Civil Procedure

College of Law and Justice
Victoria Law School
LLW4000 Civil Procedure: Summer Block 2022
FACTS AND QUESTIONS FOR:
ASSESSMENT 2A: CASE STUDY & ASSESSMENT 2B: DRAFTING ASSIGNMENT
1. Clark Kant (Clark) is 19 years old and living at 5 Rowe Meadows, Echuca Vic 3564. He inherited a
considerable sum of money from his highly eccentric (some say, crazy) late grand-aunt. Clark is an
odd character himself but is by no means insane.
2. With a lot of money to burn, Clark has been looking for a 1960s/70s Alfa Romeo Spider to purchase
ever since he received his inheritance as he loves classic Alfa Romeo cars.
3. Clark sees an advertisement in a magazine ‘All Autos Classic’
for the sale of a 1963 Alfa Romeo Giulia Spider Roadster (the
‘Spider’). A picture of the Spider is shown on the right. He
travels to Gotham, Western Australia on 29 January 2021 to
inspect the car with a view to purchasing it, provided it is in
good condition and the price is right. The asking price is
$135,000.
4. The advertisement was placed by ‘AussieBrokers’. AussieBrokers is the business name of a
company, Australian Brokers Pty Ltd, based in Western Australia. Australian Brokers Pty Ltd does
business in the name and style of AussieBrokers. The details of Australian Brokers Pty Ltd are:

AssignmentTutorOnline

5. AussieBrokers is the Australian agent of ‘Helix Enterprises’ which is actually a foreign business run
by a sole trader, Tammy Hung, a citizen of and based in Maruana, an island nation between
1 | Facts for Assessments 2A & 2B
Indonesia and Australia. Helix Enterprises is registered in Maruana as a business. The details of
Helix Enterprises are:

6. Clark liaises with Lois Vane, a Sales Executive of AussieBrokers. Having inspected the Spider and
finding it in immaculate condition, Clark is keen to own it. He starts negotiating with Lois on the terms
of purchase.
7. Lois informs Clark that AussieBrokers is the agent for Helix Enterprises and the Spider belongs to
Tammy Hung, the proprietor of Helix Enterprises. She adds that Tammy used to shuttle between
Gotham and Maruana but has since returned to Maruana for good and is seeking to sell off her assets in
Australia, although Helix Enterprises still exports its products to Australia.
8. After some bargaining, Clark and Lois agree on the terms of the purchase. The key terms of the sale and
purchase contract are:
 An “all-in” purchase price of $112,000 (Australian dollars) including door-to-door shipment.
 The Spider to be delivered from its current location in Gotham to Clark’s Echuca residence.
 Delivery date: On or before 2 April 2021.
 A deposit of $10,000 to be paid to AussieBrokers 2 weeks prior to shipment.
 Balance of the purchase price of $102,000 to be paid into Finance and Escrow Services Pty Ltd
(FINES), ACN: 99001234 to be held in escrow and released on confirmation by Clark to FINES of
receipt of the Spider.
 AussieBrokers to provide a good discharge to Clark for all monies received towards the purchase of
the Spider on behalf of the vendor.
9. Clark signs the contract on 31 January 2021 at the office of AussieBrokers in Gotham, Western
Australia. Lois informs Clark that she will give him a copy of the contract after the vendor has signed it.
10. Lois is a vivacious person and Clark finds himself captivated by her. He decides to try his luck and
plucks up the courage to ask her for a date, not really expecting her to agree. To his utter surprise and
delight, Lois accepts but on her terms. Lois tells Clark that she plans to join her sister Lana Vane who is
in Victoria on business for a few days in February. She is happy to go out with Clark on Valentine’s Day
in Melbourne. Clark immediately agrees, quite forgetting that he has promised his own girlfriend Eleni a
romantic dinner at Cape Horn Riverside Bar in Echuca on the same date.
11. Lois couriers the contract to Helix Enterprises in Maruana. On 7 February 2021, Tammy Hung signs the
contract in Maruana. The contract is notarised by a Maruan Notary Public. The contract is then
couriered back to Lois.
12. To get out of his dinner date with his girlfriend, Clark tells a fib to Eleni that he has pressing business in
Melbourne city from 13 to 15 February 2020. Thus, on 14 February 2021, Lois and Clark meet in
Melbourne for their Valentine’s Day date.
13. Lois hands to Clark the signed and notarised contract in exchange for Clark’s cheque for the $10,000
deposit payable to AussieBrokers. Having got business out of the way, Clark and Lois have a romantic
dinner at Le Riviera restaurant at the Docklands and retire to the Luxaflux Hotel for a night of passion.
14. The following morning (15 February 2021), both Clark and Lois attend at the Melbourne branch of
FINES at 1A Bourke Street, Melbourne VIC 3000 where Clark opens an escrow account with FINES.
Clark pays into the escrow account the balance of the purchase price of $102,000 (the escrow money) to
be held by FINES in escrow. He also pays FINES its standard fee of $1,000 for the escrow service.
2 | Facts for Assessments 2A & 2B
15. Clark gives FINES explicit written instructions in the escrow account documentation that the escrow
money is only to be released on presentation of the appropriate escrow money release documents and his
written confirmation (fax or email) that he has taken delivery of the Spider. He gives to Lois the escrow
money release documentation be produced to FINES for the release of the escrow money.
16. Lois informs Clark that freight company, Strike Fast Delivery Pty Ltd (StrikeFast) will contact him a few
days before the delivery date to confirm delivery of the Spider. Lois and Clark then part company with
passionate kisses and hugs.
17. StrikeFast is based in Western Australia. Its business address is 500 East West Industrial Drive, Gotham,
WA 6160 and its ACN is 432156789. Unfortunately for Clark, nobody from StrikeFast contacts him in
the days leading up to the date of delivery nor is the Spider delivered to Clark by 2 April 2021. In fact,
the Spider does not arrive at Clark’s residence in Echuca at all.
18. Clark tries in vain to contact Lois and AussieBrokers on 3, 4, 5 and 6 April 2021. He contacts StrikeFast
on 7 April 2021 and obtains confirmation that a job request from AussieBrokers to deliver the Spider to
him is ‘pending’ acceptance. However, due to the majority of its truck drivers falling ill because of
COVID, StrikeFast is facing a dire shortage of drivers and can only carry out short-haul delivery jobs.
The Operations Manager of StrikeFast confirms that someone from AussieBrokers had dropped off the
Spider at its holding yard for delivery but is unable to provide Clark with an indication of when, if at all,
it will be able to confirm and fulfil the job request.
19. Clark offers to organise for another freight company to collect the Spider from StrikeFast and deliver it
to himself but the StrikeFast Operations Manager tells Clark that without written authorisation from
AussieBrokers, she is unable to release the Spider to anyone other than back to AussieBrokers.
20. Clark is increasingly frustrated and agitated. He also gets bad vibes and decides to check on the escrow
money. He is devastated to learn that the escrow money has somehow been released on 5 April 2021
even though he has not confirmed with FINES that he has taken delivery of the Spider. The apologetic
FINES duty manager confirms that the escrow release documentation was presented but is unable to
provide any further details.
21. By this time Clark has been completely put off the whole deal. He is no longer interested in the Spider
and now just wants to recover his money including the service fee he paid to FINES, and some
compensation for all the hassle. Clark makes an official complaint to FINES and participates in its
grievance resolution process.
22. Unfortunately, no settlement eventuates, primarily because Clark wants FINES to pay him compensation
equivalent to the full purchase price of the Spider, the escrow service fee and more. He makes clear to
FINES that he is determined to pursue his claim against them, while at the same time remaining open to
further attempts to achieve a resolution without litigation.
23. Clark asks Eleni to do some research on Maruana. It transpires that Maruana was once a British colony
and inherited much of the British legal system. Hence, the laws of Maruana on the legal status of
businesses and agency are similar to the laws of Australia. However, there is no corporations law and
hence no proprietary limited companies in Maruana. Further, Maruana is not a signatory to the
Convention for the International Sale of Goods (CISG).
___________________________________________________________________________________
ASSESSMENT 2A: Case Study (20 marks)
Discuss the preliminary issues for Clark to consider if he wishes to recover his loss from both the vendor
of the 1963 Alfa Romeo Giulia Spider Roadster (‘the Spider’) and Finance and Escrow Services Pty Ltd
(‘FINES’).
Further, for reasons of expediency, convenience and costs, suppose Clark wishes to pursue a claim only
against FINES at this time. Discuss, with reasons, the most appropriate avenue or forum for this
purpose.
3 | Facts for Assessments 2A & 2B
The avenue or forum must have the jurisdiction and power to make a decision which is capable of
enforcement, whether directly or otherwise.
 Word count: 1200 words +/- 10%
 Due date: 11 pm Saturday 29 January 2022
ASSESSMENT 2B: Drafting Assignment (20 marks)
Regardless of your answers for Assessment 2A: Case Study, suppose Clark decides to commence court
proceedings against Finance and Escrow Services Pty Ltd (‘FINES’) only at this time, in the interests of
expediency and minimising costs, and after considering the probable difficulties in enforcing any
decision against other possible parties.
Having regard to rule 4.01(2) of the Magistrates’ Court General Civil Procedure Rules 2020, and
assuming that FINES has not given consent under s.100(1)(c) of the Magistrates’ Court Act 1989, draft
an appropriate originating process and pleading for pursuing Clark’s claim against FINES using the
address of the Melbourne branch as FINES’ registered address for purposes of this assessment.
Further, for purposes of this assessment, Clark’s claim is to be based on cause(s) of action arising from
the common law only excluding fraud or misrepresentation; this means that any possible statutory cause
of action, for example, under the Australian Consumer Law, is also to be excluded.
The “overarching obligations” and “proper basis” certificates are NOT required to be drafted.
 The rules of pleading must be observed.
 Word count: 1200 words +/- 10%
 Due date: 11 pm Saturday 5 February 2022
4 | Facts for Assessments 2A & 2B