Discuss about the Business Law in Australia.
In a country, several types of laws such as statue law, common law, civil law, etc. exits to govern the acts and to protect rights of the individual and business. In the same way, there is a statutory framework in Australia that ensures fairness in trading for consumers and businesses both. For conducting business operations, it is critical for the family owned seafood restaurant to comply legal laws and regulations. The owners of the organization wish to call this restaurant as “Great Catch!” It needs to identify the applicable laws, regulators, existing and potential legal issues for the business for understanding legal obligations and complying with legal rules (Australian Government, 2016).
In Australian business law, property is classified in three forms such as real property (land, fixtures, buildings and leaseholds), personal property (personality and chattels) and intellectual property (design, patents, trademarks, etc.). On the basis of defined categories of property in the Australian business law, the name of business is a type of intellectual property. But, the intellectual property cannot complied laws and protected itself from the illegal acts and due to this; it falls into the category of intangible personal property (Latimer, 2011).
“Choses in action” aspect of property law defines that an individual have right to sue for protecting the intellectual property of business. In accordance to this law, an individual does not have rights to take physical possession of intellectual business property. For example: “Great Catch!” name can be used by other firm. This law gives rights to the business owner to protect the trade name of business. But at the same time, law can protect the business and trade name in case of having registration in legal firms. In Australia, Corporation Act and business associations accept the registration of businesses’ names (Australian Government, 2016). For naming the seafood restaurant and gaining the legal rights, owner needs to register the name with the Australian Securities and Investments Commission (ASIC) (ASIC, 2016).
Equitable choses in action also give equal right to the all legal member to sue for protecting the intellectual property and to make claims. In family-owned seafood restaurant, all legal members have right to claims over the intellectual property of business. Corporations Act 2001 provides applicable laws and regulations to manage the rights related to the company title. By giving name to the seafood restaurant, the business owner would create recognition in the market. In accordance to the Australian business law, trademark is a type of intellectual property that gives unique identification to the seller in the market. Trademark can be brand name, symbol, design, etc. For protecting the intellectual property, this seafood restaurant is obliged to register name of a business as trademark under the Trade Act 1995. This would provide legal protection to the business identity. In Australia, Registrar of Trade Marks accepts trademark registrations and due to this it has authority to control and excise the rights related to this area (Latimer, 2011). For getting the trademarks as business name, this seafood restaurant should contact to this legal authority.
Sales of Goods Act and Australian Consumer Law (ACL) are the two major business laws create legal obligations for a firm. ACL operates in Australia-wide, whereas Sales of Good Act’s application is limited to the state and territory borders. Sales of Goods Act 1923 create legal obligations on the businesses, which are operating in Sydney. In accordance to this, all variable property including consumer able goods, fixtures, crops, etc., which are sold as goods are regulated through this law (NSW Government, 2016). This seafood restaurant sale food, which is consumer good and due to this, it is accountable to oblige legislation of Sales of Goods Act.
This legislation in Australia regulates sales agreement in Australia. In order to sale food in restaurant, this firm is legally obliged to include a contract, goods and price. As per this law, sale of goods to the consumer leads to the pass of ownership and due to this associated risks such as damage, loss, etc. are also passed. In case of perishable good, damage of good without the knowledge of the seller at the time of contract makes the contract void (no effect). Sales of goods legislation indicates that buyer must pay on the delivery (Latimer, 2011). The acceptance of goods by the buyer leads to the execution of sales of goods contract.
This legislation is also obliged seller to give reasonable opportunity to examine the goods in accordance with the contract. This act provides three types of remedies to the buyer in case of inconsistency with the contract. Refusal for goods, action for damages, equitable remedies for certain performance is three remedies available for the buyers. The remedies can create legal issues for this seafood restaurant. For example: if this restaurant fails to deliver promised quality food to the consumers than it would incur breach of contract and due to this consumer can take action for damages (Australian Government, 2016). This will create legal issue for the restaurant. For operating effectively, this seafood restaurant needs to oblige sales of goods legislation in effective manner.
Australian Competition and Consumer Commission (ACCC) have authority to protect the rights of consumers effectively by enforcing Competition and Consumer Act 2010 (CCA) under the Australian Consumer Law (ACL). This legislation gives rights to the customers to claim for damages and losses. These rights are called consumer guarantee. This gives rights to the customers for replacement, repair, refund and compensation due to the damage and loss (ACCC, 2016). The seafood restaurant is also obliged to comply with this legislation to limit the legal claims and issues.
Environment laws in Australia may raise legal issues for this seafood restaurant. Environment Protection Act 1993 create obligation on businesses to protect the environment from the negative impact of business activities (Australian Government, 2016). In addition to this, this law is updated by the government on regularly basis for ensuring sustainable development and due to this firm needs to review and accept the amendments. For example: Australia’s seafood labelling laws may become stricter that may also raise legal issues for the company and to operate business activities effectively (AMCS, 2016). Thus, this seafood restaurant should ensure compliance of different business laws to operate successfully in Australia.
In the given case, there are several legal conditions are incurred. Intellectual law and Sales of Goods Act both could be applied in the given case to determine legal obligation and remedies. In accordance to the sales of goods legislation, there are two types of conditions such as implied and expressed used to determine the obligations for the buyer and seller. Express conditions are such warranties which are described in the contract, whereas implied warranties are imposed by the laws and regulations (Australian Government, 2016). Implied condition includes “Condition as to title” that gives right to seller to sell the property after the passing of possession from seller to buyer.
