LAWS20058 A Tribe Developed a Constitution

The provisions of penalties which imposed on the tribe members for their violent actions are clearly defined, and they are recognised by each tribe members as provided in the rules of recognition principle. Various rules are included in the constitution for changing, deleting and adding regulations relating to criminal actions of tribe members as given in the rules of change[1].

Lastly, the rules of adjudication element are present as well because the procedure of holding people liable is decided through a trial in which the authorised members evaluated the facts of the case to hold a member liable for his/her actions. The rules for protecting tribe members from violent actions include punishing the guilty member by imprisoning him for a specific period based on the crimes. The constitution also protects members by providing them rights based on which they can claim for damages from the member who used violence against them due to which they suffered a loss. These rules are established to let tribe members know that if they use violence against other members, then they will be punished. It reduces the number of violent acts in the tribe and promotes a peaceful environment.

[1] Patrick Parkinson, Tradition & Change in Australian Law (Law Book Company, 1994).

The criminal justice system established in the United Kingdom applies in England and Wales. The legal system considers that the criminal actions are wrongs which are made against the whole society rather than a single individual, thus, the state is authorised to take appropriate steps to stop and punish people who conduct crime in the country. Various penalties are imposed on these criminals after proving their crimes to prevent them from doing them again and protecting the citizens.

The Criminal Law Act imposed various penalties on individuals in order to punish them for their criminal conduct. The Criminal Justice Act focuses on establishing justice by protecting the rights of citizens. The main penalty which is given by the court to criminals includes imprisonment for a period which is decided based on their crimes. The court also discharges the criminals or enforces them to pay damages to the parties who suffered loss due to their criminal conduct. In serious crimes, the court gives life imprisonment to the criminal.

The principles of Hart’s three-part legal system present in the legal system. For example, these policies are recognised by everyone, and there is no ambiguity exists in the law. The rules of change are clearly defined based on which the parliament can make changes in the law .The process of adjudication is established, and the courts have given authority to hear and decide criminal cases. In Australia, the principles of Hart’s three-part legal system apply as well. The criminal law applies to everyone, and the procedure of change is given as well. The courts are authorised to hear and decide criminal cases. The legal system is borrowed from English legal system, thus, penalties are same such as imprisonment, payment of damages, discharge and life imprisonment in serious crimes as given in the Criminal Code .Part C Issue

The legal issue raised by Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd[1] case is whether the landlord can terminate the lease agreement if the tenant failed to pay the rent on time?

Rule

There is no difference between a lease agreement and commercial contract. Both of these contracts have certain terms which parties have to fulfil. Just like a commercial contract, a lease agreement which is formed between two parties can be terminated by the parties in case an essential term of the contract is violated by the party. The payment of rent clause in a lease agreement is considered as an essential term because it is the consideration of the contract. In case of non-payment of the consideration of the contract, the parties have the right to terminate the contract. Furthermore, on non-fulfilment of an essential term of the contract, the parties have the right to demand the loss of bargain from the breaching party for the loss suffered by them.

Application

In the case of Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd, a property was given on a lease for 15 years by Transit Management Pty Ltd (Transit) to Duffy Bros Fruit Market (Campbelltown) Pty Limited (Duffy). After a few years, it becomes difficult for Duffy to pay off the rent of the property. Thus, a deed was signed by both parties to sub-let the property to a third party which will pay half rent of the property. Transit sold the property to Gumland Property Holdings Pty Ltd (Gumland) in 2001 along with the rights related to the lease of the property. The sub-lease agreement expired in 2002; however, the sub-tenant did not want to extend the lease agreement.

The sub-tenant did not vacate the leased property and started paying only half rent for the property. Gumland demanded the arrear rent from Duffy; however, Duffy ignored the demand. Thus,Gumland filed a suit in the court to demand the arrear rent with interest and the loss of bargain from Duffy. The lease agreement was also terminated by Gumland. In the court, Duffy provided that the lease agreement cannot be terminated on breach of a single term. Moreover, Gumland did not have the right to demand the loss of bargain for breach of a term of the deed.

