Australian Commercial Law Questions And Answers

Sources of Law in Australia

It requires the completion of a set of questions in relation to:- framework of the Australian legal system; introduction to interests in real property; and shared and transferred interests in real property.

Personal property as well as intellectual property (including application, protection and commercial value) are also covered.

The assessment includes an overall understanding of the way that Australian law operates; covering legislation and case law. This is explored through the assessment of various business based scenarios.

 It explores the ownership aspects of real property, trust property, personal property and intellectual property.

Risk management, with relevance to business situations forms the final part of the assessment.

Preparing your responses

Please refer to the beginning of your text book to familiarise yourself with the sections on ‘Case Studies, Scenarios and Problem Questions’, and ‘How to answer a question’. This will assist you to formulate your response.

Marking and feedback

This assignment contains 6 assessment activities based upon each of the six chapters of the text. Each assessment activity contains specific instructions.

This particular assessment forms part of your overall assessment for the following unit of competency:

FNSTPB505 Apply legal principles in property law

Grading for this assessment will be deemed “competent” or “not-yet-competent” in line with specified educational standards under the Australian Qualifications Framework.

What does “competent” mean?

These answers contain relevant and accurate information in response to the question/s with limited serious errors in fact or application. If incorrect information is contained in an answer, it must be fundamentally outweighed by the accurate information provided. This will be assessed against a marking guide provided to assessors for their determination.

What does “not-yet-competent” mean?

This occurs when an assessment does not meet the marking guide standards provided to assessors. These answers either do not address the question specifically, or are wrong from a legislative perspective, or are incorrectly applied. Answers that omit to provide a response to any significant issue (where multiple issues must be addressed in a question) may also be deemed not-yet-competent. Answers that have faulty reasoning, a poor standard of expression or include plagiarism may also be deemed not-yet-competent. Please note, additional information regarding Monarch’s plagiarism policy is contained in the Student Information Guide which can be found here: https://www.monarch.edu.au/student-info/

What happens if you are deemed not-yet-competent?

In the event you do not achieve competency by your assessor on this assessment, you will be given one more opportunity to re-submit the assessment after consultation with your Trainer/ Assessor. You will know your assessment is deemed ‘not-yet-competent’ if your grade book in the Monarch LMS says “NYC” after you have received an email from your assessor advising your assessment has been graded.

Important: It is your responsibility to ensure your assessment resubmission addresses all areas deemed unsatisfactory by your assessor. Please note, if you are still unsuccessful in meeting competency after resubmitting your assessment, you will be required to repeat those units.

In the event that you have concerns about the assessment decision then you can refer to our Complaints & Appeals process also contained within the Student Information Guide.

Precedent and Delegated Legislation

Expectations from your assessor when answering different types of assessment questions

Knowledge based questions:

A knowledge based question requires you to clearly identify and cover the key subject matter areas raised in the question in full as part of the response.

Good luck

Finally, good luck with your learning and assessments and remember your trainers are here to assist you

Assessment Activity 1:

Framework of the Australian Legal System (Chapter 1)

Activity instructions to candidates

This is an open book assessment activity.

You are required to read this assessment and answer all 6 questions that follow.

Please type your answers in the spaces provided.

Please ensure you have read “Important assessment information” at the front of this assessment

Estimated time for completion of this assessment activity: 2 hours

Question 1.1

What are the two main sources of law in Australia? Which is most powerful? Why?

Question 1.2

Why is precedent important?

Question 1.3

Which tier of government, federal, state or local do you think has the greatest influence/effect on businesses in the financial services environment? Why?

Question 1.4

Using examples, explain what is meant by ‘delegated’ or ‘subordinate legislation’. Why this type of legislation is particularly important in ensuing clients are properly advised about business compliance?

Question 1.5

Australia’s legal system is based on the ‘rule of law’ central to which is natural justice. How is natural justice incorporated into our court system?

Question 1.6

Test your knowledge: Complete the following crossword puzzle

Across

1. The lower house of Federal Parliament is the House of……..
2. Criminal law is an example of ……….law.
3. The Council of Australian Governments is also known as ……..
4. Type of law making power under s90 of the Constitution wherein only the Federal parliament has the power to make law over customs, excise and bounties.
5. Type of law making power under the Constitution wherein only the State parliaments have the power to make legislation regarding certain subjects.

