Construction and Property Law for Memorandum -myassignmenthelp

Question: Discuss about theConstruction and Property Law for Memorandum of Advice. Answer: This memorandum identifies the possible liabilities which could be raised for different parties owing to the construction work which was recently undertaken. Through the analysis of the case study, it becomes clear that NSW Government would be able to claim liquidated and consequential losses from AllTrack and Von Fimerick for the delay, inferior quality and wrong construction. Apart from this, AllTrack would be able to claim damages from Von Fimerick for the delay caused in performing the work. For the physical injury and psychiatric illness caused to Tom and Bob, NSW Government and Jean Holland would be liable. However, the damages which would be awarded to Tom by the court would be brought down owing to his contributory negligence. NSW Government Heading Contract Law Issue Whether NSW Government can make AllTrack liable based on the contracts which were drawn, for the subpar quality of products used and for the delay in completion of project. Rule As a construction contract is a contract, the non-performance of the terms of such contract can result in the breaching party being made liable. Where the contractor fails in completing their work within the time which had been prescribed to them, liquidated damages are awarded to the aggrieved party. Where the contract provides the provisions for damages to be awarded be it in terms of consequential losses or the liquidated damages, and where the parties to contract have agreed to such clause, the provisions of such damages would be applicable, owing to the same being a term of the contract (Bailey and Bell, 2011). Also, where there are any defects or shortfalls in the construction work which has been carried, the defaulting party can be made liable for such faults. Here, the defaulting party includes both contractor and sub-contractor. Often such defects in materials and workmanship are discovered very late. Still, the contractor remains liable for such contraventions. Under the contract law, the plaintiff who had to bear the loss as a result of the contravention of contract, gets the entitlement to the extent of monetary damages, which would allow for the aggrieved party to be put in place, where they would have been, in case the contract had been performed, as was seen in Turner Corporation Ltd (Receiver and Manager Appointed) v Austotel Pty Ltd (1994) 13 BCL 378 (Bailey and Bell, 2011). Application Owing to the contract undertaken between AllTrack and NSW Government, NSW Government can claim the costs of delay from AllTrack and also for the inferior tiles used and the platforms being 30 cm narrower. This is due to the clear specifications provided under the contract drawn between the two parties. As the case study is silent on a time delay clause being present in the contract, it is assumed to be present. It was important for AllTrack to fulfil the contractual obligations; by not doing the same, they can be made liable in terms of liquidated damages and the consequential loss. This would allow for NSW Government to be put in place where they would have been, based on Turner Corporation Ltd (Receiver and Manager Appointed) v Austotel Pty Ltd, had the contract been properly performed. Conclusion Based on the discussion undertaken in the previous segment, it can be concluded that NSW Government would be able to claim liquidated and consequential losses from AllTrack for the delay, inferior quality and wrong construction. AllTrack Heading Contract Law Issue Whether AllTrack can claim any damages from Von Fimerick based on the contracts which were drawn, for the subpar quality of products used and for the delay in completion of project? Rule In construction industry, a common principal of letter of intent exists. The result of this document is that the actual intention in the letter can be deemed as acceptance instead of being a mere indication of intent to get in a binding contract at a later date. In Cox Constructions Pty Ltd v Decor Ceilings Pty Ltd (No 2) [2005] SASC 483, it was held by the court that the parties were bound exclusively and immediately by the last letter which was sent. In this case, a final and formal agreement was being created but could not reach its end. As the terms of the second contract could not be agreed upon, the parties were bound by the terms of letter of intent. So, the letter of intent is the acceptance. The contractors are thus allowed to recover the costs incurred in the anticipation of creation of contract on restitutionary basis (Bailey and Bell, 2011). Application With regards to the contract which took place between the contractor AllTrack and subcontractor Von Fimerick, Cox Constructions Pty Ltd v Decor Ceilings Pty Ltd (No 2) proves to be of help. As per the quoted case, the Letter of Intent would be binding here. This is because no agreement could be attained on the overall limitation of liability and even on the prices and delivery dates. As a result of this, the Letter of Intent would be deemed as the final agreement. However, there is no clarity given in the case study regarding the time by which the delivery had to be made. Assuming that there had been actual delay in the delivery being made by Von Fimerick of slab tracks, the quoted case would allow AllTrack to claim damages from Von Fimerick. Conclusion Based on the discussion undertaken in the previous segment, it can be concluded that for the delay caused in performing the work, AllTrack would be able to claim damages from Von Fimerick. Von Fimerick Heading Contract Law Issue Whether Von Fimerick can be made liable based on the contracts which were drawn, for the subpar quality of products used and for the delay in completion of project? Rule (Same as that for AllTrack) Application As the letter of intent was binding based on Cox Constructions Pty Ltd v Decor Ceilings Pty Ltd (No 2), Von Fimerick would be bound by the terms of Letter of intent. This includes the potential unlimited liability for delayed completion and subpar quality products. Further, where NSW Government decides to sue Von Fimerick along with AllTrack, they would have to bear the liability, for the reasons of being a subcontractor. Conclusion Based on the discussion undertaken in the previous segment, it can be concluded that Von Fimerick can be made liable based