Riea is a life style blogger and journalist who wishes to install a swim spa in her backyard.
She has done her research and finds that Spa Town in Hobart are offering a very good deal on the one she wants. She emails the business an9 asks them what is the lowest price they will offer to sell her a fully installed " Hydrozone Extreme Avanté Spa" at her property in New Town , Tasmania.
She received the following reply to her email :-
"We would be prepared to sell you a Hydrozone Extreme Avanté Spa which includes Hydroflow stainless steel jets Hydroglow jet and topside control lighting, Backlit drink holders, Perimeter and cabinet lighting, Purezone UV water purifier plus all installation costs to set it up at your address given in Newtown for $45,250"
Riea rings Spa Town and over the phone and informs the Manager, Trevor Nelson, that she would like to buy the spa at this price and it is agreed that the spa will be installed over a 3 day period starting on the 12th February and it was to be ready to use by the 15th February 2016. Riea tells the Manager that this date is important as she is holding a work function at her place on the 17th February 2016 and is hoping to impress her guests who are also her potential employers as they are all editors of life style magazines who she is hoping will offer her writing deals. Riea makes a note of this conversation in her diary.
The next day Riea goes into the office of Spa Town and signs the following document:
Spa Town Ltd agree to supply and install one Hydrozone Extreme Avanté Spa at 2 New Town Road New Town in Tasmania for the price of $45,250 ....................................... Signature of Riea Peters dated 11th January 2016 .................................. Signature of Trevor Nelson Managing Director of Spa Town Ltd
Fred and Barney are employees of Spa town and are given the job of installing the spa at Riea's house. On the 12th February 2016 whilst loading the spa onto the work truck the box containing the Backlit drink holders is dropped by Fred and the drink holders were broken so they were left behind.
On the way to driving to Riea's house Barney was breathalysed by the Police and recorded a blood alcohol concentration reading of 0.07. The Police tell him a ticket will be issued & Fred drives the rest of the way.
The spa is safely delivered to Riesa's house but cannot be installed as it has been found that the area that Riea wanted it to be located in is in fact right on top of a main sewage pipe and so the spa cannot be installed in this location.
Fred and Barney reload the spa and take it back to Spa Town and unload it back into the show room. Fred knows he should unload it into the store room but that is a further 14km away and he is tired so decides to leave it in the show room instead thinking that it will be easier to collect from there in the morning .
Riea is called by Trevor at 5pm on that day and it is agreed to place the spa in a different location.
At 9am the next day the spa is sold by Peter to Bob. Peter is Spa Town's top sales man and is in fact an agent of Spa Town who earns his money on Commission being paid only if he sells products. The spa is sold to Bob a builder who desperately is seeking this type of spa to complete a building job he is doing for a client. He pays for the spa and immediately removes it using his own truck at 9am that day.
Trevor did not know that Peter had sold the spa as Peter did not consult or inform Trevor about the sale as he assumed since the spa was back in the show room it was to be resold however he did notice Fred and Barney dropping it back into the show room the day before and knew they sometimes did this rather then return products to the store room. He was anxious however to secure the deal as his sales of late had not been that good.
Trevor advises Fred and Barney to collect the spa from the show room at 10am on the next day and to take it back to Riea's house as it is to be installed at a different part of the garden. They arrive at the show room and learn it has been already sold. Trevor can not source another one of these spa until the 21 February and the spa is successfully installed in the new location on this day by Fred and Barney.
Riea is very happy with the spa but had to hold the dinner party for her clients on the 17th January 2016 without the spa being present and feels this is the reason she failed to obtain any writing jobs from these 6 people, as she was not able to impress them with her rich and luxurious lifestyle. She feels she has therefore missed out on income of around $5000 so has offered to pay Spa town only $39800 being the lost income plus the cost of obtaining the new back lift holders that she believed were part of the deal & were not installed. ($45250- $5000-$450). She believes that there was a definite term in the agreement that the spa be installed on or before the 15th February 2016 & that it would come with backlit drink holders.
Trevor is not happy with this and feels that Riea is wrongly withholding his money. He feels that as the signed paperwork made no mention of the delivery date that there was no promise by his company to deliver before a certain date. He also feels that Riea has no right to seek the potential loss of the $5000 as this is not a reasonable loss.
He also feels that Fred or Barney should be responsible for the loss of the $450 as it was dropped by one of them and he knows that Barney was caught drink driving on the way to Riea's house. Trevor also feels he can argue that the drink holders were not included in the deal as Riea did not sign any paper work indicating that the deal included thee back lit drink holders.
Question:
Riea needs your legal advice on following matters
1. Can Riea legally withhold the $ 5,000?
2. Can Riea legally withhold the $ 450 being the value of the backlit drink holders?
3. What were the terms of the contract? The ones in the email and or the oral conversation or only the ones on the signed paper?