Subject Code & Title: LAWS3041 Research And Critical Thinking Assessment 2 – Australia.
Remember: o Your assessment is due by 9.00 pm on Sunday 26 September.
o You do not need to submit a paper copy of your responses – submitting them to Turnitin is all that is required.
1. Please read all the instructions below carefully.
In drafting your responses, you do not need to follow the Australian Guide to Legal Citation/AGLC exactly. Instead:
o if the case is from the reading list from Contracts I or Contracts II, it will be sufficient to use a simplified form, so long as it shows the relevant information, such as:
o if the case is not on the reading list from Contracts I or Contracts II, you will need to provide a full citation the first time you cite to it, so that the marker can locate it; after that, a abbreviated/simplified form will be fine.
LAWS3041 Research And Critical Thinking Assessment 2 – Australia.

LAWS3041 Research And Critical Thinking Assessment 2 - Australia.

What the context is and what you’re being asked to do:
You are already familiar with the facts at issue here and you have begun to work through possible paths to find relief/remedy for the client. Well done! (For convenience, I’ve repeated the facts at the end of this document.)

Your work on the mind-map involves essential steps in thinking through the relevant facts at issue and the relevant law. The next step is for you to build your arguments.That is to say: how can you best demonstrate to the reader that the application of the relevant cases to these facts, leads to the outcome that you are suggesting? (Note that in other contexts, Ann may have asked you to imagine that you were a ‘reader’ learning to be a barrister; for purposes of these comments here, I am using the word ‘reader’ more broadly and am referring to anyone who might read what you’ve written,including a judge/arbitrator/opposing counsel/client/lecturer/newspaper reporter/etc.)

This process involves important critical thinking. In class we have often discussed applying a critical-thinking lens to other people’s conclusions. Now it is time to make sure to likewise be focusing that lens on conclusions that you yourself are trying to reach.

In this assessment, you will be addressing three legal topics from this semester:
Estoppel, Interpretation and Contingent Conditions. For each, there is a conclusion that you’re hoping to reach on behalf of your client (which here happens to be our friend Phoebe). For example, as you’ll see in regard to Estoppel, you will be wanting to suggest to the reader the conclusion that the ‘estoppel created by these promises means that Susie cannot now deny the promises and must therefore shut down the new sports wear shop that opened in Valentine Plaza.’

But stating the conclusion is of course not enough. Rather, you must demonstrate for your reader why your conclusion is the correct one. Doing so involves two tasks. First, you must present a convincing, compelling, understandable chain of reasoning.

Second, you must provide support for each link in the chain; in other words, you must provide evidence as to why each link is as solid and unassailable as possible. (This is where an important part of the critical thinking skill fits in: you must imagine that in each instance, you have a SUPER-SMART AND SUPER-ANNOYING ADVERSARY, who is reading every word that you write super-super-dooper carefully. And for every single point that you write, your super-smart and super-annoying adversary is licking their lips, sharpening their fangs, and asking: ‘Where are the weaknesses in reasoning?Where are the weaknesses in evidence? I’m going to find them … and I’m going to attack and destroy!! Once I show weaknesses in the reasoning and evidence, the whole house-of-cards of the argument will come crashing down and, most significantly, their conclusion will fail – I’ll win, bah-ha-haaaa!!’)

So we need to build solid chains of reasoning and think critically in order to support each link of reasoning with evidence. This is what we’re focusing on in this assessment.

As always, we’ll be thinking in IRAC-terms. Based on the facts in the prompt, and for each of the three legal topics, I have suggested a conclusion. I’ve actually introduced your argument and provided a conclusion. So right from the start you’re able to tick the box for the I [I’ve blended the issue into an introduction, but close enough] and for the C – yay! Your job will be to fill in the middle, that is, to connect the introduction to the conclusion. How will you do this? Via the R and the A, of course!

The fine print:
In order to connect the introduction to the conclusion, you will be asked to fill in 5-7 links in the chain of reasoning [to be clear, this means no fewer than 5 and no more than 7]. And you’ll be asked to provide 2-3 pieces of evidence to support each link [to be clear, this means no fewer than 2 and no more than 3]. ‘Evidence’ here means facts from the problem and/or case precedent, depending on what fits best. You will then add a short explanation.

I want to keep this simple, so I am NOT asking you to draft out full responses. (I don’t want us to get distracted by all the other elements of eg submission-writing, including structure,referencing, etc.) So for our purposes, concise, direct dot-point-type statements are all you need.

