarantees are a specific kind of consumer protection that help to ensure
consumers get what they pay for. They cannot be excluded by agreement.
Statutory guarantees for goods include guarantees regarding acceptable quality of the
goods, fitness for any disclosed purpose, and co
espondence with description or
sample: see s.54-57 ACL
Application
Westside Pool’s advertising describes a different pool to the one they sold Melissa.
The good does not co
espond with its description.
Conclusion
Westside Pools have
eached their statutory guarantee that their pools co
espond
with the description in their advertising. Melissa is protected by this guarantee.
Question 3
The pool that Westside Pools sold Melissa contains a potty style skimmer
ox that was banned by the ACCC in Fe
uary 2011.
Question 4
Advise Melissa what she should do about the potty style
skimmer box
4/07/2018
4
Issue
Westside Pools have sold Melissa a pool with an unsafe design feature.
Rule
Bans, standards, and recalls are all methods used to ensure consumers are protected
from unsafe products: see Pt 3-3 ACL
The ACCC permanently banned the supply of portable pools with unsafe design
features such as uncovered potty skimmers on 1 Fe
uary 2011.
Application
Westside Pools have acted contrary to the permanent ban imposed by the ACCC.
Conclusion
Melissa should report the activities of Westside Pools to the ACCC.
Question 4