Plaintiff/Defendant's Outline of Submissions in Xiana Varela vs Letitia White Case

IN THE GRIFFITH COURT OF QUEENSLAND
AT [NATHAN OR GOLD COAST]
Proceedings: No. 13/2018
BETWEEN
Xiana Varela Plaintiff
and
Letitia White Defendant
PLAINTIFF/DEFENDANT’S OUTLINE OF SUBMISSIONS
SUMMARY OF THE FACTS
Ms.Whiteopened the restaurant which became popular in the South Brisbane. Xiana
Varela and her son met Ms.White to purchase the restaurant. Xiana informed that she
could invest $1 million only. Ms.White told her that she can give deposit on signing
contract and remaining amount in instalments. She paid to interior decorator and hired
a builder for renovations.Ms.Whiteinform her that lease could not be assigned on the
decided date, Xiana told her to finalize it earlier. Meanwhile, Xianagot the
information that a new development had been allowed by the Council. Xiana got
angry and informed her of cancelling the deal.
DEFENDANT’S SUBMISSIONS
1. Ms. White did not engage in misleading or deceptive conduct.
2. The contract is not vitiated by undue influence exercised by Sabela Varela.
1.0 (SUBMISSION 1)
1.1 Under ACCC, a business must not engage in illegal conduct that could
mislead or deceive or expected to mislead or deceive consumers or
other businesses. The overall impression created by the conduct must
not be false or inaccurate.1
1.1.1 Ms. White apologized to Xiana that she had been informed
about the new development and she intended to inform it to
Xiana but had forgotten.
1 ACCC, Advertising and Selling Guide - Misleading or Deceptive Conduct (2018a) Australian
Competition and Consumer Commission
<https://www.accc.gov.au/publications/advertising-selling/advertising-and-selling-guide/avoid-
misleading-or-deceptive-claims-or-conduct/misleading-or-deceptive-conduct>.

1.1.2 Under Australian Contract Law, a contract should be written or
verbal agreement between the two parties and it is essential for
both the parties to the contract to understand the terms and
conditions of the contract as meant in the contract.2She had
prepared the contract and provided it to Xiana to be signed by
her and got it signed by Xiana, which proves that Xiana agreed
to all the terms and conditions of the contract.
1.1.3 Ms. White was not in urgency to sell the restaurant and was
looking for a good buyer when Xiana contacted her. She did
not have requirement to sell the restaurant, as the restaurant
was doing well when she was planning to sell her, because she
was under stress of other projects she was associated with. So,
there was not a single reason for which, Ms. White would
deceive or misled Xiana for the finalization of sell contract.
1.2 Ms. White informed Xiana that the lease could not be assigned as the
solicitors for White Enterprises Pty. Ltd. had not finalized the
agreement.
1.2.1 Under Australian Contract Law, if the agreement needs
approval of the third party associated with the contract, the
consideration is required and it becomes essential for the party
to the contract to get the approval before entering into
contract.3If Ms. White had to deceive Xiana, she would have
got the lease assigned on the decided date and have taken the
money and then waited for the solicitors to finalize the
agreement, but she disclosed all the information to Xiana and
told to get the lease on hold until then.4It proves that she was
following the legal procedures while entering into contract with
Xiana.
1.2.2 Ms. White informed the solicitors about the lease and asked
them for agreement, but she was informed that it would take
time as the other two solicitors were not available until then.
So, she did not deceive anything from solicitors as well.
1.3 Ms. White advised Xiana to provide a deposit of $130,000 during
contract formation and $870,000 on lease assignment and instalments
of $100,000 for next three years for complete payment.
1.3.1 According to Australian Competition and Consumer
Commission, businesses are not allowed to make any
2Consult Australia, Australian Contract Law (2012) Consultaustralia.com.au
<https://www.consultaustralia.com.au/docs/default-source/contracts-liability/
Consult_Australia_Response_to_AGD_Discussion_Paper_on_Contract_Law_-_July_2012.pdf?
sfvrsn=0>.
3Consult Australia, Australian Contract Law (2012) Consultaustralia.com.au
<https://www.consultaustralia.com.au/docs/default-source/contracts-liability/
Consult_Australia_Response_to_AGD_Discussion_Paper_on_Contract_Law_-_July_2012.pdf?
sfvrsn=0>.
4 ACCC, Contracts & Agreements (2018b) Australian Competition and Consumer Commission
<https://www.accc.gov.au/consumers/contracts-agreements>.

statements that are incorrect or that might create false
impressions. Ms. White had not made a single misleading claim
and whatever she said during three meetings were all genuine
claims regarding the property.5Ms. White was not intended to
deceive or mislead Xianabecause she agreed to take the
payment in instalments. If she intended to deceive Xiana, she
would have taken all the payment instantly at the time of
finalization of deal as she would have doubt that if Xiana gets
information about the new development at the site.6
1.3.2 Ms. White suggested the way of payment of complete amount
herself, which shows that it was not her intention to deceive but
she just forgot to inform Xiana about the development being
taken place at the site.7
1.3.3 Moreover, she was provided with lease for 20 years by the
Council and her restaurant was not under any threat so, why
would she deceive or mislead Xiana to sell the restaurant.
2.0 (SUBMISSION 2)
2.1 The contract is not vitiated by undue influence exercised by Sabela
Varela.
2.1.1 Xiana could claim that she entered into the contract because of
the undue influence by Sabela, who is her daughter. As
informed by Xiana to Ms. White at the time of signing of
contract, that no one else was party to the contract except her
and she signed the contract as the sole party to the contract. She
could not now claim that she was under the undue influence of
the third party to enter into contract.
2.2 Sabela was her daughter and she was a lawyer and was 24 years old
mature person.
2.2.1 Sabela had legal knowledge and she and her boyfriend agreed
to help Xiana in the purchase of the restaurant. Moreover, she
and her brother found the deal fair when they met Ms. White.
They convinced their mother to purchase the restaurant as it
was their mutual agreement that they were not being deceived
and the restaurant itself was doing well.8
2.2.2 They had the knowledge that the reputation of the restaurant
was quite good and it was famous in South Brisbane.
Considering all these points, they convinced their mother to
purchase the restaurant considering it a fair deal.9
5ibid
6 Aitken Whyte Lawyers, Misleading and Deceptive conduct under the Australian Consumer Law,
Litigation Lawyers Brisbane, Solicitors (2016)
Awbrisbanelawyers.com.au<http://www.awbrisbanelawyers.com.au/misleading-deceptive-conduct-
australian-consumer-law-lawyers-brisbane-solicitors.html>.
7 Legal Vision, A Guide to Misleading or Deceptive Conduct | Legalvision (2016)
LegalVision<https://legalvision.com.au/guide-misleading-or-deceptive-conduct/>.
8 Australian Catholic University, Subject Guides: Contract Law: Legislation (2018)
Libguides.acu.edu.au <https://libguides.acu.edu.au/c.php?g=234001&p=1553409>.
9 Australian Contract Law, Aus Contract Law (2018) Australiancontractlaw.com
<https://www.australiancontractlaw.com/>.