LAW6001 Taxation Law Assessment 2 Sample

Task

Summary In response to the issues raised in the case study provided, research and develop a 2000-word tax advice that addresses (a) assessable income (b) allowable deductions (c) calculations of income/deductions and (d) your conclusions and recommendations. Please refer to the Task Instructions for details on how to complete this business law case study help.

Context This assessment assesses your research skills, your ability to synthesise an original piece of work to specific content requirements and your ability to produce a comprehensible piece of advice which addressing the client’s needs. It also assesses your written communication skills. The ability to deliver to a brief is an essential skill in the workplace. Clients may well approach advisors seeking a combination of specific information needs and advice on the tax implications of a particular arrangement in the Australian tax jurisdiction. It is therefore important to be able to identify all the issues presented by an arrangement and to think about the potential consequences of different approaches to addressing the client’s needs.

Task Instructions

• Your case study needs to identify and discuss the tax implications of the various issues raised.

• A report (word document, approx. 2,000 words) must be submitted for the calculations of the assessable income; allowable deductions and taxable income of the taxpayer including identifying and discussing them. E.g., how the amounts of income & deductions have been derived. If any receipts and payments are not assessable or deductible, the reasoning for non-inclusion of these in assessable income or deductions as per relevant legislation or cases.

• Critically analyse the following case study. With respect to each task:

• Review relevant case law and legislation (ITAA1936, ITAA1997)

• Apply the law to the facts of the case study

• Reach a conclusion/ give practical advice to your client.

• You will be assessed in accordance with the Assessment Rubric.

• This case study must be presented as an individual effort. The case study requires individual research. It is expected the student will survey the relevant literature, including decided cases, and select appropriate additional resources.

• Your case study assignment help is not just a list of answers. Your reasons for your conclusions and recommendations must be based on your research into the relevant cases and legislation.

• The format of the report should be a business report and using APA referencing style

Case Study:

Comprehensive Individual Tax Return Advice Question 1 On 17 July 2020, Ken Fong acquired a restaurant as a going concern, paying $850,000 for the land and buildings, plant and equipment and goodwill. Upon taking possession Ken realised that the plumbing and electrical systems required repairing. In August 2020 he spent $27,000 for the repairs so that the restaurant could open for business. Shortly after opening, the tiles in the kitchen cracked and fell off the walls. Ken had them replaced, restoring them to their original condition, costing $6,400. In November 2020 Ken decided to replace all the kitchen cooking equipment in order to reduce the likelihood of having to replace it in the future. The cost was $30,000. At the same time Ken entered into a contract to have the equipment regularly inspected and serviced. The contract fee was $1,500 per year. At that time, he also decided to pay a pest control company $2,000 a year to rid the restaurant of pests and ensure health and safety standards were maintained. In January 2021 a violent summer hail storm caused damage to the roof of the restaurant. Instead of making repairs, Ken decided to replace the entire roof along with the roofing insulation and ducted air conditioning. The roof replacement cost $32,000 and the insulation and air conditioning added another cost of $7,400. At that time Ken contracted builders to construct an additional room to cater for increased patronage. The cost of the addition was $26,800. Required With reference to relevant legislation and cases, advise Ken on the deductibility of the expenditure incurred on repairs and improvements to his restaurant in August 2020, November 2020 and January 2021.

Question 2

Maurice is an individual tax resident of Australia for tax purposes. He has the following assets:

• His home was acquired on 20 February 1989 for $140 000. The home was never used for any income producing purpose. The estimated market value of the house on 1 March 2018 is $310,000

• Shares in FUL Pty Ltd acquired on 10 April 1984 at a cost of $15 000.

• Furniture acquired on 20 May 2010 for $10,500.

• Yacht acquired on 9 July 2020 for $25,000

• Block of vacant land acquired on 20 June 1997 at a cost of $100 000. The estimated market value of the vacant block on 15 May 2021 is $475,000. Maurice subsequently sold the following assets during 2020-2021 (arm’s length transactions):

• His home was sold on 1 March 2021 for $325,000

• The FUL Shares were sold on 15 March 2021 for $19,000

• The furniture was sold on 1 May 2021 for $5,000

• The yacht was sold on 29 June 2021 for $37,000

• The block of vacant land was sold on 30 May 2021 for $465,000. Maurice also has a carry forward capital loss of $12,500 from the sale of an antique drumkit and a carry forward capital loss $5,000 from the sale of underperforming shares in an earlier income year. Maurice is not a share trader. Maurice has also incurred interest expenses on the vacant block of land of $110,000 over the time he owned the vacant block. He never used the vacant block for any income producing purpose. Required With reference to relevant legislation and cases calculate the net capital gain or loss as applicable for Maurice for the 2020/21 income year. You must show all possible methods to calculate capital gains (you must reference each step in the process to the relevant legislation. The numbers in the calculation will not be sufficient) and identify reasons why inclusion/exclusion of all capital gains tax assets

Solution

Question: 1:

Facts and Issues of The Case:

In the current case, the taxpayer has made various repairs and maintenance from time to time to the business organization, the taxpayer has spent some money on pre-starting of the business, during the course of the business, and after the business. Therefore the question in this context arises that whether the expense of the repairs is deductible against the income of the taxpayer or the expense of the repairs is not a deductible expense (Razak, 2020).

Legislation:

In the income tax assessment act, 1997 there are different provisions are there that allow the business expenditure as a general deduction or a special deduction. Any expense that is incurred by a taxpayer for the purpose to meet their repair expense is deductible from the gross income of the taxpayer to get the assessable income of the taxpayer. Tax ruling 97/23 (Mcgregor Lowndes & Crittall) it is clearly established that the tax deduction in case of repairs expense is not admissible if the expense of the repairs is of a capital nature. The assessable income of any person means the income on which the tax is calculated the gross income is income earned by the person (Weltman, & J.K. Lasser Institute 2018).

The different Para of the same ruling provides an explanation and difference between the repairs and improvements. According to the tax, the ruling repair is the expense that incurs by the business for the purpose of restoring the functional efficiency of the organization and on the other side, the improvement in the asset refers to those expenses that incur for the purpose of increasing the functional efficiency of the asset. The expense related to the improvement of the asset is the capital expense and therefore the expenses are called the capital expense and therefore those expenses are not allowed to deduct while calculating the assessable income from the gross income (Property investors benefit from 'repair' year-end deduction. 2017).

If any amount is expenses or incurred as initial repairs of the asset, that is the repair that incurs before bringing such asset into use then such repairs have a nature of the capital repairs and therefore such expense of capital repairs incur as an initial expense is not allowed as a deduction. If any damage, the defect has an existence at the time of acquisition of the asset than in such case the repairs incur for removal of such defect, the damage is considered as the capital nature repairs and therefore such expense is not allowable as a deduction. Any expense on repairs of the organization if incurred for the purpose of complying with the government bodies and government regulations than in such case the expense of repairs is of revenue nature and deduction with respect of such repairs expense is allowable to the organization.

Applicability:

Expenditure for the month of august

During the month of August, the taxpayer incurs two major expenses for the asset as repairs the description and allowability of such expenses are as follows-

(i) The taxpayer incurred $ 27000 On the political and plumbing expense of the asset such damages and defects of the property were in existence when the asset was acquired and also the damages result from the previous owner and not with the actions of the Taxpayer. Since the expense of $ 27000 is an initial repair expense therefore according to the applicable laws such expense should be capitalized as a part of the cost of the asset and depreciation is allowable thereof (Anonymous. 2020).

(ii) Expense of $ 6400 Incurred for wall and kitchen – such expense is a revenue expense because they are damaged with the act of taxpayer and this is a revenue expense and revenue repairs that are associated with the building and therefore such expense is not considered a capital expense and deduction with respect of the same is allowable.

Expenditure incurred for November 2020

During the month of November, the taxpayer has incurred three types of repairs expense those are as follows-

(i) In the current month the taxpayer has incurred the expense of $ 30000 for the replacement of the cooking equipment that will increase the efficiency of the operations of the organization, therefore such expense is not repaired they are called as improvement and therefore such expense is capitalized in the books of accounts and depreciation is allowed on the same.

(ii) $ 1500 has been paid for the equipment inspection, equipment inspection is a revenue nature expense and therefore it can be considered as the revenue expense and charged against the income of the business organization, and deduction si allowed of the same expense.

(iii) For a compilation of health and safety standards the restaurant must conduct a pest control for every year, therefore such expense is a type of revenue expense and deduction in respect of the pest control expense is allowable for the business (Batter, &Biscopink, 2019).

Expenditure in the month of January

In the month of January, two major expenses is incurred, $ 32000 is incurred for the purpose of replacement of the roof, replacement of the roof is a major expense of the organization. The expense is treated as an improvement and such expense is allowed to be added to the cost of the asset and proper depreciation has been charged on such asset.

Expenditure incurred for the purpose of construction of additional rooms are a type of improvement of the building. and therefore such expenses incurred for the purpose of construction of additional rooms are of a capital nature and deduction is not allowed for the same expense incurred for the purpose of construction of additional rooms.

Conclusion:

From the above discussion, it can be concluded that the following amount is considered as an allowable deduction or the following amount is not allowed as the allowable deduction

Question: 2:

Legislation related to the case:

Definition of capital Gains – Capital gains and capital losses are gains and losses that are arrived in the capital gain tax event of the capital gain assets, if during the capital gains event if consideration price of the capital asset is higher than the cost of the capital gain asset or the indexed price of the cost of the capital asset, on the other side of the cost of the asset or the index price of the cost of asset if higher than the consideration of the capital asset, than there will be a capital loss of the assets (Healy, 2017).

Any capital asset that is acquired before 20 September 1985 or specified under the exempted assets is not liable to be any Capital gains tax.

Steps to calculate the capital gain or loss- For the purpose of calculation of the capital gains tax, the capital gain or loss should be first calculated, there are different steps that must be followed for the purpose of calculation of the capital gain or loss from the capital asset-

Step 1: the identification of the fair value of consideration is the first step for calculation of the capital gains, in the case of sale the exchange amount is the FVOC, or in the case of an exchange, the fair value is considered as the fair value of the consideration.

Step 2: After identification of the consideration price of the asset, the second step for the purpose of calculation of the capital gain is to calculate the cost base of the asset. The cost base of the asset is derived by including the acquisition cost of the asset along with any indexation if required. For the assets acquired before 20 September 1999 the indexation method is applied for the purpose of increasing the cost base (Pattison-Gordon, 2017).

Step 3: After identifying the proceeds of the capital assets and identification of the cost base of the asset. The cost base of the asset is being deducted from the proceeds of the capital gain event the difference comes positive then it is considered as the capital gains and if in any other case of the difference comes to negative then it will be considered as the capital loss.

Step 4: For every capital gain event, the same process till step 3 is being followed.

Step 5: Combine the capital gains and capital losses of each capital gain asset sold during the tax period.

Step 6: Adjust the previous year's cumulative carried forward losses.

Step 7: The net capital gain is taxable at the applicable rate and if the net capital loss is there then it is forwarded to the future tax period for the purpose of adjustment in the future years.

Calculation:

In the current tax period, the taxpayer has sold various capital gains assets the treatment of the capital gain and the capital loss from the capital gains asset is as follows-

Capital gains / Loss from sale of the home - Home is covered under the exempted list of the assets to be sold therefore in case there is a sale of the home to the other person such sale is not liable for the capital gains tax.
Capital gains / Loss on sale of FUL shares – The taxpayer acquire the shares of the FUL shares before 20 September 1985, therefore such sale of shares are not covered in the capital gains and capital loss, and the capital gains and loss are not liable for such sale of FUL shares.

Capital gain / Loss on the furniture sale – The furniture in the current case is acquired in 2010 at a cost of $ 10500, the said furniture is being sold at $ 5000. As the asset is being used for private purposes and there is no depreciation on such asset, therefore, the capital loss in the current case is $ 10500 - $ 5000 = $ 5500.
Capital gain / Loss on Yacht – In the current case, the taxpayer held the Yacht, for less than 12 months therefore the indexation and 50 % deduction is not allowed, therefore the capital gain on the sale of yatch is as follows-

Proceeds from the Yacht = 37000

Cost base of the assets = 25000

Tax on sale of yacht = 12000

Capital gain/loss on sale of land –

The taxpayer sold the block of land at a proceed of $ 465000, the cost price of the asset is $ 100000 and during the holding period of the asset, the taxpayer has incurred a cost of $ 110000. The capital gain on sale of a plot of land is as follows-

Capital gain as per indexation method

Capital gain as per 50 % CGT discount method

In the current case since the capital gain is less in the 50 % CGT discount scheme, therefore, taxpayer should adopt this scheme (Anonymous. 2019, pg 12(3)).

Capital gain / Loss from collectibles –

Loss of collectible will forward for future years and cannot be adjusted with other capital gains.
Previous year's capital loss of shares will be adjusted in a capital gain of the current year.

