David wants to open a restaurant in Melbourne. He engages Robert Boyd Pty Ltd, an architectural firm, to design the restaurant interior and exterior including the layout and position of the tables and chairs. Under the contract, Robert Boyd Pty Ltd will receive $25,000 for the services and Robert Boyd Pty Ltd will be responsible for all aspects of the interior and exterior design, including the seating capacity and obtaining permits from the local Council. David explains to Robert Boyd Pty Ltd's manager, Andrew, that, in order to be profitable, the restaurant must seat at least 100 customers.
Andrew measures the floor-space of the restaurant for the purposes of determining the seating plan. Andrew also measures the size of the footpath space outside the restaurant, as David wants some outside street-side tables in order to serve more customers and to present a good image to people who pass by.
Andrew selects a set of beautiful Italian-design table and chairs for use in the restaurant and shows David the design in a photograph. David is very impressed with the set and asks Andrew how many customers the restaurant will seat if these tables and chairs are used. Andrew assures David that, including both inside and outside space, the restaurant will seat a total of 120 customers with the Italian-design tables and chairs. David, relying on Andrew's figure, agrees to the purchase of the Italian tables and chairs and to the rest of the design of the restaurant. The tables and chairs will cost David a total of $50,000.
When the restaurant is completed and ready for opening, David finds that the restaurant only seats 80 customers and so will lose substantial profits. When he informs Andrew of this, Andrew realises that the tables he ordered are slightly larger than standard-size restaurant tables, a fact he failed to check before ordering them. In addition, an inspector from the local Council informs David that the tables on the outside footpath must be removed as the Council prohibits street-side dining, a fact Andrew could have discovered by ringing the Council but he failed to do so.
Required:
What rights, if any, does David have against Robert Boyd Pty Ltd under the tort of negligent mis statement in relation to Andrew's assurance relating to the seating capacity of the restaurant?