FNSTPB503 Assessment 10

Task 1 Contracts/Agency and Remedies for Breach of Contract

Read the facts then answer the following questions. Mario seeks your advice as to:

1. Who does he have a contract with?
2. Who (if anyone) is in breach of contract?
3. How much damages (money) can Mario successfully claim under contract law?
4. Can he claim damages under contract law for loss of happiness and enjoyment?
5. In which court should Mario sue in?

Facts

Mario is the youngest of eight brothers. Mario’s daughter Desdicata is to marry. Mario tells Desdicata “I want you to have the biggest and best wedding of all your cousins.” Desdicata approaches Sydney Luxury Foods Pty. Ltd. at Strathfield and speaks to Dave Sands an employee. Desdicata orders a 4 course menu for 400 people and all drinks for $70,000. She informs Dave she is acting on behalf of her father Mario.

Desdicata and her fiancé Desperado approach Strathfield Hall Limited. This company owns a large Reception Hall at Strathfield which comfortably seats 450 guests with a good dance hall and excellent kitchen facilities. Desdicata requests a booking on behalf of Mario for Saturday

• pm to midnight on 30 November 2018. Andreas, who is an employee of Strathfield Hall Limited, takes the Andreas’s English is very limited.

Andreas has mistakenly booked the wedding for Saturday, 7 December 2018 instead of

30 November 2018. Desdicata pays the $20,000 fee for the Hall in cash provided by Mario. The receipt written by Andreas is in Mario’s name and specifies the date 30/11/2018. The Hall has already been booked for 30 November 2018 for a big Greek wedding. This was unknown to Desdicata. Mario hires the Fergie Big Brass Jazz band for $10,000 for the wedding.

At the wedding ceremony Dave Sands informs Mario the hall has been double booked. Andreas has refused him access to the hall at Strathfield. Dave says he has only used enough ice to keep the food cool from his premises to the Church reception Hall in Strathfield. The prawns and meat needed to be eaten now.

Mario becomes very emotional. Father Terry, Mario’s priest at the wedding, offers Mario his local school hall for free. The school hall only seats 150. The School Hall does not have kitchen facilities. Dave Sands serves a first course of melted vanilla almond ice cream and prawns. The only drinks Dave can serve are warm beer and children’s cordial. Dave cannot use the fish

because it has begun to smell. Fergie’s Big Brass Jazz Band cannot fit into the hall. The band play outside attracting a crowd of over 500 people who drink the warm beer that was part of Sydney Luxury Foods Ltd stock charged to Mario. As Desdicata does her bridal waltz Desdicata slips and falls onto the wedding cake. The crowd listening to the jazz band outside are drunk and throw empty beer cans at Desdicata and her new husband Desperado as they run away to escape.

Mario wants $1,000,000 for personal loss and humiliation. He has refused to pay Sydney Luxury Foods Ltd.’s invoice for $42,000 plus GST. Mario has become seriously depressed. He cannot work and loses $50000 in lost income.

Task 2 Law of torts- Negligence/Defences to negligence

Students should visit http://www.austlii.edu.au/ access read sections 5J, 5K and 5 L of the Civil Liability Act (NSW) 2002 and the following factual circumstances.

Facts

Ralph agreed to go kangaroo shooting with Steve and Rahesh. Ralph said he would drive the four wheel drive cabin vehicle but not shoot. Ralph made it clear to Steve and Rahesh that they were not to shoot from inside the vehicle or bring in loaded guns while he was driving.

After shooting from outside Rahesh got into the cabin of the vehicle with his gun. Ralph again warned him he could not shoot from inside the vehicle. Rahesh said the gun was not loaded.

Ralph began to drive Steve and Rahesh back to their campsite. Rahesh began fiddling with the gun inside the vehicle while Ralph was driving. Ralph again asked Rahesh if the gun was loaded to which Rahesh said no. Rahesh said the gun was just jammed and continued to fiddle with the breech inside the vehicle. The gun then discharged and the bullet went through Ralph’s leg. Ralph has taken proceedings in negligence against Rahesh. Rahesh argued he was not responsible for an obvious risk arising from a dangerous recreational activity.

Read the facts then answer the following questions.

Questions

1. Describe the elements of the tort of
2. Examine if kangaroo shooting is a dangerous recreational activity?
3. Apply sections 5J / 5K and 5L to the key Can Rajesh be held negligent?