Net Taxable capital gains / Loss-

The net taxable capital gains / Loss is as follows- (5500) + 12000 + 127500 + (5000 )
= 129000
 

References

Anonymous. (2019). Arkansas: income tax: casualty loss deduction denied for failure to establish the pre-casualty fair market value of the real property. State Tax Review, 80(5), 2–3.https://lesa.on.worldcat.org/v2/oclc/7985344152

Anonymous. (2020). A renewed chance to revisit old assets for repairs and maintenance expenses. The Tax Adviser, 51(4), 236–237. https://lesa.on.worldcat.org/v2/oclc/8672699797

Batter, A., &Biscopink, E. (2019). Notice 2018-99 and the deduction disallowance for employer parking: the straw that broke the camel's back. Corporate Taxation, 46(3), 23–26.https://lesa.on.worldcat.org/v2/oclc/8181362429

Healy, B. (2017). Tax incentives for business owners. Businesses, 34(16), 37–57.https://lesa.on.worldcat.org/v2/oclc/7245418371

Pattison-Gordon, J. (2017). Millionaires' tax clears the legislature. The Boston Banner, 52(47), 1–7.https://lesa.on.worldcat.org/v2/oclc/8932426426

Property investors benefit from 'repair' year-end deduction. (2017). Spokesman-Review, E.2, 2.https://lesa.on.worldcat.org/v2/oclc/7250793193

Razak, S. H. A. (2020). Zakat and waqf as instrument of islamic wealth in poverty alleviation and redistribution. International Journal of Sociology and Social Policy, 40(3-4), 249–266. https://doi.org/10.1108/IJSSP-11-2018-0208

Weltman, B., & J.K. Lasser Institute. (2018). J.k. lasser's small business taxes 2018 : your complete guide to a better bottom line. John Wiley & Sons. Retrieved October 20, 2021.https://lesa.on.worldcat.org/v2/oclc/1012132648

LAW6000 Business and Corporate Law Assignment 2 Sample

Assignment Brief

Length: 2000 words +/- 10%

Learning Outcomes

This assessment addresses the following subject learning outcomes:

a) Demonstrate a sound comprehension of the essential elements required to create, manage and discharge a contract and assess the remedies available for breach of a contract;

b) Examine legal principles related to the creation and operation of various forms of business organizations and critically evaluate their effectiveness across a range of business scenarios.

c) Explain the processes for incorporating, managing, and winding up a company, including key director duties, the importance of the Corporations Act 2001, and the role of regulatory bodies.

d) Evaluate the role of agency in contract formation for different business vehicles and identify the associatecd risks such as vicarious liability for negligent acts.

e) Employ legal skills (statute law and case law), critical reasoning, and make informed judgments as to likely legal outcomes of a range of business scenarios.

By 11:55 pm AEST/AEDT Sunday of Week 9 (Module 5.2)

Weighting: 25%

Total Marks: 100 marks

Context:

This assessment allows students to solve practical problems that arise from a fact scenario and to give appropriate advice to clients.

Instructions:

There are five case studies for case study assignment help you are required to critically analyse. With respect to each case study:

? Identify the legal issue(s) arising from the facts of the casestudy
? Identify the appropriate legal rules that requires discussion in the case study
? Apply the law to the facts of the case study
? Reach a conclusion/ give practical advice to your client.

Your analysis should refer to appropriate cases and statutes and be referenced using the APA
Reference system.

Submission is through SafeAssign by 11.55 AEST Sunday of Week 9 of the relevant trimester

Question 1 (20 marks)

James has recently decided to open up a consultancy business near the city. He has identified appropriate premises and immediately gets into negotiation with Bradley, the landlord. He wishes to lease the commercial property for a period of five years. James proposes to demolish some of the interior walls to allow for better lighting and to then fit out the space to suit the modern image that he desires for his business. James and Bradley agree that the work would be completed in one month. It is agreed that once a lease agreement is signed James can commence the work in preparation to move into the premises.

James signs his part of the agreement and sends it to the offices of Bradley’s solicitors. He then commences the work to demolish the walls and fit out the premises. Three weeks later as James was about to complete the fit out of the premises, he learns that Bradley has yet to sign the agreement and has in fact entered into negotiations with Simon with a view to leasing the premises to Simon.

James has completed a substantial amount of work and is preparing to move in. He has in fact printed all his stationery. He approaches Bradley who says that there was in fact no contract and that he is likely to lease the premises to Simon. James is distraught and seeks your advice.

REQUIRED:

With reference to relevant legal principles, use the IRAC legal problem-solving approach to advise James on whether he is able to enforce the agreement with Bradley and the remedies that may be available to him.
Use appropriate case law in support of your answer.

(20 marks)

Question 2 (20 marks)

Elizabeth is a major shareholder in Millennial-Relics Pty Ltd. Elizabeth and has noted that the company maintains the old-fashioned ‘memorandum of association’ which has been prepared for Millennial Relics Pty Ltd.

The objects clause as drafted, limits the objects of the company to the development, manufacture and sale of motor vehicle batteries. Elizabeth believes that the research work that Rahim is doing (and future technology which may be developed as the full implications of Rahim’s work are realized) may have spin- offs into a number of related areas including dynamos for driver-less electric cars.

Elizabeth has spotted an opportunity that may allow the company to enter into a contract with like-minded companies for the development of state of the art dynamos that will be compatible with all types of electric cars. She is however concerned that the narrowness of the ‘memorandum’ may hamper the company’s ability to move into the emerging lucrative area and also the development and commercial exploitation of the dynamos which the company’s ongoing research may uncover may not be pursued lawfully.

Elizabeth has read that there is no legal reason to have a memorandum or articles, even if they are now called a corporate constitution. The company’s research may also expose potentially exploitable products or secret processes in other areas related to artificial intelligence. When Elizabeth raised these concerns with the company’s other shareholders, they told her that they had been advised by the lawyers that this was the standard form for their companies, and that there was no cause for concern. Elizabeth is not convinced.

REQUIRED:

With reference to relevant legal principles use the IRAC legal problem-solving approach to advise Elizabeth of the company’s position regarding any new contracts that it may enter in connection with the development of dynamos for driver-less electric cars and also explain how the replaceable rules may be of use to the company in the future. (20 marks)

Question 3 (20 marks)

In December 2020 Greg Napole was driving along a busy street with his spouse and two children in the car.
As they approached a busier section of the road Greg had to slow down significantly and as he was driving past a nearby park, a southern blue gum tree fell onto the car that he was driving killing wife Marsha and seriously injuring his two children and himself. Greg and his two children were hospitalised for two months with several broken bones. Upon recovery, Greg learnt that the tree had fallen because its root system had been destroyed by underground water leaking from a water channel that had been constructed by the local council, City of Small-town Council, in the year 1998. Greg is keen to have the council compensate him for the injuries he and his children have suffered and for the loss of his wife.

The local council has denied liability. They claim not to have a duty of care to Greg and his family. Greg wishes to pursue his claim and has now come to you for advice.

REQUIRED:

With reference to relevant legal principles use the IRAC legal problem-solving approach to advise Greg as to
whether he would be successful in negligence against City of Small-town Council. Please explain fully, using relevant case law. (20 marks)

Question 4 (20 marks)

Jaswant and his two friends, Davinder and Lachlan have been in a partnership for the last three years. Their business has grown and they now wish to expand into other states and territories. Their other friend Nicholas is a solicitor and he advises them to incorporate their business under the Corporations Act 2001 (Cth) to take advantage of the principle of separate legal entity and to allow them to trade in any state without having to comply with local partnership legislation. Jaswant, Davinder and Lachlan have brought in some of their own assets into the business and their partnership agreement specifically states that the assets will remain their individual property. They are concerned that they may not be able to do this after incorporation. They are also concerned about whether they will be able to contract with the company for the provision of some of the services the national business will be delivering. They each have specialist skills and are hoping to be remunerated by the business for their skills.

The three friends have also agreed to appoint Nicholas as the company solicitor and would be the only solicitor used by the company. This would be set out in the constitution that Nicholas would draw for the company. Lachlan is however concerned that if their relationship with Nicholas becomes strained, it may be difficult to use another solicitor if he chooses to enforce the constitution. Lachlan now approaches you for advice.

REQUIRED:

With reference to relevant sections of the Corporations Act 2001 (Cth) and appropriate case law, use the IRAC legal problem-solving approach to advise Lachlan of the effect and consequences of converting their partnership into a company and further whether Lachlan would be able to enforce the envisaged constitution if they wanted to use a different solicitor. (20 Marks)

Question 5 (20 marks)

Rahab is an executive working for a large pharmaceutical company which has recently transferred her to an overseas branch to manage the roll out of a global vaccine. She decides to leave the apartment Where she lives and to put her household goods in storage. She contacts a company known as KingStore Pty Ltd, Which specialises in the storage of goods. The company agrees to store Rahab’s goods for the period she will be away.

Before signing the contract of storage, Rahab asks about the condition of the building in which her goods will be stored. She has heard about recent floods in the state and just wants to be sure that her be safe. The company manager replies: “Our building is in excellent condition. We built it only two years ago and we used the best building materials. Your goods are safe with us.”

Rahab decides to enter into a written contract with the company and stores her goods with them. The contract which she signs does not, however, say anything about the condition of the building, nor does it make any reference to the other statements made to Rahab by the company manager concerning the quality of the building materials.

Some months later, the company telephones Rahab at her new place of work and advises her that her goods have been badly damaged due to recent heavy rainfall which caused water to enter the building in which Rahab’s goods have been stored, and to damage them. The reason for the entry of the water into the building is that the building was badly built and poor building materials were used. As a result, the building’s foundations sank when the heavy rainfall fell, thereby causing a large gap between the bottom of the doors to the building and the floor of the building where the goods were stored.

Rahab now wants to sue the KingStore Pty Ltd for the loss she has incurred as a result of the damage to her goods.

REQUIRED:

With reference to relevant legal principles use the IRAC legal problem-solving approach to advise Rahab
Of her legal position at common law against the storage company and discuss what remedies would
flow from them. Give full reasons and use any relevant case law. Do not consider any statutory rights.

Solution

Question 1

Issue

Whether James can enforce the agreement entered with Bradley. If yes, then what are the remedies that can be availed by the James?

Rule

In Australia, in order to formulate a legal binding contract there must be presence of all the contract essentials which includes an offer, an acceptance, a consideration, the legal intention of the parties and the legal capacity of the parties. When there is a valid contract, then, the parties must comply with the contractual terms (Wong, 2017).

Now, at times an agreement is established between the parties which is subject to the formation of some formal contract. At times one party to the contract signs the agreement but the other party did not do so and decides to finalise the contract at some future time or date. In Masters v Cameron (1954) it was held that if the intention of the parties portrays that they wish to abide by the terms of the agreement, then, it makes no difference whether a formal contract is prepared or to be prepared at some future date or that the agreement would be signed at some later event. As per Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) in such situations, there is a valid contract amid the parties irrespective of the fact whether a final draft is executed by the parties or not. If there is lack of intention, then there is no contract amid the parties. (Tolhurst, 2011)

Application

James wants to take on lease the premises of Bradley for five years. James and Bradley agreed that once the lease is signed amid the two then James is permitted to carry out the repair work within the premises which would take a month to complete and then move into the premises. James signs his part of the agreement and sends the same to the solicitors of Bradley, however, the same was not signed by Bradley. James commences the work and after three weeks he learns that Bradley is not willing to sign the agreement with him, rather, he is in negotiations with Simon.

It is submitted that by applying Masters v Cameron, the intention of both James and Bradley depicts that they intend to enter into a contract immediately as James was permitted to carry out the work at the premises and can then enter the vicinity. Also, James has signed the document and had completed his part of the obligation of the contract. Thus, the head of the agreement is intended to be abide by both the parties and thus Bradley cannot deny the enforceability of the contract amid James and Bradley.

Conclusion

It is thus concluded that there is a binding contract that exists amid James and Bradley and if Bradley did not abide by the agreement, then, it is considered as a breach of contract and James is liable to seek the expenses incurred by him for the repairs and compensation and damages for the stationery.

Question 2

Issue

Whether Elizabeth can enter into contracts which are beyond the object clause of the constitution of the company? How replaceable rules can be used in future?

Rule

Salomon v A Salomon & Co Ltd [1896] when any company is incorporated, then, the same acquires the status of a separate legal entity, that is the acts of the company are considered its own acts and the officers are not held liable for the same. In common law, as per Ashbury Railway Carriage & Iron Co v Riche (1875) the acts which are beyond the objects or powers of the company are held to be ultra-virus and thus not enforceable. However, as per section 125 of the Corporation Act 2001, no act by the company can be termed as ultra-virus even when the same is beyond the powers (object) of the company.Further, if there is no constitution, then, as per section 135 of the Act, the company can be run by the replaceable rules set under section 141 of the Act.

Application

As per the facts, Millennial-Relics Pty Ltd is a company in which Elizabeth is the major shareholder. The company follows its Memorandum of association. The object clause of the company only permits the company to the ‘development, manufacture and sale of motor vehicle batteries’. Elizabeth wants to expand the operations of the business to dynamos of driver less electric cars upon which Rahim is doing research but is restrained by the object clause.

It is submitted that if Elizabeth enters into contracts that are beyond the object clause, then, such contracts are not invalid as per section 125 of the Act 2001 and the company must honour the same.
Elizabeth can rely on the replaceable rules made part of section 141 of the Act to run the company in future.

