Reference no: EM131273622 , Length: word count:1000

IRAC "APPLY AND CONCLUDE" TASK (20 marks)
Word length: Maximum 1000 words

INSTRUCTIONS:

· You have been given the facts, the main issue and sub issues and the relevant rules relating to a problem concerning the topic "Terms of the Contract" and the sub-topic "Disclaimers".

· All of the rules provided are relevant, and match to the sub- issues.

· In the "apply" section you need to use the (4) relevant rules and the facts to answer each of the (4) sub issues.

· In the "conclude" section you should explain your conclusion about how the law will resolve the main issue. Your conclusion should be supported by your arguments in the "apply" section

· Your marks will be allocated using a rubric based on the marking criteria (see the ‘Rubric' document attached).

· Please do not exceed the maximum word limit of 1000 words. Any words exceeding the word limit by more than 10% will not be marked as part of your answer.

· Your answer should be presented in a word document using Times New Roman or Ariel (no less than 11 point font) and be uploaded using the Turnitin portal in this folder.

FACTS

Lea booked accommodation to stay at the "Royale on Park" hotel in Sydney. She has stayed in this hotel on two previous occasions. Upon arrival she checked in at the lobby. She was asked to provide her credit card details and she was given a swipe card to access her room. During her stay she used the safe that was provided in her room to store her valuable diamond necklace.

One evening, Lea returned to her room after going out for dinner with friends to find that although there were no signs of break in, the safe was open and her diamond necklace was gone. When she complained to the hotel manager he directed her attention to a sign on the wall in her room that stated: "Hotel management takes no responsibility whatsoever for any goods or valuables which are lost, damaged or stolen while staying at the hotel." A police investigation into the disappearance of the necklace subsequently revealed that the necklace had been stolen by a hotel employee, but the necklace was not recovered.

ISSUE:

Is the hotel entitled to rely on the disclaimer to prevent Lea from succeeding in a claim against the hotel for compensation for the stolen diamond necklace?

SUB - ISSUES:

1. Did the hotel give Lea reasonable notice of the disclaimer before Lea entered into the contract with the hotel?

2. Had Lea received prior notice of the disclaimer on the sign on the wall because she had previously stayed at this hotel and had been accommodated in rooms which had the same sign on the wall?

3. Does the disclaimer protect the hotel from its liability to Lea for the stolen necklace?

4. Was the theft of Lea's necklace beyond the scope of the protection offered by the disclaimer?

RULES:

A. In unsigned documents e.g. ticket receipts, a statement of disclaimer may be a term of the contract but only if a party had reasonable notice of the term before the contract was entered into, Thornton v Shoe Lane Parking Ltd [1971]

B. A term can also be implied into a contract as a result of the continuing relationship between the parties. If the parties have entered into similar contracts in the past, and those previous contracts contained a particular term, then that term is implied into the present contract, Balmain New Ferry Co Ltd v Robertson (1906)

C. The court will interpret the clause "contra proferentem" or against the interests of the party seeking to rely on it. White v John Warwick & Co [1953].

D. An disclaimer will not exclude liability for acts occurring outside the scope of the contract, because only authorised acts that fall within the ‘four corners' of the contract can be validly excluded by the disclaimer. Sydney City Council v West (1965).