Business Law
ASSESSMENT 2 TUTORIAL ACTIVITIES
Name Miss Saadia Aziz Student Number 1162560 Subject Business Law Subject Number BBC131 Trainer Mr Tony Antoniou Due Date 7th Oct 2012
Chapter 1
LEGAL FOUNDATIONS
Tutorial Questions
1 Why did common law become so rigid and flexible?
The social behaviour of surroundings where society exists and the device which regulates this social and economic behaviour is called a law. Basically this is taken from the two laws case and statute law. We can’t allocate this law in any legislation this is what which only exist in pasts scenarios, this makes it so rigid and flexibility also lies. It also has power to adapt those things which were changed as a whole. It makes the basic rules of English law.
2 In what ways does equity law differ from common law?
Equity law isn’t comprehensive system. It acts only against the individual not proper etc. Equitable rights are valid only against those persons specified by the court. In equity law remedies must be applied for promptly or they may not be enforceable. And if common law is concerned it is a comprehensive system. Common law rights are enforceable at any time, subject to the operation of a state or territory’s statute of limitations. Common law rights are valid against the whole world. Remedies are discretionary in equity law while these are not discretionary in common law.
3 What are the main differences between Common law and Statute law?
Common law is the law created through the reported decision of judges (the doctrine of precedent) in the higher courts. It is non-statutory law, as it is law made by the courts. It is also known as case, precedent or unenacted law. Statute laws made by the federal and state parliaments in the form of statute or legislation or other government bodies in the form of by-laws, orders, rules and regulations and known as delegated legislation. It is also known as Enacted law. In the event of conflict between statute and common law, statute law prevails.
4 In the 21st Century, what problem does business face under a federation model such as exists in Australia?
Business could not exist without the law. There are very few aspects of life personal and business which are not regulated law, either directly or indirectly. Internal fraud is by far the bigger problem for corporate Australia, with internal employees involved in activities such as false invoicing, online payment frauds, expenses frauds and collision with suppliers to inflate prices for the benefit of both parties.
5 Numerous attempts have been made to arrive at a satisfactory test for identifying a law. Select one of the following and explain whether you think its adequate for identifying a law: a- The law is something that all people ought to obey. b- Law is a command by a political superior to a political inferior. c- Law is rules established by people who have control of organised power. d- Law is the highest reason implanted in nature e- Law is a command from God that is recognised through the human intellect. f- Law is what the court says.
Explain why those other tests are unsatisfactory. If none of the test is in your opinion satisfactory, explain why and try to make your own test.
I think a, c, d, and f options are the satisfactory tests. B is not considered to be satisfactory to me because politicians don’t have power to make laws be acted upon via inferior politicians, law means something legal and it is always forced by the government and authorised groups of people. People make law about the way they think. B and E statements are not thought provoking because everyone knows laws are made by court too, it is the highest reason implanted in nature, they are ruled by those who have authorising power and last but not the least law is something that all people should have obeyed them.
6 Why should an Act of parliament override the common law in the event of a conflict between the two? Discuss.
Legislation and common law interact when judges interrupt an act of parliament or other legislation when deciding cases before them. Where they are inconsistent, legislation will override the common law. It can only be overruled by subsequent legislation.
7 Are ‘Law’ and ‘Justice’ one and the same thing? Discuss.
Law is control by humans and human conduct, regulated by a superior authority or power. A concept that is closely identified with the law is justice. It is highly desirable that there be some kind of relationship between law and justice but these both are not the same thing. Justice is not a product of intellect but of spirit. The nearest we can go to defining justice is to say that it is what right minded member of the community.
8 Briefly explain the main sources of Australian law?
The main sources of law in this country are found in: * The laws made by the common wealth, state and territory parliaments and under the auspices of: * The Australian constitutions; and * State and territory constitutions; * Case law, which is found in the decisions of federal and state courts; and * So much of the common law or statute law of England that has not been repealed.
9 Explain the differences between a common law system of law and a civil law system of law.
Common law system based on precedent and statute law and the civil law system based on code-based system. Civil law involves an action between individuals, where the plaintiff has to establish on the balance of probabilities that their case is the more believable, and aims at compensating the injured party. The Australian legal system was inherited from England it is what is known as a Common law system because legal principles have been, and are being developed by judges through the reported decisions they make in determining cases. The civil law system is a complete legal system with its origins in Roman law and the Napoleonic Codes. The law is set out in legislation that forms the primary source of law, with the courts basing their judgements on the provisions of codes and statutes.
Chapter 2
Origins of Australia
Explain why the English government resorted to transportation of convicts to colonies.
The English government resorted to transportation of convicts to colonies by the end of the 18th century, the British parliament had made some 220 crimes capital offences. Between 1770 and 1839, 35000 people were sentenced to death in England, Scotland and Ireland. However, death sentences were often commuted to transportation as it was not considered as extreme as hanging was more effective than a fine as a deterrent and, probably more important, provided cheap labour for colonies.
Explain why it was important to define the status of a colony upon settlement.
It is important to define the status of a colony because it determines whether or not the doctrine of reception will apply, which, in turn, determines the law that applies to the new colony.
Briefly explain what effect, if any......... legal systems?
The High Court decisions in the Mabo and Wik cases, together with passage of Native title Act marked a watershed for indigenous peoples in Australia. Until 1992 Australia was considered to have been acquired by settlement but the decisions recognised that Australia was not terra nullius at the time of settlement and that indigenous peoples had rights to native title under the common law.
What major changes were brought about by the:
The Australian Courts Act 1828 (Imp) gave limited self- government to the colony. It Required the governor to consult the Legislative Council and provision was made for the legislature to decide, in doubtful cases, how English law was to apply to NSW; and Provided that English statutes passed after 1828 only applied to Australia if there were particular provisions contained in them to that effect.
The colonial laws validity Act 1865 (Imp) established: the right of the colonies to amend their own constitutions; and That the colonies could enact legislation without necessarily applying English domestic law to Australian law, provided that no English statute directly applied to the colony in question. An English statute that contained express provisions that applied to the colonies was said to apply by paramount force.
The commonwealth of Australia constitution act 1900 (Imp) transformed the six former colonies in to states and created a federal system of government. The effect of federation was to make Australia a dominion i.e. a self-governing country.
D. Statute of Westminster 1931 (Imp)
It was thought at the time that it would be seen internationally.
With three tiers of government......
The question seeks personal opinion. The roles and interrelationship of the three tiers of government could be briefly discussed. Similarly the changes in transport and communication since Federation could be discussed in the context of less isolation.
Will Australia ever become a republic?.....................
The question seeks personal opinion. Some of the 1999 arguments for and against could be discussed as well as any new insights the students may raise. The political influrenceand the fact that referenda have not been successful if there has been any significant opposition to the proposal could be discussed. given the split within the pro-republic ranks over the issue of a popular election of the head of state, would any future proposal be likely to be successful if popular involvement was not included? Would popular election mean a fundamental change in the system of government and the current checks and balances?
List three functions of government.....
Legislative power, executive power and judicial function.
Are judicial appointments to the Bench of the.........
To achieve Australia’s status as an independent and sovereign nation, the six states first had to perform uniform leadership requesting the common wealth parliament to enact the Australia Act 1986.
Explain what is meant by each of the following terms:
Separation of powers; A doctrine whereby the legislative, executive and the judicial powers should be exercised by separate and independent organisations within the system of government, thereby ensuring checks and balances against misuse or abuse of power.
Exclusive powers; Those powers which, under the Constitution, only the Commonwealth Parliament may exercise for example, customs and excise, free trade between the states, currency and military forces.
Concurrent powers; Those powers which may be exercised by either the Commonwealth Parliament or a state Parliament. If there is an inconsistency between a state law and a valid Commonwealth statute, the Commonwealth statute will prevail.
Terra nullius; A territory which, at the time of settlement by English colonists, is considered to be unoccupied. It is considered empty land, land which belongs to no one.
Native title; A term used by the High Court in Mabo, but which was not defined. It could be said to be a term used to describe the common law rights and interests of any particular group of aboriginal and Torres Strait Islander peoples in land according to their laws, traditions and customs.
Chapter 3
Legal systems
Explain why the role of jury appears to be declining in civil trials but not in the criminal trials?
A jury is a body of men and women summoned and sworn under oath to determine questions of fact fairly and objectively in judicial proceedings. The use of juries in civil cases has largely been abolished in most jurisdictions unless required in the interests of justice, civil case is heard with four members and only a majority verdict is required but in criminal trials everyone accused of an indictable offence has the right to a trial by a judge and jury of 12 persons in an intermediate or superior court and the accused has the option of trial by a judge alone.
Explain the difference between the burden of proof in civil cases and the burden of proof in a criminal case. Does the same party have the burden in both cases?
In the civil case the side that wins is the side that can prove that its case is the more believable on the balance of probabilities. To win a criminal case the crown must prove beyond reasonable doubt that the accused committed the crime they were charged with. The burden of proof is on the plaintiff to prove on the balance of probabilities in civil actions. The burden of proof is on the crown, through the actions of a prosecutor, to establish a case against the accused beyond reasonable doubts.
