The statement was relied upon and the reliance caused financial loss

LAW20019: Law of Commerce Assignment 2

Case Study - Burke v Southfield Shopping Centre Ltd

Deidre Copsey - 100923039

Burke v Southfield shopping centre Ltd

Collateral contract – statement may form a contract itself Case Law
De Lassalle v Guildford
Heilbut Symons & Co v Buckleton

Verbal statements - not contained in the writing, made prior to signing a contract a term, are a condition or a warranty.

Burke v Southfield shopping centre Ltd

Disclaimer clauses - prevent liability
Case Law
Lezam v Seabridge

Promises and predictions- an expert, or someone deemed to have knowledge makes a representation with respect to a future matter, without reasonable grounds, that representation will be taken as misleading
Statute
Australian s4 Consumer Law act2010 (Vic) s 18
(Australian Competition Law 2017).

Parol evidence, exception a verbal agreement that led a party to enter into the written contract, was recent and the terms were an important to the main contract.

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Burke v Southfield shopping centre Ltd

1 Dibble v Aidan Nominees Pty Ltd (1986) ATPR 40-693

2 Dibble v Aidan Nominees Pty Ltd (1986) ATPR 40-693

the parties when the contract was signed. Similarly, the court argued the real estate agent would have knowledge about the property and the term was fundamental to the contract.

In EssoPetroleum v Mardon7, the plaintiff relied on statements provided by the defendant, the court ruled as an expert, his advice was negligent. In Lezam v Seabridge8, negotiations proceeded on the basis of statements made by the vendor. A disclaimer stated that all advice and details were 'believed correct’ should not be relied on as they are mere representations. The court held that misrepresentation induced the party to contract.

8 Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 107 ALR 291

9 Associated Newspapers Ltd v Bancks

Burke v Southfield shopping centre Ltd

contract. InVan Den Esschert v Chappell13, the court decidedthe statement that was made just prior to contracting, was excluded from the actual contract itself, because the actual contract made no provision for that assurance. The timing of the statement was deemed important, and contextually essential for the contract. In Pym v Campbell the verbal statements were deemed to have formed an earlier agreement, which was held.14

15ibid 1

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Case Law
Mercantile Bank of Sydney v Taylor –

Collateral contract - needs to be consistent with the main contract Case Law
Hoyts Pty Ltd v Spencer

Case Law

L'Estrange v F Graucob

As evidenced in Hoyts Pty Ltd v Spencer 17the ruling holds that a collateral contract needs to be consistent with the main contract. In this case the verbal assurance from the defendant is inconsistent with the main contract meaning no collateral contract exisits.

The defence may argue that because the plaintiff signed the contract without reading it, and apply the maxim caveat emptor. At common lawwhen a person signs a contract, they are

presumed to read and understand the contract and are bound by its terms and conditions as in

L'Estrange v F Graucob18.

The balance of support from common law and legislation appears to favour the plaintiff. Therefore, he may be eligible to rescind the lease. He may be entitled to claim for damages, if the promise is found to be a prediction, made unreasonably. However, Legislation insists he mitigate his loss.

Missing information

The usual remedy for misrepresentation is rescission. The aim of rescission is to erase the contract and restore the parties to their former positions. Damages are possible and assessed similarly as under contract law or for the tort of deceit.

Deidre Copsey - 100923039

3rd Edition, LexisNexis Butterworths, Australia.

Kapnoullas, S n.d., The impact of Section 52 of the trade practices act on contract

Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 (Fitzpatrick et al. 2016, p. 199).

Bisset v Wilkinson [1927] AC 177 (Fitzpatrick et al. 2016, p. 271).

Esso Petroleum Co Ltd v Mardon [1976] 2 WLR 583 (Fitzpatrick et al. 2016, p. 278).

Heilbut Symons & Co v Buckleton

Lezam Pty Ltd v Seabridge Australia Pty Ltd (1992) 107 ALR 291 (Kapnoullas n.d, pp. 3–5).

Mercantile Bank of Sydney v Taylor (1891) 12 LR (NSW) 252 (Fitzpatrick et al. 2016, pp 184).

Legislation

Australian Consumer Law ACT s4
Australian Consumer Law ACT s18
Australian Consumer Law ACT s236
Australian Consumer Law ACTs237
Australian Consumer Law ACT s238
Australian Consumer Law ACT s243
Competition and Consumer Act 2010 (Australian Competition Law 2017)