Task 3 Contracts/Contents of contract/express clauses/exclusion clauses/ Competition and Consumer Act (Cth) 2010/The Australian Consumer Law/misleading and deceptive conduct/false representations.

Read the following facts and advise Pamela of the answers to the following questions:

Questions

1. Who is a consumer under the Competition and Consumer Act (Cth) 2010?
2. Does the Competition and Consumer Act (Cth) 2010 apply to the provision of services?
3. Is the exclusion clause void under Competition and Consumer Act (Cth) 2010? If so why?
4. Refer to sections 18 and section 29 of the Australian Consumer Law. Does this exclusion clause contravene section 18 civil only and constitute a criminal breach of section 29 (civil and criminal)? Provide reasons.

Facts

Park Ltd operates a city car parking station. Park Ltd has a large sign after you enter the car park and another similar sign positioned at the pedestrian exit point as follows:

“Park Ltd is not responsible under any circumstances for any loss or damage to property or personal injury to customers, drivers or passengers or trespassers even if caused by the negligence or criminal conduct of the agent’s employees or officers of Park Ltd”

This exclusion clause was also clearly printed on the back of the ticket customers received when they went through the non-manned automatic gate machine at the entrance of the car park that is required for payment on exit. There is no question that the exclusion clause is part of the contract for parking.

On 15 June 2018 Pamela drove into the car park operated by Park Ltd. She saw the sign and she took the ticket which had the exclusion clause printed on its back from the machine to enable her to enter the car park.

Pamela parked her car in a space on the second floor.

While she was absent Ben, an employee car parking attendant of Park Ltd, was driving recklessly whilst moving some cars in the car park and smashed into and badly damaged Pamela’s car.

Task 4 Nature of a company/rights of members/derivative actions/winding up a company

Read the facts then answer the following questions.

Questions

Advise Alice of any statutory rights she may pursue as a minority member of Raider INC Ltd. against the company.

2001. Identify any relevant sections from the Corporations Act (Cth)
2002. Describe and explain the relevant legal principles including any relevant case/s.
2003. Apply these legal principles to the key
2004. Make a conclusion as to Alice’s prospects of

Facts

Alice owns five shares in Rivili Limited a publicly listed company on the ASX. The primary asset of Rivili Limited is a block of land with a dual frontage to both George Street and Pitt Street in the CBD of Sydney. The block of land has had a theatre on it for over 100 years. Rivili Ltd.’s Constitution has an express provision that “the Company’s sole purpose is to run and operate a theatre in the CBD of Sydney”.

The Company has issued 1,000,000 shares and the current market price is around $2 for over 5 years. Rivili Ltd has not paid a dividend for over 10 years. The Company at best breaks even in its financial reports. The Company’s balance sheet discloses that the CBD land at 269 George Street is valued at $2 million. In reality a developer would pay $20 million if the land was vacant.

Ralph Raider is CEO of Raider Ltd. Raider Ltd launch a takeover for Rivili limited at $5 a share. Raider Ltd successfully obtains control of Rivili Limited with the purchase of 80% of its share capital. Alice does not sell her shares. The new Board of Rivili Limited appointed by Raider Ltd immediately knock down the theatre at George Street and sell the vacant land to a developer for $20 million in cash. Over the next year they invest this cash in buying and selling more companies in the name of Rivili Limited. Rivili Limited make an end of the financial year net profit of over $10 million and pay a dividend of $1 per share. Rivili Limited has ceased to carry on any business associated with theatres in breach of its constitution since the takeover by Raider Ltd.

Despite Alice’s shares rising in price from $2 to over $18 and her receiving a dividend for the first time in ten years Alice is deeply unhappy about the Company continuing to breach its own Constitution.

Task 5 Contracts of Loan, Execution of documents. Nature of a registered Company, and the Assumptions an outsider can make when dealing with a Company

Read the facts then answer the following questions.

Question

Examine and evaluate the factual material to determine if EASTPAC Bank can rely on the Assumptions outlined in section 129 of the Corporations Act (CTH) 2001or are they prevented from doing so under section 128?

Facts

James and Eve are the only directors of SES Pty Limited (“The Company”). The Company has carried on the business of importing and retailing Asian jewellery for the last 20 years. Eve has always been the company secretary. This is recorded at ASIC. The Company has banked with the same bank branch EASTPAC BANK (“the bank”) at Cremorne all this time.

