In April, Epick Pty Ltd (Epick Games) completed making its first game, Grave Raider, an adventure-based game where the main character Carla Loft explores tombs, solves puzzles and seeks treasure. The treasure can be used as in-game currency to purchase various weapons, upgrades, and outfits for the character. The game is to launch on 1 June and is played via a subscription of $5.99 per month automatically debited from the players credit card.

The game is similar to the recent smash hit game Tomb Robber released by Kronos Games. Epicks programmers had also worked on part of that game for Kronos under a subcontract between Epick and Kronos.

The monthly subscription agreement contains, amongst other things, the following terms:

1. Subscribers must join for a term of 12 months.

2. The subscription fee of $5.99 is automatically deducted from the subscribers credit card each month.

3. If there are insufficient funds for the subscription fee, a $30 non-payment fee will be charged and the balance of the remaining subscription amounts for the term will be due and payable immediately rather than taken each month.

4. Subscriptions can be cancelled in writing at any time as long as the subscriber pays the remaining subscription amounts upfront as a cancellation fee.

5. Any subscription that is not cancelled in writing by the subscriber within 30 days of the end of the subscription term, will automatically renew for a further term of 12 months.

In April, Marketing Manager Krystal Ball engaged local marketing firm Shout to promote the game and its launch on 1 June. Shout was to create and show a preview for the game on 31 adverts on television on Channel 9 during the month of May (one advert each day at 7 pm). Epick would pay $155,000 ($5,000 per advert) on 1 June.

In April, Krystal also entered into a contract with Perth Transport to place posters (that Krystal had already provided to them) at 100 bus stop locations throughout the city. The contract stated that the posters would be put up on 1 May and taken down on 1 June. The cost was $100,000 ($1,000.00 per poster).

Finally, in April, Krystal put an advert on Epicks Facebook page as follows:

The Most Anticipated Game of The Year!

Coming June 1 Grave Raider

From makers of the hit game Tomb Robber which scored 9.5/10 from GameSpot

Dont miss it. Sign up on 1 June.

Krystals intention was to refer to the fact that Epicks programmers had worked on some of the Tomb Robber games for Kronos.

Unfortunately, on 30 April, there was a COVID-19 incident, and the city went into immediatelockdown for the month of May. All public transport was cancelled for this period. Krystal immediately called Perth Transport to cancel the contract for the posters as there would beno commuters. Perth Transport said that they did not accept the cancellation and that they would put the posters up.

On 1 June the COVID restrictions were removed, and CEO Dich Tate came to see you in your office with a few problems. He told you that:

Perth Transport had issued an invoice for $100,000.00 for the posters.

Shout had made a few mistakes with the TV adverts: - they had failed to book advertson 20 and 25 May. They had also shown a few adverts at 7:05 pm and not at 7 pm. Shout had invoiced for the full $155,000 but Dich felt that Epick should not pay anything because of the errors.

He wanted your views on the subscription terms.

Quite a lot of customers had signed up for subscriptions and had already made complaints to Epick wanting their money back because they had been misled into thinking the game was made by Kronos. Dich now wants your opinion as to the above he asks you to put this in a memo to him. Your task is to write ONE memo to CEO Dich Tate, using separate headings for each question, explaining the relevant law or cases, and applying these to answer the following questions:

1) With reference to the law about frustration, does Epick have to pay for the posters?

2) With reference to the law about performance, does Epick have to pay anything to Shout and, if so, how much?

3) With reference to the legislation on unfair contract terms, are any of the subscription terms unfair and, if so, how could they be amended?

4) With reference to legislation and cases on misleading and deceptive conduct, was the face book advert misleading or deceptive and, if so, what potential remedies might be imposed?