The court rejected these arguments by providing that payment of rent is an essential term of the lease agreement, thus, the entire agreement can be cancelled by the landlord in case the rent is not paid on time. Moreover, the deed formed between the parties to sub-let the property is a part of the lease agreement, thus, Gumland has the right to demand the loss of bargain from Duffy on non-compliance with an essential element. In Australian law, this is a significant case which provided the right of the landlord to cancel the lease agreement if the rent is not paid on time.

Conclusion

From the above observations, it can be concluded that a landlord (Gumland) has the right to terminate the lease agreement and demand the loss of bargain on non-compliance of an essential term of the contract by the tenant (Duffy). The remedies given in this case is $2,096,514 which included payment of arrear rent with interest along with the loss of bargain.

Part D Issue

In Pryor v Given case, the issue raised whether the false statement made regarding a land can be constituted as fraudulent misrepresentation to set aside the contract and whether the party can be liable under the Australian Consumer Law?

Rule

A person can be held liable for making a fraudulent misrepresentation if a statement is made by him that is false and the objective of such statement is to induce another party to sign a contract. The person who knowingly, without believing the truth or recklessly made a statement which is false to encourage another party to create a legal relationship can be held liable for fraudulent misrepresentation.

The innocent party who suffered a loss due to fraudulent misrepresentation has the right to set aside the contract or comply with its terms since the contract becomes voidable if it is formed based on fraudulent misrepresentation. The Australian Consumer Law provides various regulations to protect the customers from fraud. Section 18 of the Competition and Consumer Act 2010 provides that a party can be held liable for making a statement regarding trade or commerce which is misleading or deceptive or likely to do. Section 30 of the act held a party liable for making a misleading or deceptive statement regarding land or possible sale of the land.

Application

In Pryor v Given case, a real estate company made an advertisement regarding selling a land. The advertisement displayed a house on the land, and a quote was written that the house is “a wonderful place to live”. The company depicted in the advertisement that a house can be built on the land, however, the land which was advertised was subject to a planning scheme. Based on such scheme, no house can be built on such land without fulfilment of a wide range of legal conditions. The parties who wanted to build a house on such land have to comply with difficult compliances and get the construction approved before building anything.

The objective of the real estate company by making that advertisement was to induce potential customers to purchase the house by signing a legal contract because, in reality, the company knew that a house could not be built on such land. A suit was filed against the company and the court provided that the company has made a false representation regarding the land in order to sign a contract with potential customers. The court provided that the corporation has breached section 30 of the Australian Consumer Law. The advertisement made by the company was misleading and deceptive because it showed that a house could be built on the land, whereas, it is difficult to build a house on such land without dealing with a wide range of legal compliances. Thus, the court provided that the real estate company is liable for making a fraudulent misrepresentation and breaching section 30 of the Australian Consumer Law, thus, any contract formed with the company is voidable, and it can set aside by the parties.

Conclusion

From the above observations, it can be concluded that the company is liable for fraudulent misrepresentation and breaching section 30 of the Australian Consumer Law based on the misleading advertisement displayed by the company. The remedies given in this case include terminating the contract regarding the purchase of such land and payment of damages to the aggrieved parties.

Part E  Issue

The issue is whether Pedro has the right to shut down the business of Lisa by enforcing the contractual term?

Rule

The contract creates a legal relationship between two or more parties who have signed the contract. Based on this legal relationship, the parties have the right to enforce the terms of the contract on each other to ensure that all parties comply with them. In case a party did not comply with the contractual terms, then other parties can file a suit against the breaching party to legally enforce the terms on him and demand damages for the loss suffered by them.

However, they are only able to enforce the terms if a valid contract is formed between them. There are various elements which are necessary to be present in order to form a valid contract. The court provided in Harvey v Facey case that an offer must be made by a party to form a contract which must have the authority to bind the offeror into the terms of the contract after the acceptance is received by the offeree. Only a valid acceptance which is given by the offeree can form a contract between parties.

