Australian Commercial Law 1 Assignment Sample

Introduction - Australian Commercial Law

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The implication of commercial law is to prevent the society and corporation from any misconduct as well as fraudulent acts. In the present report there will be discussion based on issues incurred in the trade practices of individuals as to have the adequate legal solutions.

QUESTION 1

Kato Janet and Kitty

Issue:

1. Kato operates a computer retail business and sold two defective pieces to Janet (24) and Kitty (14). Kitty is a tourist in Australia and she could not speak and read English. The sale was made of $3000 for both the pieces.
2. Janet transferred $4000 from her account in consideration wit paying the bills of computer which was an error.
3. Kato was aware with the defects in such pieces but he did not let both the consumers to know about it.
4. Janet reached home and she turned on the computers and a short circuit was incurred which lead her seriously injured and she has spent 2 weeks in hospital.
5. Due to Janet's injuries she was terminated from her job for 6 months which pays her $5000 per month.

Rules/ Laws:

• Section 18 of ACL[1]
• Section 29 of ACL
• ACCC v A Whistle & Co (1979) Pty Ltd
• Section 49 of SCA[2], 1986 (Vic.)
• Section 20 of ACL
• Part 5- personal injury and damages[3]

Application:

In accordance with facilitating the adequate jurisdiction to the parties which are influenced by such misconduct there has been various acts and laws which will help them to compete the challenges and make the adequate solutions to their problems. However, there has been several suggestions and advises to the parties such as Kato, Janet and Kitty in terms with claiming their money and taking necessary actions against the misleading and disruptive conducts.

A) Analysing the essential elements as well as advising Kato about the contracts he had bound with those two consumers

In accordance with the contract made by these three individuals will be considered as valid in terms of Janet and Kato while void in context with Kato and Kitty. In accordance with section 49 of supreme court act a person who is making the contract with a minor person is not being treated as a valid agreement because a person at under age do not have proper informations and knowledge about the contracts, pros and cons etc. the minor can only make the contract on the basis of necessities such as food, cloth, accommodation, medicines and education (Supreme Court Act 1986 (Vic), 2010). Therefore, in this case Kitty was an underage girl as well as she was a tourist who do not understand English so here the contract mage among Kato and Kitty is totally void. Kato will be punished for making the void contract with a minor. On the other side it will be a valid contract if Kitty has any guardian or mentor who can take guarantee of such contract on behalf of her otherwise it is a void contract.

In context with the contracts made between parties on which one person is dominating the weaker person will not be treated as the valid contract and will be denoted as the Statutory Unconscionable conduct. Here Kitty was also and tourist and she does not know about the contract as well as because of not knowing English language (Ahmadu and Hughes, 2017). The case is belongs to the case of Nash v Inman[4] where a minor was engaged in the contract which stated void in the court. However, in accordance with the contract made between Janet and Kato, it was a valid contract because she is an adult and have the adequate informations regarding the agreements. Therefore, in accordance with such contract ad agreement it will be denoted as valid and lawful in between Janet and Kato and Janet will be able to suit a case against Kato in accordance with the cheating and false representation of the product. However, the contract will be stated valid as if the person of corporation meet the necessary requirements such as agreement between all the parties, proper considerations, capacity to make contract or making payments of the product and services, favourable intention which must be legal among the parties and the proper certainty of the contracts.

B) determining the essential feature of common law and statutory remedies to be used by Janet and Kitty

In accordance with the case it can be said that there has been various statute and common remedies which will be helpful to Janet and Kitty in terms of claiming the damages. However, according to the case Janet buys the computer and she transfers the fund to Kato's account which was wrongly omitted as $4000 instead of $3000. Thereafter, she reached home and turned on the devices which was short-circuited and affected her with serious injuries. In this regard she can claim her medical charges to Kato for giving her the defective product which incurred damages to her. She also gets terminated from her job as the injury was too serious and took her to 2 weeks of est in hospital on which the organisation has suspended her for 6 months. She was having the remuneration of $5000 per month. In context with the same she can claim her medical charges, her monthly remuneration to Kato.

There will not be any remedy to Kato on this conduct because he knew all the issues with the products as well as he did not pay attention to make repairs and check the devices before selling them (Duncan and Christensen, 2017). However, in accordance with the part 6^th of trade practice act there are various remedies and enforcements which will be helpful to Janet and Kitty to claim the remedies and take the appropriate amount of money.

C) Analysing that Kato is misleading or deceptive conduct in terms with such case

In accordance with the section 18 of Australian Commercial Law, the case of Kato, Janet and Kitty will be come under Misleading and Deceptive conduct. Therefore, it can be said that Kato has misled the customer as he was aware of thee informations and conditions of those two computers which are not fresh and are defective. However, in accordance with such law it is the prime requirement of the consumers to have proper informations about thee products and services they are going to have. On the other side it is also the responsibility of the organisation and the person who is selling such products and services that they must present the adequate informations about the products (The Australian Consumer Law, 2018). However, Kato was aware of the defects in such pieces and after having all the information he has proceeded the trad without operating and repair to such devices as well as without let the consumers to know about it. Thus, in accordance with such section it can be said that a person is non able to make trade and commerce who engaged in misleading and deceptive conducts.

