MLL391 Civil Procedure: Analyzing a Hotel Sale Dispute Case

This case study presents a legal dispute concerning the sale of a hotel in Fantasia Valley. Mr. Paul, aspiring to own a five-star hotel, enters into an agreement with Mr. David, who misrepresented the property's potential and concealed critical issues such as a nearby abattoir, illegal construction, and inaccurate income projections. The case involves preparing advice to the client, drafting a statement of claim on behalf of the plaintiff (Mr. Paul), and formulating a defense for the defendant (Mr. David). The legal analysis incorporates relevant contract law principles, focusing on misrepresentation, breach of contract, and potential remedies. The documents outline the arguments, evidence, and legal procedures involved in pursuing or defending against the claim.

LAW CIVIL PROCEDURE

TABLE OF CONTENT

TASK 1
PREPARE ADVICE TO THE CLIENT
Case Background
Mr. Paul aspires to start a five-star hotel/ motel in the famous location of Fantasia
Valley which is 50 Km far away from Melbourne Australia. One day he has seen one
advertisement in the local newspaper where Mr. David has put an ad in which they mention
about the Chateau Royal luxurious hotel for sale which consists of 10 double bedrooms along
with spa ensuites1. This lavish hotel also offers a restaurant and living place for the hotel
owner located in Fantasia Valley which is considered as the heaven on earth due to the
aesthetic beauty of the entire place. The consideration of this offer was $7.5 million as posted
in the advertisement.
By seeing this advertisement, Mr. Paul contacts the advertiser as his dream will about
to transform into reality as he wanted to open a five-star hotel in its dream location that is the
Fantasia Valley.2 When Paul arrange a meeting with him, Mr. David also promises that this
property will generate a monthly income of $30000 per month to influence Mr. Paul to book
this deal as he wanted to prove this business a successful deal. Mr. David is an owner of
David Gooroo Pvt Ltd who arranges a meeting with the buyer that is Mr. Paul on 1 March
2017. David also stated some of the facts about this property that out of the total 10
bedrooms, 4 of them were just years old as these 4 bedrooms of this hotel gives a feeling of
newly built homes which gives relaxing and comfortable experience to all its guests which
also increases the image of the hotel owner and their place.
When Paul discusses more on this property, then David informs Paul that they can earn
about $25000 per month from this property without making any hard efforts of promotion for
1 Comparison of dispute boards and statutory adjudication in
construction. Proceedings of the Institution of Civil Engineers–Management,
Procurement and Law. 171(2). (Lopez and Amara, 2018, pp.70-78.)
2 . TWO MODELS FOR DISCHARGE OF A CONTRACT BY
REPUDIATION. The Cambridge Law Journal. 77(1). (Carter, Courtney and
Tolhurst, 2018, pp.97-123.)
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12-18 months.3 David did not showcase its books of accounts due to fire collapses its
accounting records. After the meeting with the seller, Paul researcher on the internet about
the worth of the property in the Fantasia Valley and found that this property would generate a
sum of $30000 per month so he decided to finalize this deal and sign an agreement with Mr.
David.4 After negotiating, he finally signed an agreement on this deal for a sum of $6.5
million on 2 April 2017 just after 1 month from the date of offer given by the seller.
After this deal, the hotel of Mr. Paul get started and guests come to this place to enjoy
the place and all the amenities offer by the owner to enhance its guest’s experience. Later he
found a large abattoir nearby this hotel which results in the stinking smell coming from the
hotel as due to heavy wind the smell of abattoir spreads in the bedrooms of the guests. Due to
this issue, the guest’s counts in this hotel gets reduces as no one can tolerate this stinking
smell.5 After few days, legal inspector of the shire council observes this place and founds that
4 bedrooms built in this hotel are built in an illegal way which should be demolished by
giving an ultimatum of 14 days and after that Mr. Paul will get punished by $1000 per day for
remaining these bedrooms in its hotel.6 The building inspector also reveals that there is no
satisfactory completion certificate of all these 4 bedrooms as Mr. David has not taken any
permission in building these bedrooms which need to be renewed. An additional cost of
demolishing these bedrooms is $750000. When he found that Mr. David cheated him, he calls
him and then the seller responds that Paul will make $250000 per month as a gross sum but
the net sum is just $4500 by deducting all the tax payments. The current earnings of Paul
3 It's easier to contract than to pay: Judicial independence and US municipal
default in the 19th century. Journal of Comparative Economics. (Dove, 2018)
4 Concealing Wealth and Ownership: Asset Management and Tax
Havens. Development and Change. 49(3). (Montes, 2018, pp.893-906.)
