Concise Australian Commercial Law 5th Edition Clive Turner, John Trone, Roger Gamble - Solutions

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Who are the main parties involved in an agency agreement?
What is agency?
Stuart Simmons, an ambitious, forceful and articulate young man, was a successful salesman with a fast growing company in the home improvement business. The directors, impressed with his performance, promoted him to an executive position in the sales department at a generous salary. To celebrate
Priscilla is the proprietor of 'Pentangle', a West Country shop specialising in souvenirs, charms and occult books. She has a long-standing business relationship with a number of suppliers, including Cornish Piskies Ltd, a manufacturer of charms and souvenirs, and Huxtable and Morris Ltd,
Norman Dransfield is a welder employed by Bastable Metals Ltd, a firm in Cardiff making metal shelving, display units and window frames for the commercial market.The company has been doing quite well, and Norman has for the last three years earned regular overtime. Anxious to do well by his wife
Merritons is a large national department store chain. Recently the management have launched a charge card, which they are promoting heavily. A standard letter (Document A) has been designed by the Exeter manager to follow up potential customers for the new card, but the local Trading Standards
Albert Webster runs an import and wholesale business through a company called Kidditoys Ltd. The company specialises in children's toys and games at the lower end of the market, and of course Christmas is always a busy and profitable time of the year.Things sometimes go wrong, however, and last
John Silver is a big manufacturer of agricultural and horticultural machinery which supplies farms, garden centres and the public, and has a thriving export trade. The company sets a high standard of engineering and has a good reputation for the quality of both its products and its service.
Jane Perry Antiques is a successful business catering to the top end of the market. Jane has a shop in Maidstone, with a workshop employing three expert restorers, and another, smaller shop in Kensington. She knows a lot about antiques and their restoration, and travels widely in the British Isles
Under a contract negotiated in Hamburg and signed there on 1 May 1987 (Document A), Gradgrind Ltd agreed to buy four computer-controlled lathes from a German company, Heinz Kessl Technik GmbH, to be delivered one by one at monthly intervals from 1 December 1987 to 1 March 1988. Each machine was to
Gladglaze Ltd is a small company in Skipton specialising in mainly domestic window installation. Its managing director, Harry Ashworth, was pleased to get the contract for putting in the windows in a new office block being built in Ilkley. His own rather limited equipment was not adequate for work
Catesby Financial Services pic is a company offering personal loan, mortgage and insurance facilities to the public. Its insurance department has grown steadily, and the company advertised for junior clerical staff at its main office in Leicester (Document A).There were five vacancies, and among
Linda Whitton lives in Wolverhampton. She was left £500 by her grandfather when he died some months ago, and she decided to spend it on a car. She already had an ageing Escort which seemed to have been costing rather a lot lately in maintenance, and the legacy seemed a chance to go for something a
Mr Sefton, proprietor of The Bookworm, a bookshop in Hertfordshire, ordered some books from Haughton Trend Ltd, a specialist art publisher in Glasgow. Documents A to G comprise extracts from the relevant correspondence.Mr Sefton is not happy with the service he has received from the
L. D. Jameson, managing director, and F. H. G. Wiggins, buyer, of Artmat Ltd, suppliers of artists' materials to the trade, negotiated with Rivard Freres, a French manufacturer, for a supply of picture frame mouldings (Documents A to E). In the end, the mouldings never came (Document F), and as a
Arm twist Ltd is a finance company incorporated in 1984 by Larry Fidler, an expert in hard-sell techniques, which he uses to persuade an unsuspecting public to buy a variety of goods obtained by means which he did not wish to discuss in detail. Armtwist Ltd was used to help customers finance
Amber Davidson is a qualified hairdresser. After working for some time in Ipswich, she moved to Colchester and set up in business on her own, opening a smart salon near the centre which she called 'Amberlocks'. She was successful, and the business grew, so that Amber was soon able to employ two
The United Nations Global Compact consists of more generalised undertakings. Corporations and business organisations can commit to observing the principles embodied in this agreement. The Compact consists of nine principles relating to human rights, labour and the environment. Refer to Figure 18.1
In July 2011, the United Nations Human Rights Council endorsed the following 10 Guiding Principles on Business and Human Rights:
Do you agree with the Chair of NAB (Dr Ken Henry) who provided his views at the Banking Royal Commission on the state of capitalism:“‘The capitalist model is that businesses have no responsibility other than to maximise profits for shareholders,’ Henry opined. ‘A lot of people who have
Read the following reports from the Banking Royal Commission:https://www.afr.com/brand/chanticleer/banking-royal-commission-commonwealth-bankceo-matt-comyn-throws-ian-narev-under-bus-20181119-h183pw What did the former CEO mean when he advised his head of retail (and current CEO) to “temper your
The most comprehensive international response to corruption is the United Nations Convention against Corruption. The Attorney-General’s Department indicated that Australia’s obligations under the Convention would be implemented under existing legislation. Several provisions of the Convention
What are the ethical benefits and duties of businesses?