I’ve created a bit of a sample grid below. Please follow it. (You don’t need to use the exact words ‘First,….’ and ‘Then…’, etc., but you can if you want to; in any event, do follow the format of having your chain of reasoning down a left-hand column, and your matching evidence-with-explanation down a right-hand column. This format is a requirement!) As you’ll see, in the left-hand boxes, you’ll enter the statements that make up your chain of reasoning. (Note: it should be possible for the reader to read only your left-hand boxes, from top to bottom, to get a full understanding of your reasoning. [Indeed, the marker will be doing this – so be sure to test it out!]) The right-hand boxes are only for the evidence and explanations.

The Estoppel topic is worth 10 marks; Interpretation and Contingent Conditions are worth 15 marks each. In each instance, 40% is for reasoning and 60% for evidence. (We are, after all, focusing on critical thinking in this module, which is why it’s weighted toward evidence.)

For each of the three topics, you must include (and by ‘include’ I mean use and rely on) at least two cases that are not on the reading lists for Contracts I or Contracts II or provided by Ann for Assessment 1, and which have been issued after 2008 (that is, between 2009 and 2021). So to be clear,you’ll need to rely on at least two cases for Estoppel, at least two cases for Interpretation and at least two cases for Contingent Conditions. But yes,absolutely, you may (and should!) also rely on cases that are on the reading lists for Contracts I and Contracts II; you may also use cases that were part of Assessment 1 with Ann.

Where the chart asks for ‘evidence’, this means that you must provide: a specific fact from this problem question or a case citation, including, wherever possible, a quote from a judgement to show why you’re relying on that citation.

Last but not least, for each piece of evidence, you must provide one sentence to explain why that piece of evidence supports that reasoning-link that is in the left-hand column. Yes, for sure, sometimes pieces of evidence will support more than one link and so can be used multiple times (but each time, you’ll still need to include an explanation as to why that piece of evidence is being used to support that reasoning-link.)

Some things to think about:
To be clear, marks for reasoning will be awarded for how compelling, thoughtful and convincing the reasoning is. In other words, simply including more is NOT better.

LAWS3041 Research And Critical Thinking Assessment 2 – Australia.

LAWS3041 Research And Critical Thinking Assessment 2 - Australia.

Marks for evidence will be based on how strongly each piece of evidence supports the stated reasoning-link. Here again, what is important is that the support is solid and compelling. If you simply dump heaps of cases and facts into your evidence boxes, these will likely NOT be solid and compelling; in other words, too much actually weakens your argument and you will lose marks. So be careful!!

Keep in mind that in many law school assessments you are asked to work out the conclusion. Here, by contrast, I’ve given you the conclusion already! (Note that the facts of this case could have gone either way on these issues; I have simply – and some what arbitrarily – picked which side I want you to argue, which happens to be Phoebe’s side. It may in fact not be the stronger side – but it’s what you’re stuck with!)The point is that you must match your reasoning to that conclusion. BUT! You should still include any weaknesses/counter-arguments as part of your reasoning, as well as any rebuttals. (Again, you want your reasoning to stand up as strongly as possible to any attacks by your adversary, and that often means disarming – in advance – any counter-arguments that your adversary might put up.)

LAWS3041 Research And Critical Thinking Assessment 2 – Australia.

In order to help clarify the instructions and guide you in your responses, I will also post along with this assessment:

1.Appendix 1: a list of questions that students asked last year about this assessment, along with my answers – these are all equally valid this year;
2.Appendix 2: a list of the most common comments that I gave to students last year in order to give them feedback about where to improve. (To be clear, not every comment applied to every paper – this is just a compilation of the most common bits of feedback.)
3. Appendix 3: samples of some excellent responses from last year. WARNING: these samples are NOT templates; indeed, there are many possible ways to respond to the assessment questions and you should find your own path. These samples are simply to give some idea of what I’ve found compelling in the past.

Part 1: Estoppel (10 marks: 4 for reasoning and 6 for evidence/support)

Introduction to your argument:
In addition to their contract, Susie sent an email to Phoebe with the following text: ‘It is the policy of Nexus that there will only ever be
one shop of any particular kind/use in any of its Shopping Plazas. It is in our own interest that the business of our tenants is fully protected at all times. Tenants need not have any fears on this score.’ These statements comprise promises that create an estoppel.

Part 1: Estoppel
Introduction to your argument:
In addition to their contract, Susie sent an email to Phoe be with the following text: ‘It is the policy of Nexus that there will only ever be one shop of any particular kind/use in any of its Shopping Plazas. It is in our own interest that the business of our tenants is fully protected at all times. Tenants need not have any fears on this score.’ These statements comprise promises that create an estoppel.

Conclusion: The estoppel created by these promises means that Susie cannot now deny the promises and must therefore shut down the new sportswear shop that opened in Valentine Plaza.

