Discuss about the Civil Procedure for Consideration and Capacity.
In the given scenario the cause of action would be the breach of contract as Ravy has not received the truck even after paying the consideration for it. Negligence would also be a cause of action as the bank have not observed due care before releasing the money. Fraud would also be a cause of action as the agent has vanished after receiving the consideration. The principle and agent relationship would also be a cause of action in this case as Ozebrokers are the agents of Temasek commodities.
When a proper contract is formed after the satisfaction of its elements like offer, acceptance, consideration, capacity and intention it is legally binding on both the parties. An offer has to be complete in order to be accepted whit it was in this case. There was lawful consideration in this case which payment of money for a certain consideration was. Both the parties had the capacity to enter the contact along with the intention to legally bind each others to its terms. Thus they were legally obligated to fulfill the promise related to the contract. In case one of the parties are not able to fulfill their promise than such act would be regarded as a breach of contract. In case a contract is breached the aggrieved party has the right to rescind the contact or claim damages. In case of negligence a party owing a duty of care towards another must not breach such duty and in case harm is caused due to the breach than the party is liable for negligence. In case of fraud a party must have the mental element to defraud a person along with a physical act which leads to the fraud. The principle is liable for all action of the agent in relation to the contract.
The cause of action would occur to Ravy as he has already paid the consideration for the truck but has not received it. The bank has without conformation from Ravy released the payment to the other party and the agent of the truck is absconding after fraudulently claiming the money. The cause of action also lies against Temasek Commodities who are the principles of Ozebrokers.
In this case Ravy can make the claim of breach of contract, negligence and fraud. Ravy has legally entered into a contract with Ozebrokers who were the agents of Temasek commodities according to the contract. When a specific promise has not been completed by a party to a contact the other party can claim breach of contract. Negligence can be claimed when parties owing a duty of care towards another have breached the duty and it has resulted in harm to the other party. When a party induces a party to get into a contract with fraudulent intentions of not complying with it terms the party is liable for contractual fraud.
There are a few impediments which might arise in this case for Ravy. Ravy has himself given the payment release documents to the employee of Ozebrokers. The bank can claim that they have released the payment on the basis of the documents. Thus the negiligence claim can be defeated through the existence of contributory negligence. As Temasek commodities are situated outside Australia and the republic of Temasek does not comply with the provisions of CIGS it would be difficult for Ravy to make a claim against them. As Sinead is the employee of Ozebrokers, Ravy cannot make a personal claim on her for fraud.
The claims which have been identified in the previous question can be made against Temasek Commodities, Ozebrokers and the bank.
Ravy had initially entered into a contract with Sinead for the purchase of the BT25 truck. It was notified to her that she is the employee of Ozebrokers. It was also mentioned in the contract that ozebrokers are only the agents of the truck owner. According rules in relation to agent and principle the principle is liable for the act of the agent. Thus in this case Ozebrokers are liable for the actions of Sinead and Temasek commodities are liable for the actions of Ozebrokers. The claim can be made on the grounds of breach of contract against both Ozebrokers and Temasek commodities as they terms of the contract have been breached by them. Ozebrokers are liable for the brokerage money paid by Ravy and Temasek Commodities are liable for the truck amount. In the scenario as the contract has not taken place there is no right of the brokers to claim the brokerage money. In addition the owners of the truck have breached the contract by not delivering the tuck on time to Ravy. The bank in this case is also liable as they have released the payment for the truck without getting proper confirmation from Ravy with respect to receiving the truck. As Ravy is their customer they had the duty f care towards him which they have breached by being negligent and subsequently Ravy has suffered from monetary loss.
The claim against Ozbrokers and Temasek Commodities can be made in the supreme court of New South Wales or the High Court. The claim against the bank can be made in the district court of Southeast Australia.
The main reason for choosing the avenue are that at least one connecting factor as provided in the Schedule 6 of the Uniform Civil Procedure Rules 2005 (‘UCPR’) is applicable in this case. The factor is that this is a contractual dispute and the contract had taken place in New south Wales through the agent of the foreign party who is an Australian citizen and is governed according to the provisions of NSW law. In relation to the tort of negligence the injury was party or wholly suffered in NSW. Proceedings can be initiated against foreign defendants in the federal court or in the supreme court of NSW. In case of the Supreme Court Ravy does not need leave of the court with respect to serving the foreign defendant. In case the defendant does not does not appear leave is required to continue. The leave can be sought thorough a notice of motion. In case of federal court a leave has to be seeked from a judge in order to serve a originating process outside the country. Only after service, leave can be granted. Ravy in this case has the obligation to prove that he has a prima facie case.
With respect to the Supreme Court the initiating process can only be served without a notice document in way of form 13A.