It is important that the acceptance given by the party must exactly match the terms included in the contract or else a counter offer is formed which terminate the original offer based on which a contract cannot be formed as provided in Hyde v Wrench[8] case. A valid consideration must be present in a contract which is referred to the bargain for the contract in which one party suffers a loss whereas another party gains. In Thomas v Thomas[9] case, it was held that the consideration must have a certain value as per the law, however, the court provided in Collins v Godefrey[10] case that an existing duty of a party cannot be used as a valid consideration while forming a contract. The parties who are unsound mind, insolvent or minor did not have the authority to enter into legal relationships, thus, the competence of parties is another key element[11]. Lastly, the parties forming a contract must have the intention to bind themselves to the terms of the contract. In Jones v Padavatton[12] case, the court provided that people did not have the intention to form legal relationships in social and domestic settings.

Application

Pedro and Lisa have formed a contract in which Pedro is purchasing the business of Lisa. Both parties have formed a valid contract since all elements of fulfilled by them. Firstly, a valid offer and acceptance are made along with a valid consideration. Both parties are competent, and they have the intention to form a legal relationship. As per the term of the contract, Lisa cannot open a French Jewellery business in Australia for a period of two years since the contract is formed. Lisa has opened a French Jewellery business in Cairns, Queensland after one year of the contract. Thus, Pedro can enforce the contractual terms on Lisa to shut down her business.

Conclusion

From the above observations, it can be concluded that a valid contract has formed between the parties. Therefore, Pedro has the right to shut down the business of Lisa to enforce the contractual terms on her. The remedies available in this case include the specific performance of the contractual terms and payment of damages to Pedro for the loss suffered by him.

Bibliography 

Articles/Books/Reports

Chen-Wishart M, Contract law (Oxford University Press, 2012).

Esmaeili H and Grigg B, The Boundaries of Australian Property Law (Cambridge University Press, 2016).

Parkinson P, Tradition & Change in Australian Law (Law Book Company, 1994).

Thampapillai D, Tan V, Bozzi C and Matthew A, Australian commercial law (Cambridge University Press, 2015).

Turner C, Trone J and Gamble R, Concise Australian Commercial Law (Thomson Reuters, 2017).

Collins v Godefrey (1831) 1 B & Ad 950

Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237

Harvey v Facey (1893) UKPC 1

Hyde v Wrench (1840) 49 ER 132

Jones v Padavatton (1969) 1 WLR 328

Pryor v Given (1979) 24 ALR 442

Thomas v Thomas (1842) 2 QB 851

Competition and Consumer Act 2010

Crimes Act 1914

Criminal Code Act 1995

Criminal Justice Act 2003

Criminal Law Act 1967

Austlii, Competition and Consumer Act 2010 (2018) 

Jade, Edward Alfred Pryor v Brian Alexander Given (1980) Jade 

Lethlean J, A landlord’s right to recover loss of bargain damages (2008) Mondaq 

Hossein Esmaeili and Brendan Grigg, The Boundaries of Australian Property Law (Cambridge University Press, 2016).

(1979) 24 ALR 442

Clive Turner, John Trone and Roger Gamble, Concise Australian Commercial Law (Thomson Reuters, 2017).

 Austlii, Competition and Consumer Act 2010 (2018) 

[5] Jade, Edward Alfred Pryor v Brian Alexander Given (1980) 

[6] Mindy Chen-Wishart, Contract law (Oxford University Press, 2012).

[7] (1893) UKPC 1

[8] (1840) 49 ER 132

[9] (1842) 2 QB 851

[10] (1831) 1 B & Ad 950

[11] Clive Turner, John Trone and Roger Gamble, Concise Australian Commercial Law (Thomson Reuters, 2017).

[12] (1969) 1 WLR 328