Down

1. The most powerful form of law is…
2. Law of fairness and good conscience.
3. The power to implement and administer laws.
4. Parties submit their dispute to an impartial third party who will make a decision for the parties to which they are contractually bound.
5. The foundation of common law is the Doctrine of……
6. Specialised bodies set up by government to hear specific matters.

Assessment Activity 2:

Introduction to Interests in Real Property(Chapter 2)

Activity instructions to candidates

This is an open book assessment activity.

You are required to read this assessment and answer all 7 questions that follow.

Please type your answers in the spaces provided.

Please ensure you have read “Important assessment information” at the front of this assessment

Estimated time for completion of this assessment activity: 2-3 hours

Question 2.1

Midas owns a property in regional Western Australia and is thrilled to have discovered generous veins of gold and copper in the soil. Do these minerals belong to Midas? Is he free to exploit them as he chooses?

Why or why not?

Question 2.2

What is a fee simple estate

Question 2.3

Ophelia has recently started a new business and intends to use the house she has received from her grandfather as security for a loan to inject capital into her business. She seeks your advice. Will she be successful in her loan application? Give reasons for your answer.

Question 2.4

List four advantages of the Torrens System of Land Title. What are the commercial benefits of this system?

Question 2.5

Errol and Flynn are beneficiaries of a trust created by their mother’s will. Victor is the trustee of the trust. The majority of the trust property is land. Both Errol and Flynn are concerned about Victor’s recent behaviour as trustee and are unsure if he is acting in their best interests. What could they do to protect their interest in the trust property? Why?

Question 2.6

Land Ownership and Fee Simple Estate

Jesse owns a mixed business commercial property next door to Benji’s Pizzeria. As an advertising promotion, Benji has fixed a 60m inflatable pizza on a line at the end of a 90m pole which blows in the wind, both over Benji’s Pizzeria and over the car park of Jesse’s property. Jesse wants this intrusion stopped. Advise Jesse.

Question 2.7

Using examples, define a chose in possession.

Assessment Activity 3:

Shared and Transferred Interests in Real Property(Chapter 3)

Activity instructions to candidates

This is an open book assessment activity.

You are required to read this assessment and answer all 6 questions that follow.

Please type your answers in the spaces provided.

Please ensure you have read “Important assessment information” at the front of this assessment

Estimated time for completion of this assessment activity: 2-3 hours

Question 3.1

What is the difference between holding land as joint tenants and holding land as tenants in common? How would you explain this difference to a client?

Question 3.2

Shenzi, Timon and Nala are cousins and joint tenants in a property left to them by their grandmother in her will. Shenzi is your client and is in substantial debt. She tells you that she wants to sell the property and use the funds to reduce her debt but Timon and Nala do not agree. Schenzi tells you that she is going to go ahead and sell her share of the property anyway. Can she legally do so? Advise Shenzi of any options she may have.

Question 3.3

Bella, Rosalie and Alice are clients who have set up a partnership as florists. Their business is thriving, and they no longer wish to rent retail premises, but buy their own. They have found an appropriate shop, and settlement is in one month. They seek your advice as to whether they should co-own as joint tenants or tenants in common. Advise them, giving reasons for your answer

Question 3.4

Edward, a client, has recently bought land in Sydney on which he intends to build an office building. His architect has informed him that the placement of the building on the block is limited because of an easement on the land held by Sydney Water. Explain to Edward what that means.

Question 3.5

Priya has recently bought a strata title unit in South Australia and her brother Gani, has bought a strata title unit in Victoria. Is there any difference in the boundaries of what they own under the strata title system in the two states?

Question 3.6

Margaret intends that her property development will maintain its value and character. She wishes to set limits on the design of the residential buildings and the materials to be used, and to have these limits apply well after she has moved on to other projects. What legal process would you recommend she use? Why?

Activity instructions to candidates

This is an open book assessment activity.

You are required to read this assessment and answer all 6 questions that follow.

Please type your answers in the spaces provided.

Contracts and Commercial Agreements

Please ensure you have read “Important assessment information” at the front of this assessment

Estimated time for completion of this assessment activity: 2-3 hours

Question 4.1

Kamani has entered into a contract with Piotr, a plumber to install a series of replacement pipes at her cafe. Will this contract be considered a contract for the sale of goods? Give reasons for your answer.

