Joseph and Clara v Marshall and Edward - Math Problem Example

Business Law - Case Study Name: University: Date: Joseph and Clara v Marshall and Edward - Business Law Business Law A contract can be defined as a legally enforceable agreement or a legally binding agreement between the parties. More importantly, the agreement must constitute an offer as well as the acceptance. Breaches of the contract have become common in various industries. These breaches can be done by employers when they fail to pay or the contractor’s inability to perform according to the contract. In this piece, the objective is to advise Joseph and Clara pertaining to their legal rights and to determine whether Edward or Marshall could successfully pursue any legal action against. Joseph and Clara decided to renovate their house by adding an enclosed and large entertainment area. Therefore, they decided to an advert in the local newspaper seeking quotes for the supply as well as the installation of floating timber flooring. Some days later, Joseph received Marshall’s quote, and four days later Edward emailed his quote to Joseph. However, Joseph did not receive Edward’s email on time because of the severe storm; therefore, he decided to Marshall the contract with the clause that the workmanship defects will not be the responsibility of the provider. Three days after starting the work, Marshall had covered 55 square metres of the required 100 square metres, but heavy rain on the third day led to the collapse of some part of the room, and other parts were flooded. Joseph discerned that Marshall had left the door open for ventilation, but the flooding was caused by the tool bag left on the drainage outlet not far from the door. Out of frustration, Joseph terminated Marshall’s contract and rewarded Edward the contract to finish the project citing he offered the cheapest quote. Although Marshall can take legal action against Joseph for illegal termination of the contract without giving him a chance to repair the defects, Joseph can counterclaim for breach of duty since Marshall placed the tool bag over the drainage outlet; thus, presenting a serious threat to Joseph and Clara. On the other hand, he can utilise the doctrine of frustration to water down claims by both Marshall and Edward. Besides, the common law allows for contract changes due to impossibility, impracticality, as well as the frustration of purpose. Even if the contract is drafted cautiously, issues attributed to unforeseeable events can warrant the termination of the contract. The common law allows for contract changes in order to accommodate the parties, which often lead to the breach of contract. In Australia, contract facilitators are not allowed to recover costs from the third parties they pay to finish the project, if they abandon their contractual obligations by failing to inform the contractor about the defects as well as allowing the contractors to repair the defects.1 As evidenced in SAS v Carver case, the majority of the Australian courts believe that the employer has to abide by the contractual bargain as well as pursue the procedures that the contract prescribes to advise the contractor of the defects and allow them to perform repairs.2 Evidently, Marshall requested Joseph to allow him to finish the work at a reduced price. Instead, Joseph asked him to go and never to come back. In the case of Turner Corporation Ltd v Austotel Pty Ltd, the Supreme Court in NSW established that the principal/ owner has no ability to recover the third party’s costs after the engagement to repair the defects at the time of liability period, although the contractor had not clearly surrendered the right to damages as stipulated under the common law.3 In Turner case, it was established that through its architect, the owner failed to abide by the notice provisions and procedural steps strictly in the contract with regard to defects. The argument brought forth by the owner that there was no need for strict compliance and that the owner had a broad right as stipulated in the common law to engage others as well as claim the incurred costs as damages for breaching the contract was refuted by the court.4 The construction contract, as established by the court pointed out every obligation, liability and right of involved parties. As longer as Joseph did not issue the notices needed under the contract, has no right to ask Edward to complete the projects and repair the defects at Marshall’s costs.  Furthermore, Marshall can sue Joseph for terminating the contract and hiring Edward to repair the floor despite the costs incurred by Marshall. In Turner case, the court held that it is improbable for the owner to claim for damages, yet they had not adhered to the relevant notices. The court decision in The Turner was pursued by in the Bitannia Pty Ltd v Parkline Constructions Pty Ltd case. The owner had taken the property before the defective works finalisation by the contractor. Furthermore, a third party was engaged to make repairs to the defects.5 Afterwards, the contractor was sued by the principal for incurred costs because of the alleged contract breach by the contractor. The court denied the owner’s claim citing contract repudiation by the owner. This case is similar to that