Bill was a schoolteacher who had a large vegetable patch in a field behind his home. He loved doing gardening in the field, but as he was aging, he decided to buy a tractor to till the soil. He went to a local dealer called Hot Rods where he found the AD43 model. Bill entered negotiations with the sales manager of Hot Rods, Jacko. Their negotiations went like this:

Jacko:This is one of the most reliable tractors in Germany and Australia according to customer testimonials!

Bill:That does sound good. What is your opinion?

Jacko:I've used tractors for decades Bill and let me tell you this. The AD43 is the Ferrari of tractors my friend!

Bill:Look I trust you but what I need is specific. I need the tractor to be able to climb very steep slopes - ideally up to 40 degrees.

Jacko:No worries! This tractor can easily climb a mountain!

Bill:You sure?What about when it rains?

Jacko:It's all fine mate!Would I tell a lie?

Jacko said to Bill that as part of his job as a salesperson, he must let Bill know of the refund policies written on a large noticeboard near the counter which reads:

Hot Rods will not issue refunds or exchange on sale items for defective goods.

Feeling confident about this tractor, Bill agreed to purchase the AD43. He quickly glanced at the noticeboard and immediately paid for the tractor, priced at $30,000. The tractor was delivered later in the week.

After using the tractor for a few days, Bill is very unhappy for three reasons:

1.It can climb slopes in good weather but not when it rains,

2.According to two experts, a defect in the fuel line makes an explosion during very hot weather a real possibility, and

3.Customer testimonials (in Australia and Germany) about the AD43 were actually very negative

a)Advise Bill (the plaintiff) of the

i.Express terms (under common law) that were breached by Jacko (the defendant) and;

ii.Whether the exemption clause is a term and is it effective?

b)Advise the plaintiff of any action he can take against the defendant under theACL statutory guarantees(assume Bill is a consumer under s 3(1))

c) Advise the plaintiff if the defendant's conducts can be found to bemisleading under the ACL.