Question 4.2

Willow owns and operates a shop selling books and gifts, ‘All the World’s a Page’ in Paddington, Sydney. Willow supplies books both as a wholesaler and retailer. On Monday, Dawn attended at the shop and chose and purchased 7 books. Dawn was also interested in purchasing a small display case but the only one available was in pieces in a box and required construction. Willow agreed that if Dawn wished to purchase and pay for the display case immediately, she would construct the display case and Dawn could collect it on Tuesday. Dawn agreed and decided she would also collect the books the next day.

On Monday, Willow also received an order for 22 copies of the book ‘Masterchef the Musical’, from Buffy, the owner of a book shop in Parramatta. The 22 books were dispatched in Willow’s delivery truck with a further 70 ‘Masterchef the Musical’ books to fill two other orders in Parramatta.

Unfortunately, on Monday night, an electrical fault in the shop next door caused a fire which spread to , ‘All the World’s a Page’ and the shop and its contents were destroyed. Dawn arrived to collect the 7 books and the display case on Tuesday morning, but finding them destroyed, demanded the return of her money. Willow refused.

In a further blow, the delivery truck was involved in an accident causing great damage to the books. When Buffy finally received the books she refused to accept them because of their seriously damaged condition, and refused to pay for the order, insisting that it was not her loss to bear.

Willow is your client and seeks your advice as to who must bear the loss of the various goods.

Give reasons for your conclusions.

Question 4.3

Seth is a client who operates a sporting goods shop, ‘Life’s a Ball’. Seth has recently visited his regular supplier and purchased what he believed to be 20 full size netball rings to sell to customers in his shop. He attended at his supplier’s warehouse and chose the netball rings relying on the description on the boxes in which they were contained and also on the recommendation of the supplier who stated that they were suitable for all adult netball competitions. On unpacking one to put on display Seth discovers that it is a ‘junior’ size only, a full metre smaller than full size.

The supplier also showed Seth a sample of a new cricket top which was made from a fabric the same colour and weave as the uniforms of the Australian cricket team. Seth believes the tops will sell well and orders 50 in various sizes. When they are delivered to Seth’s shop a week later, they are a slightly different colour and a very different weave from the sample.

Intellectual Property Law

Seth seeks your advice as to what action he may take. Give reasons for your recommendations.

Question 4.4

What is the purpose of the national Personal Property securities register? What are its advantages?

Question 4.5

To what contracts does the Vienna Convention apply?

Question 4.6

Estelle owns a large concreting business as a sole trader. The business operates ten concreting trucks, each worth approximately $200,000, five of which Estelle holds freehold. Estelle would like to expand the business further but to do so she requires further capital and is reluctant to mortgage her home. What would you advise her to do?

Activity instructions to candidates

This is an open book assessment activity.

You are required to read this assessment and answer all 6 questions that follow.

Please type your answers in the spaces provided.

Please ensure you have read “Important assessment information” at the front of this assessment

Estimated time for completion of this assessment activity: 2 – 3 hours

Question 5.1

When does copyright ‘subsist’ or come into existence? How is copyright a valuable asset in business?

Question 5.2

Daya was employed as an IT specialist in a large firm providing accounting and financial services. Daya did not find her job very challenging and so, acting under her own initiative she created a new software program which streamlined the assessment of customer needs, risk profiles and service provision. The program was successfully adopted by the whole firm. It is now six months later and Daya has resigned to set up her own business producing and marketing the software program she has created.

Discuss the issues raised by these circumstances.

Question 5.3

What principle was illustrated by the case of Meskenas v ACP Publishing Pty Ltd (2006) FMCA 1136?

Question 5.4

What happens to the invention once a standard patent or an innovation patent has expired?

Question 5.5

What remedies may be sought by the owner of a trademark that has been infringed?

Question 5.6

What action would you advise a prudent business client to take to minimise the risk of breach of confidence taking place?

Assessment Activity 6:

Property and Managing Risk (Chapter 6)

Activity instructions to candidates

This is an open book assessment activity.

You are required to read this assessment and answer all 7 questions that follow.

Please type your answers in the spaces provided.

Please ensure you have read “Important assessment information” at the front of this assessment

Estimated time for completion of this assessment activity: 2-3 hours

Question 6.1

What are the uniform matters which are set out in the Civil Liability Acts for establishing the required standard of care in a particular situation?

Question 6.2

What risk management practices would you advise a business client to put in place to minimise the likelihood of negligence occurring in the course of their business activities?