Explain what is representative or class action is and when it is likely to arise?
A class action enables access to the law by those who would otherwise be deterred from seeking compensation due to factors such as time, the relatively small by those who would otherwise be deterred from seeking compensation due to factors such as time, the relatively small size of their claim, and legal costs. Class actions, or grouped or representation proceeding, allow individuals or businesses with similar, or substantially similar, claims to combine together in the one legal action against the same person or organisation.
How successful has the appointment of ombuds been in the country?
The term “ombuds” or ombudsman” mean “ agent or representative of the people and the person occupying this role is the link between the people and the bureaucracy of a government or large commercial organisation such as banking, insurance, private health and telecommunication. They investigate complaints about administrative action and decisions made by government departments, statutory bodies, local authorities and the commercial areas noted above.
In commercial matters, is the common law adversarial system the best way of setting disputes? Discuss.
Student would indicate know ledge of the adversarial system and be able to apply it to a commercial context. Issues could include; Are most commercial disputes really matters of law or arguments as to the facts? Are the facts matters suitable for determination be a court or are they of a specialised nature better assessed by persons more familiar with the particular profession.
Is there still a role for the jury in today’s legal system? Discuss.
Legal systems should also recognise that the use of juries in civil cases has been largely abolished in most jurisdictions unless required in the interests of justice. Matters which could be discussed are: The difference between a civil and a criminal case in terms of the standard of proof and the consequences. The extreme complexity of some cases.
Explain the reasons for the growth of judicial and quasi-judicial tribunals?
The main reason for the development of judicial and judicial and quasi-judicial tribunals is to provide people with a cheap, quick and fair dispute settlement process in accordance with community needs, keeping formalities to a minimum.
List three methods of alternative disputes resolution, and briefly explain each?
Commercial arbitration: which is a formal dispute resolution process involving the hearing of a commercial dispute by an independent third party. The arbitrator will be chosen by the party and will be familiar with the professional or technical background of the dispute.
Mediation: Where a neutral third party assists the parties to try and resolve their dispute.
Conciliation: Whereby the conciliator exercises an advisory role on the content of the dispute and suggests options and possible solutions. Their role is generally more directive than a mediator.
Describe the federal and state court hierarchies and explain their relationship to the doctrine of precedent?
The federal court hierarchies are Federal magistrate’s court, the family court, the Federal Court and the High Court and family court have both original and appellate jurisdiction and are all courts of record. The state hierarchies consist of Inferior courts with original jurisdiction to deal with minor matters. Intermediate courts these have original civil and criminal and limited appellate jurisdiction and are courts of record. Superior court with unlimited original civil and criminal jurisdiction and an appellate jurisdiction.
Chapter 4
How law is made; precedent/statute law
Why do you think there have been so few double dissolutions of Parliament for example, at the Commonwealth level? Discuss.
The government may retain power in the House of Representatives but lost seats in the senate with the result that a joint sitting of both houses may not give the government sufficient numbers to pass the legislation. The balance between the two houses of parliament may still be substantially the same after the double dissolution election. The particular piece of legislation in not important enough to risk the loss of an election. The usual method breaking a deadlock is to compromise and amend the bill so it is acceptable to the opposition
Distinguish between judge-made laws ad statue laws?
Case or common law is law which has got speciality that judge made laws, also known as common law and equity and under the Statute law laws passed by commonwealth, state and territory Parliament in the form of statutes.
Explain the doctrine of binding precedent?
The doctrine of binding precedent means that each court is bound by the decision of an earlier case of a at the same level or higher in the same hierarchy of courts, whether or not it believes a decision is correct. To determine whether a court is part of the same hierarchy, consider whether it is linked by a right of appeal. For example, the District Court in New South Wales is bound to follow a previous decision of the New South Wales Supreme Court where the facts of the two cases are similar because both court are in the same jurisdiction.
Describe the role of the Upper House in Parliament. Given that neither Queensland................................. house of Parliament?
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, and combines the fused executive of the Westminster System with the federalist senate of the United States Congress. Under Section 1 of the Constitution of Australia, Parliament consists of three components: the Queen, represented within Australia by the Governor-General, the Senate, and the House of Representatives. The Australian Parliament is the world's sixth oldest continuous democracy. The upper house, the Senate, consists of 76 members: twelve for each state, and two for each mainland territory. Senators are elected using a form of proportional voting. The lower house, the House of Representatives, currently consists of 150 members, who represent districts known as electoral divisions (commonly referred to as "electorates" or "seats
Is society over regulated? (You will find it useful answering........................................................................................................................................... and so on)
Absolutely not, we are not over regulated. Europeans live in very regulated societies and there is no dumping down there. Dumping down comes from the crap on TV, like swapping wives, and all the dumb reality shows that don't teach anyone anything. If we had more interesting TV and more interested citizens there would be no dumping down, but people are now reading only face book etc, people's curiosity seems to be waning and that is a death knell for a society. When you stop being curious and are satisified you know everything you need to know you are doomed. Don't blame regulation, without regulation the corporations would be more out of control then they already are. They would pollute and destroy the country and not give a damn if no one is watching they would be perfectly happy.
Apart from the examples of authorities that rely...
Universities: parking restrictions Courts: Rules of court. Ministers: Guideline Governors and the -general: regulations, letter patent and Proclamation: the date of commencement of and act.
Consider the following section from an Act and then answer....
The issues are ‘offensive weapon’, ‘sale’ and ‘public place’ A- Yes it is an offence. B- Yes it’s an offence. C- No it is not an offence. D- It is an offence.
Chapter 5
Criminal Law In A Business Context 1- White collar crime may be described as a crime by a person inside a government and organisation.
Bribery: bribery occurs when one person gives person money, property, favours or anything else of value in return for some advantage or preferential treatment.
Theft, Robbery: It involves taking the property of someone else without their permission. In a white collar crime situation it can range from an employee taking stationery for their own use, to taking cash received from the sales of goods and services.
Money Laundering: It is the term used to describe the process whereby criminals convert the proceeds from crime such as drug dealings into legitimate funds or property, thereby, enabling the criminal to openly use the “laundered” funds or property. 2- The standard of proof required of the crown in criminal matters is that the case must be proved “beyond reasonable doubt”. A person charged with a crime is presumed innocent until proven guilty. Standard of proof in criminal law is beyond reasonable doubt and a civil law is balance of probabilities. 3- In civil law individual brings action because the individual suffers a personal loss. Individual enforces judgement of court and guilty mind isn’t required in civil law. In criminal law usually states brings action because a criminal act is against the community. State enforces judgement of the court and guilty mind isn’t required. 4- Breach of a Consumer Protection Provision of the Australian consumer law may result in damages, compensation for any loss and injunction to prevent further breaches. There’s no criminal liability for breaches of misleading conduct because that breach may occur unintentionally. Pyramid Selling or Referral Selling may be up to $1.1 million for a corporation and $220000 for an individual. Breach of the restrictive trade provisions can result in a company being fined up to a maximum of $10 million and individual can be fined up to $500000. 5- It is kind of statutory penalty. Although a fine would normally be imposed as a result of a criminal offence, the court proceedings for a civil penalty are civil proceedings in that rules of evidence and procedures are civil, not criminal. This means that proof of the breach is on the balance of probabilities, not beyond reasonable doubts.
Following are the examples of legislation under which civil penalties are imposed. * National credit code * Corporation Act 2001 (cth) * Spam Act 2003 (cth) 6- A company may be recognised by the law as being a person. It certainly doesn’t have the characteristics of a natural person. It doesn’t have a mind. For example a company to be liable directly liable for a crime, but it’s understandable we can’t take the company to the court, company’s board of directors or senior management could be taken to court. 7- I think B has committed an offence because he knows he doesn’t have money in his account but still he took money and let his friends know and invited them to do the same for entertainment. 8- Yes, G has committed an offence because no matter whatever the circumstances are she’s not suppose to take the money out from employer’s till and replace it next morning with a valid cheque.
Chapter 7
Introduction to the Law of Tort
Self test questions 1- True 2- False 3- False 4- False 5- True 6- False 7- False 8- False 9- False 10- True
Chapter 8
The tort of negligence
5- Frank can sue the local council or the football club or both it depends whether the council owns the football club or it is private football club. If it owns by the council then he can sue council because they just forgot to fulfil their duty of care by not to put any fences on and if this football club owns by any individual or its private football then he can sue to football club’s owner. Frank could say that council or football club owed him a duty of care by neglecting to put safety premises on but they breached it and this is why he suffered actual loss.
6- First of all I would say that Michael shouldn’t have driven the car if he has drunk. And after that if he has drunk he shouldn’t have given lift to Anna. Even Anna could have felt it but she didn’t realise. And when Michael hit the car with tree he left car including Anna and ran away. So yes Anna could sue him because he had the duty of care towards Anna, he breached that duty of care and then damage occurred at result of breach of duty of care. Though Michael knew it there is risk involved but still he gave lift to Anna.
