Sample LAWS20058 Australian Commercial Law Assignment

LAWS20058 Australian Commercial Law Assignment Sample

Assignment Brief

Marks: 40 per cent of total grade.
Word count: Assignments must not exceed a total of 2,000 words for assignment help The word count excludes citations and the reference list.

Format: The student’s name and student identification number must appear on the first page of the assignment and in the footer of each page. The assignment is to be formatted in a clear size 12 font (Calibri, Cambria or Times New Roman), double- spaced and include page numbers. The total word count must be stated on the first page of the assignment.

Students must use the appropriate answer structure from the workshops to answer all questions in Parts A, B and C. The assignment examines unit content covered in Weeks 1 to 5. The answer for each part must start on a new page, clearly state the question number and include the word count for the part.

Referencing: Students must use a consistent style of referencing and cite the relevant research source when appropriate. Students may either use in-text referencing in the American Psychological Association style guide (APA 7 th ed) or the Australian Guide to Legal Citation (4 th edition). Footnotes may be appropriate to cite cases and legislation. At the end of the assignment students must include a reference list of all research sources used in the assignment.

Plagiarism: This assessment task is an individual assignment. In completing the assignment students must comply with the CQUniversity academic integrity policies that can be accessed via Moodle. Breaching these policies will result in a student being subjected to the University’s student misconduct proceedings and related penalties.

BACKGROUND FACTS

You recently completed your postgraduate studies and started a graduate position in the corporate services group at Global Consultants Pty Ltd. Your manager learned that you studied LAWS20058 and assigned you to the role of a business law specialist to assist clients with the legal requirements of starting and then operating a business. Your first client is Jan, a graphic novel author and sports enthusiast, who recently migrated to Australia from England in order to embark on her business dream of owning a sporting goods store.

Jan lives in the Sydney suburbs where she will open her retail sports store called Reverse Swing Sporting Goods Pty Ltd. The business will sell sports equipment and uniforms for several sports at a store a suburban location. While Jan is very enthusiastic and knowledgeable about the sporting industry, she has a limited understanding of the Australian legal system and the relevant commercial laws that will govern her new business.

YOUR TASK

You must write a business report for Jan that provides advice on all business law questions in Parts A, B and C of this assignment. The report will be given to Jan at your first meeting as a resource she can use in setting up and then operating her business. Jan may also use the report to seek further advice on any specific legal issues.

ASSIGNMENT QUESTIONS

PART A – FINDING LAW

An important aspect of starting and operating a new business is finding relevant law. Numerous online legal resources now exist and the websites of government regulators (also known as statutory authorities) are a critical business resource for both finding law and legal education. Owners and managers of businesses need to be able to find reliable sources of law and evaluate their effectiveness and reliability. Such a skill is especially important for Jan to learn Australian law and to obtain guidance on the enforcement of law.

In Part A of your report you must:

1. Identify two online research sources that a business can use to find current Australian laws. Students must identify two different types of sources, for example courts, governments, statutory authorities or legal databases.

2. Identify one law in each online research source located in Part A.1 of your answer and then (1) identify whether the law is legislation (statute law) or case law (2) identify the relevant jurisdiction (3) describe the key features of the law.

3. Evaluate the user experience for each online source located in Part A.1 of your answer from the perspective of a business entrepreneur. Your evaluation may include the format of the website, the use of visual aids, explanations of laws and legal processes and links to additional information or support.

PART B – BUSINESS, LAW AND THE AUSTRALIAN LEGAL SYSTEM

Many people who start a small business may possess little knowledge of the Australian legal system and how the effect on the daily operations of their commercial activities. When undertaking the process to ‘start-up’ and then operate business, it is important for Jan to understand how the key features of Australia’s legal system will shape the nature and manner of her business dealings and activities.

In Part B of your report you must:

1. Identify three important legal rules, principles or concepts in the Australian legal systems that are relevant to the commercial activities of Australian businesses.

2. Describe the key aspects of each legal rule, principle or concept located in Part B.1.

3. Evaluate how each legal rule, principle or concept located in Part B.1 effects the commercial activities of Australian businesses.

PART C – OPERATING A BUSINESS AND CONTRACTS

To manage commercial and legal risk involved in business, entrepreneurs such as Jan need to recognise the legal obligations created by the common law of contract in forming and entering a legally enforceable contract and the available legal remedies if a term of the contract is breached. Another important skill for managers of a business is understanding how to validly exclude contractual liability. Your answer in Part B must answer both of the below questions.

