Issue 1
Whether Rama has to repay the loan which has been taken by Santosh
Rule
Two or more people would be considered to be carrying out a partnership business if they are carrying out business for the purpose of making profit, the business is of an ongoing nature and the business is a carried out in common. If these features can be identified in a business, then such business would be deemed as a partnership even if the people intending to carry out the business did not intend to form a partnership. These provisions have also been provided by Partnership Act 1963 (Cth) (Lawlive.com.au 2018)
According to Department of Treasury and Finance Victoria (2018) the partners are liable jointly and severally for the debts of the business and they are also considered to be the agents and principal of the business.
Application
In the present situation it can be evidently stated that Santosh and Rama are carrying out business of selling Ice-cream for the purpose of making profit, the business is of an ongoing nature and the business is a carried out in common. Thus there is a partnership between them. In addition to through the application of the case of John Grimes Partnership Ltd v Gubbins it can be stated that the partners would be liable for the actions of the other partner. Here, Santosh had purchased a loan to for the purpose of the business and thus the loan would also be binding on Rama as he is the partner of the business.
Rama has to repay the loan to the bank on behalf of Santosh
Issue 2
What actions are available to Rama in case Santosh decides to sell the secret recipe to Harvey?
Rule
In the case of Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1, it had been stated by the court that an unilateral offer can be made to the world at large and once the terms of the offer has been completed it leads to the formation of a valid contract. If a reasonable person in the position of the plaintiff believes that there is intention to get into a contract in the statement made by the defendant, the offer would be considered as a valid offer (US Legal 2018).
In the case of R v Clarke [1927] HCA 47, it had been stated by the court that only if the person had knowledge about the fact that an offer is present, can they claim the formation of a valid contract upon acceptance.
In the case of Carlill v Carbolic Smoke Ball Company the court stated that when there is a commercial agreement the court would deem that the person making the offer had the intention of binding the other person to its terms. However such intention is not present in case of a domestic agreement.
Each contract requires consideration to be formed in a valid way. A consideration can be anything of value which one person loses and other person gains (Jec.unm.edu 2018).
In case of a breach of valid contract the parties are provided various remedies such as an injunction or restitution. Through injunction a person can prevent the other person from carrying out a specific activity. Through the remedy of restitution a person can get out of a contract and claim damages if its terms are breached by the other party.
Application
Through the application of the above discussed rules on the facts of Santosh and Rama it can be stated that Rama has the right to make a claim for any profit which have been made by Santosh in relation to the business. In the present situation it is provided that Santosh is willing to sell the secret recipe of the partnership business to Harvey who is offering him a fixed profit in his new venture. Here the resources which are being used by Santosh are to be considered as the resources of the partnership business on which both Rama and Santosh have equal right.
In this situation a valid offer had been made by Rama to santosh by which they decided to carry out a business and make equal profit. The offer had intention as it was a commercial agreement. The offer was accepted and the consideration provided by them was the work carried out in relation to the business and the profit to be received. In the same situation it can be stated that the contract had an implied term of being loyal to each other and not sharing the business secrets. The contract will be breached by Santosh sells the business to Harvey. In this situation Rama can claim injunction or restitution.
Rama can claim injunction to prevent Santosh from selling the business secret or may claim restitution of contract.
Question 2
Issue 1
The issue is to identify the requirements for forming a business by Maria
Rule
In order to ensure that the business name is available or not it has to be verified through the website of Australian Securities and Investment Commission. If the name is available the name can be registered against the business. The name can be registered through the same website of the ASIC where the availability of name is verified.
The compliance issue in relation to a business depends upon the business structure. This means that for every business form of business structure like a sole trading, partnership or a company the compliance requirements are different.
Application
In order to ensure that the business name is available or not Maria has to verify the same from the website of Australian Securities and Investment Commission. Upon verification the name is found to be available. As the name is available the name can be registered against the business. The name will be registered through the website of the ASIC. In the present situation it will be best for her to carry out the business in from of sole trading and thus there would be very little compliance requirements.
In conclusion it can be stated that Maria has to consider the above issues while forming a business.