7- If this is case is concerned first of all its clear that she had check up and she was quite fit. Being an unconscious isn’t the thing which you can control over it. She was the experienced one and she has got licence too. The relevant parties in this case are the group of tourists those who got injured. It seems like nobody can say that this is her negligence because you can be unconscious at any fraction of second. Yes she had a duty of care towards tourist and she couldn’t warn them that she’s going to change the direction, so she breached her duty of care and it comes in the negligence but she didn’t know that because she was unconscious.
Chapter 09
7- As the Cheryl got burnt too but she has duty of care against the customer to keep them safe as much as they can. Though she was dumped by another passing customer and and she dropped dish on herself and on the customer so customer had any remedy in tort against anyone for the burn she has received. It was duty of care involved regarding that customer on that waitress. She was liable in negligence for the burn that the customer got.
8-norris decided to purchase a motel after so many search he has decided to contact to an estate agent and at the last he has bought the motel as agent told him that it will be like a gold mine but after purchasing that motel after few months the general business was broken because there were neither the tourist numbers nor the local population to sustain the business. We business is the thing where we cannot expect anything it may fall down or grow up as the passage of time. But after six months it does make difference that agent might have given false statement. Yes Norris can sue the agent because he has given the wrong information to him, as this is not the thing which can be predicted but still one should have idea that where this business is up to.
9-Hougland was passenger and his suitcase was stored in luggage compartment but at the arrival of the destination he couldn’t get his suitcase so there is bailment involved because it was the duty of the occupier to protect the passenger from any physical or materialistic loss. It was the bailment and lien sort of bailment. Yes he can recover the damages because the suitcase was in that bus and during the travel he has lost his suitcase which makes it clear that there was responsibility of those who were suppose to take care of luggage of those who are travelling in the bus.
Chapter 10
Other business-related torts
7- Philip planted a row of gum trees down his and Erica’s boundary with the passage of time branches grow up in the yard of Erica. It was creating problem for Erica that it stopped light to enter in his house. She should talk to Philip to cut down those trees or branches which are creating problem. I’m giving this piece of advice to her because he is neighbour of Erica and Erica shouldn’t be rude to him. As she will tell the whole problem he’ll consider it.
8-Arcus just has done all that to make Abbott happy but if he doesn’t want to play the Tennis it was his own choice. Arcus didn’t bind him that he has to play but it was his own choice. And when Arcus installed the lights Abbots didn’t say anything to him that not to install lights or something but he happily played the tennis and suddenly he realised that he shouldn’t be playing tennis till late night and if lights irritates him he could ask to the owner of court that lights are irritating to him could he uninstalled them or not.
9-The first statement is defamatory because Sophia Moran a well known crime figure linked to crime boss Carl Williams which means that was concerned with the third party too he said like its being nothing better than being seen with members of the opposition and it was not true. At the end statement has revealed the fact that statement wasn’t true at all. The second case isn’t defamatory this was being told in newspaper on the basis of Paul’s speech. And then Wayne had written the statement. The material needs to be defamatory in its ordinary and natural sense, referring to or identifying the plaintiff and made known to third party.
10-It was totally mistake of Cam who misunderstood Erica, she have paid all of her grocery but still he wanted her to take to the office and negotiate though there was nothing to negotiate. And then there was no point to hold her and pulled her to the office, this was totally offended, you cannot touch anyone without their permission so how could he dare to pull her towards office. Doesn’t matter how serious the situation was and if Erica hit him with a bag and he became unconscious this is not the fault of her what she could do other than that.
Chapter 12
Introduction to contracts (Self test questions) 1- True 2- True 3- True 4- False 5- False 6- False 7- True 8- True 9- True 10- True 11- True 12- True
Chapter 13
Intention to create Legal Relations
4-I would advice to Richard that he should ask to his father to pay him a bit or he can ask to his father to increase his pocket money if he can’t do more, he cannot take this matter to the court because court will say this is not any business contract or type of contract which is legally enforceable.
5-Yes George can take actions against Anita because she is the one who breached the agreement, there was intention involved to create the legal relationship then they had a valid agreement and partnership of consideration was also involved she went totally right when business was successful and it went wrong she has decided not to only break the partnership but also to start another business. She has breached the contract so legal actions should have been taken against her by George. That’s not the excuse if she would have realised it’s a business deal rather the friends one.
Chapter 14
Agreement between the parties
8-As the Brendan has mentioned that Steven is suppose to reply him back via same mean of express courier as he has done but Steven has replied him back via post so it means he has breached the condition so there was no any contract between the Brendan and Steven, it became invalid contract. So if Steven takes any legal action against him then he could easily say there was breach of condition so there was no contract between him and Steven.
9-As shares were dully allotted by him and letter was posted to him but letter was misplaced and he couldn’t get the mail and couldn’t think that he’s share holder of company now, and company also didn’t contact him for so long, and after many years company demanded for the payment of $400, a call on his shares. Grant claimed he was never being into an agreement and shareholder of the company he couldn’t receive the post. He’s right at his point of view but legally it’s been shown that he’s shareholder of the company because he accepted the offer. I would advice to say in court that company didn’t send any notice or confirmation to him that he’s the share holder of the company, he didn’t got the mail so he shouldn’t be payable of that amount.
10-Yes there was automatically contract being created between Kelly and Vending Machines Pty Ltd, they were offer written she has accepted it, there was consideration involved and yes there was implied intention because if the matter will be pulled off in court, court will say yes there was business relationship between that company and Kelly.
Chapter 15
Consideration
3-In the first case there is not any consideration because the market value is being given there but Jane didn’t tell how much price she wants. In the second case there is consideration involved because Jane offers to sell jack her lotus supercar for $25000 and jane accepted it, which means consideration present here. In the third case she offered Jack her car in $2500 and Jack accepted it which means there was consideration involved doesn’t matter in what price another is selling their belongings.
4-Emily is the daughter of Margaret so after a family discussion one night at the kitchen table in July 2006 it was agreed that Margaret would probably keep the business going for another couple of years and then retire. It was decided that Emily would work there as long as was needed and in return she would received any unsold dolls. When Margaret retired at the end of 2009, she decided that she would give unsold stock to the charity she forgot what she has said to her daughter. This made her daughter to think what she should do now. I think she should remind her mother about their conversation which they had years back. Emily can not Sue her mum because there wasn’t any contract between them.
Chapter 16
Capacity of the parties
4-Anna is so young to have contract because she’s an infant under 18.even that is not beneficial contract for her. Ted can teach her dancing free of charge this can be beneficial. During the 3 years she cannot accept stage engagements other than those under Ted and Ted could employee her to perform on stage, but wasn’t bound to do so, it means it’s up to him if he wants her to work for him in future or not. Two out of three were only beneficial for Ted so this was not beneficial contract of service. We can tell to Ted that she can breach contract if the only one thing is not beneficial to Ann.
5-no he cannot recover the damages because Washington is insane person and he entered into contract with Lincoln for the purchase of an antique axe and a cherry tree for $100. The price paid for both these items was fair and reasonable at the time of agreement was made, Washington seemed to be a normal person but the time of delivery he refused to give the delivery of axe and cherry tree or to pay for them Lincoln can’t recover this because contract or agreement can’t be made between insane.
6- No he was not bound at all because he was totally drunk at that time and he didn’t know what he was doing, bid successfully at an auction for the purchase of a house. It was clear to the auctioneer that Bruce didn’t know what he was doing.
Chapter 17
Genuine consent
4-A ship builder had contracted to build a tanker for north ocean tankers. The contract was in US dollars and didn’t contain any provision for the currency fluctuations. Approximately half way through the construction of the ship the United States devalued its currency by 10 percent. As the shipbuilder stood to make a loss on the contract, it demanded that an extra US$3 million be paid or it would stop work. The buyer reluctantly agreed under protest to pay, as he already had a charter for the tanker and it was essential that it is delivered on time. The buyer didn’t commence any action to recover the excess payment until some nine months after delivery so buyer cannot succeed in recovering the excess because it is the economic Duress. Buyer took very long time; court will say that he took so long to recover.
5-A solicitor carried out legal work for a property developer. When the solicitor submitted his bill, the property developer suggested that he might like to reduce his bill of exchange for a share in the venture. The defendant subsequently repudiated the agreement, claiming that he didn’t have to share the profits with the solicitor because the contract was voidable for undue influence. Yes, he’s right the contract was void due to the undue influence. It only has to be a reason and the effect on the contract is that it will be voidable at the option of the solicitor. Property developer tried to misuse his power to get the profit.
6-This was the case of unconscionable contracts which involves question of fact and degree and each case must be judge on its facts. George was 73and in the middle stage of Dementia. His daughter Lilly tried to make lie with him as he couldn’t think of himself his daughter took all the decisions by herself and took loan from the bank. Conditions and terms were not being told to the George and when he asked to take advice from the solicitor Lilly told him that she has read all the documents so he isn’t suppose to worry about after three months Lilly defaulted and Easy finance is now threatening to sell George’s house. I would advice George that he should escape the contract under a serious disadvantage that was apparently seemed like a good one but this was a disaster.
Chapter 18
Legality of object and Form
4-I think this clause isn’t reasonable because you cannot force anyone not to work in anywhere else if you leave any job for whatever the reason is. Clause in a contract in restraint of a trade will be enforceable if it is not reasonable. In this case restraint clause in contract of employment is not valid, the restraint must be reasonable and there must be protectable interests such as confidential information or trade secrets.
