LAWS20058 Australian Commercial Law: Tribe From Violent Acts

-Identify the common law legal issues in dispute. What were the broad areas of contract law that are relevant here?

-Explain the principles of law, the rules that the court applied and which were relevant to deciding the issue.

-Apply the relevant law to the facts. Explain how the court applied the relevant law.

-Conclusion and remedies- after the above stages how did the court reach a conclusion on the facts of the problem. Be sure to consider the remedy or remedies for the successful party.

Support your analysis with case and statute references where relevant.

Part E

In this question and answer you should consider only common law contract issues .

Pedro and Lisa were both retailers selling imported French jewellery in Melbourne, Victoria. Lisa sold her business to Pedro and in the contract agreed that she would not carry on or be engaged in the sale of imported French jewellery anywhere in Australia for a period of two years. One year after selling the business Lisa established a new retail business in Cairns, Queensland, selling imported French jewellery. Can Pedro enforce the contractual promise against Lisa?

Advise Pedro using common law contract legal principles and the IRAC method as to what action Pedro can take and the possible remedies he could obtain. You do not need to discuss the essential elements and the formation of a contract topic here. Assume that a valid enforceable contract exists between the parties. Do not apply consumer law or other statute principles in your answer.

It is essential that you refer to relevant cases to support the analysis.

The IRAC method- Issue, Rule, Application, Conclusion and remedies- requires you to set out clearly and in an organised way these matters:

-Identify the common law legal issues in dispute. What are the broad areas of contract law that are relevant here?

-Explain the principles of law, the rules, that apply and which are relevant to deciding the issue.

-Apply the relevant law to the facts. You may need to consider more than one approach here. There is not always one clear way.

-Conclusion and remedies- after the above stages reach a conclusion on the facts of the problem. Be sure to consider possible remedies for the innocent party.

Support your analysis with case and statute references where relevant.

Answer:

Part A

This section of the paper uses the previous assignments in which the tribe’s constitution has been deliberated and described. There are certain rules that are stated in this new constitution that is related to give security to the tribe from the forceful action of one another. In this part of the paper, certain provisions have been used to protect people from fierce actions. There are several kind of fierce actions like battery, assault, grievous hurt, murder, theft, sexual assault and robbery that may be present with respect to the tribe. The above mentioned crimes are said to be forceful in nature as they put a bad carnal impression on the victim. They also cause chaos and fear among the people and affects the mentality and welfare of the members of the tribe. In the constitution, the legislative wing of the tribe can make laws as per the requirements of the society regarding the violent behaviour of the criminals. This includes the change rule that has been given by professor Hart. It has been provided by the constitution that any individual who is suspected to carry out the violent behaviour must be sued and must be verified beyond any doubt that an individual has committed a crime, thus including the recognition rule and the adjudication rule. The punishment has been set according to the seriousness of the activity of crime that has been committed by an individual. If he or she has committed robbery for the initial time and this crime is small in nature then the punishment that will be given to him or her will be less as compared to the crime that has been committed by him on many events. However, the above mentioned rule does not exist with regards to other serious crimes like murder or sexual assault so that it can promote limitations in the society.

Part B

The provisions that has been mentioned in the Crimes Act 1961 primarily governs the penalties of crime in Australia. In this part, the legal system of Australia has been related to the legal system of India for the prosecution of the activities of crime. The Indian Penal Code 1960 governs the criminal activities of India. An individual is exposed to punishment if he or she commits a crime and it does not prove to be good for the people living in the society. The criminal penalties have been enacted in India for every kind of activities of crime. The crime includes battery, assault, grievous hurt, murder, theft, sexual assault, robbery, counterfeiting currency, conspiracies, forgery, defamation, malicious prosecution and abetment. Under the section 377 of the Indian Penal Code, the rules related to the sexual offence that is unnatural has been given. Section 377 of the Indian Penal Code states that any individual who has intentionally has carnal intercourse with any animal, man or woman against the nature’s order will be penalized with life time imprisonment or the imprisonment may extend to ten years or will be liable to fine. Certain changes has been done in the rules of this section as per the requirement of society. Thus, the change rule has been included in this system that has been given in the legal system of three parts of the professor Hart. On the other way, this kind of criminal activity in Australia is said to be sexual assault and it is dealt by Crimes Act. There are different kinds of sexual assaults that have different punishments that depends on the seriousness of the activity. This states that the recognition rule has been included in the legal system of Australia as given in legal system of three parts of Hart. There is a rule in both systems to appeal against the punishments that has been enforced on an individual. Therefore, the adjudication rule has been incorporated by the legal system of Hart.

