Contract between Ellen and Land Lord-Free-Samples for Students

Questions: 1.Explain whether Ellen has a claim against the council in relation to the advice she received. 2.Has there been a breach of contract between Ellen and Land Lord for non-payment of rent? 3.Has there been a negligent misstatement by the Council Worker? Answers: 1.Issue: Whether Ellen can file claim against the council for the advice given by the advisor of council? Law: Consumer law in Australia provides number of automatic consumer guarantees when person buy products and services. Section 60 of competition and consumer Act 2010- Schedule 2 states the guarantee related to care and skill. As per this section, when any person who is engaged in trade or commerce and supply services to the consumer then such person provides guarantee that services will provide with due care and skill. In other words, service providers provide services to the consumer with acceptable level of care and skill. Suppliers provides guarantee that services provided by them are provided with due care and skill, and this care includes: Supplier must use skill and technical knowledge which is of acceptable level while giving the services. Supplier must take proper care for avoiding loss or damage while giving the services (ACCC, n.d.). Application: In the present case, Ellen approached the local council for the purpose of seeking advice related to the set-up of meditation studio, and she ask number of questions from the employee of council. However, she also asks whether there is any building works in that area because for her meditation business she requires silence. While answering her question related to building work, employee of the council stated that everything is alright and there is nothing to worry. This advice of employee is not right because after few days of initiating the business, building work is initiated on next door of the business place of Ellen. Employee of council breach section 60 of the ACL, which means employee fail to give service with care, and this cause severe loss to the Ellen. Therefore, there is breach of ACL and Ellen can file claim of compensation. Conclusion: There is breach of section 60 of ACL and Ellen can file claim of compensation. 2.Issue: Whether Ellen breach the contract signed between her and landlord by not paying the rent? Law: There are number of cases in which contract will brought to an end because of any supervening event which is not in the control of parties. This can be understood through case law Taylor v Caldwell (1863) 3 B S 826. This case was considered as fundamental case in the area of frustration in context of contract law. In this case, Murray states that rule of frustration were developed to alleviate harshness in terms of absolute original rules. Frustration is related to those situations when Court discharges the obligations which are stated under the contract and this means that parties of the contract are not bound to perform the contract. It must be noted that, this doctrine is applied in limited rage of circumstances, and usually it includes those events which are fundamentally different from those events which are anticipated by the parties. Courts do not provide relief under frustration rule if events are already assumed by the parties and provide parties in their contract. In common law when frustration is established then contract is terminated on automatic basis, and there is no option to discharge the contract, and in common law loss lies on that side where it falls. When frustration is established then then contract is automatically terminated, and there is no option to discharge and perform the contract. There is no option to discharge the contract when contract is discharged by frustration (ACL, n.d.). Application: In the present case, Ellen fails to pay the rent of the premises because of the failure of her business, and this failure cause because of the disruptive noise result from the building work carried at next door. This noise also caused nervous disorder to the Ellen. Because of the building work and for avoiding the noise, Ellen reduces the working hours which reduce the utility of the business and result in lack of payment of rent. In this Ellen does not breach the contract because event occurred are not anticipated by the parties and failure cause because of frustration. Therefore, there is no breach of contract and contract is discharged by frustration. Conclusion: Ellen is not liable for breach of contract because contract is discharged by frustration and there is no liability of Ellen towards the landlord. 3.Issue: Whether statement made by employee of council is considered as misstatement under tort of negligence? Law: A tort is defines as act or omission which is wrongful in nature, and it also give right to other party to take civil action for the wrongful act or omission committed by other party. On the other hand, negligent misstatement is defined as an statement which is inaccurate in nature and made honestly but carelessly. Generally, it is made in the form of advice given by party who has special skill and knowledge to the other party who does not possess special skill and knowledge. This can be understood through case law Hedley Byrne Co Ltd v Heller Partners Ltd [1964] AC 465. It is an English tort law under which pure economic loss cause to another party because of negligent misstatement made by one party. In this case, Court further states that relationship between the parties must be such as it creates duty of care, and there must be reasonable grounds to ensure that information given by person must be of such nature that person reasonably relied on the information. Application: In the present case, asks whether there is any building works in that area because for her meditation business she requires silence. While answering this question, employee of the council stated that everything is alright and there is nothing to worry. This statement is considered as negligent misstatement because in this Ellen suffers pure economic loss by relying on the statement made by employee carelessly. Conclusion: After concluding above facts, it is clear that statement made by employee of council is considered as negligent misstatement. References: ACCC. Consumer Guarantees. Retrieved on 7th October 2017 from: https://www.accc.gov.au/system/files/Consumer%20Guarantees%20A%20guide%20for%20consumers_0.pdf. ACL. Discharge by Frustration. Retrieved on 7th October 2017 from: https://www.australiancontractlaw.com/law/termination-frustration.html. Competition and Consumer Act 2010, Schedule 2- Section 60. Hedley Byrne Co Ltd v Heller Partners Ltd [1964] AC 465. Law Teacher. Tort Of Negligent Misstatement. Retrieved on 7th October 2017 from: https://www.lawteacher.net/free-law-essays/contract-law/tort-of-negligent-misstatement-contract-law-essay.php. Taylor v Caldwell (1863) 3 B S 826.