5 JC Smith's the Law of Contract. Oxford University Press. (Davies, 2018.)
6 A New Approach to Executory Contracts. Texas Law Review. 96(7). (Pottow,
2018, pp.1437-1472.)
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from this hotel is $5000 per month which is $20000 less than the per month promise made by
David. The soil tester of the local council visit this place founds that the soil of this place is
not apt for growing vegetation. After this shock, Paul decided to file litigation against the
David.7
Course of Action
The course of action for this case is based on different laws related to the current case.
As per the contract act of Australia, this case is about the concealing if facts related to the
agreement as David has not disclosed all the facts about the property such as a large abattoir
nearby this hotel, barren soil of this place, no completion certificate of 4 bedrooms. All these
facts reveal that Davis has intentionally concealed these facts from a buyer as they know that
after notifying the buyer about this the deal of David will not get booked. Paul is advised to
repudiate this agreement as this is a bilateral agreement which binds both the parties to the
contract related to this agreement and both of them have signed this agreement as the effect
of signature states that this clause binds both of them to complete their duties. In this case,
David has committed fraud by concealing important facts with the seller so he is liable to
compensate the loss suffered by the plaintiff that is Mr. Paul.
There are necessary and common elements required in forming a legal agreement
among the parties to contract who are involved in forming a legal contract. Common element
in binding a contract includes an agreement formed among buyer and seller who starts an
agreement by giving offer from the seller and the acceptance of the same by the seller. An
agreement should be bilateral and not unilateral to bind both the buyer and the seller.
Consideration is another element to bind a legal contract where a seller charged consideration
which is given b the buyer in exchange for the services or goods sells by a seller to them.
Capacity of the buyer and the seller is necessary as both of them should of sound mind and
not lunatic at the time of signing the overall contract.8 The intention of both the parties should
be legal before finalizing the contract as both should not be filed a contract for illegal
7 Consequential Damages and Exclusion Clauses. (Goldberg, 2018)
8 Workplace law: Abandonment clauses abandoned FWC updates six modern
awards. Proctor, The. 38(3). (Ross, 2018, p.34.)
3

activities.9 Certainty of the contract is also essential to bind a legal contract to hold a legality
of the same. All these elements are required to bind a legal contract among both the buyer
and the seller as required by the contact act of the Australia.10
The status of the current case is checked with all the elements mentioned among to
know the next steps to be taken to compensate the damages or loss suffered by the plaintiff
due to the negligence of the defendant.11
In the current case, a bilateral agreement is formed between Paul and David as the
offer of David has accepted by Paul by responding to the advertisement given by David in the
newspaper through E-mail address mention in the advertisement. $7.5 million consideration
is charged by the seller from the buyer so there is a specific amount of consideration to form
a legal contract. Both the parties signed this agreement with a sound mind and the intention
of all the parties for legal purpose as both them deal for selling the five star hotel consisting
10 bedrooms. This agreement is certain in nature as this is not impossible contract or
uncertain nature of agreement. David will pay the compensation to the buyer for defrauding
the buyer by concealing all the facts related to this agreement.
TASK 2
PREPARE A STATEMENT OF CLAIM ON BEHALF OF THE
PLAINTIFF
STATEMENT OF CLAIM
Civil Court of AustraliaFile Number- XXXX
Registry- Melbourne
Mr. Paul
Plaintiff
9 Essays in Memory of Professor Jill Poole: Coherence, Modernisation and
Integration in Contract, Commercial and Corporate Laws. Taylor & Francis.
(Merkin, R. and Devenney, eds., 2018)
10 Breach of Contract: A Plea for Clarity and Discipline. (Andrews, 2018)
11 De-inventing the Wheel: Liquidated Damages, Penalties and the Indian
Contract Act, 1872. The Chinese Journal of Comparative Law. (Swaminathan, 2018)
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Mr David Gooroo Pvt Ltd
Defendant
The respondent or the defendant, Mr. David is a registered private entity in the Melbourne
Australia.
The plaintiff comes into a contract with the defendant on 1 March 2017 with the help of a
newspaper advertisement posted by Mr. David for selling its five-star hotel named as a
chateau royal in the heart of the fantasia valley.
The above case attracts contract act law and civil procedures act 2010.
The consideration offered by the defendant to plaintiff was $7.5 million but the deal locked in
$6.5 million (Samples of statement of claim, 2013).12
David promises the plaintiff about the property which arouses the interest of the plaintiff in
the property such as making a profit of $250000 monthly in a period of 12-18 months without
doing any kind of promotional efforts by Paul.