Conclusion

It is concluded that even if Elizabeth enters into the contract that is beyond the object clause, still such contracts will held to be valid in the eyes of law.

Question 3

Issue

Whether the local council can be held negligent for the losses caused to Greg and his family?

Rule

When any defendant undertakes any acts or omission, then, he must make sure that no loss is caused to the plaintiff provided the plaintiff is his neighbour. To make any defendant negligent the main elements are:

i. The defendant is under duty to provide care to every plaintiff with whom he is sharing proximate relationship and who is reasonably foreseeable. The defendant must make sure that no harm of any kind should be caused to the plaintiff because of his acts and omissions;

ii. That if the duty of care is not comply with by the defendant, then the duty is held to be breached (Palsgraf v. Long Island Railroad Co);

iii. It is necessary that because of the breach, there should be some harm caused to the plaintiff which is not remote and which is caused because of the acts of the defendant (Home Office v Dorset Yacht Co Ltd [1970].

Application

Greg Napole was driving along a busy street along with his spouse and 2 children in December 2020. While he was driving one tree fell on the car killing his wife and causing injuries to him and his children. They took medical aid for 2 months.It is submitted that the local council can be held negligent because:

i. It is the duty of the local council to ensure that any acts that are undertaken by them should not cause any kind of harm to any person who are their neighbours.

It is submitted that Greg was a person who was using the road like any other travellers and the local council is aware of the same. Thus, Greg and local council are neighbours of each other and Greg is reasonably foreseeable. Thus, Local council owns the duty of care towards Greg and any person who was travelling with him;

ii. The duty of care was not complied with by the council as the tree that was fallen on the car of Greg was because of root system of the tree was destroyed because of the water leaking from the Channel that was constructed by the local council. Thus, the level of care that must be taken by the council was met while making the Channel. There was breach of duty of care.

iii. The loss that is caused to Greg was because of the breach on the part of council and the loss is not remote in nature.

It is thus stated that the local council is negligent towards Greg and his family and the council must compensate Greg for the losses so caused to him.

Conclusion

The council is negligent towards Greg and his family and thus must compensate for the losses so caused to him.

Question 4

Issue

Advice Lachlan of the effect and consequences of converting the partnership into a company?Whether Lachlan would be enforcing the constitution if they wish to use a different solicitor?

Rule

As per section 124 of the Corporation Act 2001, upon incorporation, a company has all the powers that of an individual including the power to make contracts.

Application

Jaswant and his friends, Davinder and Lachlan are sharing partnership relationship from past 3 years. If a company is established then:

The main effects of a company

i. The main effect is that the company will become a separate legal entity, that is, the acts of the company will be considered to be its sole acts and no officer will be held personally liable for the same (Shum, 1991).
So, if the three friends operates a company, then the actions taken by them will be on behalf of the company and they will not be held personally liable for the same.

ii. Since the company will be a separate legal entity thus it has the potential to enter into contractual relationships and thus itscan contract for the services of the national business.

iii. Since all the three have special skills, thus, they can be employed by the company and will be reimbursed by way of salary by the company.

iv. Nicholas can be appointed as the solicitor of the company by entering into a contract of employment.

The main consequences of a company

i. If the three friends establish a company, then, the assets that are brought by them in the business will become the property of the company and will be used to settle the liabilities at the time of winding up. Thus, they cannot treat the property as their own.

ii. The company has to pay taxes which will be ultimately borne by the officers;

iii. There are lots of paper work and time consuming in the formation of the company.

Conclusion

It is thus concluded that establishing a company will benefit the friends as the company will be a separate legal entity and has perpetual succession. The company can make contract but it will be lots of money and time that will be invested in its formation. Also, if Nicholas is appointed as lawyer then he will be an employee and he can be removed by terminating the contract of employment.

Question 5

Issue

Whether Rahab will be able to sue the King Store Pty Ltd for the losses so caused to him because of the damage of the goods by rainfall?

Rule

In common law, if any one party to the contract makes a false statement with the intention that the other party enters into a contract with him, then, the contract suffers from misrepresentation and is not enforceable by law. Any aggrieved party has the right to terminate the contract and sue the other party for damages as the contract was based on misrepresentation (Beever, 2007).

Application

Rahab was transferred to an overseas branch to deal with the roll out of a global vaccine. She left her house and put the goods in storage of a company King store Pty Ltd. The company specializes in storage and assured Rahab that their building is excellent and was built 2 years ago and is made with the best building material. That the goods will be safe with them.

Rahab decided to store the goods, however, nothing regarding the promises made by the company was mentioned in the contract. After few months, the company informed Rahab that the goods so stored were damages because of the heavy rain. The reason for the damage was that the building was badly built with poor quality material.

It is submitted that when the contract was made then the company knowingly made a representation that the building wasw made with a good quality material which in fact was not true. The false statement was made with the intention that Rahab enters into a contract with them and thus there was a misrepresentation made on the part of the company towards Rahab (Ciro et al., 2019).

So, Rahab can terminate the contract and seek damages.

Conclusion

It is thus concluded that Rahab can sue the company and seek damages for the losses so caused as the contract that was made amid them was based on misrepresentation.
 

Bibliography

Books/Articles/Journals

Beever, A. (2007). Rediscovering the law of negligence. Hart. https://lesa.on.worldcat.org/oclc/496273579

Ciro, T., Goldwasser, V., & Verma, R. (2019). Law and business ebook (5th ed.). Oxford University Press Australia. https://ebookcentral-proquest-com.torrens.idm.oclc.org/lib/think/reader.action?docID=5979408&ppg=1

Shum, C. (1991). Business associations : an introduction to agency, partnership and company law (2nd ed., Ser. Hku press law series). Hong Kong University Press. https://lesa.on.worldcat.org/oclc/650877514

Tolhurst, G. J., Carter, J. W., &Peden, E. (2011). 'masters v cameron' - again! Victoria University of Wellington Law Review, 42(1), 49–64.https://lesa.on.worldcat.org/oclc/4822652359

Wong, A. (2017). Company law. (E. Chapple, Ed.) (First). Wiley. https://lesa.on.worldcat.org/oclc/1040039461

Case laws

Ashbury Railway Carriage & Iron Co v Riche (1875) L.R. 7 H.L. 635

Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 (SC).

Donoghue v Stevenson [1932] UKHL 100;

Home Office v Dorset Yacht Co Ltd [1970] UKHL 2, [1970] AC 1004

Masters v Cameron (1954) 91 CLR 353.

Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99

Salomon v A Salomon & Co Ltd [1896] UKHL 1.

BUS1006 Business Law Assignment Sample

Assignment Brief

Due date: Week 7
Group/individual: Individual
Word count/Time provided: 2500 words
Weighting: 30%
Unit Learning Outcomes: ULO4 & ULO5

Assessment 2

Students must search Australian legal databases and find a court decision that has been decided over the past few years. The court decision must be on legal issues that arise on contract law. Once you have chosen a relevant court decision, you must critically review the decision. In critically reviewing the decisions, you must address the following points:

- Summarise the facts of the case for assignment help

- Identify the legal issues

- Analyse the applicable laws and discuss the relevant aspects of contract law which are applied on the case.

- Critically review the decisions

Apart from critically reviewing the court decisions, students are required to do a literature review on the relevant contract law principles or rules. In that, an in-depth discussion must be included on the meaning, scope, and application of the relevant aspects of contract law.

Solution

Introduction

The criteria of Contract Law are mainly defined as the agreement between two individuals, people and businesses. If someone doesn't follow the agreement, then it is definitely termed as a breach of contract in the negotiation of legal terms legislations. The criteria of contract law also help to exchange major promises between two people in order to manage the affordability of obligations recognised by the enforced laws in a very optimised manner. In this study, a specific Australian court decision will be selected based on the legal issues of contract law. The selected court decision for this study is the High Court of Australia Bulletin [2021] HCAB 5 and it is significantly related to the execution of contract law based on the decision of anti-tendency direction.

Literature review on relevant contract law

Concept and scope of contract law

The idea of contract law is significantly referred to as the passing of unique promises between two or more individuals by following the rules and norms of legal entities in a very reliable and viable manner. The implication of contractual legal entities can easily follow the agreement between new sponsored business partners in a very reliable and viable manner. The major laws used in this specific case study mainly include constitutional law, criminal law and industrial law based on the implication of the High Court of Australia Bulletin (Amigud and Dawson, 2019). The accommodation of industrial law is mainly based on the agreement of enterprises that can be very useful to viably detect serious misconduct of code through the help of certain disciplinary actions in a more meaningful and viable manner. In industrial law, the breach code can be easily identified with the validity of breach of conduct through the help of new business knowledge based on cases of contravened EA in early intervals of time (Awdry and Newton, 2019). In the context of industrial contract law, the respondents are significantly required to append for the proceedings of federal circuits that mainly deals with the valid implication of sources based on the proper conduction of legal codes and authorities in a very suitable manner. According to the actions of Industrial Law in the given case study, almost 56% of casual employees are required to be resituated based on the satisfaction of leave entitlements with the valid negotiations of Fair Work Regulations At of 2009.

Principles of Contract Law

In the country of Australia, the optimum intention for the development of legal relations can be easily confined with the help of valid contract law. Meanwhile, the four major principles of contract law in Australia are Acceptance, Legal Obligation, Meaning and Elements (Bretag, 2019). In contract law, the criteria of acceptance deliberately occur when one party mainly attends the quality of the other party based on the implication of a new research plan and tactics on a reliable basis. The overall optimisation of compliance also helps to generate new amounts of money with the integration of authentic business systems that can be functionally categorised through the growth of new business management systems on a daily basis. The acceptance of a reliable contractual agreement will be done based on the negotiation of agreement papers by following the implications of rules and legal items for future prospects.

The major principle of contract law can also be used to measure the reliability of the concept of return on benefits. On the other hand, the criteria of legal obligations are mainly defined as those duties in which each party is legally contracted with the agreement of sources based on the money of products and exchanges for future activities. On both sides, the implication of legal obligations is required to be disputed through the exchange of productive tools and agreements by following the laws of the Australian government (Crosweller and Tschakert, 2021). The connections of major exchanges can also be easily deliberated by following the mandatory legal actions based on the implications of a lawful basis.

On the contrary, the meaning in contract law is mainly defined as the simplest definition of planning that can be used to functionally result in the requirements of legal access to a person based on the valid execution of mutual assent of disputes in a very predominant and reliable manner. Furthermore, the elements in contract law of Australia are mainly known to be mutual assent and consideration that can be used to viably implicate the authorisation of resources in a very reliable and viable manner with the implication of new business resources and tactics on a formal basis in the future (de Rochefort-Reynolds, 2020). According to this given case study, the major case laws used in terms of the negotiation between two parties in terms of contract mainly include Palmer v the State of Western Australia, Edwards v The Queen, Deputy commissioner of taxation v Shi and Hamilton v The Queen (Draper and Newton, 2017). In this given case study, the implication of industrial law is suitably based on the limited validation of enterprise agreement through which the prosperity of the legal code of conduct can be easily determined in the future. The reliability of new business tools and deliberations can also be judged based on the valid stability of business respondents in order to manage the special working holiday tax rate whose value is up to $3986 AUD.

Applications of Contract Law

The application of contract law is that it viably helps to exchange the authorisation of economic goods and services in the country of Australia. This law also helps to deal with the negotiation of sponsored partners that helps to mitigate the breach of the contract throughout the authorised meetings of minds by elongating the terms of the contract in the future. Meanwhile, the validity of legal documents is another application of contract law that deals with the implication of source based on the capacity as well as the viable legality of systems in a very suitable manner (Feinerman, 2019). According to the given case study, the main application for the perseverance of contract law is Immigration.

The criteria of immigration mainly help to implement the criteria of non-refoulment obligations in which granted refugee and humanitarian can also be negotiated through the execution of Global Special Humanitarian based on the implication of 12 months of imprisonment for the breach of contract in Australian subcontinents. As per the given case study, the other application of Australian contract law is the delegation of plaintiff procedural fairness under the valid assumption of the Mitigation Act (Harpur, 2018). This law is only applied after the decisions made by the constitution of the ministry for the optimum integration of large business resources in the future. Moreover, the valid applications of authorised contractual agreements can be negotiated through the help of non-revocation decisions made with the validity of pursuant to s 501CA (4).

Summarise the facts of the case

The case study named High Court of Australia Bulletins is mainly focussing on the implication of Australian contractual cases that are being decided and reserved for the purpose of judgement. This particular case study also provides valid information about the Court’s Original Jurisdiction by mainly granting a special and predominant leave to appeal based on proceedings and vacated in a very reliable and viable manner (Hemming and Daniel, 2018). In this case study, major laws that are being discussed mainly include constitutional law, immigration law, criminal law and industrial laws of Australia. In the study, the description of hand down cases by the High Court of Australia in June 2021 based on the association of legal terms and laws has also been provided. Moreover, this particular case also summarises the facts of aliens, deportation, duty to remove, vesting of judicial power and false imprisonment. In this case study, the idea of breach of contract in Australian legislation has also been provided that mainly helps to grant visas limited by implications in the future.

