Law Make Decisions Within Legal Context

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LAW ASSESSMENT 2
PART A:
Question 1:
1. Kenny and Duke must register this business name. According to the Business Names Act, 2002, the legislation states that it is compulsory to register a business name where a person, including a company, wishes to use a name other than their own.

2. To register a business name, the owner or owners must submit an application form and pay the prescribed fees to the appropriate government agency. In New South Wales, it is called the Office of Fair Trading.

3. There are certain requirements to the display and use of a business name. The business name must be displayed at each place where the business is carried on under the business name. The owner of the business name must notify the consumer affairs agency, such as the Office of Fair Trading in New South Wales, of any changes in ownership, addresses and so on. Failure to do so may result in penalties and cancellation of registration.

4. Kenny and Duke do not have a copyright in their business name yet until they register their business name under the registration of trademarks. They can first search the Register of Trade Marks before registering their business name, to check that the name has not been registered by someone else as a trade mark. Once they have registered their business name as a trademark, then they will have exclusive rights to use or control the mark.

5. Kenny and Duke must also obtain an Australian Business Number (ABN). Following the introduction of the GST in 2000, all businesses in Australia should have an Australian Business Number or they may be liable for the withholding of 48.5% on payments.

Question 2:

1. The issue in this situation is whether Food Hall is a holder in due course under the Cheques Act 1986. In Section 22 of the Cheques Act 1986, bearer cheques are defined to be payable either to the party named as payee, in this situation, M Mouse, or to any person, who is the holder or ‘bearer’ of the cheque, who presents the cheque at the bank or financial institution. The Act defines ‘bearer’ as the person in possession of the cheque. According to the Nemo dat rule, it states that a person cannot pass on a title which that person does not possess. In other words, the Nemo dat rule says that when a property is transferred, the transferee cannot acquire a better title to it than the transferor had. In this situation, Melanie Moose, who stole the cheque from Mickey Mouse, holds no title, and when Melanie Moose transfers the cheque to ‘Food Hall’, the manager of ‘Food Hall’ does not hold any title as well, or in other words, holds the same title as Melanie Moose. But the exception to the Nemo dat rule is the holder in due course. When the manager of ‘Food Hall’ receives the cheque from Melanie Moose and takes it to the bank, the manager is the holder in due course and therefore has good title even though it was taken from a thief. It is defined in Section 50 that a holder in due course is a holder to whom a cheque is negotiated where, at the time of negotiation, the cheque * Is complete and regular on the face of it

* Is not stale
* Does not contain a “not negotiable” crossing.
The holder must have also taken the cheque in good faith, for value and without notice of any dishonour of the cheque or defect in the transferor’s title. In this case, the manager of ‘Food Hall’ receives the cheque from Melanie Moose for giving her $100 cash and $400 worth of groceries and therefore holds good title. When the bank refuses to pay ‘Food Hall’, the manager can sue Melanie Moose for the amount of the cheque, because the holder in due course deserves the payment for the cash and the groceries that they have given to Melanie Moose regardless of what happened before the cheque was negotiated. Under Section 50(1) (b), ‘Food Hall’ must prove that they had received the cheque in good faith, for value and without notice of any dishonour or defect from the title from Melanie...
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