Sample Question: Bill v Hot Rods

Bill was a schoolteacher who had a large vegetable patch in a field behind his home. He loved 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?

Feeling confident about this tractor, Bill agreed to purchase the AD43. Before signing the contract, Bill remembered to ask Jacko to include into the written contract about being the most reliable tractor in Australia and traversing slopes. Jacko agreed to do so but was distracted before he got around to doing it. As a result, neither was included into the written contract.

This document includes the following clauses:

Clause 6: The parties agree that no representations or promises not included in the contract cannot be a term in this contract. This contract is the entire agreement.

Clause 7: The parties agree the seller will not issue any refunds or replacements for defects.

Bill visited the office of Hot Rods where the office assistant asked him to read the contract before signing, but as Bill was in a hurry, he simply signed the contract without reading it. He 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

Advise Bill (the plaintiff):

1. Whether any express terms (under common law) were breached by Jacko (the defendant)? In your answer identify any express written terms and any express oral terms.

1. Whether the plaintiff can successfully sue the defendant for breach and remedies under the ACL statutory guarantees?

1. Whether there has been a breach of section 18 of the ACL?