4. You are not expected to formally reference your work. However, you need to clearly identify the cases and statutes which you are relying on in completing the assessment (as you would in a conventional law exam). You do not have to reference material from Miller or class materials. You are not expected to undertake outside research (outside Miller and class materials). However, if you do use outside sources you must clearly identify your source. You should avoid extensive quoting and/or cutting and pasting extensive sections from someone else’s work. If you do so you must clearly acknowledge that you are doing so (a failure to do so may constitute a breach of the General Academic Regulations – see 8 and 9 below).
5. For reasons of equity and fairness, you are not permitted to communicate with your lecturer (or any other person for that matter – see 9 below) during the period of the assessment*. If there is some aspect of a question which you do not understand or find confusing, you should state your assumptions about what the question is asking and answer it on that basis.
7. In the event of technical problems preventing submission to Turnitin at the designated time, you should immediately (within the deadline) email a copy of your completed time-constrained assessment to the PAPER COORDINATOR (see ** below) and submit a copy to Turnitin as soon as is practicable. If possible, you should also send a screenshot from your computer clearly identifying the problem preventing the submission to Turnitin.
Academic honesty in time-constrained assessments
8. THE TIME-CONSTRAINED ASSESSMENT IS AN INDIVIDUAL ASSESSMENT. What you submit must be entirely your own work.
9. It may constitute a breach of the General Academic Regulations if you –
a. Communicate by any means whatsoever with any other person on any aspect of the time-constrained assessment during the period of the assessment*.
b. During the period of the assessment*, allow any other person (other than authorised staff of the University) to have access to work which you are doing in preparation for, or completion of, the time-constrained assessment.
c. Use inappropriately the work of any other person without acknowledging the authorship of that work. Any plagiarism will be dealt with seriously.
- Assessment Instructions:
• All questions are compulsory and should be attempted.
- All questions are based on the facts in the assessment scenario that precedes the questions.
• Marks for each question are indicated in the Assessment Box Summary below and in brackets next to each question.
• Your answer for each question should not exceed the maximum word limit for that question shown in the box below (and in brackets beside each question) and your total answer should not exceed 3600 words in total.
• This time-constrained assessment is open-book.
THE ASSESSMENT SCENARIO AND QUESTIONS ARE ON THE FOLLOWING PAGES
- Assessment Scenario
The assessment questions are based on the following facts:
Ms Lee owns and operates several businesses around Auckland.
One of Ms Lee’s businesses hires out marquee tents. Ms Lee has one marquee that can take more than one hundred guests, and this is referred to in her advertising as the “super marquee”. Her advertisement states that the standard rate of hire for the super marquee is $250 per day.
Barry sees the advertising and comes to see Ms Lee on 15th September. He explains that he is organising the catering for a surprise birthday party, on Saturday 30 October, and wants to hire the super marquee for that date. Barry offers to pay $200 for the day and states he will pay this amount in full straight away. Ms Lee replies that she will not take less than $225. Barry leaves without saying anything more.
Joan also sees the advertising. She helps to organise conventions for a local hotel and needs a large marquee for an organic produce show. She rings Ms Lee on the 17th September and asks her if the super marquee is available for hire on the 30th and 31st of October. Ms Lee tells her that it is available. Ms Lee then goes on to say; “the super marquee is yours on those dates for $500 total, but you must let me know your decision by 5pm on 19th September”.
At 10 am on 19th September Ms Lee gets, by courier, a letter from Barry saying “I accept your offer of the super marquee for Saturday 30th October at $225”.
Ms Lee immediately telephones Joan and tells her the marquee is no longer available for the weekend of her show. Joan tells Ms Lee that she has taken $500 out from her bank and she was just about to bring this to Ms Lee when she phoned. Ms Lee wonders whether any contract has formed yet and what she is able to do in this situation.
Ms Lee wants to buy a ride on lawn mower for her 2 hectares life-style property. She visits Bens Garden Centre Limited to look at their stock of lawn mowers. She tells the salesman she has a large property with some steep slopes. The salesman tells her that none of the ride on mowers they usually sell to the public are capable of mowing her property to the standard she requires but that they happen to have a large second hand commercial ride on lawn mower, designed for use on golf courses, for sale that they acquired as a trade in from a customer. He thinks this type of mower will suit her very well. They inspect the mower, a Maestro Professional AC650. After seeing it Ms Lee is keen to buy it. The salesman warns Ms Lee that, as it is second hand, he cannot give her any guarantee as to its quality. He points out to Ms Lee that the mower does have chipped paintwork and that the seat is worn.
Ms Lee purchases the AC650 and the salesman writes on the receipt, “our policy is no refunds” before giving it to her. Ms Lee tries out the mower the next day staying on the flat as she feels in danger of the large mower overturning when she goes on the steeper slopes. She reasons that, with more practice operating the mower, she will be able to return and complete the more difficult parts. After 60 minutes on the flat however the mower engine breaks down with a loud grinding noise and will not restart. When getting up to inspect the engine Ms Lee notices that the seat has now split.
The engine is too damaged to repair, and Ms Lee returns the AC650 to FGC and asks for her money back. FGC refuse to accept the mower or return her money.