The defendant suffers from a loss from this property as he generates only $5000 per month,
incurs additional costs of $7.5 million for demolishing the illegal bedrooms with no
completion certificate of the same.
There are various claims claimed by Mr. Paul to compensate for the financial loss incurred by
him as he trusted on the sayings of Mr. David who conceals all the important facts about this
particular property.
Mr. Paul Claims a cost of $7.5 million additionally borne by him for destructing the 4
bedrooms which were wrongly built in this hotel as Mr. David communicated to the buyer
that these 4 bedrooms are just 2 years old as this is just newly built but did not convey the
actual truth about the same.
Along with the additional cost demolition bear by Paul, $1000 per day fine for keeping the
illegal structure after a total 14 days period given by the building inspector who visits this
place for the site visit by the local shire council of the fantasia valley.
Cost of preparing the satisfactory completion certificate of all the 4 bedrooms should be
compensated by Mr. David as he cheated the buyer by not disclosing the actual fact behind
the bedroom as they have a fear of not booking the deal by Mr. Paul after get to know about
the actual truth behind the same.
$25000 per month as promised by David to generate a profit from this property but in reality,
the actual amount generated from this hotel is just $5000 which is $20000 less than the total
promised amount which will be compensated by the seller.
Paul has the power to repudiate this contract as David did not fulfil its duty of fulfilling all its
promises properly.
Date- 28th July 2018.
Signed by Mr Paul
12 Samples of statement of claim, 2013. (Online), 28 July 2018.
http://www.lawaccess.nsw.gov.au/Documents/sample%20statement%20of%20claim
%20(fcc).pdf
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TASK 3
PREPARE A DEFENCE FILED ON BEHALF OF THE DEFENDANT
Mr. David gives an offer to the buyer in the form of a newspaper advertisement by
stating all its facts and amenities provided by them in the advertisement itself. After seeing
the offer of the seller, the buyer responds to the offer by messaging the seller through the
mention email address to convey its acceptance of the offer. On 1 March 2017, David
arranges a meeting with Paul to discuss more on this deal as his initial consideration for this
deal was $7.5 million for selling a five-star hotel located in a prime location of the fantasia
valley which was the dream location of the buyer.13 So David provides details about the
bedrooms are just 2 years old but this does not prove that this point that Mr. David has
intentionally concealed the fact about no satisfactory completion certificate for 4 bedrooms as
might be the seller was not aware of this clause of having a satisfactory certificates as rules
and the regulations will get changes from time to time so this is not a point to prove that they
committed any fraud.14
The soil of this plant is not suitable for growing vegetables and all the plants might be
due to extra chemicals used in the soil or the laundry water dumped into the soil could affect
the fertility of the soil which results in growing vegetation and plantation. This information is
not related with the deal booked by David as this was related to the selling of land
appurtenant to a hotel consisting 10 bedrooms so this is also a not a good point to prove its
fraud and cheating.
A large abattoir nearby this hotel which spreads stinking smell to this place is also a
common point which David did not notify its client as this abattoir is not located in front of
the place to affect the beauty of the place but due to heavy wind it spreads the smell to the
hotel rooms which is seasonal in nature and not done regularly that is why he hide this
information from the buyer as this was not occurring in occasional times which is not
13 Essays in Memory of Professor Jill Poole: Coherence, Modernisation and
Integration in Contract, Commercial and Corporate Laws. Taylor & Francis. (Merkin
and Devenney, eds., 2016)
14 Australia's Role in UNCITRAL: Implementation of Conventions and Model
Laws. Int'l Trade & Bus. L. Rev.21. (Douglas, J., 2018, p.231.)
6

affecting its image of the hotel but coincidently, when Paul purchased this hotel, due to heavy
winds the smells spread to the hotel rooms of their guests which results in the worst
experience of its guests.
In a conversation with the David, Paul said that” you are a cheater and you defraud
me by saying that this property would generate a sum of $25000 per month but in reality, it is
just generating a sum of $5000 per month so where is the remaining $20000. So he replied
laughingly that a great business minded and mature people who are dealing with the business
activities will understand that $25000 is just a gross sum and after deducting all the
operational payments and local taxes the remaining amount earned by Paul is just $4500 but
it’s your luck that you are earning at least $5000.15 So this conversation proves the point of
the seller that he promises about earring a gross um and not the net sum as Paul presumes to
earn the gross sum as he is novice player in the market.16
TASK 4
PREPARE BASIS CERTIFICATION AND OVERARCHING
OBLIGATIONS CERTIFICATE FOR THE STATEMENT OF CLAIM
As per the civil procedure act 2010, section 7 states the overarching purpose of this
act that the issue will be resolved in two ways through court or out of court settlement by
both the parties.17 Civil procedures act 2010 states that every party to the contract have the
paramount duty to each to the court of law under the overarching obligations with each other
that bind both them together for the administration of the civil justice. The overarching
sections state that the person whose court proceedings running should act honestly in
15 Australian Private Securities Class Actions and Public Interest: Assessing
the'Private Attorney-General'by Reference to the Rationales of Public Enforcement.