Part C

Issue

The issue is in relation to the contract law and property law. In the above mentioned case there are three basic issues and they are:

• Whether the party has the right to rescind the contract in case of breach and can claim for damages.
• Does the lessor can recover the bargain damages for breach.

Rule

The section 17 of Conveyancing Act 1919 (NSW) is related to the benefit and rent of covenants of lessees to run with the reversion.

The court had stated in the case of Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) that when the breach is serious in nature regarding to the term that is non- essential then the other party can terminate the legal agreement and can claim for the damages.

The court had provided in the case Photo Production Ltd v Securicor Transport Ltd [1980] AC 827 that when an agreement before the contract is there among the parties in regards with the terms that has been stated as the important section of the legal agreement then the injured party has the right to claim for the damages and can also terminate the contract.

The case McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457, states that where the important condition of the contract is breached by the party then the injured party can claim for the damages and can also terminate the contract.

Application

In the above mentioned case, the possessor of the shopping centre is Transit Management Pty Ltd that has been given on lease to Duffy Bros Fruit Market (Campbelltown) Pty Ltd. There were certain difficulties in the business and this the reason why the lessee could not pay the lease rent. In this current state, the lessor permitted the lessee to decrease the lease rent and he also said to the lessee to hire a subtenant for this property. The lessee had added certain terms while doing this and had said that if any breach would be caused further then he will be responsible to the lessor to pay the damages and can rescind the lease. This property was governed by the provisions laid down under the legislation. The property was left by the subtenant and again no payment was done by lessee. The breach of the legal agreement was claimed by the lessor and he had also demanded for damages and recession. These damages were provided to lessor by the court. However, the court of appeal had overruled the damages. In this given case, an appeal was made by the lessor.  The court had permitted the appeal in the given case. Furthermore, a special leave to cross appeal was granted by the court that was heard instantly and was dismissed. Adding to it, the court had overruled the judgement that the court of appeal had given in the favour of appellant and against the defendant and had given the damages that amounts to $2,096,514, and the interest too that was given by trail court. The trial court had stated that there was no need to give the cost of the proceedings but the court of appeal had stated that the defendants has to pay the cost of the proceedings.

Conclusion

It can be concluded that the lessor can claim for the damages from lessee and also rescind the contract.

Part D

Name of the case: ACCC v TPG Internet Pty Ltd [2013] HCA 54

Issue

As per the Consumer Law of Australia, the issue is whether there is a deceptive and misleading conduct from the side of the company of the defendant and if there is a misrepresentation that was said to be fraudulent in regards with the provisions of common law.

Rule

The rules stated under the section 18 of ACL that is given by Australian Competition and Consumer Act 2010 (Cth), schedule 2, an individual who is involved in the commerce and trade, should not get involved in such activities that is taken as deceptive and misleading or any kind of act that is supposed to be deceive or mislead.

A misrepresentation that is fraudulent in nature under the common law that takes place only when representation of the fact that has been made by the party is misleading or false and the party who depends on such misrepresentation and involves in the contract.

In Derry v Peek [1889] UKHL 1 case, the principles of misrepresentation that is said to be fraudulent in nature has been discussed. There are certain elements that are required to be fulfilled to make fraudulent misrepresentation happen. The principles are given below:

• Any individual who is making the representation must know that representation is deceptive, false or misleading, or
• An individual who does not believe in the representation or,
• Is careless regarding the trust and
• The other individual who is depending on that representation to get in the contract.