1. Formation of contract

Even though Jan is English and enjoys cricket, she loves baseball and wants to help Australians learn how to hit a baseball. Jan has advised you that she will be selling a new and innovative product called ‘Wonder Bat’ that teaches players how to hit home runs. The advertising strategy is to record a short advertisement that can be used on the store’s website and on various social media platforms. Jan wants to state in the advertisement that if players use the Wonder Bat, then they will learn to hit home runs to the moon and will be able to hit more home runs than Babe Ruth.

In Part B of your report you must advise Jan whether a customer that views her proposed advertisement and then purchases the Wonder Bat but fails to hit home runs to the moon or more home runs than Babe Ruth can sue Reverse Swing Sporting Goods Pty Ltd for breach of contract. Your advice must focus only on whether the representations in an advertisement constitute an offer under the common law of contract. Your answer must be supported by legal principles and cases in the common law of contract. Do not discuss statute law.

2. Terms of a contract

As Jan is unfamiliar with Australian contract law, she requires advice on how to identify and manage the commercial and legal risk associated with entering business agreements. You need to provide advice that explains how contract terms and remedies apply to operating a business. Jan will use your advice as the basis for developing contracts related to her commercial and activities.

In Part B.1 of your report you must:

1. Identify one legal reason and one commercial reason why Jan needs to understand the terms of contracts Reverse Swing Sporting Goods Pty Ltd enters.

2. Describe the key legal differences between the express and implied terms of a contract. In your answer identify two commercial risks for the parties to a contract that exist when a term is implied in a contract.

3. Identify two forms of dispute resolution for resolving a contract dispute and describe the benefits of each form of dispute resolution for a business that is a party to the dispute.

Solution

PART A – FINDING LAW

Part A

Introduction

According to experts, some best keys to starting a business. These are research competitors, evaluate the aspects of the industry, consider business and personal finances, be realistic about the involved risks, understand the time and hire help. There are certain legal requirements that you must satisfy or comply with.

Those are-

• The legal structure of your business.
• Trademark
• Licenses
• Laws of zoning
• Insurance
• health and safety laws

Online Research Resources

The four primary sources are the laws, constitution, regulations, and lawsuits. The administration issues these types of laws and regulations from the three branches of government. Statutory refers to agencies and entities maintained by a statute or a ceremonial law.

According to (Raisi-Estabragh et al., 2021), the Australasian Legal Information Institute (Austlii) has been found to find current Australian laws. Other online research sources like GovPubs: the Australian Government Publications Guide, eResources portal, etc. This sheet of facts identifies the different types of laws governing Australia - legislation passed by the government, statutory laws passed by Parliament, and general laws enacted by the courts.

Identification of the laws

The laws are found in research sources that are –

• According to Coco v The Queen (1994) 179 CLR 427 at 437, the High Court restated these principles, which are listed as:

The legislature should not be accused of interfering with the fundamental rights of the court. Such a determination must be expressed with clarity in the unambiguous and unequivocal language (Zhang et al., 2018). In spite of the fact that the assumption’s goal is to safeguard fundamental rights, which can be overcome by a single word of mouth, this assumption involves a great lot of protection for the “principle of legitimacy.”

• The Second one is according to Income Tax (Cth) – Trusts – Wheres 97(1) of Income Tax Assessment Act 1936 (Cth)

Evaluation of the user experience

Beneficiaries of a trust estate are not subject to any legal disability. Beneficiary's income must be so substantial a fraction of the trust estate net profit that it is liable for the beneficiary's residency period in order to be eligible for a share of the trust estate's income (Sticht et al., 2018). No portion of the income is paid, applied for, separated, or credited; the income held on the trust for certain beneficiaries - where the trustee fails to pay, apply, separate, or deposit the income – is the trust’s income year. The share of income is kept in trust for the beneficiaries.

Conclusion

The online research sources provide funding for specific types of assistance, such as the Australian young Business and Family Enterprise Ombudsman, Disability Advocacy Services, Alumni Service agencies, Community Legal Centre, and the Legal Aid Commission. Research sources are also a guide on finding a private lawyer, migration agent, tax agent, or another person capable of providing advice, representation, or support.