Ms Lee’s delivery van breaks down while she is driving it on a delivery run. She calls a towing truck from Mighty Movers Limited (Mighty) to tow the vehicle to the garage for repair. She had received an introductory flyer from Mighty through the mail a few days before and she has decided to try them. She meets the tow truck when it arrives, confirms the rates with the driver and tells him to go ahead with the tow. As the tow truck manoeuvres, Ms Lee notices for the first time a notice in the back window of the truck reading:
“Vehicles towed at owner’s risk.”
The tow truck driver is involved in an accident on the way to the garage caused by his negligence in going through a red light without stopping. Ms Lee’s van is also damaged in the accident. The damage to the van is $8,000. She contacts Mighty to tell them she is holding them liable for the damage to her vehicle. Mighty responds by telling her that their standard exclusion clause set out on their signs and advertising excludes them from liability. Ms Lee then checks the flyer she received headed “Mighty Prices” and notices for the first time the phrase “Vehicles towed at owner’s risk” in small print on the reverse. She wonders whether this exclusion clause will be effective against her.
Ms Lee sees an advertisement in a trade magazine, for a desk, inserted by Rejuvenated Ltd (Rejuvenated) a company which refurbishes and sells antique furniture for use by businesses as office furniture. The advertisement lists images and descriptions of different items which Rejuvenated has available. Ms Lee is particularly interested in a Victorian era desk, which appears on the list and on Monday morning she visits Rejuvenated’ s warehouse and inspects the desk which is priced at $18000. She agrees with Rejuvenated to buy the desk on condition that the bottom drawer is modified to turn it into a drink’s cabinet. Rejuvenated modify the drawer as agreed the following day and contact Ms Lee to tell her that her desk is ready and waiting for her at their warehouse collection area. However, that night there is a fire at Rejuvenated’ s shop, and the premises and all the contents are completely destroyed including the Victorian antique desk. Ms Lee is concerned when Rejuvenated contacts her to say that a contract was formed, and she is liable to pay the price of the desk.
Ms Lee has become unhappy with her lifestyle property as a developer has bought neighbouring land and is building a large apartment complex close to her house. Ms Lee sees an advertisement from Abe to buy Abe’s house, in Oratia, which is for sale for $900,000. Ms Lee stresses to Abe that she needs a quiet, peaceful residence to live in for the sake of her health and asks Abe about noise in the area. Abe replies that he values peace and quiet too and that he has lived in the area all his life and never had a problem with noisy neighbours. Ms Lee is encouraged by this and she and Abe continue to negotiate. One week later Abe discovers that the local council has now ordered that land adjacent to his can be used for a new railway track that will connect West Auckland with the North Shore. Abe is shocked by this news and now wants to sell the land quickly. He drops the price to $600,000. Ms Lee rapidly accepts this, signs the contract with Abe and pays a deposit of $60,000 with final settlement in 6 weeks. However, a week later, Ms Lee hears about the new railway track. Realising how noisy this will be, she loses interest in the property. She contacts a registered valuer who congratulates Ms Lee on finding a real bargain. He tells Ms Lee that the house, even with the new railway, would still have a market value of $800,000. Ms Lee however is not happy as she particularly wanted a quiet neighbourhood. She rings Abe and tells him that she is not going ahead with the contract and to return the deposit to her. Abe tells her that they have a contract and Ms Lee must go through with it. Ms Lee wonders if this is true.
Ms Lee successfully obtains registration of the name “Dreamy Designs Parnell Limited” at the Companies Office and runs her business through that company. All of her marketing uses the words “Dreamy Designs Parnell.”
Her business has been extremely successful so far, but she has now been contacted by “Dreamy Designs NZ Ltd,” (DDNZ) a well-known business in New Zealand having a chain of stores throughout the country. DDNZ are a long established company. The name “Dreamy Designs Limited” was registered 10 years ago at the Companies Office. Recently they became aware of Ms Lee’s shop in Parnell. They believe the name of her business is confusing to their customers and causing loss of sales and they warn her they are considering legal action against her.
Ms Lee believes she can use the words “Dreamy Designs Ponsonby” freely in her marketing as this name was accepted for registration by the Companies Office.
Assessment Scenario Ends.
Questions Begin Below.
QUESTION FOUR: (Total: 12 marks. 432 words maximum)
In relation to the Victorian antique desk discuss whether Ms Lee can be held liable for the price of the desk under the rules as to passing of ownership and risk formerly found in the Sale of Goods Act 1908. In the course of your answer briefly mention the effect of the Contract and Commercial Law Act 2017 on this area of law.
Questions Continue Next Page
QUESTION FIVE: (Total: 20 marks. 720 words maximum)
In relation to the purchase of Abe’s home in Oratia, discuss whether Ms Lee would have an action against Abe for misrepresentation and the possible remedies open to her including whether she can claim cancellation.
QUESTION SIX: (Total: 10 marks. 360 words maximum)
In relation to Ms Lee and Dreamy Designs Limited discuss what rights and remedies Dreamy Designs Limited may have against Ms Lee in regard to the name of her business in either passing off or under the Fair Trading Act 1987.