HI6027
BUSINESS AND CORPORATE LAW
tutorial AssIGNMENt

Trimester 1 2021

Table of Contents

Question 1. 3

Question 2. 3

Question 3. 5

Question 4. 6

Question 5. 7

Question 6. 7

Reference List 9

Question 1

Issue

This is a medical negligence case and it can apply civil tort offense towards the company XYZ. The tort of the negligence of titanium hip bone replacement and complain of severe pain that far-reaching tort frequently become a liability-basis.

Rule

There are two types of the law of torts such as common law and civil law. It can be used in Civil law in different functions including, punishment, deterrence, efficient loss of the cost of an accident and appeasement[1]. There is a modern insurance system that is also applicable against wrong treatment of hip bone replacement through civil law. On the other hand, it also considers liability without fault that covers areas of foreseeability and causation that become stretch injustice to the victim with remaining faithful in fault-based law of tort.  

Action

In this case, it uses a compensation function in this serious case of wrong medical treatment to the particular victim. The compensation and civil liberty under the law of tort for personal injury in 1978, estimated a cost of 85% to award £1 on net benefits to the victim[2]. The tort system is effectively capricious in the compensation in the areas of remedial legislation that is particularly affected by accidents.

Conclusion

It can be said that the elderly patient uses this civil law of tort against defecting manufacturing of its hip bone replacement as it deals with unfair behaviour against injury and treatment process.

Question 2

a)

Issue

Karl has sold a flyer promoting shave and haircut for $ 12 that is not its original cost. According to the shop manager, it can be $30 at a bargain where Karl has sold in other shops for $20 to $25. That is a huge loss for him.

Rule

Contract law is mainly based on statute or codified law that provides freedom of contract for both parties are at liberty to strike with a bargain in product[3]. This case is under the consumer law that considers five factors in a contract such as formation, scope, and content, vitiating factors, performance and termination and remedies.   

Action

In this case, Karl generated unconscionable or unfair dealing by mistake that is a part of contract law. It can be mitigated by assuming a mistake of unfair terms for the selling of flyers in different shops.

Conclusion

Yes, Karl has a legal ground to claim with this price rate based on the contract law of sales of flyers in different barbershops. It can use contract law and take legal steps as consumer law of Australia.

b)

Issue

Karl already had known about the cost of haircut and shave before being informed that its real service cost was $22, and then it is another case for this issue. 

Rule

In unfair terms, the customer is about the supply of products and sales of an interest in a similar location whose acquisition of service and products is predominantly for domestic, personal, or consumption in the section of 23.

Action

The shoppers have the right to protect this legitimate interest of the party that takes advantage of terms. In section 24, in the case of transparency, may take into account this matter with significant imbalance and determine financial contact[4].  

Conclusion

Yes, he has to pay full price in this case according to contract law of Australia and Karl needs to alert next time. 

Question 3

Issue

Jono has sold the mechanic's apprentice to Miguel without knowing their age and proper information about him. It has sold a contract basis in the payment system with three equal fortnightly payments of a total of $3000. It can be successful to use a tort of deceit due to false statements.   

Rule

Law of tort has two sections of the common law of deceit that acquires independent identity to buy off private vengeance during middle age. Miguel did not use it and Jono took it casually, appeasement and punishment are no longer in tort law. In section 18, Australian consumer law generates investment commission Act 2001 that has some prohibition in these status, trade, or commerce that is misleading or deceives[5]. It follows the tort law of restitution and trust that deals with the obligation of property for benefit through a contract. Jono can use this rule to get its rights and raise its voice against misleading conduct that is ubiquitous in commercial litigation. There are some circumstances in limitation of using deceit letter is it can possible two parties with abiding governance rules in the areas of dependence of contributory negligence and differs from according to statements and action. That is why Jono can be successful with this deceitful letter against Miguel. 

Action

Jono will be successful in this action in tort for deceit as this case is under the primarily common law of the trout. Deceit letter is a key element against fraud that arises from false and untrue statements during the agreement. The tort of deceit is mainly based on fraud with intention-based and conduct-based that focuses on negligence. It is included in modern law that provides a general principle of new social problems and liability for negligence[6]. It also covers the duty of care elements that reflect split personality in conduct which is appropriate for this case of Jono. It can apply against Miguel through negligence misrepresentation and the law of deceit with false age issues that is unlawful conduct and offense against a regulatory tor and regime.

Conclusion

Jono will be successful in the action of the tort of deceit against Miguel as it uses applicable laws and rules that protect its rights from fraud. Based on its selling contract, it can raise its voice against wrong statements of age and payment according to its contract. It will support Australian consumer laws for effective results for an equal payment system and its legal right.

Question 4

Issue

Charles has the right to voice against this issue of fraud and false information during buying motorcycles. After using the motorcycle for four months, it is realized that Charles has been cheated by Pete's motorcycle dealers with more than $4000 and false information of buying date, which covers mileage of the motorcycle. It needs legal rights and generates proof against its manufacturing information and mileage.

Rules

This case is against the contract law that is under the common law of agreement with a legally enforceable contract. It is a fundamental part that depends on major sections of commercial law such as sales, rental, and buying products of people's daily lives. There are two rules of agreement legally and enforceable that maintains promise and legal intention during the contract. Charles needs to understand three factors before buying this intention, agreement, and consideration. All of these are statutory requirements for consumers that can invalid and no beneficial due to lack of compliance and contract void. Section 271, provides a grantee of manufacturing goods and supply of goods from dealers and it complies with section 54 that generates legal price charged of suppers and fixed retail price of goods[7].    