Revise the sections on Contract Law and Consumer Protection. In what ways were these topics concerned with ethics?
What is the relevance of modern slavery in the commercial world? What will be the effect of the Modern Slavery Bill 2018 in Australia (if and when it becomes law)?
Read carefully [18.20]–[18.30]. Examine the statements made by the HIH Royal Commissioner, the court in Visy, the Chair of the ACCC delivering the Giblin Lecture and the Executive Summary of the Banking Royal Commission. What of the place of ethics in business?
Advise Vine what standard of care is expected of a CFO.
Vine is a director and CFO of Rest Assured Insurance Ltd (RAI). Another insurance company was interested in a takeover by acquiring shares from existing shareholders of RAI. To try to persuade those shareholders not to sell their shares, RAI issued an updated and very positive profit forecast.
Joe and Liz are the directors of BuzzMe Pty Ltd, a mobile phone company. Joe had known that the company was in financial difficulties in December 2017 but had assured his fellow director it was just a temporary cashflow issue and that the company could trade out of its difficulties and pay all of
H Pty Ltd is a property development company. It has three directors: Abe (CEO), Bob (CFO)and Connie (non-executive director). Several months ago, there was an opportunity to acquire a vacant site in the CBD from Lew Pty Ltd. Abe told the board that in his opinion the site was suitable for a
Tim and Neil Finn are partners in the firm “Finn Homes”. They decide to incorporate the business.On incorporation, Tim and Neil become the directors and equal shareholders of Finn Homes Pty Ltd. At the time of the company’s incorporation, each director had paid the company $50,000 to form its
The new s 588GA of the Corporations Act provides a “safe harbour” for directors, who otherwise may be personally liable for insolvent trading if, after the directors suspect the company may be insolvent, they adopt a course of action or strategy that is “reasonably likely’ to lead to a
What is insolvent trading? What are the relevant defences to, and penalties for, a breach of the prohibition on insolvent trading?
What is the difference between the penalties/fines for a breach of (a) ss 180–183 and (b) s 184?
Explain the statutory provisions relating to conflict of interest.
What is the director’s fiduciary duty to act in “good faith”, “in the best interests of the company” and “for a proper purpose”?
What is the standard of care expected of directors and officers?
Read the extract from Australian Securities and Investments Commission v Rich (at[17.390]). The defendants satisfied the business judgment rule because they held a “rational belief that their actions were in the best interests of the company”. How Austin J say the reasonableness of the belief
What is the directors’ and officers’ duty of care and diligence?
What are the key duties and obligations of directors and officers?
What is the main advantage of limited liability?
In a “limited liability” company, whose liability is it that is “limited” and what is the extent of the “liability”?
What are the main features of a company?
John and Peter are partners in a firm of chartered accountants that specialises in tax management for wealthy clients. Without John’s knowledge, Peter misappropriates millions of dollars from his clients over many years, secretly adding his name as a beneficiary to dividends that are distributed
Jamie and Greg are partners in a firm called Copythat, that leases photocopiers to commercial businesses. Their partnership agreement states that they are prohibited from selling toner to clients other than by arrangement with David’s business, which sells toner. An important client asks Jamie to
Greg, Allan and George are partners in a small law firm specialising in family and property law, and share a large city office where they operate their business. Their partnership agreement states that all profits, debts and liabilities of the firm are to be shared equally among partners. Greg
Linda and Mary operate a hair salon as partners. To set up the business, Linda contributed 70% of the money. All ongoing costs were equally contributed. In their written partnership agreement, it is stated that all profits, debts and liabilities are to be distributed equally between the partners.
Bob, a property owner, gives Janine the right to use his premises to run a business. Janine pays Bob a weekly amount from the profits made in return for the right to use the premises.Bob is not involved in any of the activities related to running the business, and he has no right of entry to the
What is partnership property and why is it important to be able to identify it?
