*Question 1 (12 minutes) Ashraf Ghani completed a diploma in Cooking and Baking at William Anguish College. Immediately after graduating he set up his own bakery in Dandenong that he called “Kabul Breads”. A few months later, as things were going well, Ashraf decided to expand his business. Around that time, he met an old Afghani friend, Shah Masood, who was an accountant and a financial adviser. They discussed Ashraf’s expansion plans, and Shah quickly offered to review his financial situation and to prepare a business plan. As Ashraf was financially ignorant and needed expert guidance, he accepted Shah’s offer and gave his financial records. Shah prepared a financial report and advised Ashraf that he was in a sound financial position, and that he could expand his business. He recommended that Ashraf borrow money in order to set up a new bakery on fashionable Lygon Street, in Carlton (a suburb of Melbourne). Ashraf trusted his friend and decided to act on the advice. He borrowed $500,000 from “For You Only”, a small credit union located in Springvale that provides loan and overdraft facilities. “For You Only” used the financial report prepared by Shah to offer a loan to Ashraf. Ashraf signed a five-year lease. Soon after opening his new shop, Ashraf realised that people who visit the Lygon Street area generally only buy traditional Italian food and bread – there was no market for Afghani bread. Ashraf came under financial stress, and blamed Shah for his situation. Shah admitted that he had not adequately factored in Ashraf’s pre-existing debts, and had underestimated the significant costs associated with setting up the new business. Shah advised Ashraf to terminate the lease and inform “For You Only” that he would be unable to repay the loan. “For You Only” is faced with significant losses. (a) Advise Ashraf about his prospects of success in an action against Shah in the tort of negligence. Refer to relevant cases and statutes. (14 marks) (Approximately 28 minutes of writing time) In Hedley Byrne & Co Ltd v Heller & Partners Ltd: The plaintiff might have succeeded in negligence, had there not been a disclaimer.
Question
*Question 1 (12 minutes) Ashraf Ghani completed a diploma in Cooking and Baking at William Anguish College. Immediately after graduating he set up his own bakery in Dandenong that he called “Kabul Breads”. A few months later, as things were going well, Ashraf decided to expand his business. Around that time, he met an old Afghani friend, Shah Masood, who was an accountant and a financial adviser. They discussed Ashraf’s expansion plans, and Shah quickly offered to review his financial situation and to prepare a business plan. As Ashraf was financially ignorant and needed expert guidance, he accepted Shah’s offer and gave his financial records. Shah prepared a financial report and advised Ashraf that he was in a sound financial position, and that he could expand his business. He recommended that Ashraf borrow money in order to set up a new bakery on fashionable Lygon Street, in Carlton (a suburb of Melbourne). Ashraf trusted his friend and decided to act on the advice. He borrowed $500,000 from “For You Only”, a small credit union located in Springvale that provides loan and overdraft facilities. “For You Only” used the financial report prepared by Shah to offer a loan to Ashraf. Ashraf signed a five-year lease. Soon after opening his new shop, Ashraf realised that people who visit the Lygon Street area generally only buy traditional Italian food and bread – there was no market for Afghani bread. Ashraf came under financial stress, and blamed Shah for his situation. Shah admitted that he had not adequately factored in Ashraf’s pre-existing debts, and had underestimated the significant costs associated with setting up the new business. Shah advised Ashraf to terminate the lease and inform “For You Only” that he would be unable to repay the loan. “For You Only” is faced with significant losses. (a) Advise Ashraf about his prospects of success in an action against Shah in the tort of negligence. Refer to relevant cases and statutes. (14 marks) (Approximately 28 minutes of writing time) In Hedley Byrne & Co Ltd v Heller & Partners Ltd: The plaintiff might have succeeded in negligence, had there not been a disclaimer.
Solution
To advise Ashraf about his prospects of success in an action against Shah in the tort of negligence, we need to consider the three elements of negligence: duty of care, breach of duty, and causation.
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Duty of Care: In this case, Shah, as a financial adviser, owes a duty of care to Ashraf. This is established in the case of Hedley Byrne & Co Ltd v Heller & Partners Ltd, where it was held that a duty of care arises when one party relies on the professional skill and judgement of another.
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Breach of Duty: Shah may have breached his duty of care by not adequately considering Ashraf's pre-existing debts and the costs of setting up a new business. This could be seen as falling below the standard of care expected of a reasonably competent financial adviser.
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Causation: Ashraf would need to prove that Shah's negligence directly caused his financial loss. This may be difficult, as the lack of market for Afghani bread on Lygon Street could be seen as a business risk that Ashraf should have considered.
In terms of relevant statutes, the Australian Consumer Law may be applicable. Under section 18, a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. If Shah's advice was misleading, Ashraf may have a claim under this law.
However, it's important to note that Ashraf also has a responsibility to make informed decisions about his business. The fact that he relied solely on Shah's advice without doing his own research could be seen as contributory negligence, which could reduce any damages awarded.
In conclusion, while Ashraf may have a case against Shah for negligence, his success is not guaranteed and will depend on the specific facts and evidence. He should seek legal advice to explore his options.
Similar Questions
Ashraf Ghani completed a diploma in Cooking and Baking at William Anguish College. Immediately after graduating he set up his own bakery in Dandenong that he called “Kabul Breads”. A few months later, as things were going well, Ashraf decided to expand his business. Around that time, he met an old Afghani friend, Shah Masood, who was an accountant and a financial adviser. They discussed Ashraf’s expansion plans, and Shah quickly offered to review his financial situation and to prepare a business plan. As Ashraf was financially ignorant and needed expert guidance, he accepted Shah’s offer and gave his financial records. Shah prepared a financial report and advised Ashraf that he was in a sound financial position, and that he could expand his business. He recommended that Ashraf borrow money in order to set up a new bakery on fashionable Lygon Street, in Carlton (a suburb of Melbourne). Ashraf trusted his friend and decided to act on the advice. He borrowed $500,000 from “For You Only”, a small credit union located in Springvale that provides loan and overdraft facilities. “For You Only” used the financial report prepared by Shah to offer a loan to Ashraf. Ashraf signed a five-year lease. Soon after opening his new shop, Ashraf realised that people who visit the Lygon Street area generally only buy traditional Italian food and bread – there was no market for Afghani bread. Ashraf came under financial stress, and blamed Shah for his situation. Shah admitted that he had not adequately factored in Ashraf’s pre-existing debts, and had underestimated the significant costs associated with setting up the new business. Shah advised Ashraf to terminate the lease and inform “For You Only” that he would be unable to repay the loan. “For You Only” is faced with significant losses. (b) Does Shah owe “For You Only” a duty of care? Refer to relevant cases.
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