Part B – business, law AND THE AUSTRALIAN LEGAL SYSTEM

Identification of three important legal rules, principles, or concepts in the Australian legal system

? The Australian legal and business regulation structures, which function on a two-tiered foundation at each federal and country degree, are in part a characteristic of history. If the law is considered to be a body of policies, then a person could question how those regulations follow the industrial sports of groups and what functions they have in the commercial enterprise network. Usually, business regulation accommodates a frame of regulations that adjust the everyday industrial operations of companies.

? In case of Australia, these regulations are enclosed in laws concerning contracts, company, patron protection, finance region law, agency, financial disaster, and partnerships. The most important feature an enterprise law has to facilitate, regulate, and adjudicate the industrial transactions (Mark Friezer, 2022).

? Being a facilitator, it has a function of facilitating business transactions. For instance, agreement law offers how to make an agreements legally binding, and what remedies harmless events can be searching for if the binding agreements are found to be breached. As an adjudicator, the main role is to pacify the disputes between enterprise operators, clients, shoppers, and sellers of goods or offerings.

1. Describe the key aspects of each legal rule, their principle or related concepts in Part B.1

? The courts are nonetheless a crucial source of law in Australia, but it's influence is fading away as more and more statutes are being enacted both at the state and Commonwealth levels to defend customers from the unethical activities of a few companies. Indeed, there can be an argument nowadays that, no matter what ancient pre-eminence of the common law is in the area of contract regulation, statute—and particularly the patron safety provisions of the Competition and Consumer Act 2010 and predecessor Trade Practices Act have undermined the importance of the conventional commonplace regulation concepts relating to contracts (Mark Friezer, 2022).

2. Evaluate how each legal rule, principle, or concept located in Part B.1 affects the commercial activities of Australian businesses

? Similarly, corporations advertising their goods or offerings at a particular fee without the purpose of supplying them on the advertised charge won't be capable of arguing that such advertisements were ‘invitations to deal with, thus the CCA imposes some liability on companies to interact in a moral and honest dealing with the aid of supplying protection to purchasers that the commonplace law may additionally in any other case now not offer.

? For the adjudication of the disputes, courts are frequently called upon in which the language of a particular statute needs an explanation. Each of these statutes are written in a popular language that may additionally want to accept a particular context. The statute language is sometimes unclear, or consists of more than one meaning or messages. Statutory interpretation by using courts can determine the means of a particular clause or a provision. When the statutes are interpreted, the courts are aware of the Acts Interpretation Acts at nation, federal tiers and territory (Mark Friezer, 2022). The acts define several common terms and most of them specify that courts should have regard to the underlying motive of the legislation.

PART C – OPERATING A BUSINESS AND CONTRACTS

1. Formation of Contract

Introduction

The setting of the given case is Australia. Jan is an English person who has an immense interest in baseball besides cricket. Now, Jan wants to enter the sports business in Australia. He wants to start a company named Reverse Swing Sporting Goods Pty. Ltd., and under the domain of this company, he wants to introduce an innovative product named “Wonder Bat”. With the help of this bat, he wants to teach the Australians how to hit the baseball hard. He wants to promote this product on online platforms by giving some punch lines. The punch lines that he assigns for the promotion of the product are, ‘the person playing with this bat can score more runs than Babe Ruth’, and ‘the person using this bat will learn to hit the home runs to the moon’. This report focuses on suggesting to Jan whether such punch lines are appropriate for the promotion or not.

Probable Situation

The punch line proposed by Jan is very much tempting for a customer to buy that product. However, there is no guarantee that only using the bat the customer can hit the home runs to the moon or score as many runs as Babe Ruth (Du Plessis, 2019). If the customer fails to get the things promised under the terms and conditions of the advertisement, he can lodge a disciplinary action against Reverse Swing Sporting Goods Pty. Ltd, which is owned by Jan.

Reaction to such a situation

The representation in the advertisements is given to attract the customer for that product. If the customer lodges a case against the company, there will be maximum chances where the customer will not get the degree because, in the representation, it is not mentioned for a single time that the bat will provide the technique with which Babe Ruth used to play. Moreover, it has not been mentioned once that the bat will give some extra strength to the customer to hit the home runs to the moon (Louw, 2018). If the strength and techniques are applied efficiently, with the help of this bat, the player can get the result mentioned in the representation. The common law of contract says that the opposite party should always acknowledge the promise given by a party. This means that the effort from one side cannot fulfil the promise, but the efforts from both sides are required to fulfill the promise.

