Peter Smythe vs Vincent Thomas - Case Study Example

Assignment Submission (Answers in Bold) Part A The following questions were answered based on the case of: Peter Smythe v Vincent Thomas [2007] NSWSC 844 (3 August 2007) Available at: http://www.austlii.edu.au/au/cases/nsw/supreme_ct/2007/844.html. Question 1: In what court was the case heard? (1 mark) The case was heard in the New South Wales Supreme Court. Question 2: Name the judge and explain his title. (2 marks) The judge is named Rein, and Rein is an administrative judge as evidenced by the title AJ. Question 3: Name the plaintiff and defendant and their counsel. (4 marks) The plaintiff is Peter Smythe and the defendant is Vincent Thomas. The plaintiff’s counsel is B. Kasep, and the defendant’s counsel is D.M. Loewenstein. Course Profile for: LAWS11030, 2009 Term Two - Page 6 Question 4: What particular circumstances led Rein AJ to doubt the credibility of the defendant’s version of events? (3 marks) The defendant’s version of events were not credible, especially with regard to the fact that, in the eBay auction, the defendant had not stipulated that the aircraft be inspected first by the buyer. Question 5: The defendant argued there was no binding and enforceable agreement, what were the components of this argument? (4 marks) The defendant’s argument was manifold—one part of which was that since the plaintiff had been removed as a user from eBay, there was no agreement. There were four additional pieces to this argument, that: 1) there was no direct contract between the plaintiff and defendant, but that they each had parallel contracts with eBay; 2) the eBay listing was nothing more than an advertisement, and not an auction; 3) the payment had yet to be agreed upon so there was no agreement; and 4) the plaintiff gave up his bidding rights by participating in the auction. Question 6: How is agreement reached in a traditional auction? (2 marks) Whoever made the last bid before a candle burnt out won the auction1 (in Holland years ago)? Question 7: What differences did Rein A J outline between a traditional auction and an on-line auction? (5 marks) In a traditional auction: 1) there is an auctioneer2; 2) the auctioneer is the agent of the seller; and 3) the seller can at any time before the hammer is lowered withdraw his goods from the sale. Question 8: What did Rein A J regard in an eBay auction as the equivalent of the fall of the hammer in a traditional auction; and what is the significance of each? (2 marks) The fall of the hammer in a traditional auction is complete when the auctioneer announces its completion by the fall of the hammer or in other customary manner—and until any such announcement is made any bidder may retract his or her bid. The equivalent of the fall of the hammer in an eBay auction is the automatic close of bidding at a fixed time and the generation of an eBay advice headed “won” appear to have been accepted by the parties to an eBay auction. Question 9: Why was an order for specific performance of the contract appropriate in this case? (2 marks) An order for specific performance of the contract was appropriate because of two reasons: 1) the Wirraway was not at the time in flying condition, and 2) the plane was in a hangar owned by a third party. Question 10: Why was the final order not made in this hearing? (1 mark) It was ruled that a binding contract was formed between the plaintiff3 and the defendant4 and that it should be specifically enforced.5 Further, the two parties would be given a chance to reach agreement on the precise nature of the agreement. Question 11: Why was the matter heard in the Supreme Court? (4 marks) This matter was heard in the Supreme Court because the defendant kept appealing to higher courts when the decisions in lower courts were against him (i.e., not in his favour). TOTAL 30 Marks Course Profile for: LAWS11030, 2009 Term Two - Page 7 Part B McMuffins Ltd is a fast food company. Yesterday, before work had started, an argument arose between three kitchen hands: Tom, Dick and Harry. Over the weekend, Tom had offered to sell his motorbike to Dick for $5000. Dick said this was far too much but he would pay $4000. Tom refused. Before Tom left for work this morning Dick phoned to say he would buy the motorbike for $5000 but Tom said he had already sold it to Harry for $4,500. It was not a good day for Dick: he was one of the six employees of McMuffins Ltd that buy a weekly lottery ticket, each contributing an equal amount of money. Every week the money is collected by Lotty, the office junior, who also buys the lottery ticket. The group has always agreed to share any winnings equally. Lotty discovered this morning that the lottery ticket has won $1,000,000, and tells the other members of the group that she intends to claim the money for herself and leave McMuffins Ltd. Question 1: Has Tom reached an agreement? (up to 150 words) (4 marks): [112 words] According to Tom, he has already sold the bike. If there is a bill of sale6 made out to Harry, the bike has technically already been sold. However, if there is no evidence in writing that a transaction7 has taken place, nor record of any cash having exchanged hands (i.e. evidence of a transaction). So, technically the motorbike is still not sold, therefore it would be reasonable for Tom to take Dick’s new offer of $5000. Even if Tom and Harry had a verbal agreement8, that is still not enough to stand up in court. Dick could technically still buy the bike from Tom because verbal agreements are not legally binding contracts. Question 2: Is Lotty obliged to share the lottery winnings amongst the group? (up to 250 words) (6 marks): [140 words] Lotty is obliged to share the lottery winnings amongst the group. Although the group only had a verbal agreement that all the office members of McMuffins Ltd would share in the winnings should they strike it rich, there was a monetary transaction which took place in which Lotty took shares of money from each of the office members to donate to the lottery pot in order to purchase the ticket. Therefore, since there are witnesses to provide testimony that they each paid into the lottery pot, there would be enough evidence9 available to prove that Lotty was not the sole owner of the ticket. The winnings would be divided accordingly with respect to whom paid how much for the ticket and, consequentially, what share10 each office member would have in the million dollars’ worth of winnings. This is only fair. TOTAL 10 MARKS REFERENCES Dictionary.Com Website, 2009. Definition of “Agreement.” [Online] Available at: http://dictionary.reference.com/browse/agreement. [Accessed 24 Aug 2009]. Dictionary.Com Website, 2009. Definition of “Auction.” [Online] Available at: http://dictionary.reference.com/browse/auction. [Accessed 24 Aug 2009]. Dictionary.Com Website, 2009. Definition of “Auctioneer.” [Online] Available at: http://dictionary.reference.com/browse/auctioneer. [Accessed 24 Aug 2009]. Dictionary.Com Website, 2009. Definition of “Defendant.” [Online] Available at: http://dictionary.reference.com/browse/defendant. [Accessed 24 Aug 2009]. Dictionary.Com Website, 2009. Definition of “Contracts.” [Online] Available at: http://dictionary.reference.com/browse/enforcement. [Accessed 24 Aug 2009]. Dictionary.Com Website, 2009. Definition of “Evidence.” [Online] Available at: http://dictionary.reference.com/browse/evidence. [Accessed 24 Aug 2009]. Dictionary.Com Website, 2009. Definition of “Plaintiff.” [Online] Available at: http://dictionary.reference.com/browse/plaintiff. [Accessed 24 Aug 2009]. Dictionary.Com Website, 2009. Definition of “Sale.” [Online] Available at: http://dictionary.reference.com/browse/sale. [Accessed 24 Aug 2009]. Dictionary.Com Website, 2009. Definition of “Share.” [Online] Available at: http://dictionary.reference.com/browse/share. [Accessed 24 Aug 2009]. Dictionary.Com Website, 2009. Definition of “Transaction.” [Online] Available at: http://dictionary.reference.com/browse/transaction. [Accessed 24 Aug 2009]. Read More