Question 15 (15 MARKS)
Damien is the Director of Fitness Tracker Pty Ltd (“FT”), a company that makes and sells ‘fit-bit’
type electronic wrist bands that monitor the steps, heart-rate and overall exercise activity of the
user. This year, Damian wishes to attend the annual Electronic Fitness & Health Expo in
Sydney, organised by Worldwide Fitness Pty Ltd. (WF) Damien has been told that a number of
well acclaimed fitness experts and retailers are attending the event. Damien sees the expo as
an opportunity to talk to the experts and retailers attending to promote his wrist bands.
Damien speaks to Anne, who is the Event Organiser for WT and says he wants to rent a space
at the expo to showcase his products. Anne tells Damien that a space will cost him $5,500.00.
Anne goes on to explain to Damien that the price includes a policy of insurance covering any
loss, damage or theft of his equipment.
Damian is pleased about the insurance being organised by WF as there is now no need for him
to arrange his own insurance.
Two days before the expo, Damian attended the offices of WF to sign the expo contract. While
reading through the contract, Damian said to Anne, “What security arrangements are there?”
Ann replied: “Don’t worry about security. Your goods will be very safe.”
Just before signing the contract, Anne told Damien that she only had one space left and that
Damian was fortunate to secure a space at the expo.
Damian then signed the contract on behalf of FT and paid Anne the $5,500.00 fee. The contract
is four (4) pages long and contains thirty-two (32) clauses.
Clause 11 is as follows:
11. Worldwide Fitness Pty Ltd will not be under any responsibility or liability whatsoever for
damage to goods on display by loss, damage, theft, fire, flood, water, storms, strikes, riots or
any other cause whatever.
Clause 23 is as follows:
23. This document contains the entire agreement between the parties.
The contract says nothing about the insurance or security arrangements.
While at the expo, Damien noticed that there were many empty exhibition spaces and there
were few retailers in attendance for Damian to showcase his wrist bands. In addition, there was
no visible security presence. Damian feels that the whole day has been a waste of time and
money.
To make matters worse, just before the exhibition closed, one of Damian’s boxes full of
wristbands was stolen. The box was taken from under a table on which Damian’s other
wristbands were being displayed.
When Damian contacted the insurance company he was told that the insurance contract is
between WF and the insurer and he has no right to make a claim.
Two weeks after the exhibition, Damian comes to see you. He wants to know if he has any legal
right to be reimbursed his $5,500.00 and be compensated for the loss of his stolen wristbands
and coins.
As a matter of law, can Damian (on behalf of FT) insist upon the return of his $5,500
and/or be compensated for his stolen equipment? If so, on what basis? Explain your
answer by reference to the applicable law(s).