5- Peter and Lee were dealers in imitation jewellery located near each other in Adelaide. Lee sold her business to Peter and agreed that she would not carry on or be engaged in the sale, importation or manufacture of real or imitation jewellery anywhere in Australia for a period of two years. One year after selling the business Lee established a retail jewellery business in Cairns. So because of that reason Peter can enforce the covenant against Lee because when she was selling business to him she clearly mentioned that she will not start any business in entire Australia for the two years but she breached that agreement.
Chapter 19
Construction of the Contract
6-Yes, I guess AMC motors relied on the exclusion clause to provide a defence will be successful because when they asked George to sign the contract of terms and condition it was clearly mentioned the company is not responsible for damage caused by the fire to customers, doesn’t matter whatever the reason for car to caught fire, company isn’t liable at all to compensate because they mentioned in contract.
7- As Sam took his suit to Quick Klean Drycleaners Pty Ltd, this was the first time he had been to this drycleaner. After giving his suit to the cleaner behind the counter and paying foer the dry-cleaning, he was given a receipt with the number on it. The assistant told Sam that he needed to bring that receipt with him when he will come to collect his suit. She also told him that drycleaner would take all care but accept no responsibility during cleaning. She pointed out that a similar clause appeared on the back of the ticket. It read like drycleaner will take care all but will not accept any responsibility for effective removal of all stains during cleaning. When cleaning is being done and Sam came to collect shirt he found a tear in sleeve, he has shown that to assistance but assistance reminded him that the care all about but not accept responsibility, so this is called the representation which means a statement of fact made by the party before or at the time of contract, so drycleaner has told everything to Sam, so i’ll advice Sam just to negotiate with them if they can do anything or can pay back the money which he has aid to them for cleaning.
Chapter 20
Rights of the parties and discharge
6-there is termination of contract due to frustration and its unseen event when these both guys came into contract then war break down so contract became illegal. An unforeseen even outside the control of the contracting parties has significantly or radically changed the obligations of the parties from their original intentions neither party caused the supervening event, neither contemplated the supervening event so there was no provision in the contract for it, the new circumstances would make it unjust to hold the parties to their original contract.
7-If there is contract between Tim and Jackson then Tim can sue him but if there is no contract between then Tim cannot sue Jackson. If there is contract then Jackson committed the anticipatory breach of contract. It means allowing the innocent party to anticipate a breach has the following benefit of allowing them to minimise their loss by making alternative arrangements which reduces the damages that the guilty party may have to pay for breach.
Chapter 21
Remedies for breach of contract
6-The limitation of Actions Acts of the States and territories determines the time limits within which an injured party must act if they are to maintain an action. The aim of such legislation is to prevent the possibility of legal actions remaining open indefinitely. If an action has not commenced within these time limits, and the contract involves debt, the debt is still payable but its payment cannot be enforced by a court of la. The creditor is entitled to use any other means to obtain satisfaction of the debt. For example if the goods came into the procession of the creditor, it may be possible for the creditor to exercise a lien over the debtor’s good and to enforce payment in spite of the fact that the recovery of the debt is barred by statute.
7-Bird and Geoff entered into contract for $100000. Bird has done two third of the work and told to Geoff that he had no more money and couldn’t finish the job, Geoff finished the contract and end the work by using the material left on site by Bird. Yes, Bird can recover the balance of the two-third of the price on Quantum meruit it means as much as he has earned and only arise in case of part-performance. The contract may be discharge by breach, but where the contract is for goods and services there is a new implied contract imposed by law on the party taking the benefit that they will pay a reasonable amount for the quantum or portion given.
Chapter 22
Consumer law
7-Anthony office suppliers agreed to deliver a new photo copier to the premises of Brad’s light Fitting. When its driver arrived at the premises he found a person who he thought was an employee waiting in the loading bay. The person was wearing a Brad Light Fitting’s shirt and appeared to know what he was doing. He signed a delivery receipt for the photocopier with driver, the person was thief. I think seller will have to suffer the loss because it was not duty of buyer to look upon those frauds. Thought seller couldn’t reckon whether its buyer or not because that guy was wearing same costumes as Brad’s light fittings employees do wear. Seller must have asked earlier the name of the receiver before making that shipment.
8-Yes Bodilingo Py Ltd recover the office equipment and computer that it supplied to the web developers because that company went into liquidation and couldn’t pay the money back as per contract has been decided that Bodilingo will provide them furniture and in return another company will give back 4480000 over two years at the rate of $20000 per month and after twelve months company went into liquidation and supplier company couldn’t receive any further payments.
Chapter 23
Consumer guarantees implied into contracts-consumer protection
1-Hui bought a second hand computer from Ashmore office Equipment $500 and spend a further $95 having its overhauled. After using the computer for some months police arrived at his house and found that it’s the stolen one, they took back computer from him and give it to its real owner, he should ask them to go to that person from whom he bought that computer. Under the Australian consumer law Hui can sue the Ashmore office equipment to recover the full price.
2-Richard went to a fish and chip shop and asked for two fresh lobsters for dinner. The fish chop owner explained that he had no live lobsters, but that he had some boiled ones, which he sold to Richard. The lobsters weren’t fresh and Richard after eating them became seriously ill Richard can take action against that fish seller under the Australian consumer law.
3-Yes Brown can have remedies against the retailers under the Australian consumer law as he has bought couplke of woollen underpants from Underwear Galore in Adelaide because he can say that manufacturer is liable if the gods are rendered suitable for a particular purpose owing to something that has happened after they have left the manufacturer’s control. Where no degree of special skill and judgement is claimed by the supplier or expected by the consumer.
Chapter 24
Consumer protection Australian consumer law
1-Murrandoo has got popularity in property developing sector, he’s known to be successful property developer in his country. He wanted to start another company and he thought to take loan he went to the different companies and manager of those companies advised him that if he would go for the foreign currency loan he would be earning profit because of the exchange rate. So he decided to get a loan in currency Yen 1:65 after few months the exchange rate got the fluctuations in rates and increased significantly and he owed double in debt towards bank, in a sense there was his own problem he knew exchange rates gonna increasesuccessful property developer, he wanted to loan from the bank and when he went to the bank, different branch manager has told him different schemes which could may help and beneficial for hi, one of them was he could have loan in foreign currency at lower rate he went for it and after few years the Australian dollar fell against the Yen to 1:65 and effectively doubling Murrandoo’s debt to the bank. He didn’t have any resource under the Australian Consumer law because everything was being told to him and he might have thought about the exchange rate and interest rate but he didn’t. We can’t say that there was false misleading representation.
2-Advertisement in daily newspaper by Pioneering homes Pty Ltd referred to loan and house packages on payment of $1000 deposit and $120-$140 weekly repayments. The advertisement didn’t disclose that at sometime between one and three years after the settlement date, long term finance would be substituted for the temporary finance, and that repayments could be expected to rise to just above $175 per week. Yes, advertisements contravene the Australian consumer law under the section 34. This is advertising a product or service at specified prices only to tell the consumer that product has been sold out or the service is no longer available at that price but that another better product or service is still available at a higher price.
Chapter 26
Agency
7- As an agent solicitor, it must have remedy against DPC Estates the reason is he was like a member of actual authority and was maintaining too many companies in a go which definitely means agent should know all the principles which are supposed to be considered in running companies. The first obligation was him to follow the instructions, then to keep secrets as confidential as he could, maintain accounts properly. As the manager was hired to manage the companies under the control of the solicitor he often used to pass information to the solicitor’s clerk about properties which was the breach of agreement.
8-Yes, Seedal and Co can put forward their case because this wasn’t headache of them that who Appointed them, they were being appointed they have finished their duty so it is responsibility of that company to accept and pay that bill of payment because they literally had contract when company asked them to draw up plans for the development of the land.
9-I guess, broker is not liable to take the commission from the buyer of that hotel. The reason is buyer already negotiated about the purchasing matter of hotel from the owner of hotel. Hotel owner has given him his commission already so if he asks to buyer for the commission and buyer refuse to give him commission this is what buyer can do. Where an agent is paid for their services they must exercise the standard of care, skill and diligence usually exercised in the agent’s class of business. We can define broker in a way a person who buys or sells goods and services on behalf of the owner but he cannot own those things.
Chapter 27
Companies and incorporated associations
Self test questions 1- True 2- True 3- True 4- False 5- False 6- True 7- False 8- False 9- True 10- True
Chapter 28
Partnerships
Self test questions 1- True 2- True 3- True 4- False 5- True 6- True 7- False 8- False 9- False 10- True
Chapter 29
4- Juliet and Elroy are willing to jump into business. So it means that they are in partnership. They are fresh into the business and don’t know what they are exactly supposed to do. I’ll advise them first go for the partnership as they are two in group and when they develop the business they can convert that partnership into the company as there are always options available to change the nature of business. partners. As they wish to reserve the administration in its secrets and confidentiality so partnership is best option for them to avail it and do work on it further. The cost of formation is low, privacy is easy to maintain, provides access to capital resources of other partners.