Action

There are three major factors of contract law as a misleading contract, unfair practice, and unconscionable conduct that depend on pre-contractual agreement and its validity. Charles can get its right through using common law of contract law that is under conduct of a person in the deceptive or tort law in buying and selling of a product. In the section of tort law, it has considered three major factors such as product information, liability, and safety that are false in the contract of Charles. It can use Article 106-107 for effective action against it that generates protection against false information of product, safety, and liability during purchasing or contract. It can follow contract law in the section of 55 to 59 effectively that describes product fitness for purpose, correspondence with description, merchantable quality, express warranties, and availability of return, or repairs facility respectively.

Conclusion

Charles will get his rights under its contract law and Pete’s motorcycle can be fined and provide some punishment due to this fraud case. It can easily use those articles for proof and find out all false information judgment processes against it.

Question 5

Issue

The issue of this case is Samantha cannot sell its Oatley unit within 120 days and face a crisis of short-term finance. It may face some problems for the bench of contract and its solicitor wants to mitigate this issue through increasing additional interest on buyers of Oatley units.

Rule

Late payment fees and additional charges are legal in Australia with a reasonable cause that can cover loss of business. However, it may refuse excessive or unreasonable payment fees or forcible payment for this issue[8].

Action

The solicitor takes this action on a legal basis with a reasonable time for business; it needs to be under a regulatory payment system on the provided date. The advice is based on full-service commercial laws that chase up the payment and save from huge loss of business.  

Conclusion

It is considered as a commercial and legal implication of additional charging these fees of the buyers of Oatley.

Question 6

Issues

The stakeholders of Octagon Supplement have blamed the director of the company for violation of duties in the Corporation Act 2001. It is a huge amount of loss that is why it can be said that duties are violated and defence also available against it. There are some issues of the bench of duties that depend on equitable and damages compensations, an account of profit, injunction, and termination of contract and declaration of all stakeholders of company investment. In this case, the director has ignored the breach of statutory duty by adopting expert opinion in this business of nutrition and health supplements.   

Rule

In the section of 1801(1) in the corporation Act, the Director has three basic requirements such as care, diligence, and management skills. It is also under the general law, loyalty, and honesty that supports a periodic review with risk management based on the financial status of business[9]. The stakeholders violated the duties of directors through section 198 (D) and section 190 (1) with express statutory authority and responsibility for action respectively. On the other hand, according to Section 190 (2) and 189, it is not responsible for the action only with the cause of proper exercise of power and defending the decision of experts respectively.  

Action

The director and other stakeholders such as employees, a committee of directors and professional advisors are under section 189 that can defend against the duty of directors. The Corporation act 2001, can measure internal and external faults through sections 189 of reliance on the information, 190 responsibilities, 198 (D) for delegation on new projects respectively[10]. There are defence sections 588H that are available for insolvent trading and section 588G for director duties for insolvent trading[11].

Conclusion

The director violated its duties under the Corporation Act 2001. It has violated care, diligence, and new project management duties with performance and financial statements. In section, 588H is a statutory defence available on the bias of information and performance in new projects.

Reference List

Australian Government, ‘Federal Registration of legislation’, corporation act 2001. (web page, 2021). <https://www.legislation.gov.au/Details/C2018C00424>

Bant, Elise, and Jeannie Marie Paterson. ‘Evolution and Revolution: The Remedial Smorgasbord for Misleading Conduct in Australia.’ FIU L. Rev. 14 (2020): 25.

Cheluvappa, Rajkumar, and Selwyn Selvendran. ‘Medical negligence-Key cases and application of legislation.’ Annals of Medicine and Surgery 57 (2020): 205-211.

Corporation Act 2001, ‘Commonwealth Consolidated Acts’, Corporations Act 2001 - SECT 588G (web page, 2021). <http://www5.austlii.edu.au/au/legis/cth/consol_act/ca2001172/s588g.html>

Forwood, Mark R. ‘Whither no-fault schemes in Australia: Have we closed the care and compensation gap?.’ Alternative Law Journal 43, no. 3 (2018): 166-170.

Gussen, Benjamen Franklen. ‘A Proposal for an Australian Bill of Rights Based on Customary International Law.’ Transnat'l L. & Contemp. Probs. 30 (2021): 1.

Kluwer.W. , ‘Competition and Consumer Act 2010’, SECTION 271 ACTION FOR DAMAGES AGAINST MANUFACTURERS OF GOODS.(2021).https://pinpoint.cch.com.au/360document/legauUio1668520sl270768708/schedule-2-section-271-action-for-damages-against-manufacturers-of-goods/overview

Micklitz, Hans-W., and Geneviève Saumier. ‘Enforcement and effectiveness of consumer law.’ In Enforcement and effectiveness of consumer law, (2018)pp. 3-45. Springer, Cham.

Oxford university press, ‘Introduction: Torts and Tort Law’, Oxford university press sample chapter (web page,2021) <https://www.oup.com.au/__data/assets/pdf_file/0021/140880/BARKER_9780195572391_SC.pdf>

Tarr, Julie-Anne. ‘Grappling with fraudulent insurance claims and'collateral lies': Comparative insurance law developments in the United Kingdom and Australia.’ Journal of Business Law 2019, no. 1 (2019): 43-61.

Wray.L. ‘Are Late Payment Fees Legal in Australia?’, legalvision, (web page, 2020). <https://legalvision.com.au/late-payment-fees-legal-australia/>