(20 marks)

Donna has decided to make use of the time in lockdown to take care of some landscaping and home maintenance tasks she has been putting off for some time, including the design and construction of a substantial retaining wall in the garden of her property. Living on a small acreage, she realises that this will be a major specialist project and so she does a substantial amount of research on suppliers, until she finds a company called Garden Magic.

In their profile Garden Magic describes itself as a family-owned business that has been engaged in landscaping and construction for over 25 years. Their advertising states that they employ qualified structural engineers for all of their work, and use only the highest quality materials. Garden Magic quotes Donna $25,000 for the design and erection of a premium- grade sandstone retaining wall professionally designed and engineered to be suitable for her needs. Donna accepts this quote.

At the same time, Garden Magic suggests to her that her garden area would be significantly enhanced by the installation and placement of portable gas-fuelled heaters around the entertaining area. The company advises that they have stocks available of a suitable product that they have developed and manufactured themselves. They do admit, however, that these units are the last of their production run. As Garden Magic now plans to concentrate exclusively on the landscaping sector of the business, there are no plans to continue making these heaters, although this is not disclosed to Donna. The price is good, and Donna agrees to include 4 of these outdoor heaters in her purchase.

The quotation, contract and subsequent invoice all detail the products being purchased, but make no mention of the conversation regarding the heaters being a limited manufacture.

The work is completed, and Donna is pleased with the appearance of the retaining wall, and satisfied with the effectiveness of her outdoor heaters, and so she pays the invoice.

Four months later, Summer arrives and brings with it, torrential rain. After a week of this heavy rain, Donna notices that her retaining wall is starting to subside in places. She calls Garden Magic to investigate, but they decline to come out, referring to an exclusion clause in the contract which states:

Garden Magic will not be liable for any faults or defects in goods or materials supplied, or work performed under this contract, whether caused by the negligence of itself or its agents or by other factors.

Donna consults a licensed engineer for advice. He tells her that his inspection of the wall revealed a series of problems:

1. The foundation prepared for the wall was inadequate for the weight of the stone used.
2. The sandstone used was an inferior-grade porous product that absorbed water and broke down quickly.
3. The wall was constructed at the wrong angle to effectively retain the soil behind it, and would have failed within two years even without the extra rain.
4. The wall will need to be demolished and rebuilt at a total cost of $32,000.

700254 Enterprise Law Page 4 of 5 2020.3 Final Examination

When confronted with this report, Garden Magic again refer to the exclusion clause in their contract and deny any liability for the sub-standard work.

It now eventuates that two of the four outdoor heaters no longer work, as a result of a fractured manifold that supplies gas to the burner part of the heater. When Donna contacted Garden Magic about this problem, she was told that these were the last of this product line and that no spare parts, including the manifold, were available.

Does Donna have any recourse for her circumstances against Garden Magic under the Australian Consumer Law? Your answer MUST be presented in the IRAC format and be supported by appropriate legal authority in the form of statute or case law.