Issue 2
The second issue which has been identified in the situation is that whether Maria is a employee or an independent contract. The issue is also to determine the consequences of the same.
Rule
In order to, understand whether a person is an employee or a contractor it can be done through the application of a few tests in Common law. The test which is applied is known as the Multi-factor test which had been used in the case of Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561. In this case it had been stated by the court that a single factor would not be enough to ensure that a person in an employee or an independent contractor. According to the Fair work ombudsman there are certain factors which are to be considered for determining that a person is a independent contractor or an employee. These factors are as follows:
Hours of work: There are standard hours of work from employees; a casual employee may have different hours of work, but a contractor decides the working hours under an agreement
Risk: there is no financial risk borne by employee but a contractor owes financial risks
Tools and equipments: Employees are provided with their own tools and equipments and contractors are not
Payment methods: Employees are paid regularly but contractors are paid after the project has been concluded.
Expectation of work: From an employee the expectation is usually ongoing where as from a contractor it is expected that it will come to an end when the work is done
Under section 352 of the Fair Work Act 2009, a sham contract arrangement will take place when an employer disguises an employment relationship in from of a sham contracting arrangement. This is done usually to avoid the responsibility imposed in relation to entitlements of employees. The issue had been discussed in Hollis v Vabu Pty Ltd [2001] HCA 44.
Application
The factors which need to be taken into consideration are those related to that of Working days and hours, Rate of pay and any award which Maria is entitled to in relation to the employment she has.
In the present situation it can been seen that Maria is continuing the work in fixed working hours. Although the shift time may vary, it is a characteristic of a casual employee. In addition all tools which are required to carry out the employment activity are provided to her by the employer. She is also paid per hour for her work. In the given situation it can be stated that on the balance of probability Maria is an employee and not an independent contractor. Thus Rama and Santosh have to provide her the minimum wage for a causal employee which is much more than $5 per hour. She would however not have any leaves as a causal employee. In case Santosh and Rama does not recognize her employment status they would be subjected to the provisions of section 352 of the FWA in relation to Sham contracting.
Maria is a casual employee and not an independent contractor
Question 3
Issue 1
Whether the contract is enforceable
Issue 2
Whether the consideration is valid
Issue 3
Whether any obligations are present on santosh after withdrawing the offer
Rules
In the case of R v Clarke it had been stated by the court that if a person is aware of an offer and carries out the terms which are associated to it a valid contract would be formed between the offeror and the offeree.
In the case of Carlill v Carbolic Smoke Ball Company it had been stated by the court that a unilateral offer can be made to the world at large and once the terms of the offer has been completed it leads to the formation of a valid contract. If a reasonable person in the position of the plaintiff believes that there is intention to get into a contract in the statement made by the defendant, the offer would be considered as a valid offer.
In the case of White v Bluett (1853) 23 LJ Ex 36 it had been ruled by the court that a consideration does not necessarily have to match the value of the consideration provided by the other party. This means that consideration should be sufficient rather than adequate (Lawteacher.net 2018).
In addition the practical benefit clarifies that consideration has to be something of value in the eyes of law (US Legal 2018).
An offer has the right to be revoked any time before it has been accepted. Google.lk. (2018) clarified the law that the revocation of an offer will be successful when such revocation has reached the person who had received the offer. In addition the communication must take place before the person makes an acceptance. If the acceptance is made the revocation is invalid. A revocation of offer signifies the withdrawing or ending an offer.
Application
It has been provided in the situation that Santosh had made an offer that any person who comes to the shop dressed as Elvis would be provided an ice cream worth $10 at a price of 10 cents. Through the application of the rules of R v Clarke it can be stated that that if a person is aware of an offer and carries out the terms which are associated to it a valid contract would be formed between the offeror and the offeree. In this situation the 120 Elvis impersonators are aware about the offer which has been made by Santosh. Thus they have the right to pay the 10 cents and get the Ice cream.
It has been provided in the situation that Santosh had made an offer that any person who comes to the shop dressed as Elvis would be provided an ice cream worth $10 at a price of 10 cents. According to the principle of White v Bluett a consideration does not necessarily have to match the value of the consideration provided by the other party. This means that consideration should be sufficient rather than adequate. In addition consideration has to be something of value in the eyes of law. Thus here the consideration for the 120 people is the ice cream and for santosh it is the 10 cents and the publicity of the business as both the items would be considered as something of value in the eyes of law.