In terms with the section 29 of the same act which represents that a person or a corporation is found engaged in false and misleading representations of the products and services ill be punished and penalised However, in accordance with the case of ACCC v A Whistle & Co (1979) Pty Ltd[5]. Here the professionals in the firm has misled the stakeholders by representing the false testimonials which led consumers feel cheated. Therefore, the court has charged $215000 as a penalties over the company for such misrepresentations. Thus, in this case court need to charge penalty in against of Kato as he misleads and give the false representation of the products to his consumers (Misleading or deceptive conduct, 2018). Therefore, here the legislations levied by ACCC[6] in terms of protecting the consumers rights and helping them to suit over the organisations or individuals who acts fraudulently towards them. It is necessary that the entity must make payments to the consumers who got affected by such acts.

D) Determining that Janet could take action against Kato in terms of Negligence as per common law

In accordance with the application of common law in terms of facilitating the adequate judgement to any issues. Therefore, these are the laws which were presented by the legislatures in Australia as to help the citizens in terms of having the appropriate judgement to their issues. The common laws were originated from England and these are based on the laws which were build and development by the judgement over several cases and hearings (Demeter and et.al., 2017). Therefore, such judgement will be helpful to the other similar cases in terms of being example as well as presenting the accurate reductionist to any issue. In accordance with the negligence law of common law which will be helpful for the parties to claim against any personal damage and the act which harm someone's emotions of physical health.

Therefore, in context with the case Janet got seriously injured by the commuter short- circuit and she got admitted into hospital for 2 weeks. Here she can suit Kato for her damages and injuries as under part 5 of the law of negligence. She can claim her all the medical charge to Kato as well as take 6 months of remuneration amount which she has from her job. These are the serious losses to her which are intentionally caused by Kato. He must be penalised and punished for such misconduct and misrepresentations.

Conclusion

On the basis of above case it will be concluded that, Kato has made misrepresentation's of te products among the consumers as well as he has made deals with a minor consumer which is unaware of the English language. In addition to this it can be said that Kato will be charge under section 29 of ACL, Negligence law at part 5 as well as under section 49 of Supreme court act.

QUESTION 2

Kato and David

A) Determining possible disadvantages for Kato in terms of being bankrupt to David in terms of making payments

By considering the case here Kato has sold out 15 computers to David in against the payment of $30000. Thus, in these computers 3 pieces are defective on which David want refund of all the amount from Kato. In these regard there will be various advantages as Kato become bankrupt to David. Therefore, here he does not need to make payment of the amount which was claimed by David for such operations (BANKRUPTCY ACT 1966, 2018). However, such advantages of being bankrupt as per Bankruptcy act 1966 can be understand as follows:

• In accordance with the bankruptcy act, 1966 of commonwealth laws a person will be beneficial as he will grant protections against superannuation deduction from his salaries.
• If the person is having income less than 47,693 than he is not liable to make payments of the debts as he will be exempted from such operations. Therefore, here Kato can be benefited as if he become bankrupt among David on which David will not claim debts and repayment of the funds from him.

B) Identification of the alternative dispute resolution in this case

In consideration with the Alternative dispute resolution it can be said that Kato and David will have the legal solutions to their business obstacle out of the court premises as well as without having any hearings over it. Therefore, these are the system which are beneficial as it will facilitate the appropriate solutions to any legal issue in prompt manner as well as with consideration of all the laws and acts. However, it will be beneficial for the Kato and David to have the better and effective solutions to their problems.

However, it can be said that with the help of such techniques they will be benefited in terms of having the appropriate business solutions. David and Kato has to be mutually agreed over a solution that David has to claim Kato for the damages computers instead of making whole payments (Alternative Dispute Resolution (ADR): Overview, 2018). Therefore, Kato has two choices, one is to replace the pieces or make payments of such goods. Therefore, in these regards it will be beneficial for the business in terms of having the ongoing business operations as well as appropriate revenue generation.

Concluaion

On the basis of above study it can be said that The Australian commercial law is development and in-acted as to facilitate the adequate jurisdiction to various issues such as misinterpretation bankruptcy etc. the main motive of such act is to facilitate the adequate legal solutions to the business and to the individuals who engaged in any contract. There has been advices and solution represented among the parties involved in the cases as well as they have been suggested to take necessary actions against by unlawful and in appropriate operations.

Refrences

Books and Journals

• Ahmadu, M. L. and Hughes, R., 2017. Commercial Law and Practice in the South Pacific. Taylor & Francis.
• Duncan, W. D. and Christensen, S. A., 2017. Commercial leases in Australia. Thosmson Reuter.
• Demeter, D. and et.al., 2017. Global legislative developments: An ACT law society panel discussion. Ethos: Official Publication of the Law Society of the Australian Capital Territory. (246). p.38.
• Online
• Supreme Court Act 1986 (Vic). 2010. [Online]. Available through :<https://www.australiancontractlaw.com/legislation/vicsca49.html>.
• The Australian Consumer Law. 2018. [Online]. Available through :<http://consumerlaw.gov.au/the-australian-consumer-law/legislation/>.
• Misleading or deceptive conduct. 2018. [Online]. Available through :<https://www.australiancontractlaw.com/legislation/cthacl.html>.
• BANKRUPTCY ACT 1966. 2018. [Online]. Available through :<http://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/ba1966142/>.
• Alternative Dispute Resolution (ADR): Overview. 2018. [Online]. Available through :<http://adr.findlaw.com/arbitration/arbitration-overview.html>.

[1] Australian Consumer Law

[2] Supreme Court Act, 1986

[3] Laws of Negligence and limitations of liabilities act, 2008

[4] Nash v Inman [1908] 2 KB 1

[5] ACCC v A Whistle & Co (1979) Pty Ltd [2015] FCA 1447

[6] Australian Competition and Consumer Commission