Application

In the above mentioned case a campaign of an advertisement has been carried out by the company of the defendant. The company had promised in this advertisement that it will be giving "Unlimited ADSL2+ for $29.95 per month". Though, the price that was supposed to be paid for this service was a total of $59.95 per month. In the above mentioned case, a claim was brought by the Australian Competition and Consumer Commission against the organization that this advertisement which is involved in the commerce and trade is taken as deceptive and misleading. In the above mentioned case the provisions have been violated that is present under the section 18 of ACL that is given by Australian Competition and Consumer Act 2010 (Cth), schedule 2, an individual who is involved in the commerce and trade, should not get involved in such activities that is taken as deceptive and misleading or any kind of act that is supposed to be deceive or mislead. The court had stated with regards to the breach that the organization needs to pay $2 million as fine. Though, the decision taken by the trial judge was overruled by the federal court and a penalty of $50,000 has been imposed. Therefore, to prove misrepresentation that is fraudulent in nature or deceptive and misleading conduct, an individual making it must know that conduct is false. In the given case, it was not known by the company that they had given the required additional price in small letters, that were not visible properly but it was present in advertisement. Therefore it was stated by the court that there must not be breach of conduct because no protection is provided to the consumers by law as they do not take care of one’s own interest. It is similar as the fraudulent misrepresentation that is not relevant only if other party knows the truth reasonably.

Conclusion

In the given case, the claims of misrepresentation that is fraudulent in nature and deceptive and misleading conduct had been overruled.

Part E

Issue

In the given case, the issue is whether Pedro has been given the right to enforce the term of the legal agreement on Lisa in which she has not been permitted to carry her business of the jewellery in Australia.

Rule

It is said that when two or more people get in a legal agreement with each other then they have to abide by those terms legally of that contract. This states that if the terms of the contract have been breached then the individual suffering from it has the right to file a case against that person who has breached the contract and can get the remedies that are available in contract law.

There are certain terms in the contract that may not be imposed by the party because certain terms can be stated unfair by the court. This might take place with respect to the clause of restraint of trade or to the clause of exclusion.

There are many cases in which the validity of the clause of the restraint of trade have been determined by the courts. The rules of the clause of the restraint of trade has been discussed in the case of Brown v Brown [1980] 1 NZLR 484. The clause has been described by the court as a word by which one party stops the other party to carry out the similar activity of business for a period of time in that particular area. As per the case of Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269, the court has provided that the clause’s initial purpose is to assure that the information of the business has been given reasonable protection. It has been clarified by the court that the clause mentioned in the contract has been induced to prevent an individual to involve into the activities of trade, has been stated as void. The clause of exclusion will only be considered as lawful if the court states that this clause is to ensure that the information of the business has been given reasonable protection.

This clause has also been added to the case, Vancouver Malt and Sake Brewing v Vancouver Breweries [1934] AC 181 and the court had stated that the party who had included the clause of exclusion in the contract must show that it has been added to assure that the information of the business has been given reasonable protection.

Application

The above mentioned case states that Pedro and Lisa had the same business of jewellery. Victoria and Melbourne are that place in which that business was carried out. Lisa had approved to sell Pedro her business and in a sale agreement Lisa decided that will not be carrying this same business in Australia. However after the period of one year Lisa had started the same business of jewellery in Queensland and Cairns. The major contractual terms has been breached by Lisa. However, according to the given case of Stenhouse Australia v Phillips, it has been clarified by the court that the clause mentioned in the contract has been induced to prevent an individual to involve into the activities of trade, has been stated as void. Furthermore, in the case of Brown v Brown, the clause of exclusion will only be considered as lawful if the court states that this clause is to ensure that the information of the business has been given reasonable protection. However, the current situation does not state that the clause that has been enforced on Lisa is said to be reasonable and it has been added to give protection to the information of the business because Lisa is carrying out her business in Queensland and Cairns and Pedro is carrying out his business in Victoria and Melbourne. Therefore, this clause is said to be unreasonable.

Conclusion

It has been concluded that Lisa will not be imposed with the restraint of trade clause by Pedro.  

Bibliography

Brown v Brown [1980] 1 NZLR 484

Conveyancing Act 1919 (NSW) s19

Crimes Act 1961 (Cth)

Endicott, T. A. "Law and language." Stanford Encyclopedia of Philosophy (2016).

Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007)

Mackie, John L. "The third theory of law." The Rule of Law and the Separation of Powers. (Routledge, 2017.) 173-186.

McDonald v Dennys Lascelles Ltd (1933) 48 CLR 457

Photo Production Ltd v Securicor Transport Ltd [1980] AC 827

Vancouver Malt and Sake Brewing v Vancouver Breweries [1934] AC 181