The Company has an overdraft up to $500,000 that requires any withdrawal or payment over

$5,000 be signed by both directors. The Company owns two real properties, 18 Willoughby Road Cremorne, the site of the Company’s retail shop, is worth $2 million and the residential property at 777 Risdon Road Hunters Hill (“Hunters Hill”) is worth over $3 million dollars. The Hunters Hill property has no mortgage registered on its title and is James and Eve’s family home. Their sons Cain 19 and Adam 18 also live at this property. The Company has gone to great trouble over the last twenty years not to have any mortgage registered on Hunters Hill.

Eve left Australia a week ago on a three month buying trip. Unknown to anyone James has a gambling addiction and is in personal debt over $500,000. James approaches the bank for a loan of $500,000 to be secured on The Company’s 777 Risdon Road Hunters Hill property by a first registered mortgage. James makes it clear to the Bank that The Company will go elsewhere if they will not lend him the money immediately.

James also forges an ASIC electronic appointment form and lodges it at ASIC appointing James’s son Cain as The Company Secretary. The bank does a company search at ASIC which discloses James and Eve as directors appointed over 20 years ago and two company secretaries; Eve appointed over twenty years ago and Cain appointed yesterday. The bank approves the loan to James. James signs the contract for his personal loan and Cain and James sign a Deed of Guarantee and Indemnity as a director and secretary of The Company. They also sign a Mortgage on behalf of the Company as a director and secretary in favour of the Bank over The Company’s property at Hunters Hill.

EASTPAC Bank then pays the sum of $500,000 into James’s personal account. James fails to pay back his debts and loses the $500,000 in further unsuccessful gambling. Eve has now returned to the “family home” at 777 Risdon Road Hunters Hill. James leaves and cannot be contacted.

No repayments have been made on James’s loan for over six months. The debt outstanding is now over $850,000. The Bank now demands payment of the money from The Company.

Eve says she has no knowledge of the loan and gave no authority for The Company to go guarantor or sign a mortgage on behalf of James. The Company refuses to pay.

Task 6 Personal Property/Licenses/Leases/ Residential Tenancies/Statutory Protections

Read the facts then answer the following questions.

Questions

Advise Robert and explain if:

1. Robert has any claim in intellectual property including copyright over his song?
2. Robert a leasehold interest?
3. Has to vacate the caravan park in seven days or whether he has some statutory protection as to his residential tenancy at the caravan park?

Facts

Robert has been living in a caravan at Downsville for last three years paying a licence fee of

$100 per week to Peter the caravan park owner. Robert is a country musician a bit down on his luck. His stage name is Lucky Swan. He performs in an old St George jersey and socks and Sydney Swans tight shorts, smoking and drinking rum and coca cola.

One day Robert is singing an original composition “Norm the Man” which he has never performed in public, recorded or written down and is recorded doing so by Peter the caravan park owner.

Peter gives the recording to Proxy Records Limited who wrote the music and words down for the first time. They have Dirty Dan an old heavy metal artist on their books record the song as a gimmick and release the recording as a vinyl record. The song is an overnight hit selling over 100,000 copies at $22 per record.

Peter is paid $1 per record according to his written contract with Proxy Records Limited. Robert is devastated.

If matters could not be worse for Robert, Peter gives him a written notice to vacate the caravan park in seven days.

Task 7 Statute law, Corporations Law, Tax Agents Services Act 2009 (Cth), legislative Code of Conduct

Read the facts then answer the following questions.

Facts

Monty is a registered tax (financial advisor) with the Tax Practitioner’s Board. He was recently at a dinner party when the conversation turned to the guests’ recent share-trading activities. One of the guests, Bruce, is financial controller for Empire Limited, a large multinational listed public company on the ASX. Bruce hinted to the other dinner guests that if they buy some shares in the company they would not be sorry because a major acquisition was to be announced within the next few days. Monty recommended the shares the next day to two important clients who each bought 100,000 shares in Empire Limited the next day. They both sold them two weeks later at a profit of $50,000 each.

Questions

Examine and explain whether Monty or Bruce has contravened:

• any ethical standards of conduct imposed by the tax practitioner’s Act 2009 (CTH)
• the insider trading provisions of the Corporations Act. Remember to refer to any applicable sections of legislation

Checklist

• Make sure you answer all required parts of each
• Make sure you have provided some genuine analysis of the relevant facts and law correctly quoting relevant legislation and case
• Make sure you have answered all questions for the seven
• No bibliography is required.