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.
- White did not engage in misleading or deceptive conduct.
- The contract is not vitiated by undue influence exercised by Sabela Varela.
- 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.
- White apologized to Xiana that she had been informed about the new development and she intended to inform it to Xiana but had forgotten.
- 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.She 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.
- 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.
- White informed Xiana that the lease could not be assigned as the solicitors for White Enterprises Pty. Ltd. had not finalized the agreement.
- 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.If 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.It proves that she was following the legal procedures while entering into contract with Xiana.
- 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.
- 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.
- According to Australian Competition and Consumer Commission, businesses are not allowed to make any 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. 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.
- 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.
- 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.
- The contract is not vitiated by undue influence exercised by Sabela Varela.
- 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.
- Sabela was her daughter and she was a lawyer and was 24 years old mature person.
- 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.
- 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.
- Furthermore, the boyfriend of Sabela named Roger, who was Events Coordinator of the Council, informed them about the Food and Wine Festival being held in South Brisbane and one of the major venues for the festival had been destroyed by fire. He suggested them that if they purchase that restaurant and take over the events, Xiana would be able to earn an additional profit of $40,000 during the festival week.
- It was their combined decision to purchase the hotel considering the profits, they could earn, the reputation of the hotel and fair deal of purchase.So, it cannot be considered that the contract was vitiated in the undue influence of the Sabela over Xiana.
- Xiana herself decided to purchase the restaurant and informed about her ideas to Ms. White to modify the restaurant and to make some alterations.
- Xiana was sure that after certain renovations and purchase of stylish furniture, the look of the restaurant would become more attractive and the earnings will enhance as more and more customers will be attracted.
- Xiana had faith in her Spanish cooking style, as she decided to modify some of the dishes to attract more customers. All these planning in her mind clarifies that she was not under undue influence of her daughter, but she was aware that the point being made by her daughter to purchase the restaurant was valid.
- Xiana was mature enough to take decisions related to financial investments, as she inherited the property of her father and used to live alone with her children and take care of them when her husband used to be on office trips abroad for months.She cannot just rely on her daughter for the decisions taken by her that she purchased the restaurant.
If it pleases the court, those are the submissions for the defendant.
Name and student number
Senior counsel for the Defendant
References
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>
ACCC, Contracts & Agreements (2018b) Australian Competition and Consumer Commission <https://www.accc.gov.au/consumers/contracts-agreements>
Aitken Whyte Lawyers, Misleading and Deceptive conduct under the Australian Consumer Law, Litigation Lawyers Brisbane, Solicitors (2016) Awbrisbanelawyers.com.au <https://www.awbrisbanelawyers.com.au/misleading-deceptive-conduct-australian-consumer-law-lawyers-brisbane-solicitors.html>
Australian Catholic University, Subject Guides: Contract Law: Legislation (2018) Libguides.acu.edu.au <https://libguides.acu.edu.au/c.php?g=234001&p=1553409>
Australian Contract Law, Aus Contract Law (2018) Australiancontractlaw.com <https://www.australiancontractlaw.com/>
Carter, Greg, What Is Misleading & Deceptive Conduct? (2018) Findlaw.com.au <https://www.findlaw.com.au/articles/6189/what-is-misleading-and-deceptive-conduct.aspx>
Consult 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>
Legal Vision, What Is Misleading And Deceptive Conduct? (2015a) LegalVision<https://legalvision.com.au/what-is-misleading-and-deceptive-conduct/>
Legal Vision, A Guide to Misleading or Deceptive Conduct | Legalvision (2016b) LegalVision<https://legalvision.com.au/guide-misleading-or-deceptive-conduct/>
Rule of Law, Case Note – Contract Law – Rule of Law Institute of Australia (2018) Rule of Law Institute of Australia <https://www.ruleoflaw.org.au/contract-law/>
Order an Essay Now & Get These Features For Free:
Turnitin Report
Formatting
Title Page
Citation
Outline