This study also provides a brief description of the case law named Commonwealth of Australia v AJL20. This particular case study also summarizes the facts of constitutional laws that are being implied by the freedom of communications on the behalf of foreign principal activities on the provision of a legitimate purpose in order to determine the breach of contract in the future (Hile, 2021). According to Migration Act 1958, the removal of the concerns of non-citizens in Australian residents can be widely deliberated through the removal in accordance with the Act in order to maintain the mortgage that is being extinguished due to the breach of contract.
Identification of legal issues

In this case study of the High Court of Australia Bulletins, the issues related to the Corporations Act of 2001 has been noticed by this limited assurance of leased engines and leaving engines and authentic engine leases for the major implications of third party activities. Meanwhile, the legal issues related to the effective consolidation of new breach of contract can be viably utilised that can be implicated by the formation of the Court of Appeal. This mainly results in the emergence of issues related to the implication of contested credibility within the business. The overall implantation of inadmissible and prejudicial evidence can be viably determined through the substantial miscarriage of justice in the future (Matulionyte, 2019). The implication of justice mainly helps to maintain the overall delegation of resources based on the authentic stability of criminal law and justice.

Moreover, the other legal issue systematically related to this specific case study is the 5 years’ minimum penalty of jurisdiction that is being implied by the magistrate of the district court in suitable intervals of time. On the other hand, the issue of unconscionable conduct of respondent lenders can easily cause the manual implication of breach of contract to appeal the findings of the primary judge within the navigation of future prospects (Schmulow and O’Hara, 2018). The other issue is the major apprehension of biases all around the courts that can be easily justified with the help of a hypothetical observer on a formula basis. On the other hand, the other legal issues of this case study mainly include the trial of the judge made through the implication of the interlocutory interpretation decision that is being punctually exhausted after the judgment made by the Australian Court in the future. Moreover, the issue of jurisdiction under the power of the primary judge can help to measure the affordability of legal contractual exercise between the two parties in the future.

Applicable laws and discuss aspects of contract law

In the case study of the High Court of Australia Bulletins, the major laws used are criminal law, industrial law, constitutional law, tax law and industrial law. In this study, the major implication of constitutional law is mainly to define a certain case law of the Australian Court named Commonwealth of Australia v AJL20 (Sherborne, 2017). In this case, the main judgement was delivered on 23 June 2021 through the execution of false imprisonment of people with the tactical execution of new business growth and technique in a very reliable and viable manner. The execution of new business formats can also be used to maintain the optimum integration of the latest business style and techniques based on the optimum configuration of Chapter III of the constitution in several business concerns with the attribution of contracted features in the future.

The constitutional law can be used to mainly impose the conflicts within the registration obligations that can be used to measure the holding of Conservative Political Action Conference with the negotiation of breach of contract in the future. On the other hand, the implication of constitutional law can be utilised through the methods of state legislative powers based on the implication of alternative sources with the prospects of Federalism (Sherman and Bosse, 2018). According to the Criminal Law of Australia, the foresight of profitability of consequence can be easily measured with the case-law of Aubrey v The Queen (2017) 260 CLR 305. This case law significantly helps to measure recklessness with the indication for the breach of agreement in the future (Steel, 2017). On the other hand, the tax law has also played a significant role in this case study by mainly pursuing the case law named Deputy Commissioner of Taxation v Huang. Moreover, the optimum practice of freeing order helps to determine the persuasion of Australian Foreign Assets that helps to seek judgement among well-renowned respondents for the attribution of Federal Court Rules in 2011.

Furthermore, the relevant aspects of contract law applied in this case study mainly include casual employees, privity of contract, declaratory relief and judicial power of the commonwealth. The implication of contractual matters can help to maintain the delegation of new business resources that results in the practical enforcement of new terms and agreements in the future. The authorisation of privity terms can also be used to respect in the negotiation of third party contracts with the doctrine of enforceable rights and desirable controversies of liability in the future. In this case of contact, the case law used to replicate the breach of contract mainly include the optimum mechanisms of judgements with the implication of Hobart International Airport Pty Ltd v Pacific Airports (Ullah and Al-Turjman, 2021). The attribution of payable amount can also be negotiated between valid appellants that helps to configure the cases of strong contractual business sources in the future. On the other hand, the corporations of insolvency will help to mandate the optimum benefits of contributors that can be obtained with the ASIC authorises of the person in the future. The suitable implications of NSW courts can be easily appealed through the raising of paying purpose among individuals during the effective time frame of the contractual agreement in the future.

Critically review the decisions

In this particular case study, some accurate and some falsified decisions have been made on the basis of behaviour concerns of non-citizens in the country of Australia. In the case-law of Migrant Services v Moorcroft, the huge had made wrong decisions related to the integration of contracts and based on the agreement of Migration Act of 1958. This decision is false as the agreement between two major parties has been cancelled and the third party cannot remove the implication of hard consequences in the future. On the other hand, the case of Chetcuti v commonwealth of Australia has also provided a valid limitation of action based on the exclusion of agreements between users (Whincop et al. 2018). Moreover, the decision of the judge in this case law is accurate due to the implication of the naturalisation of aliens in the country of Australia. The breach of contract was done with the navigation of British Subjects in the major colonies of 1949. Moreover, the formal and authentic justification of this court decision can be effectively managed through the constitution of power management in the future. In the end, the case law of Mineralogy Pty Ltd v The State of Western Australia, the court judge has decided the defendant of agreement relations between two business sources based on the optimisation of Amendment Act of 2020.

Conclusion

Hence, it is concluded that implication of Australian databases has been used to select the case study of High Court of Australia Bulletins that has mainly made the decisions of anti-tendency direction with the specifications of case laws. In the end, valid decisions have been made related to the original jurisdiction of the court based on the implication of constitutional laws and immigration acts from this case study.

References

Amigud, A. and Dawson, P., 2019. The law and the outlaw: is legal prohibition a viable solution to the contract cheating problem?. Assessment & Evaluation in Higher Education.

Awdry, R. and Newton, P.M., 2019. Staff views on commercial contract cheating in higher education: a survey study in Australia and the UK. Higher Education, 78(4), pp.593-610.

Bretag, T., 2019. Contract cheating will erode trust in science. Nature, 574(7780), pp.599-600.

Crosweller, M. and Tschakert, P., 2021. Disaster management and the need for a reinstated social contract of shared responsibility. International Journal of Disaster Risk Reduction, p.102440.

De Rochefort-Reynolds, A.J., 2020. Confused Seas: Identifying the Proper Law of Arbitration Agreements in Maritime Contracts-England, Singapore and Australia. Austl. & NZ Mar. LJ, 34, p.1.

Draper, M.J. and Newton, P.M., 2017. A legal approach to tackling contract cheating?. International Journal for Educational Integrity, 13(1), pp.1-16.

Feinerman, J.V., 2019. Legal institution, administrative device, or foreign import: The roles of contract in the People's Republic of China. In Domestic law reforms in post-Mao China (pp. 225-244). Routledge.

Harpur, P., 2018. Australia-The Licensing of Temporary Agency Work Arrangements: Australian Labour Hire Licensing Acts and the Regulation of On-Hire and Gig Work. American Bar Association, Section of Labor and Employment Law, International Committee Newsletter.

Hemming, A. and Daniel, M., 2018. Halsbury's laws of Australia: contract GC I_II_V. Update of contract GC I, II, and V.

Hile, J., 2021. Dude, Where’s My Data? The Effectiveness of Laws Governing Data Breaches in Australia. Journal of Telecommunications and the Digital Economy, 9(2), pp.47-68.

Matulionyte, R., 2019. Empowering authors via fairer copyright contract law. University of New South Wales Law Journal, The, 42(2), pp.681-718.

Schmulow, A.D. and O’Hara, J., 2018. Protection of Financial Consumers in Australia. In An International Comparison of Financial Consumer Protection (pp. 13-49). Springer, Singapore.

Sherborne, A.K.E., 2017. Restitution in the conflict of laws: characterization and choice-of-law in Australia. Journal of Private International Law, 13(1), pp.1-34.

Sherman, B. and Bosse, J., 2018. Regulating access and benefit-sharing in Australia. International Workshopon Access and Benefit-sharing for Genetic Resources for Food and Agriculture, p.89.

Steel, A., 2017. Contract cheating: Will students pay for serious criminal consequences?. Alternative Law Journal, 42(2), pp.123-129.

Ullah, F. and Al-Turjman, F., 2021. A conceptual framework for blockchain smart contract adoption to manage real estate deals in smart cities. Neural Computing and Applications, pp.1-22.

Whincop, M.J., Keyes, M. and Posner, R., 2018. Policy and Pragmatism in the Conflict of Laws. Routledge.

CLWM4000 Business and Corporations Law Assignment Sample

Assignment Brief

Word Count - 2000 Words (+/- 10%)
Weighting: 30 %
Total Marks: 30
Submission: Via Turnitin
Due Date: Week 9

Your Task

Using the Case Study provided, you will need to undertake an analysis of the various legal issues that are identified, cite relevant rules applicable to the issues, explain the application of the rules to the facts/situation in the case scenario using the IRAC method.

Assessment Description

You are required to answer the following three (3) questions, based on the Case Scenario below
Assessment Instructions

• Your assessment is to be submitted via Turnitin in WORD format. “PDF submissions will not be accepted”

• You must follow the KBS presentation guidelines for assignment help

• Please refer to the assessment marking guide to assist you in completing all the assessment criteria and for information on the use of references and legal citations

CASE SCENARIO

Julia Brennan is an Australian Super Model who had started on an intensive fitness program to prepare for her new TV Commercial that will advertise a new type of gym equipment. She knows that she needs to be super fit. In addition to her fitness program, she decided to consultant dietician about what sort of food she should eat to accelerate her program. The dietician suggested that she have at least one protein smoothie every day. She had done a bit of research to find out what might be the best type of blender for her to buy. When she went to the local electrical store, she found that the only blenders that they had for sale did not meet her needs as they were no powerful enough for smoothies.

So, she decided that she needed to go to a larger store. She had heard good things about, the “Super Big Brand Store” so decided to go there to purchase a blender that met her needs. She was very happy to find that the blender was on sale at the “Super Big Brand Store” The Sale Sign stated “Buy it today and you will get 50% off” it is high quality, superb, safe and durable. You won’t regret it”.

When she went to the counter to pay for it, she was informed by the Sales Assistant that the blender was not on sale for 50% off as the Sale Sign had stated. The Sales Assistant told her “sorry that was yesterday, and I cannot give you 50% discount!

Julia was in a hurry and she just wanted to get started as soon as possible with her protein shakes, so she bought it and kept her receipt. She went back home, she plugged it in and as soon as the blender started the upper lid came straight off as did the sharp blender blades.

Unfortunately, the blades injured her right hand and she needed to go straight to the Hospital Emergency Department. The Doctor told her that she would need stitches in her hand, and she would be unable to use her hand for four weeks unless the cut had healed, and the stitches could be removed. Julia was very upset when she realized that she would not be able to participate in the planned TV Commercial and that another Super Model would have to take the job. She would also lose the $12,000 that was the agreed payment for the commercial.

Three weeks after the accident, Julia went back to the “Super Big Brand Store” to complain about the blender and about the injury to her hand finger! While she was waiting for the Store Manager, she noticed that the same Sales Sign was displayed “Buy it today and you will get 50% off” it is high quality, superb, safe and durable. You won’t regret it”.

She asked the Sales Assistant whether the blender was 50% off as the Sales Sign had stated. The Sales Assistant responded, “Sorry that was Yesterday”. She realized that the displayed Sales Sign did not mentioned the date, so it was difficult to figure out why the Sales Assistants kept saying “Sorry that was Yesterday”. She started to suspect that there was something wrong with the way that the store was operating. Instead of waiting for the Store Manager,

She decided to call a Solicitor from the firm “Injuries at Law” for legal advice.

QUESTION 1 – Contract Law (10 Marks)

• Please advise Julia, if she entered in a contract with the “Super Big Brand Store.”

o In your answer explain the meaning of Contract and which elements need to be satisfied to be in a simple contract and how to identify if this contract can be invalided.

o You will need to address all the “essential elements of a simple contract” including (Offer and acceptance, intention and consideration) as well as “elements of a valid contract” (Capacity, Legality, Genuine Consent, Mistake, Misrepresentation, Durres, Undue Influence and Unconscionability and explain if Julia can invalidate the contract.

o You will also need to address and explain what sort of remedies she will be entitled if she decides to void the contract under the Contract Law in Australia.

QUESTION 2 - TORT LAW (NEGLIGENCE) (10 Marks)

• Please advise Julia, if she has a claim under the tort of negligence.
o You need to address all the “essential elements under the tort of negligence”.
o You also need to address if the “Super Big Brand Store” has any defences under the tort of negligence.
o Explain what sort of remedies she will be entitled to claim under the tort of negligence in Australia.

QUESTION 3 – Australian Consumer Law (10 Marks)

• Please advise Julia, if “Super Big Brand Store” breached her Australian Consumer Law Guarantees under the Competition and Consumer Act 2010 (Cth) Schedule 2.
o You need to justify your view as to whether these guarantees are available. Don’t forget to explain if Julia will be entitled to claim the remedies and
o You also need to explain if the “Super Big Brand Store” will have to pay

SOLUTION

QUESTION 1

Issues in the prevailing case scenario

Present case scenario contained issue related with contract law. It is required to ascertain whether or not Julia has formed contract with the “Super Big Brand Store”?