What does a retiring partner need to do to avoid liability for partnership debts after he or she retires?
What are the factors that determine whether a partnership exists?
What are the advantages and disadvantages of a partnership?
Jeremy is an estate agent in the Melbourne inner city area of Docklands. He is selling highrise units “off the plan” for Aspirational Developments Pty Ltd. He has friends who work for other developers and becomes aware that a competing high-rise that is also selling “off the plan” has run
Ricardo is the senior curator and ground manager at Noora Norra Golf Club Resort, a luxury facility in north Queensland owned by Gabba Pty Ltd. Noora Norra has been under financial pressure since the Global Financial Crisis affected the flow of Japanese tourists. The Board cut budgets and informed
Anwar was appointed to the stationery purchasing agent position during his time at Awesome Accountants. He regularly purchased stationery on Awesome Accountant’s account from Stationery Express Ltd with Awesome Accountant’s knowledge and acquiescence. Anwar’s purchasing limit was $500 per
When is ratification of an agent’s action possible?
When can an agent exercise apparent authority?
Distinguish between actual and apparent authority.
Distinguish between express and implied actual authority.
What is the essential idea that is at the heart of the law of agency?
Case study: Breast implants and ALCL Silicone-based breast implants are marketed towards women to increase their breast size or as part of breast reconstruction surgery. However, recent studies have shown that women with breast implants may have an increased risk of developing serious complications
You are an accountant and financial planner. You owe a duty of care to your client, and, in this particular instance, you have breached that duty and your client has suffered financial loss. However, you argue that you were only doing what every other accountant and financial planner does. What
Jack is using a grader to excavate his backyard in preparation for a tennis court when he slices through an electrical cable. This affects the electricity supply to Kevin’s factory located nearby. Jack is aware of the factory but had no idea the cable ran through his block. As a result of the
Pauline graduated from the KL Horticultural College with a major in floristry. Immediately after graduating, she set up her own cut flower business (“Blossoms”). In early 2015, things were going well, and she was thinking about expanding the business. She met Daniel Sloan, an accountant and
It was Chinese New Year. Han Wei decided to take his young 12-year-old nephew Jerry to Chinatown for Chinese New Year celebrations. They went to the Flower Pot to meet other members of the family, including his grandmother. The owner of the Flower Pot, Qi Yi, had just finished putting in a new,
As part of an upgrade of the country rail network, VicRail, a government-owned enterprise with responsibility for running the network, automated all signal boxes. After the automation, no manual signalling at level crossings was possible. However, to minimise the risk in connection with driver
Actual damage or injury is an essential element of a cause of action in negligence. But for what damage is a defendant who has committed a breach liable? Outline the two-step approach used to assess whether a defendant is liable to compensate a plaintiff for their loss or damage.
What is the standard of care that a person who owes a duty of care must meet? What is the statutory “two-stage” enquiry for determining whether the standard has been met?
Why were the courts reluctant to find a duty of care existed where the loss was pure economic loss?
Explain why the courts have been reluctant to find a duty of care in cases where the damage is psychological. Do you agree with the decisions in [14.200] and King v Philcox [14.210].
In novel situations where the duty of care question has not been settled, what twofold or“composite” test is outlined by the High Court in Tame?
In Donoghue v Stevenson [14.70] why did May not sue the shop owner? What is the essence of the general test of the duty of care as explained by Lord Atkin in Donoghue v Stevenson?How did Lord Atkin explain the specific duty of care owed by a manufacturer to a consumer?
Distinguish between the duty of care owed in respect of:(a) a negligent act causing physical or mental loss; and(b) a negligent statement causing pure economic loss.
What are the four main elements of a negligence action?
What is a “tort”? Distinguish a tort from a contractual obligation and a crime.
Silicone-based breast implants are marketed towards women to increase their breast size or as part of breast reconstruction surgery. However, recent studies have shown that women with breast implants may have an increased risk of developing serious complications including anaplastic large cell
The German drug company Chemie Grunenthal developed and sold Thalidomide that was used to alleviate morning sickness in pregnant women. Shortly after the drug was sold, between 5,000 and 7,000 infants were born with malformation of the limbs. Throughout the world, about 10,000 cases were reported.