Question 6.3

What must a defendant establish to successfully rely on the defence of volenti non fit injuria?

Question 6.4

A client, Dennis, a developer, has recently purchased two vacant blocks of land beside each other in a newly subdivided area. He commences building two townhouses for investment purposes. There is a vacant block beside the blocks he is developing and to make it easier to work on his own sites, equipment and materials are stored on that site. Sometimes it is also used as a car park by his workers. Dennis has now received a letter from the owner of the vacant block threatening legal action against him. Explain to Dennis the likely nature of the legal action, why he may be liable and the possible consequences.

Breach of Confidence and Risk Management

Question 6.5

Chantelle is an engineer whose core business is the design and construction of prototype products on a project basis. The business is run from workshop and office premises which Chantelle rents. When a client attends the workshop for a scheduled meeting, poorly stored materials collapse, causing the client serious injury. Chantelle will be liable for her client’s injury because of:

Question 6.6

What kind of damages did the Civil Liability Acts limit across the jurisdictions?

Question 6.7

Aladdin wanted to buy a second retail business which included the purchase of the property from which the business operated. Aladdin therefore sought the advice of Jasmine, an accountant and business adviser employed by Jafar Consulting. Jasmine advised Aladdin to take advantage of the public’s huge interest in home improvement and purchase the Old Lamp Hardware Shop. Jasmine told Aladdin that the business was very financially successful and had been for 20 years. Jasmine also told Aladdin that the land upon which the business was operating could easily be subdivided so that Aladdin could build and lease out further retail premises. Aladdin, relying on Jasmine’s advice, purchased the land and business for $1.8million.

Sadly for Aladdin, after 6 months, the Old Lamp Hardware Shop is losing money. Aladdin has lost the purchase price and has had to mortgage the land to keep trading. An enormous new Bunnings Hardware store opened across the road 2 months after Aladdin had bought the Old Lamp Hardware Store. Aladdin had discovered that this, together with two years of poor financial performance is why the previous owners were selling. Aladdin has also discovered this was common knowledge in the hardware and retail industry and that Jasmine should have known this. Aladdin has also discovered that subdivision of the land is not permitted under current planning laws.

Aladdin contacted Jasmine and demanded a meeting. Jasmine went to meet Aladdin at the Old Lamp Hardware Shop but on entering she slipped over on a scattering of loose nails which had fallen from their display 4 hours earlier. Unfortunately, whilst another person may simply have been bruised, Jasmine has suffered fractures to both ankles and hips and one of her wrists because of a pre-existing bone condition of which Aladdin was unaware. Aladdin does not think he should be held liable for Jasmine’s injuries.

In the circumstances, what insurance would have been commercially and legally useful to Aladdin, Jafar Consulting and Jasmine? Give reasons for your answer.

References

ANZ. (2015). The Australian legal system. Oxford University Press. Retrieved December 22, 2018, from file:///C:/Users/user/Desktop/ciro_LAB4e_sample.pdf

Business Queensland. (2018). Do I own intellectual property that my employees create?. Retrieved December 22, 2018, from https://www.business.qld.gov.au/running-business/protecting-business/ip-kit/browse-ip-topics/ownership-of-intellectual-property-created-by-your-employees-and-contractors-or-consultants/ownership

Federal Court of Australia. (n.d.). Natural justice or procedural fairness. Retrieved December 22, 2018, from https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-robertson/robertson-j-20150904

Government of Western Australia (n.d.). What to do with gold you find. Retrieved December 22, 2018, from https://www.dmp.wa.gov.au/Minerals/What-can-you-do-with-any-gold-or-2415.aspx

Hepburn, S. (2013). Australian Principles of Property Law. UK: Routledge.

Queensland Government. (2018). 6.1 What is subordinate legislation?. Retrieved December 22, 2018, from https://www.premiers.qld.gov.au/publications/categories/policies-and-codes/handbooks/legislation-handbook/subord-legislation/what-is.aspx

REISA. (2018). Torrens title explained. Retrieved December 22, 2018, from https://www.reisa.com.au/publicinfo/general-tips-and-traps/torrens-title-explained

Rigby Cooke Lawyers. (2016). Damage to goods in transit – who is responsible for the loss?. Retrieved December 22, 2018, from https://www.rigbycooke.com.au/latest/damaged-goods-transit-responsibility