of Joseph since the owner had also asked the contractor never to come back on the project site. In both cases, Bitannia and Joseph denied their contractors (Parkline Constructions and Marshall) the chance for the defects to be repaired as stipulated by Australian contract law. In the Timms Contracting Pty Ltd v Pipes International (Qld) Pty case, the court held that the construct-only contract does not contain design obligations6. In this case, Timms Contracting Pty Ltd was contracted by Pipes International has to construct a hardstand that could be utilised a thoroughfare for heavy machinery and trucks and also as a stock storage facility. After the completion of the contract, the principal alleged the surface quality was substandard, and after heavy rains it became soft.7 The court dismissed the counterclaim by the principal citing that the works’ scope had not spelled out the hardstand was not designed by the contractor. In Joseph case, the court can argue that Marshall should not be blamed for the collapse of some part of the floor because he was not the one who designed it. Defects in work could happen because the contractor failed to work in workmanlike and proper manner. 8 Still, the designer may be in the wrong, since a certain design fails to work in a way that it should.9 The collapse of Joseph’s floor could be attributed to either poor design by the designer, or Marshall Breach of duty. Joseph has a counterclaim against Marshall for breach of duty. Marshall had placed his tool bag over the drainage outlet; thus, causing the flooding in the room. In the Bryan v Maloney case, the court established that the contractor had a duty of care to the homeowners since the footings defects led to cracking.10 However, in Woolcock Street Investments Pty Ltd v CDG Pty Ltd & Anor case the court held that the contractor had not breached the duty of care because the foundations’ design deficiencies led to structural distress.11 Furthermore, Joseph can rely on the doctrine of frustration to overturn Edward and Marshall legal actions. Basically, a contract is deemed ‘frustrated’ when the performance of the contract becomes impossible, or unforeseen events change the nature of the contract.12 In this case, the severe storm that delayed the reception of Edward’s email and the heavy rain that led to the collapse of the floor were unforeseen events. Therefore, Joseph was justified to discharge the contract as a result of frustration. In the Taylor v Caldwell case, the defendants allowed the plaintiffs to utilise the Surrey Gardens as well as a music hall.13 However, the fire destroyed the music hall forcing the plaintiffs to claim against the defendant for breaching the contract by failing to provide the hall. The contract, according to the court, was discharged as a result of frustration.14 In this case, the third exception was acknowledged, whereby contracts discussed matter destruction made the involved parties to be excused.15 In conclusion, it has been observed that Marshall can claim against Joseph and Clara for termination of the contract without being given a chance to repair the defects attributed to heavy raining. As mentioned in the essay, construction normally offers the owner with the power to ask for repair of defects, which should be within the defects liability period. In this case, Joseph decided to arrange for Edward (a third party) to rectify the defects as well as finish the project. Still, Joseph can counter claim against Marshall since his negligence led to the flooding and collapse of the floor. In this case, Marshall has breached the duty to care for both Joseph and Clara. Furthermore, they can utilise the doctrine of frustration to water down taken by both Edward and Marshall. Bibliography Articles and Books Dawson, Philip, Victor Lau and Vanja Bulut, 'Key considerations when defects are rectified by the owner' Clayton Utz (Online), 2 August 2012 . Etemadnia, Fatemeh, Anowar Zahid and Jady Z. Hassim, 'Doctrine of Impracticality Under The Law of Contract: An Overview of Its Development' 2014 2(3) International Journal of Technical Research and Applications 46. Hollingdale, Michael, Stephen McComish and Sam Luttrell, Australian Construction Law 2010 A review of recent developments and their implications (Allens Arthur Robinson, 2010). Krischock, Scott and Shaun Jackson 'Duty of Care in Residential Building Cases' Moray & Agnew Lawyers (online), 21 January 2016 . McElroy, Roy Granville, Impossibility of Performance (Cambridge University Press, 2014). Nachatar, Jaspal Singh, Abdul Aziz Hussin and Abdelnaser Omran, 'Frustration of Contract In The Malaysian Construction Contract Management' 2011 3 Annals of Faculty Engineering Hunedoara 85. Pinsent Masons LLP, 'Defective work in construction projects' Out-Law.com (Online), August 2011 . Cases Scott Carver Pty Ltd v SAS Trustee Corporation [2005] NSWCA 462 Turner Corporation Ltd (Receiver and Manager appointed) v Austotel Pty Ltd. (1994) 13 BCL 378 Bitannia Pty Ltd v Parkline Constructions Pty Ltd (2010) 26 BCL 335 Timms Contracting Pty Ltd v Pipes International (Qld) Pty Ltd [2010] QSC 088 Bryan v Maloney [1995] 182 CLR 609 Woolcock Street Investments Pty Ltd v CDG Pty Ltd. [2004] HCA 16 Taylor v Caldwell [1863] EWHC QB J1 Read More