REFERENCE:
Business law Book
6th edition
Andy Gibson, Douglas Fraser
Name Miss Saadia Aziz Student Number 1162560 Subject Business Law Subject Number BBC131 Trainer Mr Tony Antoniou Due Date 7th Oct 2012
Chapter 1
LEGAL FOUNDATIONS
Tutorial Questions
1 Why did common law become so rigid and flexible?
The social behaviour of surroundings where society exists and the device which regulates this social and economic behaviour is called a law. Basically this is taken from the two laws case and statute law. We can’t allocate this law in any legislation this is what which only exist in pasts scenarios, this makes it so rigid and flexibility also lies. It also has power to adapt those things which were changed as a whole. It makes the basic rules of English law.
2 In what ways does equity law differ from common law?
Equity law isn’t comprehensive system. It acts only against the individual not proper etc. Equitable rights are valid only against those persons specified by the court. In equity law remedies must be applied for promptly or they may not be enforceable. And if common law is concerned it is a comprehensive system. Common law rights are enforceable at any time, subject to the operation of a state or territory’s statute of limitations. Common law rights are valid against the whole world. Remedies are discretionary in equity law while these are not discretionary in common law.
3 What are the main differences between Common law and Statute law?
Common law is the law created through the reported decision of judges (the doctrine of precedent) in the higher courts. It is non-statutory law, as it is law made by the courts. It is also known as case, precedent or unenacted law. Statute laws made by the federal and state parliaments in the form of statute or legislation or other government bodies in the form of by-laws, orders, rules and regulations and known as delegated legislation. It is also known as Enacted law. In the event of conflict between statute and common law, statute law prevails.
4 In the 21st Century, what problem does business face under a federation model such as exists in Australia?
Business could not exist without the law. There are very few aspects of life personal and business which are not regulated law, either directly or indirectly. Internal fraud is by far the bigger problem for corporate Australia, with internal employees involved in activities such as false invoicing, online payment frauds, expenses frauds and collision with suppliers to inflate prices for the benefit of both parties.
5 Numerous attempts have been made to arrive at a satisfactory test for identifying a law. Select one of the following and explain whether you think its adequate for identifying a law: a- The law is something that all people ought to obey. b- Law is a command by a political superior to a political inferior. c- Law is rules established by people who have control of organised power. d- Law is the highest reason implanted in nature e- Law is a command from God that is recognised through the human intellect. f- Law is what the court says.
Explain why those other tests are unsatisfactory. If none of the test is in your opinion satisfactory, explain why and try to make your own test.
I think a, c, d, and f options are the satisfactory tests. B is not considered to be satisfactory to me because politicians don’t have power to make laws be acted upon via inferior politicians, law means something legal and it is always forced by the government and authorised groups of people. People make law about the way they think. B and E statements are not thought provoking because everyone knows laws are made by court too, it is the highest reason implanted in nature, they are ruled by those who have authorising power and last but not the least law is something that all people should have obeyed them.
6 Why should an Act of parliament override the common law in the event of a conflict between the two? Discuss.
Legislation and common law interact when judges interrupt an act of parliament or other legislation when deciding cases before them. Where they are inconsistent, legislation will override the common law. It can only be overruled by subsequent legislation.
7 Are ‘Law’ and ‘Justice’ one and the same thing? Discuss.
Law is control by humans and human conduct, regulated by a superior authority or power. A concept that is closely identified with the law is justice. It is highly desirable that there be some kind of relationship between law and justice but these both are not the same thing. Justice is not a product of intellect but of spirit. The nearest we can go to defining justice is to say that it is what right minded member of the community.
8 Briefly explain the main sources of Australian law?
The main sources of law in this country are found in: * The laws made by the common wealth, state and territory parliaments and under the auspices of: * The Australian constitutions; and * State and territory constitutions; * Case law, which is found in the decisions of federal and state courts; and * So much of the common law or statute law of England that has not been repealed.
9 Explain the differences between a common law system of law and a civil law system of law.
Common law system based on precedent and statute law and the civil law system based on code-based system. Civil law involves an action between individuals, where the plaintiff has to establish on the balance of probabilities that their case is the more believable, and aims at compensating the injured party. The Australian legal system was inherited from England it is what is known as a Common law system because legal principles have been, and are being developed by judges through the reported decisions they make in determining cases. The civil law system is a complete legal system with its origins in Roman law and the Napoleonic Codes. The law is set out in legislation that forms the primary source of law, with the courts basing their judgements on the provisions of codes and statutes.
Chapter 2
Origins of Australia
Explain why the English government resorted to transportation of convicts to colonies.
The English government resorted to transportation of convicts to colonies by the end of the 18th century, the British parliament had made some 220 crimes capital offences. Between 1770 and 1839, 35000 people were sentenced to death in England, Scotland and Ireland. However, death sentences were often commuted to transportation as it was not considered as extreme as hanging was more effective than a fine as a deterrent and, probably more important, provided cheap labour for colonies.
Explain why it was important to define the status of a colony upon settlement.
It is important to define the status of a colony because it determines whether or not the doctrine of reception will apply, which, in turn, determines the law that applies to the new colony.
Briefly explain what effect, if any......... legal systems?
The High Court decisions in the Mabo and Wik cases, together with passage of Native title Act marked a watershed for indigenous peoples in Australia. Until 1992 Australia was considered to have been acquired by settlement but the decisions recognised that Australia was not terra nullius at the time of settlement and that indigenous peoples had rights to native title under the common law.
What major changes were brought about by the:
The Australian Courts Act 1828 (Imp) gave limited self- government to the colony. It Required the governor to consult the Legislative Council and provision was made for the legislature to decide, in doubtful cases, how English law was to apply to NSW; and Provided that English statutes passed after 1828 only applied to Australia if there were particular provisions contained in them to that effect.
The colonial laws validity Act 1865 (Imp) established: the right of the colonies to amend their own constitutions; and That the colonies could enact legislation without necessarily applying English domestic law to Australian law, provided that no English statute directly applied to the colony in question. An English statute that contained express provisions that applied to the colonies was said to apply by paramount force.
The commonwealth of Australia constitution act 1900 (Imp) transformed the six former colonies in to states and created a federal system of government. The effect of federation was to make Australia a dominion i.e. a self-governing country.
D. Statute of Westminster 1931 (Imp)
It was thought at the time that it would be seen internationally.
With three tiers of government......
The question seeks personal opinion. The roles and interrelationship of the three tiers of government could be briefly discussed. Similarly the changes in transport and communication since Federation could be discussed in the context of less isolation.
Will Australia ever become a republic?.....................
The question seeks personal opinion. Some of the 1999 arguments for and against could be discussed as well as any new insights the students may raise. The political influrenceand the fact that referenda have not been successful if there has been any significant opposition to the proposal could be discussed. given the split within the pro-republic ranks over the issue of a popular election of the head of state, would any future proposal be likely to be successful if popular involvement was not included? Would popular election mean a fundamental change in the system of government and the current checks and balances?
List three functions of government.....
Legislative power, executive power and judicial function.
Are judicial appointments to the Bench of the.........
To achieve Australia’s status as an independent and sovereign nation, the six states first had to perform uniform leadership requesting the common wealth parliament to enact the Australia Act 1986.
Explain what is meant by each of the following terms:
Separation of powers; A doctrine whereby the legislative, executive and the judicial powers should be exercised by separate and independent organisations within the system of government, thereby ensuring checks and balances against misuse or abuse of power.
Exclusive powers; Those powers which, under the Constitution, only the Commonwealth Parliament may exercise for example, customs and excise, free trade between the states, currency and military forces.
Concurrent powers; Those powers which may be exercised by either the Commonwealth Parliament or a state Parliament. If there is an inconsistency between a state law and a valid Commonwealth statute, the Commonwealth statute will prevail.
Terra nullius; A territory which, at the time of settlement by English colonists, is considered to be unoccupied. It is considered empty land, land which belongs to no one.
Native title; A term used by the High Court in Mabo, but which was not defined. It could be said to be a term used to describe the common law rights and interests of any particular group of aboriginal and Torres Strait Islander peoples in land according to their laws, traditions and customs.
Chapter 3
Legal systems
Explain why the role of jury appears to be declining in civil trials but not in the criminal trials?
A jury is a body of men and women summoned and sworn under oath to determine questions of fact fairly and objectively in judicial proceedings. The use of juries in civil cases has largely been abolished in most jurisdictions unless required in the interests of justice, civil case is heard with four members and only a majority verdict is required but in criminal trials everyone accused of an indictable offence has the right to a trial by a judge and jury of 12 persons in an intermediate or superior court and the accused has the option of trial by a judge alone.
Explain the difference between the burden of proof in civil cases and the burden of proof in a criminal case. Does the same party have the burden in both cases?
In the civil case the side that wins is the side that can prove that its case is the more believable on the balance of probabilities. To win a criminal case the crown must prove beyond reasonable doubt that the accused committed the crime they were charged with. The burden of proof is on the plaintiff to prove on the balance of probabilities in civil actions. The burden of proof is on the crown, through the actions of a prosecutor, to establish a case against the accused beyond reasonable doubts.
Explain what is representative or class action is and when it is likely to arise?
