Discuss about the Competition and Consumer Commission Law.
According to the case study the issue has been arises whether Susan is entitled to have all the fortunes from his husband after their divorce or she was only entitled to have $100,000 according to the contract which has been formed at the time of marriage?
As per the case study it is a case of contract law. When a contract was formed it make the concerned with the legal enforcement of promises where the terms of contract has been made freely and have common intention to make a legal relationship between the parties. It has sets particular of terms where as per the basis of such terms a contract can be formed under the Australian contract law. The terms of the contract are agreement where proposal and acceptance must be included, consideration, capacity to contract, intention to create legal relationship and certainty of the contract. If a contract fails due to the dissatisfied these terms then it will never form a valid contract.
In the case of Administration of PNG v Leahy (1961) the court has found that the terms of contacts are missing when the contract has been formed. It also failed to establish improper legal relationship due to the failure of the illegal intension between the parties which make the contract completely invalid.
Another case is Australian Woollen Mills Pty Ltd v The Commonwealth High Court of Australia (1954) where the contract has failed to form due to the dissatisfaction of the terms of contract. According to the terms of contract there was no consideration, condition and legal intention has been found by the court which makes this contract completely void. Ermogenous v Greek Orthodox Community of SA Inc (2002) is another case of contract law where a Court has not found the legal intention in the formation of the employment contract. Therefore without the consideration of the circumstances a contract never be formed under the Australian contract law.
As per the facts of the case when Tom proposed Susan he promised to bring her to Australia, give her a house to live in, a car to drive and keep her safe but on the day of wedding he asked her to sign a contract where he mentioned about $100,000 in the event of a divorce or he will cancel the wedding.
According to the contract law it is important to application of the terms which are agreement where proposal and acceptance must be included, consideration, capacity to contract, intention to create legal relationship and certainty. Therefore as per the case facts the contract is completely invalid because while the formation of the contract it not establishes any legal intentions between the parties. Tom has already make promises to his wife before the marriage to provide her every Fortune when he will marry her. Therefore Susan has right to claim every Fortune which has been promised before the marriage and the agreement which is made at the time of marriage has failed to satisfy the terms of contract. Therefore no contract has been formed.
As for the case study it is a case of contract law where the terms of contract have been breached by one party. Contact can be formed between two or more than two parties where they must carry the terms of contract which are proposal and acceptance, consideration of the contract, capacity to create the contract, legal intention for the formation of the contract and certainty of the terms.
In the case of Airloom Holdings Pty Ltd v Thales Australia Ltd [2011] the court has found that the contractor has claimed damages for the termination of contract where the terms of the contract has been breached by the aggrieved party.
Revelations Perfume and Cosmetics Inc. v. Prince Rogers Nelson is another case of contract under the Australian contract law where the court has found that the parties who are involved in the formation of the contract has failed to exercise their duties as per the term of the contract. Therefore it has been beached and the innocent party has claimed the damages from the aggrieved party. Therefore it can be stated that it is important to form a contact it must established and stated every terms clearly for make the contract valid.
As per the terms of the contract it has five essential elements for the formation for legally binding the contract. Those are:
According to the fact of the case Steve has stated to Jason that he will buy the car if it had a turbo engine, paint window and Leather seats. After installation of everything Jason has it cost $50,000 but Steve stated that he was not interested to buying the car. As per the terms of the contract a legal contract has been formed between Jason and Steve. Therefore Steve is bound to buy the car from him otherwise Jason can take legal action against the breach of the contract.
It can be concluded that due to the formation of a legal contract Steve was legally bound to buy the car from Jason because he has made the consideration to buy the car as per his choice and Jason already installed every requirement which cost him some amount. Therefore Jason has right to take legal action against Steve.
As per the case study the issue has been arises whether Carl was liable for the negligence and if he found guilty with the offences then what will be the defenses he can obtain under the law of tort?
Negligence has defined when failure has been found of the application of appropriate and ethical rules under some circumstances. Negligence can occur when a person has failed to exercise their duties and reasonable care and cause of damages. Under the negligence the person who is guilty with the act of negligence he can obtain for defense which is known as contributory negligence. It defines the liability of the negligence applicable for both the plaintiff and defendant. Bankstown Foundry Pty Ltd v Braistina [1986] is one of the famous cases of contributory negligence where Court has found the liability of negligence by both of the plaintiff and defendant. Therefore the damages which have been caused due to the negligence should be divided the liability and compensation between the plaintiff and defendant. The another case is Podrebersek v Australian Iron and Steel [1985] where the court has found that due to the negligence by both of the workers and the contractor, they found liable for the damages.
