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PART A
Question One
i. Identification of the legal issue
The legal issue is the element of agreement required for the formation of a legally
enforceable contract.
Explanations of the relevant principles of law (with reference to cases/legislation)
The courts presume that when a condition is fulfilled, a legally binding agreement is
created. Whether or not it hinges on an event happening does not matter.
In the case of Masters v Cameron [1954] 91 CLR 353, Cameron agreed to sell her farm
off to Masters for an amount of 17,500. Both parties signed an agreement, in which a
stipulation stated that a formal contract would be drawn up later. With respects to the
issue of whether or not there was a contract created upon agreement between the two
parties, the court held that there had not been.
When it is an issue of electronic communication, the courts refer to legislation.
According to the Electronic Transitions Act 2000 Section 13 A sub-section 1 a, the time
of receipt of the electronic communication is the time when the electronic
communication becomes capable of being retrieved by the addressee at an electronic
address designated by the addressee. Section 2 then goes on to state that it is to be
assumed that the electronic communication is capable of being retrieved by the
addressee when it reaches the addressees electronic address. Taking these two facts
into mind, the courts will presume that any fault on behalf of the receiver which leads
him or her to not check their electronic communication in time does not affect any
contract being communicated electronically at the time.
The courts will presume that any communication via post in order to accept an offer
translates into acceptance as soon as the post of acceptance leaves the offeree.
In the case of Henthorn v Fraser [1892] 2 Ch 27, Fraser offered to sell houses to
Henthorn for a sum of 750. Henthorn had 14 days to accept the offer, and posted a
letter to Fraser accepting it. Prior to Fraser receiving the letter, he decided to entertain a
higher purchase offer by another buyer. In the issue of whether Henthorn had accepted
the offer before Frasers attempt to withdraw it and entertain the other buyer, the courts
decided that acceptance of the offer occurred as soon as the acceptance letter from
Henthorn was sent via the post.


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ii. Application of the law to the facts
As a contract is only formed when there is a clear agreement of the express terms and
condition, an objective assessment of the acceptance and the specific terms must be
made.
The question is whether, given the circumstances, a reasonable person would regard
the contract between Constructs Pty Ltd (hereafter referred to as Constructs) and the
Minister of Education (hereafter referred to as the Minister) as legally binding.
In the Ministers email to Nicholas from Constructs, there was no future contract
formation stipulation or anything of the sort. In fact, the email itself was an offer that
could be accepted by Constructs straight away, which is what occurred.
The fact that the Minister was incapable of receiving the facsimile due to a lack of paper
does hold in her favour, if legislation is to be followed. However, the assumption that the
Minister was capable of receiving electronic communication when she was the party
who suggested it in the first place is a point against her case; Constructs could not have
known that the Minister would encounter such an obstacle.
Finally, Nicholas from Constructs ensured that he sent an acceptance letter by post as
well. The fact that the Minister did not receive this letter by post on time does not hold in
her favour. Nicholas had already conveyed his acceptance as soon as he posted the
letter.
iii. Possible Conclusions
In conclusion, it is likely that the courts will find there was indeed a legally enforceable
contract between Constructs Pty Ltd and the Minister of Education. The Minister will not
be able to hold in court that there was a contract as acceptance had occurred despite
her not knowing.
PART B

Question Two
i. Identification of the legal issue
The legal issue is the express contents of the contract, based on the correspondence
that has taken place between Nicholas Rogers of Constructs Pty Ltd (hereafter referred
to as Constructs) and the Minister for Education (hereafter referred to as the Minister)
thus far.