A class action enables access to the law by those who would otherwise be deterred from seeking compensation due to factors such as time, the relatively small by those who would otherwise be deterred from seeking compensation due to factors such as time, the relatively small size of their claim, and legal costs. Class actions, or grouped or representation proceeding, allow individuals or businesses with similar, or substantially similar, claims to combine together in the one legal action against the same person or organisation.
How successful has the appointment of ombuds been in the country?
The term “ombuds” or ombudsman” mean “ agent or representative of the people and the person occupying this role is the link between the people and the bureaucracy of a government or large commercial organisation such as banking, insurance, private health and telecommunication. They investigate complaints about administrative action and decisions made by government departments, statutory bodies, local authorities and the commercial areas noted above.
In commercial matters, is the common law adversarial system the best way of setting disputes? Discuss.
Student would indicate know ledge of the adversarial system and be able to apply it to a commercial context. Issues could include; Are most commercial disputes really matters of law or arguments as to the facts? Are the facts matters suitable for determination be a court or are they of a specialised nature better assessed by persons more familiar with the particular profession.
Is there still a role for the jury in today’s legal system? Discuss.
Legal systems should also recognise that the use of juries in civil cases has been largely abolished in most jurisdictions unless required in the interests of justice. Matters which could be discussed are: The difference between a civil and a criminal case in terms of the standard of proof and the consequences. The extreme complexity of some cases.
Explain the reasons for the growth of judicial and quasi-judicial tribunals?
The main reason for the development of judicial and judicial and quasi-judicial tribunals is to provide people with a cheap, quick and fair dispute settlement process in accordance with community needs, keeping formalities to a minimum.
List three methods of alternative disputes resolution, and briefly explain each?
Commercial arbitration: which is a formal dispute resolution process involving the hearing of a commercial dispute by an independent third party. The arbitrator will be chosen by the party and will be familiar with the professional or technical background of the dispute.
Mediation: Where a neutral third party assists the parties to try and resolve their dispute.
Conciliation: Whereby the conciliator exercises an advisory role on the content of the dispute and suggests options and possible solutions. Their role is generally more directive than a mediator.
Describe the federal and state court hierarchies and explain their relationship to the doctrine of precedent?
The federal court hierarchies are Federal magistrate’s court, the family court, the Federal Court and the High Court and family court have both original and appellate jurisdiction and are all courts of record. The state hierarchies consist of Inferior courts with original jurisdiction to deal with minor matters. Intermediate courts these have original civil and criminal and limited appellate jurisdiction and are courts of record. Superior court with unlimited original civil and criminal jurisdiction and an appellate jurisdiction.
Chapter 4
How law is made; precedent/statute law
Why do you think there have been so few double dissolutions of Parliament for example, at the Commonwealth level? Discuss.
The government may retain power in the House of Representatives but lost seats in the senate with the result that a joint sitting of both houses may not give the government sufficient numbers to pass the legislation. The balance between the two houses of parliament may still be substantially the same after the double dissolution election. The particular piece of legislation in not important enough to risk the loss of an election. The usual method breaking a deadlock is to compromise and amend the bill so it is acceptable to the opposition
Distinguish between judge-made laws ad statue laws?
Case or common law is law which has got speciality that judge made laws, also known as common law and equity and under the Statute law laws passed by commonwealth, state and territory Parliament in the form of statutes.
Explain the doctrine of binding precedent?
The doctrine of binding precedent means that each court is bound by the decision of an earlier case of a at the same level or higher in the same hierarchy of courts, whether or not it believes a decision is correct. To determine whether a court is part of the same hierarchy, consider whether it is linked by a right of appeal. For example, the District Court in New South Wales is bound to follow a previous decision of the New South Wales Supreme Court where the facts of the two cases are similar because both court are in the same jurisdiction.
Describe the role of the Upper House in Parliament. Given that neither Queensland................................. house of Parliament?
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, and combines the fused executive of the Westminster System with the federalist senate of the United States Congress. Under Section 1 of the Constitution of Australia, Parliament consists of three components: the Queen, represented within Australia by the Governor-General, the Senate, and the House of Representatives. The Australian Parliament is the world's sixth oldest continuous democracy. The upper house, the Senate, consists of 76 members: twelve for each state, and two for each mainland territory. Senators are elected using a form of proportional voting. The lower house, the House of Representatives, currently consists of 150 members, who represent districts known as electoral divisions (commonly referred to as "electorates" or "seats
Is society over regulated? (You will find it useful answering........................................................................................................................................... and so on)
Absolutely not, we are not over regulated. Europeans live in very regulated societies and there is no dumping down there. Dumping down comes from the crap on TV, like swapping wives, and all the dumb reality shows that don't teach anyone anything. If we had more interesting TV and more interested citizens there would be no dumping down, but people are now reading only face book etc, people's curiosity seems to be waning and that is a death knell for a society. When you stop being curious and are satisified you know everything you need to know you are doomed. Don't blame regulation, without regulation the corporations would be more out of control then they already are. They would pollute and destroy the country and not give a damn if no one is watching they would be perfectly happy.
Apart from the examples of authorities that rely...
Universities: parking restrictions Courts: Rules of court. Ministers: Guideline Governors and the -general: regulations, letter patent and Proclamation: the date of commencement of and act.
Consider the following section from an Act and then answer....
The issues are ‘offensive weapon’, ‘sale’ and ‘public place’ A- Yes it is an offence. B- Yes it’s an offence. C- No it is not an offence. D- It is an offence.
Chapter 5
Criminal Law In A Business Context 1- White collar crime may be described as a crime by a person inside a government and organisation.
Bribery: bribery occurs when one person gives person money, property, favours or anything else of value in return for some advantage or preferential treatment.
Theft, Robbery: It involves taking the property of someone else without their permission. In a white collar crime situation it can range from an employee taking stationery for their own use, to taking cash received from the sales of goods and services.
Money Laundering: It is the term used to describe the process whereby criminals convert the proceeds from crime such as drug dealings into legitimate funds or property, thereby, enabling the criminal to openly use the “laundered” funds or property. 2- The standard of proof required of the crown in criminal matters is that the case must be proved “beyond reasonable doubt”. A person charged with a crime is presumed innocent until proven guilty. Standard of proof in criminal law is beyond reasonable doubt and a civil law is balance of probabilities. 3- In civil law individual brings action because the individual suffers a personal loss. Individual enforces judgement of court and guilty mind isn’t required in civil law. In criminal law usually states brings action because a criminal act is against the community. State enforces judgement of the court and guilty mind isn’t required. 4- Breach of a Consumer Protection Provision of the Australian consumer law may result in damages, compensation for any loss and injunction to prevent further breaches. There’s no criminal liability for breaches of misleading conduct because that breach may occur unintentionally. Pyramid Selling or Referral Selling may be up to $1.1 million for a corporation and $220000 for an individual. Breach of the restrictive trade provisions can result in a company being fined up to a maximum of $10 million and individual can be fined up to $500000. 5- It is kind of statutory penalty. Although a fine would normally be imposed as a result of a criminal offence, the court proceedings for a civil penalty are civil proceedings in that rules of evidence and procedures are civil, not criminal. This means that proof of the breach is on the balance of probabilities, not beyond reasonable doubts.
Following are the examples of legislation under which civil penalties are imposed. * National credit code * Corporation Act 2001 (cth) * Spam Act 2003 (cth) 6- A company may be recognised by the law as being a person. It certainly doesn’t have the characteristics of a natural person. It doesn’t have a mind. For example a company to be liable directly liable for a crime, but it’s understandable we can’t take the company to the court, company’s board of directors or senior management could be taken to court. 7- I think B has committed an offence because he knows he doesn’t have money in his account but still he took money and let his friends know and invited them to do the same for entertainment. 8- Yes, G has committed an offence because no matter whatever the circumstances are she’s not suppose to take the money out from employer’s till and replace it next morning with a valid cheque.
Chapter 7
Introduction to the Law of Tort
Self test questions 1- True 2- False 3- False 4- False 5- True 6- False 7- False 8- False 9- False 10- True
Chapter 8
The tort of negligence
5- Frank can sue the local council or the football club or both it depends whether the council owns the football club or it is private football club. If it owns by the council then he can sue council because they just forgot to fulfil their duty of care by not to put any fences on and if this football club owns by any individual or its private football then he can sue to football club’s owner. Frank could say that council or football club owed him a duty of care by neglecting to put safety premises on but they breached it and this is why he suffered actual loss.
6- First of all I would say that Michael shouldn’t have driven the car if he has drunk. And after that if he has drunk he shouldn’t have given lift to Anna. Even Anna could have felt it but she didn’t realise. And when Michael hit the car with tree he left car including Anna and ran away. So yes Anna could sue him because he had the duty of care towards Anna, he breached that duty of care and then damage occurred at result of breach of duty of care. Though Michael knew it there is risk involved but still he gave lift to Anna.
7- If this is case is concerned first of all its clear that she had check up and she was quite fit. Being an unconscious isn’t the thing which you can control over it. She was the experienced one and she has got licence too. The relevant parties in this case are the group of tourists those who got injured. It seems like nobody can say that this is her negligence because you can be unconscious at any fraction of second. Yes she had a duty of care towards tourist and she couldn’t warn them that she’s going to change the direction, so she breached her duty of care and it comes in the negligence but she didn’t know that because she was unconscious.