The Australian property legislation also indicates that ownership of a property can be transferred by the contract of sale. It transfers rights of using the property as well (Latimer, 2011). The other implied condition is “condition as to description” which implies that the good should perform as per the description of seller. This condition indicates that if buyer makes decision to purchase a good on the basis of description, which was discussed by the seller, then it implies condition of “sale by description”. In this case, it is implied by Australian law that the performance should be matched with the description. In the given, the married couple bought the oven machine from Tuscan Ovens Pty. Ltd on the basis of the provided description of the manager. But, the oven performed as the description of manager (NSW Government, 2016). This implied condition of sales of goods legislation of Australia gives legal rights to the married couple for suing the seller.
The other implied condition is “Condition as to Quality or Fitnes” which also defines legal rights and obligation for the seller and buyer under the sales of goods contract. This condition implies that good should fit the reasonable purpose of the buyer if buyer expressly or by implication informed the buyer about the purpose of purchasing the good. It indicates that seller acknowledgment regarding the purpose of buyer creates legal obligation for him/her to provide product that meet the quality requirements of the buyer (South Australia Government, 2016). In the given case, this implied condition of sales of goods acts legislation explains legal conditions for the buyer. The married couple told the manager about required quality of pizza oven. Manager ensured them the new pizza oven will bake 16 pizzas at a time. But in reality, it only bakes 12 pizzas. On the basis of manager’s description and judgement, they made order for the oven and paid $15,000. Due to this, it caused breach of buyers’ legal responsibility that gives rights to take legal actions against the seller.
In accordance to the implied conditions of sales of goods legislation, the married couple may take legal actions against the Tuscan. Apart from this, The Australian Consumer Law (ACL) is national law to promote fairness in trade and consumer protection. This law of Australia also defines legal obligations for the buyer and seller. Consumer guarantees legislation of Competition and Consumer Act 2010 (CCA) under ACL simply applies that when a customer buys a product or service then it automatically gives guarantee of performance in accordance to the proposed purpose to the buyer (ACCC, 2016). It should work for which you asked for seller before the purchase and the seller responded positively. Consumers have different rights in case of any problem in product or service guarantee.
The same condition occurs in the given case. The married couple bought an oven by assuring manger from the company about its ability to bake 16 pizzas. Later, they know that this oven can bake only 12 pizzas at a time due to which the buyer faces significant loss in the business. Consumer guarantees aspect of Australian consumer protection laws gives legal rights to the married couple for taking legal actions. This couple may claim three types of remedies from the seller as it provided unreliable good to them. Replacement, cancellation of sale contract and compensation for damage loss can be used by married couple to make claims on seller (Latimer, 2011).
Replacement will give legal rights to buyer to ask seller to provide right oven with the certain functional capabilities. Similarly, cancellation of sales contract would make the seller eligible to get back their paid amount of the oven. Compensation of loss and damage provides legal rights to the consumer for claiming compensation for the all type of loss and damage it has faced. For example: Perfect Domino Pizza looses customers due to the failure of oven in baking 16 pizzas at a time. This affects the business sales and reputation (Australian Government, 2016) . By using this remedy, the married couple has legal rights to get monetary compensation from the seller for the loss of sales and reputation.
Apart from this, intellectual property law of Australia give legal rights to the seller to take legal actions due to an infringement of his registered name. The married couple decided to call the purchased oven machine as MB Oven rather than Tuscan XX, which was its real registered name. This creates legal rights of seller to claim for infringing the registered name and use it for their own purpose (Latimer, 2011). But at the same time, the law creates obligations on selling the product by the trade name of other business. The married couple indented to use this oven for own purpose that may reduce legal claim on them at the certain extent. But, Sales of Goods Act 1923 and Australian Consumer Law give rights to the married couple to take legal actions against the Tuscan Ovens Pty. Ltd as manager of this company breached the implied conditions of sales of good contract and consumer guarantee (ACCC, 2016). Due to this, the married couple of the given case can make claims on the seller.
References
Australian Competition and Consumer Commission (2016) Consumer guarantees. [Online]. Available at: https://www.accc.gov.au/consumers/consumer-rights-guarantees/consumer-guarantees [Accessed: 2 June 2016].
Australian Government (2016) 7. Property Rights. [Online]. Available at: https://www.alrc.gov.au/publications/definitions-property-0 [Accessed: 2 June 2016].
Australian Government (2016) Consumer Protection. [Online]. Available at: https://www.australia.gov.au/information-and-services/public-safety-and-law/consumer-protection [Accessed: 2 June 2016].
Australian Marine Conservation Society (2016) Sustainable Seafood. [Online]. Available at: https://www.marineconservation.org.au/pages/sustainable-seafood.html [Accessed: 2 June 2016].
Australian Trade and Investment Commission (2016) Australian business and environment laws. [Online]. Available at: https://www.austrade.gov.au/International/Invest/Guide-to-investing/Running-a-business/Understanding-Australian-business-regulation/Australian-business-and-environment-laws [Accessed: 2 June 2016].
Latimer, P., 2012. Australian Business Law 2012. CCH Australia Limited.
NSW Government (2016) SALE OF GOODS ACT 1923 – SECT 19. [Online]. Available at: https://www.austlii.edu.au/au/legis/nsw/consol_act/soga1923128/s19.html [Accessed: 2 June 2016].
South Australia Government (2016) Implied conditions. [Online]. Available at: https://www.lawhandbook.sa.gov.au/ch10s03s01s03.php [Accessed
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