There are several problem questions in Part B. The mark for each question is indicated below. Your answers should be clearly expressed, and should refer to relevant legal authorities (cases and/or legislation) as indicated in each question. The indicative word count for Part B is excluding footnotes.

FACTS:

Strong Fences Pty Ltd, operated and managed by George Gate (George) and Peter Pole (Peter), is a fencing company operating in the northern suburbs in Melbourne, Victoria. Felicia Pink (Felicia) contacts George regarding purchasing a strong wooden fence on 5 January 2021. Based on the enquiry, George forwards a brochure containing the range of fences supplied by Strong Fences Pty Ltd. The brochure also contained the following information:

We guarantee our fences will be of the highest standard.

Strong Fences Pty Ltd is not liable for any breach of warranty or condition.

We pride ourselves on selling only the best fences.

We use only the best timber products in our fences, and you'll be proud of it for years to come.

On 15 January 2021, George visitsFelicia's home and Felicia tells George that she has been havingdifficulties with the fence to the north of the property as possums constantly enter the property by chewing off the material and destroying her garden. Felicia tells George she would require the strongest wooden fence that can keep possums out of her property. George tells Felicia that they have the strongest and easy to install fences that will last for a very long time and keep possums away from her property. Felicia tells George that sounds like a good idea and her son will be able to install

the wooden fence for her. She asks George to provide a quote.

On 19 January 2021, Felicia receives a quote from George stating the cost of the strongest wooden fence they have at $5,000. The quote also repeats information contained in the brochure earlier forwarded to Felicia. Felicia agrees and George delivers the wooden fence on 25 January 2021, but George leaves the wooden fence in her garden exposed to rain and sun instead of putting the wooden fence in the garden shed as requested by Felicia.

Few days after delivery, Felicia is not happy when she sees the wooden fence just thrown all over in her garden, so she goes to the garden to check on the wooden fence. She sees that the wood used for the fence has started to rot. Felicia is furious, and when she is heading back to her house to call Strong Fences Pty Ltd to make a complaint, she trips over the fence in the garden. Felicia fractures her wrist and sprains her ankle. When Felicia finally speaks with George, she informs him of the condition of the wooden fence and asks what the company would do about it.

After a series of phone conversations between Strong Fences Pty Ltd representatives and Felicia, and one inspection by George, nothing was done. Felicia calls Strong Fences Pty Ltd again on 10 February 2021 and speaks with Peter who advises her that George is away on his long service leave. He also tells her that he received information from George that the wooden fence delivered is to the highest standard as stated inthe brochure and that the company is not in any way liable. Peter also points Felicia's attentionto a clause in the quote which excludes Strong Fences Pty Ltd from liability howsoever caused.

6

Use legislation (and any relevant case law) to answer questions 1, 2, 3 and 4. Do not use common law and/or equitable principles. IRAC is recommended when answering Questions 2 and 4.

1.Would the contract of sale between Strong Fences Pty Ltd and Felicia be considered a 'consumer'contract under theAustralian Consumer Law? (3 marks)

2.Has Strong Fences Pty Ltd breached any statutory consumer guarantees under theAustralian Consumer Law? Also, what remedies would be available to Felicia if Strong Fences Pty Ltd breached any of the statutory guarantees? (10 marks)

3.Would the exclusion clause stating:'Strong Fences Pty Ltd is not liable for any breach of warranty or condition'exclude Strong Fences Pty Ltd from liability for breach of statutory implied guarantees under theAustralian Consumer Law? (2 marks)

4.Has George misled Felicia under section 18 of theAustralian Consumer Law(ACL) in relation to the quality and durability of the wooden fence? (10 marks)

Use only common law and/or equitable principles to answer questions 5 and 6. Do not use legislation. IRAC is recommended when answering Question 5.

1. Is George liable to Felicia in negligence? (12 marks)
2. Is Strong Fences Pty Ltd vicariously liable for Felicia's injury?(3 marks)