Facts:

Since the deal between Ellen and Sam has fallen apart, Ellen decides to perform at a different nightclub. She personally signs a binding written contract with Danny's Bar Limited ("DBL"), a company which owns and operates a large venue in St. John's that features a bar and performance stage. The contract contains the following terms:

(a) Ellen will perform one night only;

(b) Ellen will be paid 50% of the total cover charges for that night while DBL will retain the other

50%;

(c) Each customer at the performance will be charged $20 as a cover charge;

(d) DBL anticipates making a profit of $5,000 on liquor sales during Ellen's performance but Ellen

will not receive any portion of those profits; and

(e) DBL will ensure the stage is equipped with Stein way audio speakers ,which are very expensive

and high quality.

Three days before the scheduled performance, Ellen meets with the manager and tells him she is having second thoughts about the performance because she is used to singing in smaller clubs. As an incentive, the manager promises to give her an extra 10% of the total cover charges for the night. Ellen happily agrees. However, the next day, the manager tells Ellen he is not going to be able to rent the Steinway equipment because it has been taken off the market due to faulty and dangerous wiring. Ellen gets very upset and tells the manager that, because of this, she is not going to perform.

Questions:

(a) Assume Ellen does not perform. Do either Ellen or DBL have a claim against the other for breach of contract? Why or why not, and which kinds of breaches?

(b) If DBL has a claim against Ellen for breach of contract, what amount of compensation would it likely be entitled to as damages? Assume DBL averages 100 customers each night. Ignore the fact that the manager had promised to give Ellen an extra 10% of the total cover charges.

(c) Assume the contract contained a term requiring Ellen to pay $100,000 to DBL if she did not perform as promised. If Ellen breached the contract, would she have to pay DBL the $100,000 as stipulated in the contract? Why or why not?

(d) Assume DBL's breach of contract entitled Ellen to void the contract and claim damages against DBL. Would DBL have to pay Ellen the extra 10% of cover charges? Why or why not? Would your answer be different if Ellen and DBL were in British Columbia instead of Newfoundland and Labrador? Why or why not?

(e) If Ellen sued DBL for breach of contract, would DBL be able to rely on the defence of frustration in regard to the recalled Steinway equipment? Explain the doctrine and why or why it might not apply.

(f) Lisa is Ellen's backup singer. If Ellen and Lisa agreed that Lisa would get half of the money Ellen earned from the performance, would Lisa be able to sue DBL for DBL's breach of contract? Why or why not?