CLW1000 Commercial Law
Due: Friday 20th September, 2013 (5pm)
Length: 2000 - 2500 words
QUESTION 1 (40 marks)
Ellen is a graduate of The College of Alternative Medicine and is looking to start her own business. She decides to open a meditation studio and looks around the inner city suburb of Paddington for suitable premises. She eventually finds a perfect terrace house near to Oxford St. (the main street). The owner of the premises is willing to enter a 12 month lease however Ellen asks him to wait for a week so that she can check with the local council as to the suitability of her business. Ellen attends the council offices and goes to the counter marked “Business Inquiries”. She asks several questions of the council employee including a question about building work in the area. She says “my meditation studio requires a calm environment is there anything that could cause noise nearby?” The council officer is called away before being able to answer. When he returns he has a very quick look at the computer and says to Ellen “relax everything will be fine”. Ellen signs the lease the next day however within 2 weeks of opening the meditation studio she sees builders arrive next door. She asks one of them how long they will be working next door. The builder replies “It’s a big job, a total renovation. It should take at least 6 months”. Ellen tries to run her meditation studio but the noise from the building is too stressful on Ellen and her clients. In fact a month into the building Ellen is so stressed that she develops a nervous disorder that threatens her career in alternative medicine.
Discuss whether Ellen has a claim against the council in relation to the advice she received.
INSTRUCTIONS FOR ASSIGNMENT
1. Start your answer to each question on a fresh page.
2. When answering each question, ensure that you:
• identify the issue(s) raised by the facts
• identify the relevant legal principles
• apply the relevant legal principles to the facts
• reach a conclusion
3. You may, and are encouraged to, hand in an introduction or outline of how you propose to answer the questions so that feedback will be provided to you from the communication and study skills staff before you complete the assignment.
Guide to Formal Presentation of the Assignment
1. The assignment should be typed on A4 paper, on one side of the paper only, and with a margin of at least 5 cm.
2. Formal language should be used so avoid jargon, slang and colloquial abbreviations such as “don’t”. Ensure that you use correct spelling.
3. Headings and subheadings may be used if you think that this would assist the presentation of your material.
Referencing sources of information
4. Avoid plagiarism by referencing your sources. Sources must be referenced where:
• You are using someone else’s ideas
• You are quoting directly from a source
• You are paraphrasing someone else’s views
(See Crosling G.M. and Murphy H.M How to Study Business Law- Reading, Writing and Exams, 3rd ed, 2000, p 122).
5. Footnotes should be used to reference your sources and should appear at the bottom of each page. Do not include substantive material in the footnotes. All substantive material should appear in the body of the assignment.
Citation of cases
6. When you first refer to a case, you should cite the case in full, either in the text or in a footnote eg Mabo v Queensland (No 2) (1992) 175 CLR 1. The case name should be italicised or highlighted in some other way eg underlined or placed in bold letters.
7. When subsequently referring to the case, it is acceptable to use a common name for the case, such as “Mabo’s case” or “Mabo”.
8. Where a particular page or paragraph in the case is referred to, then the page number or paragraph number must be given eg “Mabo’s case at 9” indicates that the information came from page 9 of Mabo’s case. There is no need to write “page” or an abbreviation of the word page.
Citation of statutes
9. When citing a statute, the name of the statute should be italicised and the jurisdiction should appear in brackets after the name eg Commonwealth of Australia Constitution Act 1900 (UK).
10. When a particular section in the statute is being relied on, then the section should be specified eg section 1. It is acceptable to use the abbreviation “s” for “section” or “ss” where more than one section is being referred to eg s 1 or ss 5, 6 and 7. However, when a sentence begins with a reference to a section, the word should always be written in full eg “Section 1 of the Commonwealth of Australia Constitution Act 1900 (UK) provides that ...”
11. When initially referring to secondary sources such as books, the author’s name and initials, full title of the book, edition (if relevant), publication date and page number should be given eg Crosling G.M. and Murphy H.M How to Study Business Law- Reading, Writing and Exams, 3rd ed, 2000, p 122.
12. A bibliography listing all books and articles (not cases or statutes) used in the preparation of the assignment should appear at the end of the assignment.
Guidance from textbooks
13. Use your prescribed textbook and recommended texts as a guide to the way in which cases, statutes and secondary sources are cited and the manner in which legal arguments are structured.
Crosling G.M. and Murphy H.M How to Study Business Law- Reading, Writing and Exams, 3rd ed, 2000