Rules and regulations

A contract is a set of promises that are legally enforceable. Australian contract law is primarily governed by the ‘common law’. Some of the essential elements need to be satisfied for formations of valid contract are -

1. Offer and acceptance: When one party accepts the offer of another party it leads to the formation of a contract. Offer can be given to any single person or group of person, which can be observed in the case of Carlill v Carbolic Smoke Ball Co.

2. Legal relations: Contract is not just formed by acceptance of offer but there should be intention of parties for creation of legal relations (Tadros 2020).

3. Consideration: It is the price paid by one party to another; price is not just in terms of money but can also be in terms of risk, interest, rights.

4. Legally capable: Not everyone can enter into a valid contract, persons with issues related to legal consent like bankrupt, prisoners, mental issues cannot enter into a valid legal contract (Werbach & Cornell 2017).

5. Consent: These are the elements under the contract on which both the parties agree mutually it must avoid any miscommunication, misinterpretation, mistakes etc.

Apart from above aspects, a contract is invalid if these conditions are there:

1. Fraud has been committed.

2. Consent in the agreements is not understandable or not possible to be fulfilled.

3. Consent has been obtained through undue influence, duress, mistake, unconscionable conduct, and misrepresentation. In the case of Derry v Peek, contract is considered as void because consent is obtained through fraudulent misrepresentation (Clarke 2010).

One must have to convince the second party to agree on the contract if there is misrepresentation under the contract. Misrepresentation is an inaccurate statement which tries to persuade a person or a group to enter in the contract. It has no such effect until and unless the second party was aware of its existence. Further, duress takes place, when individual enter in a contract because of some force or violence their entry is not voluntary (Lamont, Stewart, & Chiarella, 2019). Undue influence occurs when an innocent party is threatened or misbehaved by the other party or even if someone is forced by their elders or any other ascend person for their own benefits is an act of influencing. In fact, a ‘mistake’ is something which exits but it shouldn’t have.

Remedies

Liquidated and damages Claims: Liquidating damages means providing a sum of money under a clause in contract for the breach to other party, further the sum mentioned above is not included in penalty. Damages could be viewed as replacement of the performance from the breached contract, which means a plaintiff is placed in a situation where he would have if the contract was performed correctly (Clarke, 2010).

Equitable Remedies: There are two main equitable remedies for breach of contract.

Specific performance – Under this the breaching party is ordered to perform in the way it was supposed to according to the laws. This order is laid only if the compensation could not be provided.

Injunctions – These are the order or you can say warning by court to not perform such breaches in contract.
Application

By application of above rules, it can be said that, there is valid contract has been formed between Julia and Store as all essential elements such as offer and acceptance, consideration, intention, and legal capacity has been satisfied. It should be noted that, there is violation of terms and conditions of the contract by Store as blender was not as per Sale Sign that states about its quality, safe, durable, and excellence. Based on this, Julia would entitle to claim remedies such as 50% discount on blender, medical expenses, and loss of income as damages under contract law designed in a manner to place plaintiff in a situation if the contract has been executed appropriately.

Overall, it has been concluded that, valid contract has been formed between Julia and Store. However, due to breach of terms and conditions by store, Julia can entitle to claim remedies from store.

QUESTION 2

Issues in the prevailing case scenario

Present case scenario contained issue related with tort law (negligence). In this, it is required to give advice whether or not Julia has a claim by application of tort of negligence?

Rules and regulations

Essential elements as per the tort of negligence are as follows -

Duty of care: It’s a legal responsibility to take reasonable care generally the scope of care not much it depends upon the relationship of the two parties. The duty of care involves the care which is not to harm intentionally or unintentionally to other party. In the legal case of Donoghue v Stevenson, it was held that, even if there is not any contractual relationship, an individual should be capable to sue another who assisted losses to them (Taylor 2020).

Breach: Under this the ‘duty of care ‘is breached that whether the occurred situation is reasonable or not, which means the plaintiff is not entitled to all the risks but if there is an obvious risk involved the plaintiff has to cover (Stoyanova 2020).

Causation: Under this the plaintiff has to prove that the injury which is occurred or the sufferings is the part of breach of duty of care. In the legal case, Amaca Pty Ltd v Ellis, there was inadequate causation to provide negligence.

Damages: The final element of the negligence is the damages. After the plaintiff proves the duty of care, breaching and causation they can receive the compensation for the loss.

The compensation is made on the basis of how the impact of lossinjury is on the plaintiff, like severity of injury, loss in financial terms or the impact of injury on the future of the plaintiff.

Defences

There are two defences a defendant can use where they are found liable for negligence:

Volenti non fit injuria: It means that the claimant has agreed that he had accepted the involvement of risk. Under this if the party successfully proved the acceptance he would not be liable for the loss (Armstrong 2019).

Contributory negligence: Under this the partial liability is taken away if the defendant can prove that there was the contribution of the claimant too in their losses.

Remedies for Negligence Claims

First remedy for negligence claims is the compensation. The claimant will be provided with the sum of compensation he had to suffer from the damages. Damages could be provided for both financial and non-financial losses (Gibbs Wright Litigation Lawyers 2020).

In case of personal injury, the claimant will be provided with additional damages like the loss of his income due to the injury or medical expenses (Eldar 2020).

Application

By application of above rules and regulations in the prevailing case scenario, it can be said that, Julia is eligible to claim as per tort of negligence as sales assistance owned duty of care towards Julia and due to violation of such duty of care, she has suffered from losses, and such losses was also not too remote. Further, there is not any defenses available to store as there is not any voluntary acceptance of risk by defendant and concept of contributory negligence would also not applied. Therefore, Julia would entitle to claim monetary compensation for the losses suffered by her along with loss of $12000 that was agreed payment for commercial performance.

Conclusion

Overall, conclusion can be drawn from above analysis that, Julia would be entitled to claim under tort of negligence and consequently remedies can be claimed by her, which includes loss of income as well as medical expenses.

QUESTION 3

Issues in the prevailing case scenario

Issue in the given case scenario is based on Australian Consumer Law. It is required to provide advice to Julia whether or not provisions of consumer guarantee as given in the schedule 2 of the Competition and Consumer Act 2010 has been violated by the “Super Big Brand Store”. In addition to this, suggestions should also be provided with respect to remedies of Julia and what is required to be paid by “Super Big Brand Store”.

Rules and regulations

Australian Consumer Law is explained in the schedule 2 of the Competition and Consumer Act 2010. As per the cited law, it is required by organizations to offer consumer guarantee for most of the products and services sold by them. It is essential that, organizations that are engaged in selling of goods must provide guarantee as explained in section 51 to 59 of the cited Act that such goods are –

• Goods must be as per the acceptable quality. It suggests that, products should be secure, has no mistake, seems acceptable, and performs all aspects that are expected generally.

• Goods should be appropriate for the purpose that customer made recognized to the company prior to purchasing.

• Goods should be described reliably (Bianchi 2018).

• Goods should be match as per demonstration.

• It should comply with any express warranty.

• They should have a clear title.

• There should not be any hidden charges.

• It should have repairing facility for a rational period of time except the advised is provided to customer otherwise.

If an organization sells goods to consumer that fails to fulfill above prescribed guarantee, then in such case, consumers are entitled for the remedies, such as repair, refund, replacement of goods, and monetary compensation for any significant losses, based on the situations (Pearson 2018). If the issue is significant or it could not be fixed, then in such case, customer can select to reject the product and gain a refund of whole amount or replacement of goods, or retain the product and avail compensation for the decrement in the value of product. In the legal case ACCC v Valve Corporation (2016), it was held that, Australian Consumer Law would also implement on the foreign companies. Therefore, company has liability for misleading customers through demonstrating that refund was not entitled to them and not including any guarantee connected to the quality of services.

Section 259 offers the right of Consumers to seek compensation for the losses sustained by them because of the issues in goods and services, consisting of repair, replacement, and refund of defective goods. Section 259(4) provides remedy for the consequential losses caused to the customer as a consequence of the issue in goods and services as decision is given in case of Barton v Transmissions and Diesels Ltd (Consumer rights obligation 2020). Normally; it is financial like expenses of repairing, transportation, inspection. Additionally, lost time and productivity could also be included in the damages.

Application

By application of above rules, it is advisable to Julia that Australia Consumer Law Guarantees has been violated by the store. It is because, there is implied guarantee given under cited Act, that goods must be as per reliable quality, however as soon as blender started by Julia, she has suffered from injury because store’s failure to comply with guarantee stated under the Act. It is mainly because of bad quality of blender. Since, problem in goods is major in nature, therefore Julia has right to reject the goods and obtain the refund of whole amount or replace the goods. She may also retain the goods and claim compensation for reduction in amount of goods. In addition to this, $12000 can also be claimed as it is consequential losses taken place from violation of consumer guarantee.

Conclusion

In a nutshell, store has breached the guarantee provided under schedule 2 of the cited Act, and therefore Julia is entitled to claim remedies, which may be either replacement of goods or refund the amount. Additionally, she also claims loss of income of $12000. Therefore, store is required to replace or refund the amount of blender along with losses of income suffered by Julia.

REFERENCES

Armstrong, A 2019,’Negligence and prescribing’, Journal of Prescribing Practice, vol 1, no. 10, pp.512-516, https://doi.org/10.12968/jprp.2019.1.10.512

Bianchi, L 2018, ‘Consumer law: Changes to Australian consumer law: Key benefits for vulnerable consumers’, LSJ: Law Society of NSW Journal, vol. 50, no. 3, pp.71-73, https://search.informit.org/doi/abs/10.3316/agispt.20181108003624

Clarke, J 2010, ‘Australian contact law’, Available through<https://www.australiancontractlaw.com/law.html> .[ Accessed on 27th August 2021].

Consumer rights obligation 2020, Available through < https://www.accc.gov.au/business/treating-customers-fairly/consumers-rights-obligations> . [Accessed on 27th August 2021].

Eldar, S 2020, ‘Cross-Victim Defences’, Criminal Law and Philosophy, pp.1-17. https://link.springer.com/article/10.1007/s11572-020-09552-7

Gibbs Wright Litigation Lawyers 2020, ‘Remedies for negligence claim’ ,Available through <https://gibbswrightlawyers.com.au/publications/negligence-disputes-australia> . [Accessed on 27th August 2021]

Lamont, S, Stewart, C, & Chiarella, M 2019, ‘Capacity and consent: knowledge and practice of legal and healthcare standards’, Nursing Ethics, vol 26, no. 1, pp.71-83, https://doi.org/10.1177/0969733016687162

Pearson, G 2018, ‘Enforcement and Effectiveness of Consumer Law in Australia’, In Enforcement and Effectiveness of Consumer Law (pp. 75-97), Springer, Cham, https://link.springer.com/chapter/10.1007/978-3-319-78431-1_3

Stoyanova, V 2020, ‘Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights’, The International Journal of Human Rights, vol 24, no. 5, pp.632-655. https://doi.org/10.1080/13642987.2019.1663342

Tadros, E 2020, ‘Elements of a contract’, Available through <https://fls.org.au/law-handbook/consumers-contracts-the-internet-and-copyright/how-contract-law-works/elements-of-a-contract/>. [Accessed on 27th August].

Taylor, 2020, ‘Elements of negligence’, Available through <https://www.taylorandscott.com.au/compensation-lawyers/four-elements-make-negligence-claim/>. [Accessed on 27th August 2021].

Werbach, K. & Cornell, N 2017, ‘Contracts ex machine’, Duke LJ, 67, p.313, https://heinonline.org/HOL/LandingPage?handle=hein.journals/duklr67&div=11&id=&page

LAW5398 Construction Law Assignment Sample

You have been approached by Mrs Jacintha Mernda who is aware of your recent enrolment in the Construction Law Unit at Swinburne University of Technology. Mrs Mernda asks you for advice on a planned construction project. Her intention is to build a four storey apartment building in one of the suburbs in Melbourne. The apartment would have private residences, ready to rent or purchase on the second, third and fourth floors; a restaurant, coffee shop, and other shops on the ground floor; and a carpark in the basement. The carpark will be for only the residents or workers in the building. Visitors will park along the road.

Mrs Mernda needs advice with the following:

What is the building classification for her project and why is he building classified that way (See National Construction Code)?

What is the best type or types of contracts she needs for the project?

Will she need to employ an engineer? If so, what will be the Engineer’s role?

Will she need a liquidated damages clause and if so, can you provide her with a sample of a good clause she can use?

Will she be able to request a variation to the project once the construction has commenced? If so, what are her rights and obligations in case of a variation?

How can she ensure that her construction project is Covid-19 safe?

NB: Although the project is in Victoria, Mrs Mernda is happy for you to use examples and even laws from overseas or interstate, if you want to. She does not require you to entirely rely on Victorian Law, but you may do so, if you’re able to.