Paul recently purchased Henry’s shop. Henry claimed the business was thriving with an annual income of $95,000. On closer inspection of Henry’s books, Paul discovers that the business has never turned over $95,000 per annum, as Henry claimed. Advise Paul. Would it make a difference if it was
Tenzin and Lobtse are Mongolian students studying at an Australian university in Melbourne.Under the terms of a student visa, they are allowed to work for 40 hours a fortnight. They both sign a contract with Kleen Cleaners and begin work cleaning toilets in a 10-storey office block in the CBD. For
Net Pty Ltd (Net) provided internet access services throughout Australia under standard form contracts that included a list of “Terms and Conditions”. One of the terms stated:“Net reserves the right to change prices or services at any time without prior notice to customers or the public,
Read the following article: https://www.theage.com.au/national/victoria/get-a-map-manfails-in-bid-for-40-000-car-refund-over-dodgy-satnav-20180312-p4z3xt.html. Please draft the reasons you believe the VCAT reached its decision (include relevant sections of the ACL).Do you believe it is a fair and
In October 2018, after a number of its phones exploded or caught fire when the batteries were being recharged, Samsung offered store credit for the Galaxy Note 7 owners willing to exchange their handsets and urged all customers to turn off their devices immediately and indefinitely. Samsung warned
After her disappointments at SIC, Alice now considers buying an exercise bike. She visits“Beta Bikes” and approaches the sales assistant, Marcia, and, after a long discussion, she recommends the “Upgraded Amateur Choice” model as suitable for Alice’s needs and particularly recommends it
Alice Plump needs to lose some weight. She sees a half-page newspaper advertisement by Skinny is Cute (SIC) Pty Ltd. The advertisement reads “Lose up to 10kg of weight for a $10 program fee”. In small print, at the foot of the advertisement, are the words “Purchase of food is an additional
Trinco manufactures and sells outdoor furniture. Included in their range of outdoor furniture are sun lounges and deck chairs, which belong to Trinco’s “Comfi” range and are sold under Trinco’s name. Another manufacturer, Contour, also sells outdoor furniture, including sun lounges and deck
Refer to the contract of employment in Chapter 2. In the light of the Unfair Contract Terms amendments to the ACL, do you believe cl 7 is valid?
What is “unconscionable conduct”? Examine the list of factors in s 22(1) that a court may consider in determining if a person has engaged in unconscionable conduct. Which do you believe are the most significant? What remedies are available for a breach of the prohibition on engaging in
What is a “civil penalty”? Is it available for a breach of s 18?
What are the remedies for a breach of (a) s 18, (b) s 29 and (c) the unfair contract provisions?
If your answer to (b) is “no”, please explain the effect of s 64A(1)–(2)and s 139A.
Is it possible to limit or exclude liability for a breach of (a) s 18 and (b) the consumer guarantees? If your answer to (a) is “no”, please explain Butcher v Lachlan Elder Realty Pty Ltd(2004) 218 CLR
Is it necessary that a person intends to mislead or deceive?
The definition of a consumer is very important to understanding the extent to which consumers are protected under the ACL. What is the definition of a “consumer” for the purposes of the consumer guarantees and what is a “consumer contract” for the purposes of the unfair contract terms
Jiang and Li are on their honeymoon, cruising in the South Pacific. On the third night, the ship collides with another boat because the captain was on Facebook. The cruise company offers compensation for the cost of the trip, but they seek your advice as to whether they can seek damages:(a) for the
Jerry opens a delicatessen specialising in selling sandwiches and rolls to health-conscious university students. He signs a one-year contract with Vogel Breads to supply him with bread made from organic wheat. On 1 April 2016, an outbreak of a virus contaminates much of the organic wheat crop.
Green Organic Farmers (GOF) is a group of organic farmers. They have been producing organic green leaves (kale, spinach and silver beet) since early 2000. Due to the expansion of the organic sector, GOF decides to cultivate two new organic crops – canola and potatoes.After some negotiations, GOF
Nancy is in her final year at university. In order to graduate in November, she must submit her final folio of work to her supervisor by October. Nancy takes her work to Casey to be professionally bound. She explains to Casey the importance of having the work completed by 1 October, and Casey
What is the essential difference between an order for specific performance and an award of damages? Why would a person seek such an order?
Referring to ANZ v Paciocco (2012), explain the difference between a liquidated damages claim and a penalty. Explain why the ANZ succeeded.
Explain the so-called two limbs of Hadley v Baxendale and provide an example of a claim under each limb (referring to both Hadley v Baxendale (1854), and Parsons v Uttley Ingham).

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Concise Australian Commercial Law 5th Edition Clive Turner, John Trone, Roger Gamble - Solutions

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