Conclusion

Though the common law of contract can defend Jan, he should not give some representation that is too imaginary and hypothetical; Jan might need to compensate the customer if the promises made in the representations are not met. Therefore, it is better to use some realistic, funny, and attractive representations to promote the product on various shopping sites.

2. Terms of Contract

Entering contracts is part of operating a business, and it is most important to manage Jan’s contacts and relationships carefully. We found some legal risks associated with entering business agreements.

• Risk of regulation- Risks arising from the dynamic behaviour of rules and regulations that have a significant influence on a corporation or market are referred to as regulatory risks. For example, if the firm changes its tax compliance, IT authorities or associated agencies may levy a penalty (Rohr, 2019).

• Risk of compliance- In this case, company statutes, internal rules and best operation put in any business organisation. This case may result in facing financial loss and legal sanctions.

• Risk of contract- Contractual risk is some failure to meet contractual obligations. It is like failure to observe the terms and conditions of the contracts, Failure to meet contractual obligations, such as failing to incorporate risk-reduction provisions in the contract, may result in a claim.

• Risk of dispute - This risk of conflict results if a disruption caused by business stakeholders, customers and partners occur (Soper, 2018). In that case, it is recommended to resolve the dispute before it becomes a case as it will become a huge cost.

There also have other risks like a non-contractual obligation, Reputational risk etc. In some cases, businesses will face problems like Compensatory Damage, Consequential Damages, Nominal Damages, Incidental Damages, damage to Punitive etc.

They are something we should remember before entering into business law are

• Try to get a written copy of the agreement.
• Try to negotiate with the contact.
• Think about clauses of Include Termination and Dispute Resolution.
• Try to conduct with due diligence.

It’s necessary to read the contract carefully. Contracts become very important to the customers because they legally bind the companies into a relationship. If there are some breaches in the contract, they can be rectified, and damages can be terminated (Boisson de Chazournes et al., 2018). Drafting and testing should be done carefully and regularly before signing a commercial agreement. It is quite clear that when evaluating the rights and obligations of the companies to an agreement, the terms and conditions of the agreement must be considered from the reason of the contract or agreement.

There are some differences between the express and implied terms of the contract. The case of an express agreement is where the offer and acceptance, resulting in a contract, are enforceable by law and can be expressed orally. But the case of an implied contract refers to an agreement where proposals and obtaining, which led to the contract, are expressed non-verbally, in other ways (Torres et al., 2021). Some commercial risks like market and technical or physical risks were also observed. Market risks that may include changes in input and output prices vary from demand estimate levels. Whereas physical or technical risks may be related to the facility and the physical features of the construction area.

Dispute resolution is divided into two main types.

1. Adjudicative processes: this is such as litigation or arbitration, where a judge, administration, jury or arbitrator determines the output. The judgment makes an imposed, final decision that obliges the parties to respect (Torres et al., 2021). An alternative process, such as mediation, only creates voluntary agreements that can easily fail.

2. Consensual processes are like conciliation, collaborative law, and negotiations, where the parties try to reach an agreement (Aryanti, 2019). It is a quick and informal resolution of disputes, usually less stressful.

References

Aryanti, N. W. D. (2019). A Critical Analysis of Collaborative Law as a Dispute Settlement Mechanism. Udayana Journal of Law and Culture, 3(1), 78-94. Retrieved from: https://jurnal.harianregional.com/index.php/UJLC/article/view/44164

Australian Human rights commission. (2021). Legislation. Retrieved from: https://humanrights.gov.au/our-work/legal/legislation

Boisson de Chazournes, L., Ruiz Fabri, H., Mbengue, M. M., Das, R., & Gros, G. (2018). The Expert in the International Adjudicative Process: Introduction to the Special Issue. Journal of International Dispute Settlement, 9(3), 339-344. Retrieved from: https://academic.oup.com/jids/article-abstract/9/3/339/4975522

Du Plessis, H. (2019). Legal pluralism, ubuntu and the use of open norms in the South African common law of contract. Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad, 22(1). Retrieved from: https://www.ajol.info/index.php/pelj/article/view/216531

Friezer, M. (2022). Doing Business in Australia: Retrieved from: https://uk.practicallaw.thomsonreuters.com
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