Part 2: Interpretation
Introduction to your argument: The ‘informal agreement’ states that the ‘contract will terminate’ if ‘Harold Grimes chooses for any reason to stop working’. The most reasonable interpretation of the phrase ‘chooses for any reason to stop working’ is that Harold was required to make a proactive, definitive choice that he communicated to Phoebe.

Conclusion: Because Harald is in a coma, he could not – and did not – ‘choose[] for any reason to stop working’. Therefore, the ‘informal agreement’ has not terminated and Phoebe may continue to pay $10,000 per year as previously.

LAWS3041 Research And Critical Thinking Assessment 2 – Australia.

Part 3: Contingent Conditions (15 marks: 6 for reasoning, 9 for evidence/support)

Introduction to your argument: As an alternative argument to the Interpretation argument [above], it must be made clear that the ‘informal agreement’ contained the following full statement: ‘In the event that Harold Grimes chooses for any reason to stop working then this contract will terminate.’ This statement created a contingent condition in the contract which determined the circumstances under which the contract could be terminated. [Please skip/ignore any third-party issues related to Stuart here.]

Conclusion: Therefore, because Harold elected to affirm the contract, his right to terminate the contract was lost: Harold cannot now terminate the ‘informal agreement’ (nor can Stuart on his behalf) and Phoebe may continue to pay $10,000 per year as previously.

The background facts for this Assessment are the SAME as for Assessment 1,but for convenience I will repeat them here:
Harold owned a menswear store in a small shopping plaza in Valentine (“Valentine Plaza”). Harold recently married his partner of 30 years, Stuart Grimes. Stuart has Multiple Sclerosis(MS) and Harold was keen to spend more time with him but was worried about their financial security. Phoebe Sharp was the sole director and shareholder of Sharp Dresser Pty Ltd (“Sharp Dresser’) which had operated a menswear store in Charles town for the past 10 years. Phoebe knew Harold because she and Stuart were good friends. They shared a passion for horse riding and had competed together on the equestrian circuit years ago. Sharp Dresser had been profitable, but Phoebe was aware that a development proposal for a residential tower with retail shops on the ground floor had been submitted to Lake Macquarie Council. The proposed development was very close to Phoebe’s shop in Charles town. She thought that a new retail precinct might include a similar shop and was concerned about how competition might impact the business. The shop lease was due for renewal in couple of months. Because of her concerns, she began discussions with Harold about acquiring his business in Valentine.

The owner and landlord of the shopping mall in Valentine was Nexus Ltd (“Nexus”). Susie was the Plaza manager employed by Nexus. Harold told Phoebe that Susie had been easy to deal with and he had never had any issues. Harold had been a tenant in the shopping centre for more than 20 years. Harold’s current lease had recently been renewed. It was for 3 years with an option for two more 3 years terms (9 years in total), so the remaining term was almost 8 years if the option was exercised at the end of this term. The lease was a ‘retail lease’within the meaning of the Harold gave Phoebe a copy of his lease documentation and the disclosure document provided by Nexus at the beginning of his lease term. Phoebe noted that the disclosure document (using the form in Schedule 2 of the Act) had marked the answer to Question 8 (and item 2.2) ‘Does the lease provide the lessee with exclusivity in relation to the permitted use of the premises?’ as ‘Yes’. Phoebe checked the lease but could not find any clause in the lease dealing with exclusivity. She questioned Harold, who said that an exclusivity clause was in his previous lease, but when the lawyers had drawn the current lease, the clause had not been included. Harold said that when he questioned Susie about the omission, Susie had said “Oh, I am not sure what happened there, just an oversight by the lawyers I imagine. But don’t worry Harold, you are our best tenant. We wouldn’t want to lose you. It wouldn’t make sense to have two menswear stores in the plaza.” Harold told Phoebe that Susie was a ‘woman of her word’, so he had not been
concerned.

Phoebe noticed that the current lease agreement did contain the following clause:

  1. This lease contains the entire agreement between the parties, and the parties hereto acknowledge that no obligations have been assumed by them which are not to be found herein.