on the contracts which were drawn, by both AllTrack and NSW Government. Tom Heading Tort Law Issue Whether Tom can make a successful claim of negligence against NSW Government or not? Rule Negligence refers to the breach of duty of care which results in one person getting injured/ harmed or has to bear a loss, owing to the lack of care which the first person undertook, in fulfilling their work. Where a case of negligence is established, the aggrieved party is awarded damages. In order to make a case of negligence, there is a need to show that a duty of care was owed to the plaintiff by the defendant. The next requirement is to show that this duty of care had been breached as the requisite standard of care was not adopted by the defendant. The third requirement is to show that a material damages was caused to the plaintiff owing to the breach of duty by the defendant. The fourth requirement is to show that there was reasonable proximity between the plaintiff and the defendant, to show that the damages were not too remote. The last requirement is to consider the defences raised by the defendant for rebuffing or reducing their liability (Bailey and Bell, 2011). In Donoghue v Stevenson [1932] UKHL 100, the judges held that there is a need to take reasonable care in avoiding the acts which could result in such damage, where such chance of such injury or loss was reasonably foreseen. This foreseeability is required to establish a duty of care. There is a need to consider the plaintiffs vulnerability to harm owing to the conduct of the defendant. Once the duty of care has been shown, its breach also needs to be established. It is the duty of building professionals to protect against the possibility of risk, and the risk becomes greater where the standards are higher. The next requirement is to show that the plaintiff was hurt or injured and that an actual damage had taken place. Apart from the physical injury caused to the individual, the damages can also be claimed for economic loss. However, Perre v Apand (1999) 198 CLR 180 dictates that the situation, in which an individual could be liable for pure economic loss, is limited in comparison to physical injury (Bailey and Bell, 2011). A leading defence which is used in cases of negligence is contributory negligence. In this defence, the defendant can show that the plaintiff partly resulted in the damages being caused to them. In such cases, the damages awarded to the plaintiff for negligence, are reduced by the court, due to the failure of plaintiff in taking reasonable care of protecting them (Bailey and Bell, 2011). Application In the present case study, it was reasonably foreseeable that a failure in signal would result in a mishap. As NSW had engaged Jean Holland, they had the responsibility of the work which they undertook. Due to the foreseeability of harm, NSW Government owed a duty of care to Tom and Bob based on Donoghue v Stevenson. Even though in the past such signal failure had not resulted in any harm, the presence of signal failure was enough to make NSW Government liable, particularly because this defect had already been detected earlier, and was not fixed. The standard of care required NSW Government to fix this defect on urgent basis. Not doing so, was thus a breach of duty of care. Tom was injured owing to the accident, which happened due to signal failure. He was permanently disabled, which is not remote injury. However, he was texting on his phone when the incident took place, which means that he contributed towards the injury which he sustained. Conclusion Based on the discussion undertaken in the previous segment, it can be concluded that a claim against NSW Government by Tom would be successful, for the physical injury caused to him under the law of negligence. However, the damages which would be awarded to Tom by the court would be brought down owing to his contributory negligence. Bob Heading Tort Law Issue Whether Bob can make a successful claim of negligence against NSW Government or not? Rule The plaintiff has to show that the balance of probabilities was due to the negligence of the defendant. Under section 30(2) of the Civil Liability Act, 2002 (NSW), where an individual who suffers mental harm owing to other person being injured, can recover damages only when they witnessed the scene or were a close family member of the victim. In Hambrook v Stokes [1925] 1 KB 141, the plaintiff was able to recover damages due to him fearing safety of life of a close relative. In Jaensch v Coffey (1984) 155 CLR 549, the losses were recoverable for the plaintiff as they witnessed the aftermath of accident which involved a loved one and developed psychiatric harm as a result of it (Bailey and Bell, 2011). Application In context of Bob, the damages were not physical and were instead in form of psychiatric illness. Bob witnessed his closed one getting injured, which would make him liable for getting the damages from NSW Government based on section 30(2) and based on the case of Jaensch v Coffey, as he developed psychiatric injury by watching the aftermaths of the loved one getting injured. However, these damages would not be awarded to him based on Hambrook v Stokes as even though he witnessed the incident, he did not fear for his life. This is particularly because he was busy filming the entire incident which took place, in place of trying to help his cousin. Conclusion Based on the discussion undertaken in the previous segment, it can be concluded that a claim against NSW Government by Bob would be successful, for the psychiatric illness caused to him under the law of negligence. Jean Holland Ltd Heading Tort Law Issue Whether Tom and Bob can make a successful claim of negligence against Jean Holland Ltd or not? Rule In Voli v Inglewood Shire Council [1963] HCA 15, it was held that owing to the poor design, the architect could be sued by the third party when they sustained injury. Application Here, both Tom and Bob can also bring action against Jean Holland on the basis of Voli v Inglewood Shire Council, as both of them were injured owing to the fault of the professional. Conclusion Based on the discussion undertaken in the previous segment, it can be concluded that Tom and Bob can also make the same claims against Jean Holland and would be successful. References Bailey, I., and Bell, M. (2011) Construction Law in Australia. 3rd ed. Rozelle, NSW: Thomson Reuters Australia.