Question

Consider the following facts and answer the questions which follow under the heading “Required”.

(This is all the case evidence given by source)

Vince Scaleri made an arrangement with two of his friends saying that he would be glad if they would in their own time provide him with firewood during the winter of 2019. Vince lived in Georgetown, roughly 50 kilometres from the woodyard of his two friends.   Vince stated that the firewood should be cut to a length of 3 feet and to a width of 6 inches. There was no discussion as to the volume of wood which should be supplied nor as to the price for the wood. Vince commenced the discussion using his mobile phone and the friends responded in writing.

By the middle of the winter in 2019, Vince had not been supplied with any wood so he contacted his friends to complain. They responded saying that they had not realised that he was depending on them for his supply of firewood. They explained that due to the Summer bushfires they had lost several stands of timber and it was not possible for them to supply firewood to customers, let alone friends.

Vince was disappointed but discovered an advertisement in the local paper which advertised the benefits of installing an electric fire place which was described as the answer to cold winter nights – it said that if a reader purchased such a fire place it would give the room in which it was installed an even temperature of 20 degrees centigrade. The advertisement said that fireplaces could be purchased from a number of stores.

Vince went to his local furniture store and acquired an electric fireplace. When installed it failed to improve the temperature in Vince’s house and he froze. It transpired that Vince did not purchase the fireplace, instead he was given it in recognition of some work he had done for the store owner six months ago.

Vince’s daughter, Helen, was a teacher and she was injured when she touched the fireplace. As a result she could not continue with her employment as a teacher and she began to suffer from depression.

Vince’s wife had had enough and she went to the bank to obtain a loan to cover the cost of renovations to the house. The bank agreed to a loan of $40,000 provided she arranged for her parents to guarantee the loan. They did so and mortgaged their own home as security. They were at the time in Cairns and the documents providing the security were sent to them to be signed there. The did so and returned them to the bank. The loan was granted but Vince and his wife did not use the loan money for the renovations but took a cruise instead.

On the cruise many of the passengers contracted a disease which required the vessel to be quarantined for 14 days. The cruise was a disaster.

REQUIRED

1. Advise Vince as to whether he can seek damages from his friends who failed to supply the firewood. What would Vince need to prove in order to be successful.

2. Advise Vince whether he would have any claim against the advertiser of the electric fire place or the furniture store from which he purchased the fire place due to the apparently unsatisfactory performance of the fireplace. What would Vince need to prove in order to be successful against each party.

3. Would Helen be likely to have any claim in contract for her injury or the onset of depression? What would she have to prove in order to b successful?

4. Do you think that the parents would be liable to honour their guarantee to the bank in respect of the loan to Vince and his wife? What defence might the parents argue and would they be likely to be successful?

5. Would Vince and his wife be entitled to damages for the fact that the cruise disappointed them? What would they have to prove?

Answer 1

There are five different questions, I am giving an answer to all of them:

Question 1. Advice Vince as to whether he can seek damages from his friends who failed to supply the firewood. What would Vince need to prove in order to be successful?

Answer: Yes they can seek damage, as even the verbal contract is legally binding if it was contracted in good faith. In this case, their friends had confirmed back in writing. They will have to show the written confirmation from their friends in order to establish a contract for supply of woods. Secondly, they will have to prove that they had supplied the wood to its customers and they had enough stock to supply but purposefully they did not perform the contract.

Question 2. Advice Vince whether he would have any claim against the advertiser of the electric fireplace or the furniture store from which he purchased the fireplace due to the apparently unsatisfactory performance of the fireplace. What would Vince need to prove in order to be successful against each party?

Answer: The point here is to note that Vince did not purchase but he must be having proof that it was given not given as gift rather it was given in lieu of remuneration or fee for the work which he had rendered for the store owner. In that case, he can seek the consequential damage caused due to non-performance of the electric fireplace as it did not meet the claims made in the advertisement and the advertiser is making a false claim in the advertisement.

Question 3. Would Helen be likely to have any claim in the contract for her injury or the onset of depression? What would she have to prove in order to be successful?

Answer: Claim is not possible if the part touched by Helen is supposed to be touched as per the product manual given with the product. IF the product manual prohibits touching the heater while it is in operation then there would be no claim. But if the she can prove that the part touched by her was supposed to be touched as per the manual and there is no clear instruction given in product manual as not to touch those parts while in operation and product failed to meet its specification, She can seek the damage for disturbance in their livelihood and earning and also for the consequential damage due to depression.

Question 4. Do you think that the parents would be liable to honor their guarantee to the bank in respect of the loan to Vince and his wife? What defense might the parents argue and would they be likely to be successful?

Answer: The purpose of the loan was not met and the banks should have made sure that the loan is being utilized in the desired manner for the repair of the home. if the loan was given without any defined purpose of use limits and their parents have cosigned as a guarantee while knowing this fact, they will be liable to make the payment to the bank. But the only defense the might argue that since the loan was issued for repair or reconstruction work and the bank failed to monitor the purpose of the loan amount being used, and they had signed only for the loan being used for purpose of reconstruction. They can not be held liable if they prove it was the failure of bank on their duty to monitor and control the purpose loan was being used if the loan was not given as a personal loan.

Question 5. Would Vince and his wife be entitled to damages for the fact that the cruise disappointed them? What would they have to prove?

Answer: If the situation where many passengers contracted the disease were unprecedented and being considered as force measure and resulted in quarantine for 14 days, they are not entitled to damages.  As this has happened recently in the case of COVID-19 were due to this unprecedented situation many cruise ships had to undergo a mandatory quarantine period of 14 days before un-boarding. In those cases, no damages can be demanded.