The following week, Phoebe’s lawyers drafted a contract to purchase the business and forwarded to Harold’s lawyers to consider. The agreed sale price, including shop fittings and stock-at-value, was $120,000. Harold rang Phoebe on Friday afternoon. He said he had been in touch with Susie, and Susie didn’t see any reason why Nexus would not consent to an assignment of the current lease. Harold had mentioned Phoebe’s concern about the lack of an exclusivity clause in the current lease. Susie told Harold that she didn’t think Nexus would want to spend money on a variation of the existing lease, and although they might be prepared to negotiate a new lease, they would probably want to increase the rent. Susie said she was happy to send Phoebe an assurance in writing. Harold told Phoebe that he also had a‘touchy’ issue he wanted to discuss. He was concerned about his and Stuart’s entitlement to a Common wealth Senior’s Health Card. If his income exceeded a threshold in a financial year, they would lose their entitlement to the card. Stuart’s health condition required expensive prescription medicine to treat, so the Health Card made a big difference to their living income. Harold suggested that if he agreed to reduce the purchase price to $80,000, Phoebe could employ him as a sales assistant for 1 day per week for the next four years. She would pay him $10,000 salary per year. This (and his pension) would keep him under the cap for the Health Card. Harold drew up an informal agreement, which included a clause that said:

5.Sharp Dresser will employ Harold Grimes as a part time sales assistant,for an annual salary of $10,000 per year from the commencement date (to be inserted) until the fourth anniversary of the commencement date. In the event that Harold Grimes chooses for any reason to stop working then this contract will terminate. Within 28 days from the termination date Sharp
Dresser will pay Harold and Stuart Grimes a ‘termination payment’ which is the sum of $40,000 less $10,000 for every year that Harold has worked for Sharp Dresser and received payment of his annual salary.” (At the bottom of the agreement were bank account details for an account held jointly by Harold and Stuart).

Phoebe was happy to agree to this arrangement. The informal agreement (2 copies) was signed and dated by Phoebe as sole director of Sharp Dresser and she returned it to Harold. Harold and Stuart both signed the agreement (the words ‘jointly’ appeared in brackets after their names) and returned one copy to Phoebe. A few days later Phoebe received an email from Susie which included the following statement:

Statement on behalf of Nexus Ltd regarding Valentine Plaza It is the policy of Nexus that there will only ever be one shop of any particular kind/use in any of its Shopping Plazas. It is in our own interest that the business of our tenants is fully protected at all times. Tenants need not have any fears on this score.

LAWS3041 Research And Critical Thinking Assessment 2 – Australia.

Phoebe was reassured and instructed her lawyers to proceed with the purchase of the business from Harold and to take steps to complete the assignment of the retail lease from Harold to Sharp Dresser. When they did receive the assignment of lease it was signed by two directors of Nexus. It was accompanied by an updated lessor’s disclosure statement, that answered ‘No’ to Question 8 (and ‘No’ to Item 2.2). Neither Phoebe nor her lawyers took too much notice, as the response was consistent with the terms of the current lease.

Meanwhile Phoebe gave notice to her landlord that she would not be renewing Sharp Dresser’s lease of the shop in Charles town. She moved to Valentine Plaza, and for the next 12 months her business transition went smoothly. Sales were up and she enjoyed her arrangement with Harold which allowed her to take Tuesdays off to play golf, while Harold ran the store. At the beginning of their second year (2020), the pandemic arrived, and the business’s takings plummeted. Harold told her that he was not keen to come into work as Stuart was ‘high risk’ for COVID and he didn’t want to take any chances. Phoebe said that Sharp Dresser couldn’t afford to make a termination payment ($30,000) under the agreement, but she said that she would continue to pay his salary in the hope that things would soon return to normal.

LAWS3041 Research And Critical Thinking Assessment 2 – Australia.

In late November 2020, when Phoebe had just started feeling optimistic about a turnaround for her business and Harold had told her he was planning to return to work very soon, she was shocked to find that a new shop, specialising in sportswear for both men and women,was opening up at the other end of Valentine Plaza. Phoebe was only informed about the opening on the preceding Friday, in a late afternoon phone call from Susie. When she complained and reminded Susie of her email, Susie was sympathetic, but said Nexus believed that the new shop was not within the ambit of the policy statement, as it was not the “same kind” of shop. Phoebe strongly disagreed, as sportswear accounted for most of her turn over.

LAWS3041 Research And Critical Thinking Assessment 2 – Australia.

LAWS3041 Research And Critical Thinking Assessment 2 - Australia.

Since the new shop’s opening, Sharp Dresser’s takings have declined significantly. To make things worse, Phoebe received a phone call from Stuart, who was distraught: Harold had had a stroke a few days ago and had been hospitalised. This morning he had slipped into a coma and the doctors aren’t sure if he will recover. Stuart is worried about how he will cope without Harold, both financially and physically. Stuart told Phoebe that because Harold is no longer able to work, the contract is terminated. He asked Phoebe to make the termination payment of $30,000 as soon as possible. Phoebe doesn’t want to let Stuart down, but the business is strapped for cash, and she has come to you seeking some legal advice about her options.