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ii. Explanations of the relevant principles of law (with reference to
cases/legislation)
Before a contract can come into existence, terms must be negotiated, some of which
are those without which a party / the parties would not have agreed to enter into an
agreement, and others which are of lesser importance (Lambiris 2011). In this case,
both the former (conditions) and the latter (warranties) must be discussed.
The court presumes that for there to be an element of agreement between two parties,
the essential terms (conditions) of the contract must be agreed upon (Lambiris 2011).
In the case of Associated Newspapers Ltd v Bancks [1951] 83 CLR 322, cartoonist
Bancks agreed to have his drawings published on the front page of the newspapers
comic section in exchange for a salary. Bancks drawings, however, appeared on the
third page instead, due to production problems. When addressing the issue of whether
or not publishing on the front page was an essential term i.e. a condition, the court
found that it was indeed, and hence Bancks was justified in terminating his
performance.
Moreover, the court presumes that the breach of a warranty (a non-essential term) does
not entitle termination of performance by the breaching party.
In Bettini v Gye [1876] 1 QBD 183, singer Bettini was contracted to promoter Gye for
various events running between 15 weeks. One of the terms of the contract was that
Bettini arrive six days before the first performance to rehearse, a term she failed to live
up to due to being ill and missing four days. When addressing the issue of whether the
term requiring attendance for rehearsals was a warranty or a condition, the court found
that it was a warranty, a breach of which would not cause the contract to be terminated.
The court further presumes that, if a party makes a statement to the other party to
encourage entering into an agreement, then the circumstances in which the statement
is made must be considered prior to establishing whether or not the statement is an
actual condition or merely a representation (which, if proved untrue, does not affect the
contract) (Lambiris 2011).
In Oscar Chess Ltd v Williams [1957] 1 ALL ER 325, Williams mother owned a second
hand car which Williams took to a used car dealer to trade in. Although documents
given to Williams by his mother outlined the car to be a 1948 model, it turned out to be a
1939 model instead. Regarding the issue of whether or not the statement in the cars
documents was a term of the contract, the court found that the age of the car was in fact
mere representation rather than a contractually binding promise.|

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iii. Application of the law to the facts
As an agreement is only valid if there is acceptance of the conditions of the contract by
the two parties involved, an objective assessment of the terms offered and what was
accepted must take place.
The question is what kind of terms in the assumed agreement between Constructs and
the Minister can be identified by a reasonable person to be conditions.
In her email to Nicholas Rogers, the Minister Hon. Joanne Lim MLA expressly states the
cash amount she is ready to offer in exchange for the construction work for a new high
school in Perth amounts to $20 million. It is further stated that work must commence
this month and end no later than, 2 January 2014. The amount offered can be
considered to be a condition as it is an expressly stated consideration in exchange for
the construction work by Nicholas company. Moreover, the term involving the dates
between which work must occur are also deemed conditions, as they come with
explanations as to why this term is essential to the offerer; [the] department of
Education teaching staff will commence work on 3 January 2014.
The statement given by the Minister of Education also contains a request regarding the
use of local materials to produce as being in the interest of the state. This can be
considered to be a warranty as it is made clear this is an optional undertaking for
Constructs. There is no requirement for this term to be fulfilled, and failure to do so will
not terminate the contract between Constructs and the Minister.
The term of accepting the offer via a reply on facsimile or in the post is what the Minister
concludes her email by discussing. These terms can be considered to be conditions
because it is here that the offerer is granting the offeree the chance to accept. Upon
Nicholas acceptance, a legally enforceable contract comes into practice.
iv. Possible Conclusions
There is indeed an enforceable legally binding contract between Nicholas Rogers and
Hon. Joanne Lim MLA, with conditions already offered and accepted and an executed
condition paving the way for a contract.
.




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Reference List
Associated Newspapers Ltd v Bancks [1951] 83 CLR 322
Bettini v Gye [1876] 1 QBD 183
Electronic Transactions Act 2000 (Cth)
Henthorn v Fraser [1892] 2 Ch 27
Lambiris, Michael. 2011. First Principles of Business Law: Interactive
Tutorials and Source Book. Sydney: CCH Australia
Masters v Cameron [1954] 91 CLR 353
Oscar Chess Ltd v Williams [1957] 1 ALL ER 325