1. Whether Alexia can sue the council for the losses that are sustained by her?
2. Can Government bring an action for anticipatory breach for non-completion of work within 12 months?
Whether Alexia can sue the council for the losses that are sustained by her?
The law of Tort (Negligence) is applicable in the given situation.
When any wrongful act/omission is carried out by the defendant which results in any civil action against the wrongful party then it is a tortuous wrong.
The law of negligence is part of the law of tort. In Donoghue v. Stevenson [1932] it was held by Lord Atkin that when any act/omission is carried out by the defendant for which he is imposed with the legal duty that no harm should be caused to the plaintiff, then, if any loss is caused to the plaintiff because of such acts/omission, then, the defendant is held to be negligent in his acts. (Elliott & Quinn 2015)
The law of negligence is also applicable when misstatements are made by the defendant. A negligent misstatement is considered to be incurred when any inaccurate statement is made by the defendant honestly but carelessly to the plaintiff wherein the defendant is possessed with skills and knowledge upon which the plaintiff is relying, then, any loss that is caused by the plaintiff resulting from such advice of the defendant will make the defendant liable for negligent misstatements. (Hocking 1999)
Thus, the main elements that are required to prove negligent mis-statement on the part of the defendant are: (Bill 2010)
In Cole V South Tweed Rugby League Football Club Ltd [2004], it was held that when Mrs Cole left the club within the alcohol limit that is provided by the club, then, the duty of care that is imposed upon the club against his visitors are complied with and thus the duty is comply with. Mrs Cole and the club are in the relationship of proximity and the club can forsee the impact of its actions.
In Hackshaw V Shaw [1984], the court held that the use of firearm with the knowledge that the same might incur injuries to the plaintiff is not in compliance of the duty of care that is imposed upon the defendant. The care that is used by the defendant is not adequate and thus the defendant was held to be negligent in his actions .
Once all the elements are comply with then the defendant is held to be negligent. But, to make a defendant liable for any negligent mis -statement there is requirement of the presence of special relationship amid the parties. To special relationship, the main requirements are: (Latimer 2009)
In Shaddock& Associates Pty Ltd V Parramatta City Council [1981] HCA 59, a solicitor (for Shaddock) seek advice from the Parramatta city council to regarding a property and whether the same will be impacted by the road widening proposals. The employee confirms that the property is not under threat but the advice is not made part of the final papers. The plaintiff suffered loss because of the road widening actions. The court held that there is a special relationship that exist amid the parties and the plaintiff is relying on the advice of the council. Thus, there is negligent misstatement on the part of the council and should be held accountable for the loss suffered by the plaintiff.
In San Sebastian Pty Ltd V Minister Adminstering The Enviromental Planning And Assessment Act (1986), when any proposal is made but no assurance is provided then such a statement does not fall under the category of negligent – misstatement. It is necessary that the plaintiff rely upon the assurance given by the defendant.
As per the facts, Alexis is a developer and owns a large tract of land between Ipswich and Toowoomba. She intends to build a new township and thus submits her development application ‘’Torrensvillle’ to the local council. She intends to make an assurance that none of her land will be resumed for the proposed freeway which will pass her land and is included her DA. An advise is furnished by the clerk verbally that there would be no resumption of her land. But, this verbal communication was not made part of the final written approval from the council. But, later when the building commences, the council inspector arrives on site and submitted that there will be a resumption of the 24 blocks of land bordering on the road. This will result in the development lose of $1.5Mil, that is, the profit expected from these blocks. She seeks your advice on the possibility of suing the council for her losses.
It is submitted that there exist a special relationship amid Alexia and the clerk of the council;
Thus, there is a duty of care that is imposed upon the clerk to furnish the advice in a reasonable manner.
However, the advice that is furnished by Alexia is not as per the required standards as the same is not made part of the final documents that are supplied to her.
Because of the negligent misstatement, Alexia suffered loss.
Thus, the clerk is negligent in his actions for making mis-statements and thus is held liable for the same.
Conclusion
Alexia can sue the council for negligent misstatements that is made by the clerk.
Can Government bring an action for anticipatory breach for non-completion of work within 12 months?
The law of frustration is applicable.
When any contract is made then the contract cease to exsits when:
Frustration is one of the reasons wherein the contract stands terminated amid the parties. When there is no fault of the parties and the contract is discharged because the contract become
When a contract is frustrated then the rights and liabilities that have already been complied with remains active but the future rights and liabilities are discharged. But, if the event was already made part of the contract or is reasonably foreseeable or when the party who is seeking frustration is at fault, then the law of frustration is not applicable and is held in Bank Line Ltd v Arthur Capel & Co [1919].
The law is applied to the facts of the case.
As per the facts, Alexia had a discussion with the state government regarding the length of time the work would commence. RoadRus Ltd, contractors, are appointed by the government who assured that the work will be commenced in next 12 months as there are no new homes built. Since they are o residents thus they can work 24 hours, in three shifts and complete the work. the same was made part of the contract.
Now, the main essence of the contract to complete the work in 12 months.
However, within 6 months, most of Torrensvillle’ homes were built and people start moving in. The resident complained and thus the work was reduced to 2 shifts in a day @7AM-9PM.
Thus, an unseen event, which was not made part of the contract, exist which has rendered alteration in the situations in which the contract was made amid the parties. Thus, the alteration has varied the essence of the contract for which it is established, that is, completion of the contract within 12 months. Now, the contractor needs extension of another 4 months and thus tries to negotiate the contract.
It is submitted that because of neither party fault the contract becomes practically difficult to compete in 12 months. Thus, the contract ceases to exist in account of frustration. So, the government cannot bring an action of anticipatory breach because the contract is suffered from frustration on the part of the Supreme Court action.
Conclusion
It is submitted that on account of unseen event the time length of the contract was increased to further 4 moths and thus there us alteration in the contract. Thus, the contract ceases to exist on account of frustration.
Books/Articles/Journals
Bill, W. (2010). Law management 252 Curtin Handbook, Chapter three.
Elliott & Quinn (2015) Tort law. Pearson Higher Ed.
Hocking, B. (1999) Liability for Negligent Words. Federation Press.
Latimer, P. (2009). Australian Law Handbook . Chapter 4- Torts.
Case Laws
Bank Line Ltd v Arthur Capel & Co [1919] AC 435, 452.
Brisbane City Council v Group Project Pty Ltd (1979) 145 CLR 143, 162;
Codelfa Construction v State Rail Authority of New South Wales (1982) 149 CLR 337;
Caparo v Dickman [1990] HL.
Cole V South Tweed Rugby League Football Club Ltd [2004] HCA 29.
Davis Contractors Ltd v Fareham Urban District Council [1956] AC, 696, 731.
Donoghue v. Stevenson [1932] All ER Rep 1.
Hackshaw V Shaw [1984] HCA 84;
Krell v Henry [1903] 2 KB 740, 749
Lindeman Ltd V Colvin [1946] HCA 35.
Roads and Traffic Authority of NSW v Refrigerated Roadways Pty Limited [2009];
San Sebastian Pty Ltd V Minister Adminstering The Enviromental Planning And Assessment Act (1986) HCA 68.
Shaddock& Associates Pty Ltd V Parramatta City Council [1981] HCA 59.
Taylor v Caldwell (1863) 3 B & S 826, 839
X v Bedfordshire County Council [1995] HL
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