Solution

Introduction

Construction project is determined as the activities through which different projects are made such as buildings, apartments, house and many other things in which people can easily live or conduct their business activities. The following case study is also based on the construction law and it aims to determine the construction of a four storey building that is located in Melbourne. The following case study for assignment help will provide an analysis of the classification of the project and the best type of contract that is suitable for the project. On the other hand, the role of engineer and safety of project from the COVID-19 impact will also be analysed in the following .

Main body

What is the building classification for her project and why is he building classified that way

As per the national construction code, following are the building classification that is based on the building made or approached by Mrs Jacintha Mernda:

• Residential building

One or more family residences, boarding or shacking up houses, seminaries, residences, apartment houses, and individual garages of such structures are all examples of a "residential building" that provides sleeping accommodations for regular residential purposes. One or more rooms in a structure used as a residence, with the required amenities and utilities to meet the needs of an individual or family (Ahmed, 2019).

• Business building

Offices, banks, professional businesses, and courthouses are all considered to be business buildings since their primary purpose is the conduct of business or the maintenance of books and records. The term "business building" refers to any structure used for commercial, retail, or wholesale operations, as well as service agencies. This list is not intended to be exhaustive; rather, any structure or location used for commercial, retail, or wholesale operations, as well as service agencies, should be considered a business building.

• Multi storey building

The phrase "multi-story building" is used to describe a structure with numerous stories above ground. The term "multi-story" refers to a building with more than four levels. Living in such a building has both benefits and downsides. A multi-story building is a three-dimensional or light-weight steel structure with numerous levels and vertical circulation (Ingle and Mahesh, 2020).

What is the best type or types of contracts she needs for the project?

There are different types of project contract that can be implemented for the current project of four storey building. Following are certain similar contracts for the project:

Contract with a Cost-Plus Subscription

Contractors get compensated for all of their construction-related expenditures when they enter into a cost-plus contract. That's the component of the name that refers to the price. Direct expenditures such as labour, materials, and supplies, among other things, might be included in the total cost. These expenses also include overhead charges, which might include things like insurance, travel, and a percentage of their office rent. In addition, they earn a certain amount of profit on the sale of the product. That is the "advantage." Contractors tend to see this form of building contract as being very favourable in general (Owusu et al., 2019).
Material expenses are unlikely to go above budget, at least for the time being. Furthermore, they are confident in their ability to make a profit. When the scope of the project is unclear or there isn't enough material to produce an accurate estimate, this kind of arrangement is ideal. Quality is also important to them.

Contract for the design and construction of a building

Traditionally, finished drawings are sent to the owners before construction bids are solicited. This results in two different contracts as well as a lengthier overall procedure. When it comes to the design-build contract, things work a little differently. In accordance with its name, a design-build contract tackles both the design and building expenses at the same time. According to this sort of contract, the building process really starts before the final design has been finalised and approved. To save both time and cash, the owner benefits from this method since the civil and structural projects are delivered under the same contract. It also assists in the simplification of contacts and the establishment of repeatable processes (Kim et al., 2020).

With the design-build contract, architects and contractors are able to work together more quickly and prevent disputes. Companies who want to expedite project delivery, take advantage of the advantages of collaboration, and simplify procedures are embracing it in increasing numbers. As a result, designers have more involvement into the building drawing process, which reduces the need for revisions (Oswald et al., 2019).

Will she need to employ an engineer? If so, what will be the Engineer’s role?

Yes, she will need to employ an engineer for the construction project of four storey building. Among civil engineers' most important responsibilities is their work on architectural projects as well as the improvement of building infrastructure. They assist in the development of systems surrounding the facility in order to address site problems related to utilities and guarantee that the project is viable. Because of the wide range of skills and knowledge they possess, they are able to create building designs from the ground up and supervise their implementation as they see proper. In such cases, they assume responsibility and work in collaboration with physical labour and other engineers who are in charge of the technical procedures associated with the project (Heigermoser et al., 2019).

It is expected by the customers who employ contractors for tasks that they would include environmentally friendly and energy-efficient elements into their freshly built structures. It is at this point that energy engineers come into the open and offer other techniques of generating electricity for buildings to those now in use. In order to satisfy these needs, they include alternative energy sources, such as solar energy, into their designs.

This not only makes the structure more energy efficient, but it also helps to reduce the rising cost of utilities. Because of this, the construction becomes more valuable, making it a highly sought-after project. Additionally, the cooling and circulation of buildings are two other utility difficulties that have arisen throughout these development projects (Karimi et al., 2018). Mechanical engineers are responsible for installing these HVAC systems as early in the design process as possible to guarantee the safety of the building's occupants. They also, as previously said, help to enhance the quality of the money spent on its energy requirements.
Residents are at danger of inhaling toxic chemicals and contracting serious diseases or mutations if they do not have access to these services. In addition, if a building does not have a functional ventilation system, the State Board of Health may impose a punishment on the owner. As a result, it is no longer a question of choice, but rather a requirement for contractors to take into consideration (Wei et al., 2019).

Will she need a liquidated damages clause and if so, can you provide her with a sample of a good clause she can use?

Arbitration clauses contain a provision for liquidated damages in the event that a party breaches the contract. Liquidated damages are often based on the company's inability to fulfill identified objectives if the project does not meet the completion date stated in the agreement (i.e. handing over the site to the customer). It is common to utilise daily or weekly rates in their calculation. It's important to note that liquidated damages are not fines; rather, they're a pre-determined amount of money due to the customer if the contractor misses the completion date. Temporary housing fees, moving expenses, and the like are all examples. Fixed daily or weekly sums, however more complex equations may be used if the job is phased, where there is partial ownership, and so on. It is critical that the calculating process be described in detail and in a formal manner (Sun et al., 2019).

Clients may sue for unliquidated (reality) damages if their actual losses vary significantly from those anticipated at the moment of the agreement's signing, unless the provisions of the contract specifically specify otherwise. These damages are not pre-agreed upon, and are normally assessed by the courts in the event of a lawsuit since liquidated damages are not a punishment, they must have been established based on an accurate assessment of losses. They may be seen as a punishment by the courts and so unlawful, although this is rare since courts are very hesitant to meddle in financial agreements made freely by two business parties of comparable standing (Martinez et al., 2020).

Will she be able to request a variation to the project once the construction has commenced? If so, what are her rights and obligations in case of a variation?

As soon as building has begun, she might seek a change in scope. Due to the fact that her rights and responsibilities in the event of a variance are significant, she will be in a better position to handle it. On the other hand, the construction will be acknowledged as a part of the project and thus, it will be easy for the development of the construction. Once the project is started it will become easier for the project manager to focus on the successful execution of the business objectives in order to complete a project on time and achieve all the goals (Mohandes and Zhang, 2021).

On the other hand, the rights and obligations in the case of variation will also be focused towards the completion of the project through which the activities of the development of the four-storey building can be easily made and it can be made as per the construction law. Moreover, the laws will also be focus in order to determine the execution of the construction activities and it will be commenced as a part of the variation to the project (Owusu et al., 2019).

How can she ensure that her construction project is Covid-19 safe?

It was addressed at a recent RICS webinar entitled COVID-19: influence on the building sector, which brought together specialists in the construction industry as well as company owners, managers, and legal representatives. Personal protective clothing, cabins spaced wider apart than normal, delayed start times, additional washing sites, and the establishment of a social distancing coordinator post were all recommended as possible practical solutions.

While dealing with the COVID-19 situation, it has become clear that trust is one of the most critical factors of success. Creating a professional atmosphere that encourages unity and trust allows for the development of reaction plans and procedures that safeguard staff and customers. However, the process of creating that culture begins at the very top (Townsend and Gershon, 2020). In order to be effective, executives must include the whole firm and provide help to people working on the ground. All participants must listen attentively and clearly explain their goals, their openness, and their expectations for the scenario, as well as what they think will or won't work. When everyone is on the same page, it is easy to create a consistent culture and a site response plan that reduces the risk of COVID-19 contamination for company employees, trade partners, customers, and the general public. For safety and compliance reasons, it's a good beginning step.

Communication is essential for every construction firm, and this is truer more than ever. It is essential to maintain open lines of communication between company project management team, trade partners, and customers. Even when staff are present on-site, meetings may be conducted by video or teleconferencing. If meetings must be done in person, make sure they are held in a space large enough to allow for six feet of distance, or consider conducting them outdoors if the weather permits (Lotfi et al., 2022).

Conclusion

From the analysis of the above report, it is concluded that contract with a cost plus subscription is the best type of contract for the current project and designing all construction activities implemented photo development of the apartment. On the other hand, it is concluded that role of engineer is very important in the construction project and it must be focus on the basis of liquidated damages clause.

References

LML6003 Migration Law Assignment Sample

SCENARIO

You are a registered migration agent and operate a busy and popular practice. You rely heavily on your client co-ordinator, Anna, to organise your consultations every day and to obtain some brief information about the clients you are scheduled to see. Anna has a very good way of eliciting information from the clients, ensuring they proceed with the booking, but she is careful to never provide any immigration assistance in the process. You look at your calendar and you only have one appointment for today. You look at an email from Anna and it states the following:

Cheryl Lim from Singapore is coming into the office at 1pm today (please remember you have a CPD seminar from 12 noon to 1pm).

You may recall Cheryl as you helped her with obtaining a Student Class TU subclass 500 visa last year to complete a Bachelor of Laws at Victoria University. She has completed 6 months of this course. Cheryl completed the Graduate Diploma in Migration Law at Victoria University and decided at the time she wanted to pursue a law career.

Cheryl is coming into the office today and she wants to know whether she can change her course to a Certificate IV in Cookery instead at Swinburne University in light of her recent passion for cooking which she developed during the lockdown. I have attached her visa grant notice from her file.
You open up the visa grant notice and note that conditions 8105, 8202, 8501, 8516, 8517, 8532, 8533 and 8534 are attached to her visa. Her visa is valid until September 2023.

QUESTION

Prepare a checklist of issues, including visa options, that you would consider in advance of your meeting with Cheryl, based on the limited facts. You must support your answers by reference to the specific legislative provisions.

SCENARIO

You are a registered migration agent. You receive an email from a client, Stan, who wants to meet you for advice about his migration matter. You recall Stan’s name as you met him and his wife very briefly once at a party you attended, and they were very friendly and seemed to be completely smitten with each other. Your receptionist books an appointment for him to meet you at your office at 11am. You decide to review his matter and prepare a memo before you meet with him. An extract of the client’s email is below. “I hope you remember me, I met you at Susan’s birthday party. Susan recommended that I contact you. I think you may have met my wife, Cindy too. It is probably best I give you some background information about Cindy and my relationship. I know many people commented that our relationship was picture perfect, but sadly it is not. I met Cindy in my hometown of Sicily and yes I instantly fell in love with her. I arrived in Australia on a temporary Prospective Marriage Class TO subclass 300 visa about one year ago having been sponsored by Cindy, an Australian citizen. We had a beautiful wedding with a small number of family and friends. Cindy’s brother never liked me, and he heavily influences Cindy’s actions. One evening during a family dinner, we had a disagreement over the results of a soccer game. As you may assume, being Sicilian, I am a passionate supporter of my team. Things escalated and he punched me for no reason other than expressing my views about the referee’s decision which resulted in my team winning. After this, Cindy appeared to take her brother’s side and her temper worsened each day and I was subjected to constant verbal abuse and sometimes physical abuse. Cindy would lose control of her temper over things as minor as leaving the milk out of the fridge for more than 5 minutes whilst I made my coffee. A few weeks ago, she smashed a bottle over my head screaming at me that she hoped that would knock some sense into me. I started bleeding and went to the local doctor/general practitioner (GP), who told me I needed to go to the hospital to get stitches. When the nurse asked me what happened for the medical report, I said that I had accidently tripped over. I did not want to get Cindy into trouble, and I was also fearful of what she and her brother would do if I told anyone what had actually happened. There was a very kind nurse who insisted I call a friend of her’s named Steve. I called Steve not really knowing why, and he was a great support to me as a friend as he had been through a similar situation in his homelife. I found out last week he is also a social worker. Steve encouraged me to let other people know what was going on, so I told Susan who told me to inform you. Cindy’s behaviour is escalating, and yesterday I decided to leave her forever. I am still awaiting a decision on my Partner Class UK/BS subclass 820/801 visa and am unsure what my current visa status is as Cindy has all my immigration papers. I really want to stay here as I feel like there are some wonderful people in this country and after COVID, there are more opportunities here than Italy. If possible, I would like to visit my family in Sicily for a week just to recoup.”

QUESTION

Prepare a memo in advance of your meeting, outlining the following:

(a) What is Stan’s current visa status and can he travel and why?

(b) Is there is anything Stan can do to seek permanent residence and explain the steps required and what additional information you would require to support the application? You decide to do some additional research and come across the following case: Thaworn v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 2133 (27 August 2021).

(c) What are the implications of this case, if any? You must support your answers for assignment help by reference to the specific legislative provisions.

Solution

Several issues may occur in case of the meeting that will occur with Cheryl as a Registered Migration Agent. As per the “Visa Grant Notice”, several conditions have been attached to the visa of Cheryl. The checklist of issues that have been made in accordance with the issues for the visa of Cheryl is below:

As per the issues that have been briefly explained in the checklist, Cheryl will have to acknowledge the issues with respect to the c conditions that have been attached to the visa that she acquired. Condition 8105 has been applied when there has been an absence of any individual in Student 500 visa. The demand of Condition 8105 is that the holders of student visa can work only less than 40 hours each half month at the time in of their course which is within session. This is the principal condition that has been known by several students.

