Question 1
Susan is an 83 year old widow who lives alone, although her children and grandchildren are regularly in contact and visit her often. Susan's neighbour, Alice, looks in on her every day and takes her shopping. In fact, Susan has become increasingly dependent on Alice and unbeknown to her family, has given Alice several items of valuable jewellery over the last six months. Recently her doctor diagnosed Alice with a mild case of dementia, as evidenced by her forgetfulness and tendency to do bizarre things, such as insisting on buying pet food even though her dog died five years ago.
Susan shows Alice an attractive ring that her husband had given her many years ago when they were engaged to be married. Susan tells Alice that she is thinking of giving it away to one of her granddaughters, since it is now too big for her finger and it sadly reminds her of her late husband. Alice comments that the ring is a ‘bit old fashioned' and probably not very appealing to a young woman. Alice suggests to Susan that she should sell it and give her granddaughter the money instead. When Susan comments that she has no idea of its true value Alice offers to get it valued for her.
‘Well – if it’s not too much trouble I would appreciate that dear’, says Susan.
‘It’s not a problem at all’, replies Alice.
The local jeweller values the ring at $15,000, describing it as a ‘rare vintage diamond and ruby ring’ and ‘that such rings are highly sought after by collectors’.
Upon her return Alice noticed that Susan was more distracted than normal. She told her that the ring was valued at ‘around $500’, to which Susan failed to show any reaction. Since Susan appeared to be lost in her thoughts, Alice quickly spoke up and said:
‘Let me take it off your hands – I’ll buy it. I’ll give you $450 for it!’
Susan agreed without hesitation, since she had her heart set on selling the ring and surprising her granddaughter with the money.
The next day Alice gave Susan $450 and took possession of the ring. She promptly advertised it for sale on Gumtree.
Susan’s granddaughter, Bella, happened to notice the advertisement Alice had placed on Gumtree and remarked to her mother how similar the ring was to her grandmother’s. Bella’s mother agreed and they both commented on what a coincidence it was that Alice should have a ring that is identical to Susan’s.
When Bella next visited her grandmother she asked if she could see the ring. At first Susan couldn’t remember where it was; then, after searching for it amongst her possessions, she remembered she had sold it. When Bella asked who she sold it to Page | 3 and for how much, the truth was revealed and she was very angry that Alice would take advantage of her grandmother’s kindness.
Bella is demanding that Alice return the ring; however, Alice refuses claiming that it was entirely Susan’s decision to sell the ring to her for such a ‘reasonable price’.
Assuming that Alice still has the ring, with reference to the contractual elements of capacity and consent, advise Susan’s family whether there are any legal grounds upon which Susan can get the ring back from Alice and claim compensation.
Question 2
Greenthumbs is a landscaping business owned and operated by Tom and James. The property from which the business operates was leased to them 5 years ago by Harris Pty Ltd and is managed by Ace Realty.
Throughout the term of the lease Greenthumbs have installed a number of items on the premises, including (a) a shop counter in the reception area for which permission was obtained from Ace Realty and (b) a tool shed tastefully landscaped at the rear yard of the premises, in which Tom and James store their tools and other equipment. Ace Realty have no written documentation supporting permission for the installation of the shed.
At the expiration of the lease Tom and James wish to remove both the shop counter and the tool shed. Ace Realty claim that the items in question are now part of the property and cannot now be removed without the landlord’s permission. They further inform Tom and James that the landlord has denied permission for these items to be removed.
Advise Tom and James whether or not they are entitled to remove (a) the shop counter and (b) the tool shed.
Question 3
On its web site Greenthumbs has advertised a book for sale entitled:
Gossip Garden
Secrets for better gardens revealed by the experts
Greenthumbs special price - $50
Joan, an avid gardener, is always researching the literature for gardening tips, so when she sees Greenthumbs’ advertisement she immediately orders a copy of the book. While browsing through the book Joan realises that there is in fact nothing ‘secret’ about the information provided in the book; not only is the information readily available, it is word for word the same as written in the articles she has collected over the years from the popular magazine, ‘Gorgeous Gardens’. Joan notifies the publisher of Gorgeous Gardens informing them about this.
Gorgeous Gardens confirm that most of the information and photographs used in ‘Gossip Garden’ have been copied from their magazine. They contact their solicitors who write to Greenthumbs informing them that they are breaching their client’s copyright and to immediately stop advertising Gossip Garden for sale.
Explain whether the solicitors for Gorgeous Gardens (GG) are correct in asserting that Greenthumbs is breaching their client’s copyright and, if so, whether GG is entitled to request them to cease selling their book.