Assessing Negligence in the Context of Contributory Negligence
Added on 2019-11-26
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Running Head: Law 1Law
Law2Answer 1Part AIssue: Whether Bob Shifty contravenes any provisions of Australian Consumer Law, and if yes then remedies available to Liddy for such breach?Law: Unconscionable conduct refers to those transactions which occurred between dominant and weaker parties. Therefore, it also includes duress and undue influence. This type of conduct is prohibited by both common law and Equity, and now by statute also. According to Section 20 of the Competition and Consumer Act 2010 - Schedule 2 states, any corporation which conducts operations related to trade or commerce must not involve in any conduct which is of unconscionable nature as per the definition of unwritten law. The main aim of this section is to introduce number of remedies which are available to the victim of unconscionable dealing. It also helps the ACCC to conduct investigation related to the matter of unconscionable conduct, and if necessary take legal action.Section 21 of the ACL prohibits any conduct which is of unconscionable nature of any individualwho is engaged in the supply of goods and services. Court determine various factors while assessing 1the behavior of the person engaged in supply ofthe goods and services, and all these factors are stated in section 22 of the ACL. Some of these factors are stated below:
Law3Bargaining power of the parties.Whether stronger party impose any condition on the weaker party which is not necessary for protecting the legitimate interest of the stronger party. Whether weaker party is able to understand the effect of the documents.Extent up to which stronger party acts in good faith.Willingness of the stronger party to negotiate (Competition and Consumer Act, 2010). This can be understood through case law Commercial Bank of Australia v Amadio (1983) 151 CLR 447; [1983] HCA 14. In this case, contract was signed by Mr. and Mrs. Amadio with the Commercial bank of Australia for providing surety related to the debts incurred by the company of their Son. In this, Mr. and Mrs. Amadio sign the contract by believing that amount of debt wasonly $50,000 but in actual amount of the debt was more than $50000. Mr. and Mrs. Amadio were not able to read and understand the documents because of the less knowledge of English language, and bank also fails to provide independent advice to Mr. and Mrs. Amadio. In this case, Court stated that Mr. and Mrs. Was not liable towards the commercial bank of Australia, because in this both bank and their son was liable for unconscionable conduct. Remedies- following are some remedies which can be provided by Court in case of unconscionable conduct:Damages
Law4Penalties of financial natureContract declared void in whole or in partChange the terms of the contractRefund or performance related to particular services (ACCC, n.d.).Application: In the present case, Liddy runs café in the Cairns which named as Native Herbs & Tea Café. Landlord of Liddy presents new contract of lease for ‘Native Herbs & Tea Café. This new lease stated the terms which are completely different from the old lease and mostly terms favor Bob. In this case, Liddy can sue the landlord under unconscionable conduct, and terminate this new contract with Bob. Section 21 of ACL prohibits the Bob to engage in any such conduct. Court can determine following factors for deciding this:Liddy is 70 year old lady with poor eyesight, and unable to understand the English language, because of which she is not able to understand the documents. Bob fails to provide advice to Liddy for taking legal assistance.Bob does not act in good faith, and threatens the Liddy that if she is not signing the contract then he will lease the property to another tenant.Conclusion: in this case, Liddy can terminate the contract with Bob because contract is affected by Section 21 of ACL.
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