Chapter 09
7- As the Cheryl got burnt too but she has duty of care against the customer to keep them safe as much as they can. Though she was dumped by another passing customer and and she dropped dish on herself and on the customer so customer had any remedy in tort against anyone for the burn she has received. It was duty of care involved regarding that customer on that waitress. She was liable in negligence for the burn that the customer got.
8-norris decided to purchase a motel after so many search he has decided to contact to an estate agent and at the last he has bought the motel as agent told him that it will be like a gold mine but after purchasing that motel after few months the general business was broken because there were neither the tourist numbers nor the local population to sustain the business. We business is the thing where we cannot expect anything it may fall down or grow up as the passage of time. But after six months it does make difference that agent might have given false statement. Yes Norris can sue the agent because he has given the wrong information to him, as this is not the thing which can be predicted but still one should have idea that where this business is up to.
9-Hougland was passenger and his suitcase was stored in luggage compartment but at the arrival of the destination he couldn’t get his suitcase so there is bailment involved because it was the duty of the occupier to protect the passenger from any physical or materialistic loss. It was the bailment and lien sort of bailment. Yes he can recover the damages because the suitcase was in that bus and during the travel he has lost his suitcase which makes it clear that there was responsibility of those who were suppose to take care of luggage of those who are travelling in the bus.
Chapter 10
Other business-related torts
7- Philip planted a row of gum trees down his and Erica’s boundary with the passage of time branches grow up in the yard of Erica. It was creating problem for Erica that it stopped light to enter in his house. She should talk to Philip to cut down those trees or branches which are creating problem. I’m giving this piece of advice to her because he is neighbour of Erica and Erica shouldn’t be rude to him. As she will tell the whole problem he’ll consider it.
8-Arcus just has done all that to make Abbott happy but if he doesn’t want to play the Tennis it was his own choice. Arcus didn’t bind him that he has to play but it was his own choice. And when Arcus installed the lights Abbots didn’t say anything to him that not to install lights or something but he happily played the tennis and suddenly he realised that he shouldn’t be playing tennis till late night and if lights irritates him he could ask to the owner of court that lights are irritating to him could he uninstalled them or not.
9-The first statement is defamatory because Sophia Moran a well known crime figure linked to crime boss Carl Williams which means that was concerned with the third party too he said like its being nothing better than being seen with members of the opposition and it was not true. At the end statement has revealed the fact that statement wasn’t true at all. The second case isn’t defamatory this was being told in newspaper on the basis of Paul’s speech. And then Wayne had written the statement. The material needs to be defamatory in its ordinary and natural sense, referring to or identifying the plaintiff and made known to third party.
10-It was totally mistake of Cam who misunderstood Erica, she have paid all of her grocery but still he wanted her to take to the office and negotiate though there was nothing to negotiate. And then there was no point to hold her and pulled her to the office, this was totally offended, you cannot touch anyone without their permission so how could he dare to pull her towards office. Doesn’t matter how serious the situation was and if Erica hit him with a bag and he became unconscious this is not the fault of her what she could do other than that.
Chapter 12
Introduction to contracts (Self test questions) 1- True 2- True 3- True 4- False 5- False 6- False 7- True 8- True 9- True 10- True 11- True 12- True
Chapter 13
Intention to create Legal Relations
4-I would advice to Richard that he should ask to his father to pay him a bit or he can ask to his father to increase his pocket money if he can’t do more, he cannot take this matter to the court because court will say this is not any business contract or type of contract which is legally enforceable.
5-Yes George can take actions against Anita because she is the one who breached the agreement, there was intention involved to create the legal relationship then they had a valid agreement and partnership of consideration was also involved she went totally right when business was successful and it went wrong she has decided not to only break the partnership but also to start another business. She has breached the contract so legal actions should have been taken against her by George. That’s not the excuse if she would have realised it’s a business deal rather the friends one.
Chapter 14
Agreement between the parties
8-As the Brendan has mentioned that Steven is suppose to reply him back via same mean of express courier as he has done but Steven has replied him back via post so it means he has breached the condition so there was no any contract between the Brendan and Steven, it became invalid contract. So if Steven takes any legal action against him then he could easily say there was breach of condition so there was no contract between him and Steven.
9-As shares were dully allotted by him and letter was posted to him but letter was misplaced and he couldn’t get the mail and couldn’t think that he’s share holder of company now, and company also didn’t contact him for so long, and after many years company demanded for the payment of $400, a call on his shares. Grant claimed he was never being into an agreement and shareholder of the company he couldn’t receive the post. He’s right at his point of view but legally it’s been shown that he’s shareholder of the company because he accepted the offer. I would advice to say in court that company didn’t send any notice or confirmation to him that he’s the share holder of the company, he didn’t got the mail so he shouldn’t be payable of that amount.
10-Yes there was automatically contract being created between Kelly and Vending Machines Pty Ltd, they were offer written she has accepted it, there was consideration involved and yes there was implied intention because if the matter will be pulled off in court, court will say yes there was business relationship between that company and Kelly.
Chapter 15
Consideration
3-In the first case there is not any consideration because the market value is being given there but Jane didn’t tell how much price she wants. In the second case there is consideration involved because Jane offers to sell jack her lotus supercar for $25000 and jane accepted it, which means consideration present here. In the third case she offered Jack her car in $2500 and Jack accepted it which means there was consideration involved doesn’t matter in what price another is selling their belongings.
4-Emily is the daughter of Margaret so after a family discussion one night at the kitchen table in July 2006 it was agreed that Margaret would probably keep the business going for another couple of years and then retire. It was decided that Emily would work there as long as was needed and in return she would received any unsold dolls. When Margaret retired at the end of 2009, she decided that she would give unsold stock to the charity she forgot what she has said to her daughter. This made her daughter to think what she should do now. I think she should remind her mother about their conversation which they had years back. Emily can not Sue her mum because there wasn’t any contract between them.
Chapter 16
Capacity of the parties
4-Anna is so young to have contract because she’s an infant under 18.even that is not beneficial contract for her. Ted can teach her dancing free of charge this can be beneficial. During the 3 years she cannot accept stage engagements other than those under Ted and Ted could employee her to perform on stage, but wasn’t bound to do so, it means it’s up to him if he wants her to work for him in future or not. Two out of three were only beneficial for Ted so this was not beneficial contract of service. We can tell to Ted that she can breach contract if the only one thing is not beneficial to Ann.
5-no he cannot recover the damages because Washington is insane person and he entered into contract with Lincoln for the purchase of an antique axe and a cherry tree for $100. The price paid for both these items was fair and reasonable at the time of agreement was made, Washington seemed to be a normal person but the time of delivery he refused to give the delivery of axe and cherry tree or to pay for them Lincoln can’t recover this because contract or agreement can’t be made between insane.
6- No he was not bound at all because he was totally drunk at that time and he didn’t know what he was doing, bid successfully at an auction for the purchase of a house. It was clear to the auctioneer that Bruce didn’t know what he was doing.
Chapter 17
Genuine consent
4-A ship builder had contracted to build a tanker for north ocean tankers. The contract was in US dollars and didn’t contain any provision for the currency fluctuations. Approximately half way through the construction of the ship the United States devalued its currency by 10 percent. As the shipbuilder stood to make a loss on the contract, it demanded that an extra US$3 million be paid or it would stop work. The buyer reluctantly agreed under protest to pay, as he already had a charter for the tanker and it was essential that it is delivered on time. The buyer didn’t commence any action to recover the excess payment until some nine months after delivery so buyer cannot succeed in recovering the excess because it is the economic Duress. Buyer took very long time; court will say that he took so long to recover.
5-A solicitor carried out legal work for a property developer. When the solicitor submitted his bill, the property developer suggested that he might like to reduce his bill of exchange for a share in the venture. The defendant subsequently repudiated the agreement, claiming that he didn’t have to share the profits with the solicitor because the contract was voidable for undue influence. Yes, he’s right the contract was void due to the undue influence. It only has to be a reason and the effect on the contract is that it will be voidable at the option of the solicitor. Property developer tried to misuse his power to get the profit.
6-This was the case of unconscionable contracts which involves question of fact and degree and each case must be judge on its facts. George was 73and in the middle stage of Dementia. His daughter Lilly tried to make lie with him as he couldn’t think of himself his daughter took all the decisions by herself and took loan from the bank. Conditions and terms were not being told to the George and when he asked to take advice from the solicitor Lilly told him that she has read all the documents so he isn’t suppose to worry about after three months Lilly defaulted and Easy finance is now threatening to sell George’s house. I would advice George that he should escape the contract under a serious disadvantage that was apparently seemed like a good one but this was a disaster.
Chapter 18
Legality of object and Form
4-I think this clause isn’t reasonable because you cannot force anyone not to work in anywhere else if you leave any job for whatever the reason is. Clause in a contract in restraint of a trade will be enforceable if it is not reasonable. In this case restraint clause in contract of employment is not valid, the restraint must be reasonable and there must be protectable interests such as confidential information or trade secrets.