Ravy in this case has to comply with the limitation period for the purpose of filing the claim. he must initiate the claim within a specific time limit which may be extended by the court based on the circumstances of the case. Limitation Act 1969 governs the principles related to limitation period. Ravy must file the claim within a period of 6 years as it is related to torts and contractual breach according to Section 14 of the act. Ravy needs to file a statement of claim along with summons for the purpose of initiating proceedings. According to section 6.3 of the Uniform Civil Procedure Code a stamen of claim is mandatory in case of Tort, Fraud, debts and liquidated damages. The evidence must also be provided by Ravy in form of an affidavit in order to satisfy the court with respect to jurisdiction.
In case Ravy has more than one type of claim which is supposed to make against the defendant than he must select the most applicable claim to the proceedings or the claim which is applicable to the major part of the claim. Ravy can make a joinder of clam in case he wants to quickly pursue more than one claim against a party. The joinder of cause of action is governed by division 5 section 6.18 of the UCPR. According to the process relief against the defendant where more than one cause of action arises can be claimed during the following circumstances. When a person has more than one claim against a party and such claims could be addressed in the same proceedings. The proceedings must involve a common question of fact or law. However the court according to the provisions of section 6.22 of the may deny the joinder of party if it thinks that such joinder would bring in convince to the parties to the case. Ravy must also take in mind the provisions of section 6.23 of the UCPR which deals with the effect of misjoinder of clauses. The defendant in this case has no right to challenge the provisions as it is totally based upon the discretion of the NSW Supreme Court.
According to rule 6.21 the judge can on the application of the plaintiff order that persons who are jointly liable in a case and against whom the plaintiff is eligible to make a common claim are to be held as joint defendants in the trial. However in case the court is satisfied that the joining of the defendants would bring hardship or embarrassment to the parties or delay the proceedings the court may order spate trials. The effects of non joinder and misjoinder are also applicable in this case. As Ravy had similar claims against more than one party to the contract he has the right to bring common proceedings against them in order to save time and money. according to the provisions of Section 6.23 of the UCPR defendant ho are a number of person and not severally but jointly liable with respect to a tort or contract or a statutory instrument or an act the court has the right to order the other persons to be treated as joint defendants and the proceedings would not begin unless the other defendants are joined. Thus in this case Ravy who has a common claim against Temasek commodities and Oze brokers have the right to sue them jointly in the supreme court of NSW.
Stamped copies of the statement of claim have to be sent to the defendants within a span of 6 months from the date the claim had been filed in the court. The notice must be sent according to the provisions of part 10 of the Uniform Civil Procedure Rules 2005. The notice has to be served to the correct address of the defendants. In case the defendant is an individual the notice can be handed to the defendant, explain the defendant what the notice is and leave it with him, leave it with a person at defendant’s office or home above the age of 16 years. The notice can also be posted by the court upon request of the plaintiff for fees of $40. In case of a company the notice can be handed to the director of the company or can be posted at the address at which the company is registered. In case the statement of claim has to be served outside Australia than the claim must have an additional clause which states “ service outside Australia” and in case it is being transferred to a person outside NSW than the extra clause has to be “outside NSW but in Australia”. A notice also has to be attached at the end of the statement of claim. In case a defense has not been filed by the defendant or debt acknowledgement of debt than the person who has served the statement of claim has to fill an affidavit with respect to service form and duly sign it before a justice of peace or a solicitor. The affidavit describes when and how the claim had been served and acts as evidence before the court in relation to the service of notice. A notice can be served outside Australia only of the proceedings are in Supreme Court or are under the circumstances provided in schedule 6 of the Uniform Civil Procedure Rules
References
Uniform Civil Procedure Code 2005.
Essay Writing Service Features
Our Experience
No matter how complex your assignment is, we can find the right professional for your specific task. Contact Essay is an essay writing company that hires only the smartest minds to help you with your projects. Our expertise allows us to provide students with high-quality academic writing, editing & proofreading services.
Free Features
Free revision policy
$10Free bibliography & reference
$8Free title page
$8Free formatting
$8How Our Essay Writing Service Works
First, you will need to complete an order form. It's not difficult but, in case there is anything you find not to be clear, you may always call us so that we can guide you through it. On the order form, you will need to include some basic information concerning your order: subject, topic, number of pages, etc. We also encourage our clients to upload any relevant information or sources that will help.
Complete the order form
Once we have all the information and instructions that we need, we select the most suitable writer for your assignment. While everything seems to be clear, the writer, who has complete knowledge of the subject, may need clarification from you. It is at that point that you would receive a call or email from us.
Writer’s assignment
As soon as the writer has finished, it will be delivered both to the website and to your email address so that you will not miss it. If your deadline is close at hand, we will place a call to you to make sure that you receive the paper on time.
Completing the order and download