(Duffy, M., 2018)
16 Melbourne, Australia, Renews Keolis Contract [Transportation
Systems]. IEEE Vehicular Technology Magazine. 13(1). (Glickenstein, 2018, pp.21-
25.)
17 Checking process compliance against natural language specifications using
behavioral spaces. Information Systems. (van der Aa, Leopold and Reijers, 2018)
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completing all its civil proceedings.18 Section 41 states the certification requirements in this
act where the parties whose civil proceedings are running need to comply with this
requirement to commence the overarching obligations certification to get the justice for the
plaintiff.
The overarching obligations certificate must be filed with the substantive document
which is considered as a prima facie evidence in the civil case filed by the parties otherwise
comply with the rules and the regulations given by the court of law.19
The parties should not have any control over the civil proceedings until and unless
stated by the statue or the court of law otherwise no certification will get the issue in the case
of minute biasness from one of the parties on the given proceedings case.20 In relation to the
time period of preparing this certificate, the court as given two criteria’s such as a particular
time period mutually decided by both the parties or no less than a period of 2 years.
According to the section 42, a party which acts on behalf of the party to the agreement
can file certification for overarching obligations to start the civil proceedings. An individual
can act on the behalf of the party will also get rights to add, make or substitute the case file
along with a right to make a clause as according to the needs of the party as their motive is to
meet all its terms and conditions through this case file. Substitution in the substantive
document can make by an individual before finalizing the document to present the same in
front of the court of law to get the final judgment of an inspector.21
18 Acts Proclaimed. THE BULLETIN (OLSSON’S, R. C. B. M. and OLSSON,
E., 2018, p.40.)
19 DECISION ON THE CIVIL EXCEPTION DEVIATES FROM ARTICLE
136 HIR (ANALYSIS OF THE DECISION OF PN SEMARANG NUMBER: 73/Pdt.
G/2010/PN. SMG). Diponegoro Law Review. (Dja’is, 2018)2(2). pp.43-55.
20 Civil Recovery Orders: Law, Policy and Practice. In Negotiated Justice and
Corporate Crime (King and Lord, 2018, pp. 33-66). Palgrave Pivot, Cham.
21 The Extradition Procedures in Tanzania as Explained by Act No. 15 of 1965
(Magalla, 2018)[Cap 368 R: E 2002].
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It is consists of pre-litigation requirements under which an individual whose civil
dispute is conducted can take reasonable steps to resolve the situations by resolving the
dispute and clarify the situation as due to misunderstanding arises between one party and
another thee dispute arises which gets resolved to solve the overall issue.22
Proper basis certification of the overarching obligations will get preceded as per the
rules prescribed by the court as this entire proceeding will get ahead according to the legal
permission of the court to develop a statutory list.
A court have the power to give order for the trial procedures under the following
circumstances as this order cannot be given for the normal reasons are mention as below:
A court will give order for the trial procedures to judge the validity in the overarching
purpose of a civil proceeding.
Court of law will give directions to all the inspectors and the sub-inspectors to
conduct the proceedings within a stipulated time without limiting the parties associated in the
case as their motive is to accomplish the proceedings within a reasonable time to finalize it
without dragging the same for a longer time period.23 The civil court proceedings should
results in a reasonable dispute resolution after considering all the facts and the information
related to the current case. Both parties should be actively participated in the case
proceedings to finalize the same within a stipulated time as in absence this case will get
dragged to a very long time which, in turn, creates problems for all the parties.
In the current case of Mr. Paul and Mr. David, Both the parties should be present in
the case proceedings to get the justice by presenting each other’s Shreds of evidence. Paul has
several witnesses for proving its point consists of an inspector of the shire council who
proves that the hotel has 4 bedrooms which are built in an illegal way without any
satisfactory completion certificate, soil inspectors inspect the place and founds that the soil of
22 Civil Procedures act 2010-section 26. (Online), 28 July 2018.
23 Civil Procedures act,2010. (Online), 28 July 2018.
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this hotel is not suitable for vegetation, large abattoir nearby this place results in the bad
experience of all the guests.
10