Assignment 1 Answer Draft

8/3/2019 Assignment 1 Answer Draft

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1a.

According to this case, if the defendant was not satisfied the judge, the defendant

pointed out that the justice erred when handled the case. Moreover, the defendantfinds out some facts to proof that he is not the party of the contract. Furthermore, he

claimed that the justice made the mistake when the applicable law was used. As the

principal of law was equal to all people, regardless of race, polities and religion, the

defendant can appeal the case into South Australian Supreme Court of the

fundamental rights.

1b.

The first reason is the defendants submitted that the judge erred in holding that they

were involved the contract, Mr Abram was not liable in damages to plaintiff.

The second reason is the judge erred in founding that the condition related to finance

had been satisfied. As the contract mentioned, defendants have the rights to cancel the

contract if not satisfied in financing.

The last reason is the site was found some subsurface obstructions (i.e. rocks) in the

site of early stage; the defendant had the right to terminate the contract under the

clause 9.2 and compensate $18644.08 to the plaintiff only.

2.

Except the Building Work Contracts ACT 1995, the judge referred to common law

and case law.

Common Law was another method than legislation or sub-ordinate legislation. It

develops through the decisions of the court over centuries and recorded in law reports

of these recent cases. There are two characteristics of common law. First one is

Customary Law, it means unwritten but it was accepted by the people over many

generation. Second one is The Doctrine of Precedent, it also known as stare decisis.

It was the main feature of Common Law; the judge should find the pre-existingprinciple with facts of the case. Therefore, the judge declares the common law rule

which must followed by all other judges. Even though the judges must follow the

principle was establish in previous case, they can define special feature in the case for

future reference. It refers to this practice of relying, where appropriate or earlier

decisions.

In addition, The Doctrine of Precedent is a system used in common law to ensure

uniformity and rationality in judicial decision making. For many years of precedents

we used, it developed as a persuasive guide to assist the courts, it involved that the

certain circumstances the decision of some courts would be binding. In Australian


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Legal system, the previous decisions of superior courts are binding and persuasive

only if the previous decisions of other inferior courts, same court or other hierarchies.

The binding part of precedent called the ratio decinendi, it was the principle of law,

and it based on similar facts was decided by a court at higher level. A persuasive

precedent in Australian Court was referred to the case being agreed before it was not

bind that court. The following factors are determined how persuasive precedents

include.

(i) Date is the more recent persuasive precedent

(ii) The level of the court in the other hierarchy

(iii) The status of particular judge

(iv) Whether the decision was reserved or not

(v) Any strong dissenting judgments

(vi) Any persuasive precedent can be distinguished on its fact

Moreover, if the cases are different, the precedent maybe distinguished on its fact and

ratio decidendi of the precedent will not bind the present judge. According to the

common law and case law in Australia, the advantages were provided a degree of

uniformity upon which individuals can rely. Secondly, the new rules can be

established or old one adopted to meet the new situations and more updated in society

and cannot deal with future hypothetical situation. On the other hand, the

disadvantages of precedent was rigid since a rule has been laid down, it must bind

even though it was wrong. Due to a thousand of law reports and have million cases, it

was difficult to learn or apply for those legal rules.

4.

In this case, even though Mr Abram proof that he was not a party to involve of the

contract. However, the appeal was dismissed.

The justice said Mr Abram was an astute and competent account because he involved

three or four building contracts before. Although he just signed the contract and put

the words ATF Abram Admin. Service Trust after the name of Abram Admin.Services Pty limited, he also checked and amend the address and read the contract

carefully.

Moreover, Mr Abram and his wife want to live in the house on property, he gave some

general evidence about perceived tax benefits when the property was owned by the

company, it seems a significant reason he was involved to the contract.

Again, the letter from bank details of arrangement that proof the conditions of finance

were satisfied; nothing showed any difficulties with offer of finance.

At last, the justice pointed out why Mr Abram to terminate the contract on 26 Mar

1999. Owing to the builders found the rocks, the judge found that they did not wish to


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proceed with the contract before 29 Mar 1999. He asked some advices from a friend

who was a builder about of avoiding the contract. He looked up very carefully at the

provisions of contract; he declined to repudiate the contact anymore.

According the appeal was fail; the appellant should compensate the plaintiff (i.e.

builder) in sum of $39447.50 plus interest and legal costs expenses. No more

sanctions was mentioned if the appeal failed.

3.Extrinsic evidence means the evidence relating to the circumstances surrounding the

subject contract in order to identify the parties to the subject contract

Justice Besanko quoted two cases i.e. Giliberto v Kenny and Codelfa Construction

Pty Ltd v State Rail Authority of NSW. to explain the use of entrinsic evidence -

Extrinsic evidence may be admitted if there is an ambiguity.

Referencing

http://www.doj.gov.hk/eng/legal/#3

Documents

Assignment 1 Answer Draft