5- Peter and Lee were dealers in imitation jewellery located near each other in Adelaide. Lee sold her business to Peter and agreed that she would not carry on or be engaged in the sale, importation or manufacture of real or imitation jewellery anywhere in Australia for a period of two years. One year after selling the business Lee established a retail jewellery business in Cairns. So because of that reason Peter can enforce the covenant against Lee because when she was selling business to him she clearly mentioned that she will not start any business in entire Australia for the two years but she breached that agreement.
Chapter 19
Construction of the Contract
6-Yes, I guess AMC motors relied on the exclusion clause to provide a defence will be successful because when they asked George to sign the contract of terms and condition it was clearly mentioned the company is not responsible for damage caused by the fire to customers, doesn’t matter whatever the reason for car to caught fire, company isn’t liable at all to compensate because they mentioned in contract.
7- As Sam took his suit to Quick Klean Drycleaners Pty Ltd, this was the first time he had been to this drycleaner. After giving his suit to the cleaner behind the counter and paying foer the dry-cleaning, he was given a receipt with the number on it. The assistant told Sam that he needed to bring that receipt with him when he will come to collect his suit. She also told him that drycleaner would take all care but accept no responsibility during cleaning. She pointed out that a similar clause appeared on the back of the ticket. It read like drycleaner will take care all but will not accept any responsibility for effective removal of all stains during cleaning. When cleaning is being done and Sam came to collect shirt he found a tear in sleeve, he has shown that to assistance but assistance reminded him that the care all about but not accept responsibility, so this is called the representation which means a statement of fact made by the party before or at the time of contract, so drycleaner has told everything to Sam, so i’ll advice Sam just to negotiate with them if they can do anything or can pay back the money which he has aid to them for cleaning.
Chapter 20
Rights of the parties and discharge
6-there is termination of contract due to frustration and its unseen event when these both guys came into contract then war break down so contract became illegal. An unforeseen even outside the control of the contracting parties has significantly or radically changed the obligations of the parties from their original intentions neither party caused the supervening event, neither contemplated the supervening event so there was no provision in the contract for it, the new circumstances would make it unjust to hold the parties to their original contract.
7-If there is contract between Tim and Jackson then Tim can sue him but if there is no contract between then Tim cannot sue Jackson. If there is contract then Jackson committed the anticipatory breach of contract. It means allowing the innocent party to anticipate a breach has the following benefit of allowing them to minimise their loss by making alternative arrangements which reduces the damages that the guilty party may have to pay for breach.
Chapter 21
Remedies for breach of contract
6-The limitation of Actions Acts of the States and territories determines the time limits within which an injured party must act if they are to maintain an action. The aim of such legislation is to prevent the possibility of legal actions remaining open indefinitely. If an action has not commenced within these time limits, and the contract involves debt, the debt is still payable but its payment cannot be enforced by a court of la. The creditor is entitled to use any other means to obtain satisfaction of the debt. For example if the goods came into the procession of the creditor, it may be possible for the creditor to exercise a lien over the debtor’s good and to enforce payment in spite of the fact that the recovery of the debt is barred by statute.
7-Bird and Geoff entered into contract for $100000. Bird has done two third of the work and told to Geoff that he had no more money and couldn’t finish the job, Geoff finished the contract and end the work by using the material left on site by Bird. Yes, Bird can recover the balance of the two-third of the price on Quantum meruit it means as much as he has earned and only arise in case of part-performance. The contract may be discharge by breach, but where the contract is for goods and services there is a new implied contract imposed by law on the party taking the benefit that they will pay a reasonable amount for the quantum or portion given.
Chapter 22
Consumer law
7-Anthony office suppliers agreed to deliver a new photo copier to the premises of Brad’s light Fitting. When its driver arrived at the premises he found a person who he thought was an employee waiting in the loading bay. The person was wearing a Brad Light Fitting’s shirt and appeared to know what he was doing. He signed a delivery receipt for the photocopier with driver, the person was thief. I think seller will have to suffer the loss because it was not duty of buyer to look upon those frauds. Thought seller couldn’t reckon whether its buyer or not because that guy was wearing same costumes as Brad’s light fittings employees do wear. Seller must have asked earlier the name of the receiver before making that shipment.
8-Yes Bodilingo Py Ltd recover the office equipment and computer that it supplied to the web developers because that company went into liquidation and couldn’t pay the money back as per contract has been decided that Bodilingo will provide them furniture and in return another company will give back 4480000 over two years at the rate of $20000 per month and after twelve months company went into liquidation and supplier company couldn’t receive any further payments.
Chapter 23
Consumer guarantees implied into contracts-consumer protection
1-Hui bought a second hand computer from Ashmore office Equipment $500 and spend a further $95 having its overhauled. After using the computer for some months police arrived at his house and found that it’s the stolen one, they took back computer from him and give it to its real owner, he should ask them to go to that person from whom he bought that computer. Under the Australian consumer law Hui can sue the Ashmore office equipment to recover the full price.
2-Richard went to a fish and chip shop and asked for two fresh lobsters for dinner. The fish chop owner explained that he had no live lobsters, but that he had some boiled ones, which he sold to Richard. The lobsters weren’t fresh and Richard after eating them became seriously ill Richard can take action against that fish seller under the Australian consumer law.
3-Yes Brown can have remedies against the retailers under the Australian consumer law as he has bought couplke of woollen underpants from Underwear Galore in Adelaide because he can say that manufacturer is liable if the gods are rendered suitable for a particular purpose owing to something that has happened after they have left the manufacturer’s control. Where no degree of special skill and judgement is claimed by the supplier or expected by the consumer.
Chapter 24
Consumer protection Australian consumer law
1-Murrandoo has got popularity in property developing sector, he’s known to be successful property developer in his country. He wanted to start another company and he thought to take loan he went to the different companies and manager of those companies advised him that if he would go for the foreign currency loan he would be earning profit because of the exchange rate. So he decided to get a loan in currency Yen 1:65 after few months the exchange rate got the fluctuations in rates and increased significantly and he owed double in debt towards bank, in a sense there was his own problem he knew exchange rates gonna increasesuccessful property developer, he wanted to loan from the bank and when he went to the bank, different branch manager has told him different schemes which could may help and beneficial for hi, one of them was he could have loan in foreign currency at lower rate he went for it and after few years the Australian dollar fell against the Yen to 1:65 and effectively doubling Murrandoo’s debt to the bank. He didn’t have any resource under the Australian Consumer law because everything was being told to him and he might have thought about the exchange rate and interest rate but he didn’t. We can’t say that there was false misleading representation.
2-Advertisement in daily newspaper by Pioneering homes Pty Ltd referred to loan and house packages on payment of $1000 deposit and $120-$140 weekly repayments. The advertisement didn’t disclose that at sometime between one and three years after the settlement date, long term finance would be substituted for the temporary finance, and that repayments could be expected to rise to just above $175 per week. Yes, advertisements contravene the Australian consumer law under the section 34. This is advertising a product or service at specified prices only to tell the consumer that product has been sold out or the service is no longer available at that price but that another better product or service is still available at a higher price.
Chapter 26
Agency
7- As an agent solicitor, it must have remedy against DPC Estates the reason is he was like a member of actual authority and was maintaining too many companies in a go which definitely means agent should know all the principles which are supposed to be considered in running companies. The first obligation was him to follow the instructions, then to keep secrets as confidential as he could, maintain accounts properly. As the manager was hired to manage the companies under the control of the solicitor he often used to pass information to the solicitor’s clerk about properties which was the breach of agreement.
8-Yes, Seedal and Co can put forward their case because this wasn’t headache of them that who Appointed them, they were being appointed they have finished their duty so it is responsibility of that company to accept and pay that bill of payment because they literally had contract when company asked them to draw up plans for the development of the land.
9-I guess, broker is not liable to take the commission from the buyer of that hotel. The reason is buyer already negotiated about the purchasing matter of hotel from the owner of hotel. Hotel owner has given him his commission already so if he asks to buyer for the commission and buyer refuse to give him commission this is what buyer can do. Where an agent is paid for their services they must exercise the standard of care, skill and diligence usually exercised in the agent’s class of business. We can define broker in a way a person who buys or sells goods and services on behalf of the owner but he cannot own those things.
Chapter 27
Companies and incorporated associations
Self test questions 1- True 2- True 3- True 4- False 5- False 6- True 7- False 8- False 9- True 10- True
Chapter 28
Partnerships
Self test questions 1- True 2- True 3- True 4- False 5- True 6- True 7- False 8- False 9- False 10- True
Chapter 29
4- Juliet and Elroy are willing to jump into business. So it means that they are in partnership. They are fresh into the business and don’t know what they are exactly supposed to do. I’ll advise them first go for the partnership as they are two in group and when they develop the business they can convert that partnership into the company as there are always options available to change the nature of business. partners. As they wish to reserve the administration in its secrets and confidentiality so partnership is best option for them to avail it and do work on it further. The cost of formation is low, privacy is easy to maintain, provides access to capital resources of other partners.
REFERENCE:
Business law Book
6th edition
Andy Gibson, Douglas Fraser
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