However, several titbits are still present that are essential for every student to know. A permission has not been provided to the student who is the holder of visa to work till the course that has been done by them has commenced and has been within session. The student who is the holder of a visa cannot have the permission for working un limitedly when there has been an absence of their course within the session. The student who is the holder of a visa by whom master has been commenced by research or by whom there has been a persuasion of doctorate course, can be capable of working for unlimitedly after the commencement of research course which is postgraduate.

Therefore, it can be said that Cheryl Lim will not be able to complete any other course that she has chosen for as she has to complete the course of “Bachelor of Laws at Victoria University” as per the titbits of Condition 8105. This comes under the” Migration Act 1958”. The restrictions that come under this Condition will not allow Cheryl to do any sort of work in Australia before the completion of “Graduate Diploma in Migration Law at Victoria University.” While considering the second condition that is Condition 8202 on the student visa, any breach of this specific condition makes it vulnerable in the case of student who possesses the visa to its cancellation.

If there has been an occurrence of cancellation of visa, it will be quite difficult in case of that particular student who possesses the visa and has done breach of Condition 8202. This condition is important in the case of an entire student visa as per the” “Migration Act 1958”. There should be an enrolment of the student within any sort of registered course there should be an enrolment of the student in any sort of registered course which possesses same or higher level as compared to registered course in the case of which visa has been granted to the student.

There should be the maintenance of satisfactory attendance by the student in the course that has been pursued. In addition to that, progress of course in the case of each period of study should be maintained as per the requirement of the education provider of the student. There may be a difficulty while applying for Student Visa 500 as there has been an absence of enrolment in registered courses by Cheryl. Condition 8501 specifically states that there has been a requirement of health insurance in case of the student who has to apply for a visa.

Exact wording that this condition possesses is that there should be a maintenance of adequate arrangements by the holder in the case of health insurance while holder resides in Australia. The association of visas with those visas that are working are “The Temporary Work (Skilled) subclass 457 visa, “The Temporary Graduate Subclass 485 visa and “Most temporary working visas where the primary purpose is to work”. In the case of Cherlyn, the second working visa has been important. This is due to the matter that there has been a desire of change in the course by Cherlyn.

This is against the rules of acquiring a visa in the case of the student who wants to pursue higher studies in Australia by switching from one course to another. In the matter of Condition 8516, there has been a requirement of satisfaction of either the primary, or the secondary criteria as per the requirement of the case so that the visa can be granted. In the case of Cherlyn, she has to meet the requirements that are essential for the switching of one course to another and from one University to another in Australia.

In this case, the requirement is that Cherlyn should possess Student Visa 500. With the help of this, she is able to change her course, however, after completion of the first year of that course that has been pursued by her. Especially, if there has been an initial satisfaction of criteria by any student in the grant of Student Visa 500, then criteria cannot be met on time. However, when there has been a satisfaction of criteria later, there has been a continuation by the student in the satisfaction of criteria. The satisfaction of criteria has been associated with the issues that may be encountered at the time of issuance of visa.

Condition 8517 has been imposed on the visa holders who are students on the student visa that they possess. In the case of Cherlyn, there has been an applicability of Student Visa 500. There must be a maintenance of adequate arrangements by the holder in the case of education of the School Age-dependent of that holder who lives in Australia above 3 months. In this case, adequate arrangement refers to proof of financial stability. As per the Condition 8532, if the age of the holder of student visa is not 18 years, then, the holder has to reside with parents whose age is 21 years and have a good character.

Arrangement of accommodation, general wellbeing, as well as, support of holder should have to be approved by education provider possessed by the holder. There should not be any entrance by the student in Australia before nominated date given with the help of education provider. Hence, age of Cherlyn has to be checked otherwise there may be an issue in entering Australia as per this condition. As per the Condition 8534., only Subclass 485, 590 and Protection Visaswill be granted. In the case of Condition 8533, no issue will be there for Cherlyn.

Question A

To Immigration council
From XYZ
Date: 05/09/2022
Sub: Memo for requesting permanent residency in Australia

Respected sir/ madam

I would like to inform you that I am very happy to submit this reference letter that I am able to immigrate to Australia. I met Cindy in my hometown of Sicily and yes I instantly fell in love with her. One evening during a family dinner, we had a disagreement over the results of a soccer game. r. I am still awaiting a decision on my Partner Class UK/BS subclass 820/801 visa and am unsure what my current visa status is as Cindy has all my immigration papers. I hope that will you feel free to contact me with any additional questions or concerns.

Yours sincerely

XYZ

In this case, Stan cannot be able to travel as the current visa status has been dependent upon the “Form-I 765 “. In this case, the person who wants to travel to any other country from Australia to any country has to carry the immigration papers with him or her. However, in the case of Stan, there has been a difficulty in carrying those papers as they are in the hands of his wife. It will be quite difficult for him to be in another country as there has been a continuation of conflict in the middle of his wife and him. In addition to that, as per case scenario, it has been understood that the brother-in-law of his wife, Cindy will not allow her sister to give the papers to her husband. This may occur as he may want to harass Stan in case of visiting Sicily with his family. If Stan is able to visit his family in Sicily, then, the matter of conflict in the middle of both his wife and him may get sorted out. However, the brother of Cindy has not no intention to sort out the conflicts that have already existed in the middle of them.

In addition to that, there may be a possibility of filing a case against Cindy and her brother by their family members of Stan. This may happen as Stan has been tortured both mentally and physically by his wife and his brother-in-law regularly. Moreover, in order to get the immigration papers back from his wife, Stan has to file a case against her under the “Australian Visa Classes''. However, Stan does not want to do that and hence, it will be troublesome for him to travel to Sicily and to meet his family for recouping.

Stan cannot be able to travel as the visa about which he has given the description allows both the partners to travel together. Hence, in the case of Stan, it is mandatory to take Cindy to the palace where he wants to and has to travel. In addition to that, another condition in the case of this visa is that there has been a requirement of the permission of the partner for traveling to any other part of the world as the partner has equal rights as the holder has. In the case of Stan, Cindy will definitely not provide any sport of permission to meet to family who reside in Sicily. Moreover, there has been an issue in the case of Stan if he has a thought of asking permission for travel from Cindy. The issue is that Cindy will get to know the fact that there will be a matter of recouping in the mind of Stan with his family which is the only reason for him to meet his family. After knowing the fact, Cindy will not give permission to Stan which will become problematic for Stan to meet his family members in future.

Question B

There are three ways to get a permanent residency: the provincial nominee program, the express entry system and family sponsorship, which is the simplest way to get permanent residence in Australia. Stan can do any of them to get a permanent residency which is registered by an individual migration agent. The express entry system has initiated in the year 2015 which also required job offers. During the same time, migration agents are checking the eligibility which leads to permanent residency. According to section 318 of the migration act, individual applicants are lawfully admitted to the country when their residence status is more than 5 years. Apart from that, the eligibility criteria are checked by the migration agent and after completing the criteria they are eligible for the visa confirmation. During the same time, designated authorities are trying to evaluate several PR processes in the processing time.

Required Steps:

In order to, get permanent residency in Australia migration programs and some other rules are necessary which have to be fulfilled by the individual applicants. Applicants have to be more than 45 years and the work streamand applicant have to pass the English language test to get a proficiency certificate.There are five crucial steps to getting a permanent residence which is listed below:

Figure 1: Process of migration law
(Source: Stevens, 2019)

Skills assessment

In order to, ensure the work experience and educational skills of the applicants' a skill assessment is mandatory. Each occupation has different skills such as trade occupation, engineering occupation and migration agent can check the criteria as per requirement . Educational and work experience are required which have to pass by the applicants. Apart from that, employment skill assessment is a crucial stage that has to be passed for permanent residency. An individual applicant can apply for lawful admission to the country if their residence has been in the country for over five years, according to section 318 of the migration act.

Visa requirements

A specific test is crucial for individual applicants who are nominated by the regional nominated visa. The territory government is choosing the nominee for a visa holder and who has to be filled these roles. There are some important steps of visa requirements such as occupation lists, family stream, and work stream or other options which have been considered by the Australian employer sponsorship. A skills assessment report has been tested during the application and government-certified authorities are examining the health and character of the applicants. In order to, pas the key requirements are mandatory to get permanent residency in a specific country.

Occupation

Occupation is the important and first step which is required for permanent residency which is educational and work experience. All positive skills are required, which are checked by the government authority. The general skilled migration visa is eligible after identifying which occupation matches at a certain time. The legal residence status is five years for permanent residence which is not applicable not all citizens. LPR (Lawful permanent residence) isAlso known as who is lawfully authorized to permanently live within the country.

Lodge visa application

After receiving the state nomination actual visa application through the immigration account government are trying to checking the current status of applicant. All the personal documentation such as work experience, and educational documents are the main evidence that is needed to provide to lodge a visa application which is considered the final application.

Additional information

Besides the application history, some additional information is also required to support individual applications such as relocating to the city, and company-based information. Educational criteria are required for a personal reason which is additionally supporting the individual documents. Sometimes professional certificate references from colleagues as well as technical and language skills are also important. Apart from that, it is the important conditions that are considered by the holistic approach that sometimes secure a position which is represented by accurate professional certificates. In 2015, the express entry system was launched, and job offers were also required. Client testimonials are positively supported by the individual who is considered a formal recommendation for full-time employees. Sometimes formal details of the individual clients are used as legitimacy proof which is important to develop the professional careers of the applicants.

During the same time, employment duration is mandatory as an additional information system which is effectively leading to a successful work permit. The minister for immigration, citizenship, migrant services and multicultural affairs first respondent administrative appeals tribunal is the second respondent which is evaluated by the Migration act 1958. The ministry for implications and multicultural affairs is trying to identify the same reason such as good character, which comes under the refugee review tribunal of 1998. In order to, seek permanent residency this additional information is required for individual applicants and there are explain some crucial steps to identify the progress of the permanent residency.

Question C

Eligibility to apply for citizenship

The major benefits of being a permanent resident such as there are no boundaries to keep renewing a residency permit, and continuously checking the legal status. Apart from getting confirmation applicants easily access the job market, full-time location in the country as well as the right to return to Australia. Three are some major benefits of social security such as employment benefits, and an advantage during sickness, which is comes under the social security act of Australia. Unemployment is considered a major difficulty for the individual residents as well as visa category overseas individual skilled workers. The industrial laws are equal for the permanent resident, compensation benefits are easily got for the same reason and more job opportunities in the future. During sickness, entitlement to Medicare is considered a crucial facility for permanent residents.

Access to the “primary and secondary government scheduling” is not applicable for the temporary resident however that might be depending on the government or the other migration authorities. The implementation strategy has been considered by the government of the country after confirming the permanent resident. This implementation strategy has been considered by the government or migration authority to identify or improve the major benefits. Skilled workers are trying to identify the major benefits which are engaged by employer sponsorship. As a permanent residency, there are some pathways that have to be followed by the individual resident that can able to maximize the future scope. Under the refugee review tribunal of 1998, the ministry for implications and multicultural affairs is trying to identify the same reasons under the category of good character.

Eligibility to receive future scope

There are some legal pathways that have to be followed by the applicants to get a permanent president. Skilled workers are required to identify the benefits which areneeded to be followed by the resident such as the legal pathway which is mandatory to receive future scope from the government. The major benefits are required to involve the implication strategy and that need to be followed to improve the relationship among the legislative committee. Apart from that, the eligibility criteria have been explained for permanent residents and that is able lead to get economical opportunities over the country. The future scope is received from the government is to improve public service skills during the same time. The final implications are considered when a resident is permanent or involved in the multicultural society which is contributed to a wonderful living experience.

For the permanent resident, several legal pathways have to be followed by the individual and that can able to identify how to maximize the major benefits and government has complete the specific process after issuance of the permanent visa. A skilful person is trying to identify all the opportunities which have been provided by the government and that are needed to improve the business benefits of the country in the future. There is some time needed some time to identify how to maximize future opportunities after getting permanent residence. Individual testimonials are considered formal recommendations for full-time employees when they are positively supported by the client. Some mandatory registrations are defined by the state authorities and that can able positively lead to future benefits. In order to, get permanent residency some internal authorities find out the major benefits which are usually required for future opportunities.

Improved multicultural environment

A multicultural environment is able to be identified by the permanent resident and that can be involved by the individual governments. A multicultural environment is required to entertain individual residents which are provided by the government after completing the migration process. During the same time, higher education loans have been guaranteed for the permanent resident which is including basic benefits to encourage individuals.

Reference list

LAW301 Business and Corporation Law Assignment Sample

Assessment Task

Read the following case scenario and answer the question -

You are an intern in the corporate office of MicRonalds Pty Ltd which runs fast food outlets in different cities around Australia. You have received instructions from Kylie Eagle, the company’s corporate counsel to write a Memorandum of Advice in relation to potential claim by Lizzy Grant, a customer who was recently injured in their MicRonalds’ 24-hour city restaurant.