The situation provides that Santosh seeing that the business will make significant loss if the ice-creams are sold at a very less rate has stated that he is withdrawing the offer. According to the rules of revocation discussed above the communication of the same has to be done before the acceptance is made. This means that till the person pays 10cents to Santosh there is no acceptance and the offer can be revoked before that. Thus in the present situation as the offer has been withdrawn before acceptance and the same has been communicated to the offerees, it would be considered as a valid revocation as per Byrne & Co v Leon Van Tien Hoven & Co.
Issue
Rules
It has been provided through the provisions of section 31 of the Copyright Act that 1968 the law of copyrights provides protection in relation to images in the form of Photos, artistic expressions and scripts. Thus any images which have such a nature would be considered to have been protected under the CRA (Stokes 2014).
A copyright is not present in relation to an Idea. It comes to existence when the idea has been converted into an expression. There is no requirement of registering a copyright. It is created as soon as an original work is produced. The owner of the copyright is the person who has created the copyright work. For the purpose of having a copyright it has to be provided that the work is an original work. The work would be an original work if no such work has been created before by another person.
Thus any person who has created an subject matter which is eligible for protection under the copyright laws is to be considered as the owner of the copyright. The owner is allowed to use the work in any way he or she wants and no other person can use the work without the consent of the owner. Usually in images there is a composite copyright which signifies that the work has been created by more the effort of more than one owner (Creativecommons.org.au 2018)
There remedies available to a person in case there has been a breach of copy rights as provided under Division 4B include Injunction and damages. Through injunction a person can prevent the other person from carrying out a specific activity. Through the remedy of damages a person can claim damages for the losses which have been incurred.
Application of law
Through the application of section 31 of the Copyright Act that 1968 which states that the law of copyrights provides protection in relation to images in the form of Photos, artistic expressions and scripts it can be ascertained that any images which have such a nature would be considered to have been protected under the CRA. Thus the face photo of Santosh is also subjected to the protection under the CRA as it is an image and is an original work.
Further, to identify the owner of the copyright the rules of the creation of a copyright has to be taken into consideration. A copyright is not present in relation to an Idea. It comes to existence when the idea has been converted into an expression. There is no requirement of registering a copyright. It is created as soon as an original work is produced. The owner of the copyright is the person who has created the copyright work. For the purpose of having a copyright it has to be provided that the work is an original work. The work would be an original work if no such work has been created before by another person.
Thus any person who has created a subject matter which is eligible for protection under the copyright laws is to be considered as the owner of the copyright. The owner is allowed to use the work in any way he or she wants and no other person can use the work without the consent of the owner. Usually in images there is a composite copyright which signifies that the work has been created by more the effort of more than one owner. Thus in the present situation it can be stated that the copyright is owned by the group as they have clicked the pictures and Santosh as well as he was involved in the picture. Thus this is a composite copyright.
As the right have been breached because the image had been used without the permission of Santosh it can be stated that he can claim legal remedies in from of damages or injunction. Through the process of injunction the group would be restrained from using the photo of Santosh without his permission. In addition any damages which have been incurred by Santosh have to be compensated.
There is a copyright on the image. The copyright is owned by the group as they have clicked the pictures and Santosh as well as he was involved in the picture. He can claim legal remedies in from of damages or injunction.
References
Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1
Copyright Act that 1968
Creativecommons.org.au. (2018). [online]
Department of Treasury and Finance Victoria. (2018).
Lawteacher.net. (2018). Consideration need not be adequate. [online]
Partnership Act 1963 (Cth)
R v Clarke [1927] HCA 47
US Legal, I. (2018). Elements of a Contract – Contracts.
US Legal, I. (2018). Sufficient Consideration Law and Legal Definition | USLegal, Inc..
White v Bluett (1853) 23 LJ Ex 36
Zuijs v Wirth Bros Pty Ltd(1955) 93 CLR 561
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