In the early hours of the morning on 4th January 2022, Lizzy Grant was on her way home from a long and tiring night shift. She decided to stop at the MicRonalds’ 24-hour outlet at 5:30 a.m. to purchase some breakfast. While at the restaurant she ordered her food and as she was waiting, she decided to use the toilets at the far end of the outlet. They were usually very clean. As she approached the toilets, she saw a sign that had been placed at the entrance and which read “Caution: Wet Floor. Cleaning in progress”.

She did not wish to wait for the cleaning to be completed and she went into the toilets. When she was leaving the toilets, she slipped on the wet floor and fell. She suffered a broken wrist and a bruised head. She was not able to return to work for eight weeks. Kylie has informed you that the cleaning of the restaurant toilets on that morning was being done by one of the employees, Lance, who had stepped away to get a dry mop to complete the cleaning. He was also in charge of spot cleaning throughout the day. Lizzy has now threatened to commence proceedings against both MicRonalds Pty Ltd and Lance.

Kylie would like you to write a memorandum of advice on whether there are grounds to hold

MicRonalds Pty Ltd liable. Required With reference to relevant legal principles, use the IRAC legal problem-solving approach to draft a suitable Memorandum of Advice that addresses the nature of the claim that Lizzy Grant may make against MicRonalds Pty Ltd and whether in fact they can be held liable in any way.
Ensure you incorporate relevant case law principles and case law support in your brief?

Solution

1. Legal Issue

Lizzy Grant is a customer of MicRonalds. After a long night shift, Lizza Grant decides to stop at the MicRonalds for breakfast. When Lizzy Grant was in the restaurant decided to use the toilet; however, there was a caution sign that the floor was wet and cleaning was in progress. However, Lizza Grant neglected the warning sign and slipped on the wet floor. The issue is whether Lizzy Grant can claim damages from MicRonalds Pty Ltd and Lance.

2. Relevant Law

In the case of Arabi v Glad Cleaning Service Pty Limited (2010), the plaintiff fell and slipped on a pedestrian ramp in the shopping centre at Bankstown. The plaintiff's right knee was injured after the accident occurred. The plaintiff's evidence is that they were talking on the phone while walking up the ramp. It is an occupier's duty to take reasonable care in the commercial premises to avoid a foreseeable risk of injury for both the lawful entrant and their own safety. In this case, a proper system of cleaning and inspection should be considered as per section 5B(1)(B) and Section 5B(2) of the Civil Liability Act 2002, with other relevant things. The court held that if the plaintiff proves the defendant's liability in case of maintenance of insufficient duty of care, then this case will be remitted to the district court for reassessment.

In the case of Vairy v Wyong Shire Council (2005), the High Court dismissed the plaintiff's appeal as the possibility of a man being hurt while jumping from the cliff was not beyond the realm of possibility (foreseeable risk). It would be unreasonable to expect the Council to post warning signs at every location within its jurisdiction from where such an accident may occur. Because of its potential for confusion, the idea of "obvious risk" is not to be utilised to adjudicate concerns of breach of duty. Injury predictability must be determined prospectively, considering the state of affairs prior to or during the damage.

In the case of Sleiman v Franklin Food Stores Pty Ltd (1989), the plaintiff went shopping with family in the local shopping centre. The plaintiff found a special product while moving along to the shopping centre. When the plaintiff reached the refrigerator slipped and fell on the floor due to water spillage. The plaintiff's feet were badly injured because the accident occurred. The court held that the occupier breached the duty of care. This incident occurred at a shopping mall, and the plaintiff was a customer. It was the defendant's duty to prevent harm on the commercial premises.

3. Application of the relevant law

Based on the case law mentioned above, MicRonalds Pty Ltd. is not liable for the damages as no negligence was determined under section 5B subsection (1) (a) and (c) of the Civil Liability Act 2002 No 22. The caution sign was placed by Lance, responsible for cleaning the toilet, taking the necessary precaution against the risk of harm under section 5B subsection (2) (a). Moreover, section 5C subsection (a), (b), and (c) further substantiates that the burden of taking precaution, doing an act and taking action to avoid the risk of harm was present in the case. It can be further stated that Lizzy contributed to negligence under section 5R subsection (1) by ignoring Lance's warning sign at the toilet's entrance. Hence, Lizzy was aware yet failed to take precautions against obvious risk under section 5F subsection (2) and section 5G subsection (1).

4. Conclusion

In conclusion, Lizzy cannot claim damages as the incident occurred due to her negligence. 

References

Legislation
Civil Liability Act 2002 No 22
Cases

Arabi v Glad Cleaning Service Pty Limited [2010] NSWCA 208
Sleiman v Franklin Food Stores Pty Ltd [1989] Aust Torts Reports 80-266
Vairy v Wyong Shire Council [2005] 223 CLR 422

LAW1081 The Individual and the State Formative Assignment Sample

John is a playwright and political activist living in the state of Triland, a state party to the European Convention on Human Rights. Terence is the director of a local theatre club in Triland’s capital city, Stereopolis, and has asked John to write a play about contemporary life and society in Triland. John’s script portrays various national politicians and religious figures as lascivious, immoral, and corrupt. The play includes a very lurid satirical depiction of Mathilda, the mayor of Stereopolis. Mathilda, who is a deeply religious, married mother of four, is portrayed in the play as an adulterer who regularly receives sexual favours in return for preferential treatment in tenders for local contracts.

After several months of rehearsal in Terence’s home, the theatre club is ready to put the play on for the public. They hire a large room in the local town hall and invite their friends and family to watch a private preview of the play, as well as Tina, who is a journalist for the newspaper ‘The Triland Daily’ and a few local dignitaries, including the mayor of Stereopolis and her family. Terence has already sold a number of tickets for the play, which is due to be performed to the paying public two weeks after the preview has taken place.

Mathilda is deeply offended by the play. She complains to the Triland Police Force and John and Terence are arrested under the Triland Police Force’s common law powers of arrest. They are subsequently prosecuted under the ‘Protection of the People from Public Immorality Act’ for the offence of ‘offending public morality’ and they are both sentenced to a 500 Trilandese dollar fine and a 6-month suspended prison sentence for this offence. Mathilda also informs Terence that the play is cancelled and that the Triland Police Force will break up any gathering at which the play is to be performed to the public.

Tina publishes an article about the play, including the controversy surrounding its cancellation by the Mayor of Stereopolis, in the ‘Arts and Society’ inside pages of the Triland Daily. The article contains a detailed account of the dispute, alongside photos of the actors dressed in costume and a reproduction of the most offensive quotations, including those that concern Mathilda. Mathilda sues John and Tina in defamation and succeeds before domestic courts, obtaining sizeable compensation for injury to her feelings and reputation and an injunction against the further publication of the offensive material. Please advise John, Terence, and Tina on the likelihood of making a successful application to the European Court of Human Rights under Article 10 ECHR. Please assume that all the applicants have exhausted domestic remedies and that their claims are admissible.

Solution

In the present case scenario for assignment help , it has been noticed that, Mathilda has been significantly offended because of the play and therefore she sued John and Teena in defamation and obtains success prior to domestic court, availing significant amount of compensation in relation to the damages to her feelings and reputation. Further, she also availed injunction order in contrary to the further publication of the violent material. Therefore, in the prevailing case scenario, it is required to provide advice to John, Terence, and Tina on the probability of filing application in successful manner as per Article 10 of ECHR (European Court of Human rights).

The European Court of Human Rights has taken into account the freedom of expression and right of information, which is part of Article 10 of European Convention of Human Rights, a significant basis for advancement of democratic community and every individual. The European Court of Human Rights is applicable on wider definition of the idea of ‘information’ specifically that could play vital role in advancement of democratic community .

European Court of Human Rights Rules as per Article 10 is considered as primary aspect of the Convention. It explains about the right to freedom of expression, however it could be observed from Para two, it is not regarded as absolute right. As per explanation in the cited Article –

1. Every person possesses the right of freedom of expression. This right should consists of freedom to embrace opinions and to obtain and communicate information and plans without any interfere by the public authorities and notwithstanding of frontier. The Article must not restrict States from needing the license for broadcast, cinema enterprises, and TV.

2. The application of such freedoms, as it runs with rights and duties, might be dependent on conditions, rules, limitations or drawbacks as are explained under laws and regulations and are essentially in a democratic community, in the advantage of safety of nation, territorial disorder or offence, for the security of ethics or health, for the safeguarding of rights or image of others, for security of the information obtained in confidential manner, or for keeping the authority and fairness of judiciary .

The range of application of above Article 10 has been taken into account by European Court of Human Rights in the latest case of Zarubin and Others v. Lithuania. In the cited case, expulsion of Lithuania and restriction on re-entry of Russian Journalist in order to engage in work of broadcasting in state-owned Rossia-24 subsequent to their activities at meeting in Vilnius. In this, it has been decided by European Court through majority that applications were not admissible. It was the ultimate decision. The court was ready to admit the measures implemented alongside candidates has considered as an intervention with the right of expression as given in Article 10. Although, further it has been held and reflected by authorities that measures taken by court had been essential in the benefit of security of country and has been equivalent . Specifically, the behavior of applicant at the meeting, demonstrated by authorities as stimulating and hostile, has not been as per the tenets of dutiable journalist.

On the basis of above aspects, it can be said that, freedom of rights of expression has been given in the Article 10 of European Court of Human Rights, but it was subject to several exceptions that should be construed in narrow way. In some case, rights under ECHR also compete with each other in a provided case. For instance, it could occur with Article 10 and Article 8. As per Article 8 of ECHR, every person possesses rights with respect to their privacy and family life, their home, and their correspondence. In a condition in which balancing exercise is considered between Article 10 and Article 8, significant emphasis is applied by the court in relation to the proportional position of the particular rights being requested in the case. Reasoning for intervention with or restriction on every right should be considered. There should be application of equivalent principle as applied in the legal case of Zarubin and Others v. Lithuania.
Elements and benchmark of the reasoning of court particular to defamation case (Safeguarding of reputation)

In establishment of factors of defamation, it is required by court that there must be objective connection between the impugned statement and the individual suing in defamation. In the legal case of Reznik v Russia judgment, it was held by the court that only subjective opinion of the publication as defamatory is not considered as sufficient element for establishment of the aspect that individual directly or indirectly affected through the publication . Further, it is considered by court that protection of reputation must be restricted to that of living individual and not to be based upon the reputations or image of deceased person except in some particular conditions. Further, the main factor of defamation is the harm on reputation. For Article 8 to come into play, harm on image of person should capture particular extent of significance and in a way assisting unfair to the personal satisfaction of the right to respect for personal life . In the legal case, Karako v Hungary, the extent of seriousness of the intervention needed for Article 8 of the ECHR to be implemented in the context of safeguarding of reputation is explained as such a significant intervention in the personal life that personal integrity of person is compromised . It has been noticed that, in the several cases in relation to defamation, it has been found by court in explicit manner or implicit manner, that the extent of seriousness has been grabbed and there would be application of Article 8 that reflects about right to privacy of person. In the legal case of Fuchsmann v Germany, decision related to claim of defamation brought by the applicant for offensive comments against him on internet portal, court held that article 8 was applicable .

In some cases, small group of individuals like board of directors of the company could also take defamation actions in which the target is the group, where the members could be identified as a reasonable person. This condition was occur in the legal case of Ruokanen and Others v Finland, which is related with allegation of rape in the course of party for team of basketball players .

It can be said that, court understands right of protection of every person with respect to their image, focusing that image of individual consists of one of the main element of their personality. The reason behind the same is that, it shows unique elements of person and differentiates the individual from their partners. Therefore, the right to protect image of person is one of the main element of personal advancement and primarily assumes the right to control of individual with respect to use their image, consisting of right to refuse publication thereof . The right with respect to private life, consisting the right to secure reputation as an important aspect of private life. It has been held by the court that reputation of person is supposed to be an independent right usually when realistic assertions were significantly in violent nature that their publication would create unavoidable impact on the life of plaintiff.

By going through the given case scenario, it has been observed that, John is required to write play with respect to contemporary life and community in Triland. Script written by John reflects several local politicians and religious pictures as non-ethical, lascivious, and dishonest. This play also includes significant lurid satirical portray of Mathilda, who was mayor of city. She has been noticed that, Mathilda was very religious, and had four children, is depicted as an adulterer who continuously obtains sexual favors in profit for favorable treatment in tenders for national contract. This depiction actually defames reputation of Mathilda. Although, as per Article of 10 of European Convention of Human Rights, individuals possess right to freedom of expression, and according to this, any person can express their opinions and expressions in free manner, but it is not considered as absolute right and subject to some terms and conditions only. Since, as per Article 8, it has been seen that, person has right to respect privacy, and defamation is considered as main element of personal life. This article contains detailed account of the conflicts, along with the images of actors in costumes and production of major violent lines, consisting of those related to Mathilda. It is considered as attack on reputation of Mathilda, which is considered as central element of defamation and it also includes significant level of seriousness. Therefore, it can be said that, by application of Article 10 with addition to Article 8, John, Terence, and Tina would not probably get success in filing application to the Article 10 of European Convention of Human Rights.

References