The contributory negligence basically exercises for the defense which claimed due to the negligence by the defendant. It helps to defense the potentially eliminate the responsibility of the defendant for paying the damages to the injured plaintiff. It also divides the legal responsibilities between the plaintiff and defendant.
According to the fact of the case Carl is not skilled chef which is required to cook sashimi from fugu fish. Harry who was hungry, ate the preparation of sesame by fugu fish which causes him sickness and spend two weeks in the hospital. Here as per the fact of the case Harry has knowledge about the poisonous effect of having fugu fish but in spite of that knowledge he ate the food and not for cleaning properly by Carl it has affected Harry.
Carl has owned the duty of care towards Harry while serving food to him. However he has failed to satisfied the terms of duty of care due to his negligence and it cause both physical injuries to Harry. Here Harry is also liable for his damage as because he had the food while having the knowledge that Carl was not a skilled chef who can cook the fugu fish properly. It is a case of contributory negligence where both plaintiff and defendant are equally liable for the negligence. Therefore if the court has ordered for the compensation then it will be divided between them as both of them are liable for the negligence act.
As per the facts of the case is whether Betty has owned any legal rights under the Australian consumer law to take any legal action against the company who are engaged with misleading and deceptive conducts?
The Australian consumer law has registered for the protection of the consumer for the fair trading under the Australia. It helps to set the consumer rights and guarantees and provide the protection to the consumer for repair, replacement and refund when they suffered with any damages or loss due to the faulty service.
Under the Australian consumer law the section 18 has defined the legislation which provides every trade or commerce from misleading and deceptive conducts. The registration of ACL has made the standards of business conduct in the market. It helps to protect the consumers for the trade or commerce from every misleading and deceptive conducts. The Miletich v Murchie (2012) which is one of the famous case of Australia where the court has found that the company was involved with the advertising material that is related with the misleading and deceptive conduct. Australian Competition and Consumer Commission vs. Metricon Homes Qld Pty Ltd [2012] is another case of Australia where the misleading and deceptive conducts has been found through the application of the verbal representation in advertising material which has been related with such facts.
The misleading and deceptive contacts have been prohibited under the Section 18 of Australian consumer law. The consumer and the developers has the right to use the legislation of this section where it has comply with the business and legal proceeding in selling and purchasing of the products. It helps to identify whether the seller has intentionally mislead the purchaser or they intentionally encourage the consumers for a wrong conclusion. It also helps to provide all information which defines the correct facts but represent false impression. This section also helps both the purchaser and seller through the agents of them not able to update the information about the obligation under the Australian consumer law. It also protects them where the agents have intentionally not added in information about the contract with the consumers. When the Seller has make silent reaction about the dispute of the product then the consumer law helps to protect us consumer from every misleading and deceptive conducts.
According to the fact of the case when Betty ordered the phone from the website of the company after seeing every features which she required in her new phone. After delivering of the phone she realized the features which she has been seeing before placing the order of the phone is not matched with the feature of the delivered product. Therefore it is clear that the company has involved in the misleading and deceptive conducts which is against the rule of Section 18 of Australian consumer law. Due to the damage which she has suffered for such acts by the company she can take legal action against them and claim the compensation. They became failures to comply with the terms of the Section 18 of ACL.
Conclusion
According to the case facts the company has found to engage with the misleading and deceptive contacts. Therefore Betty has rights to take legal action against the company according to the terms of Australian consumer law.
Reference
Administration of PNG v Leahy (1961) 105 CLR 6
Airloom Holdings Pty Ltd v Thales Australia Ltd [2011] NSWSC 1513
Australian Competition and Consumer Commission v Metricon Homes Qld Pty Ltd [2012] FCA 797 (Metricon)
Australian Woollen Mills Pty Ltd v The Commonwealth High Court of Australia (1954) 92 CLR 424
Bankstown Foundry Pty Ltd v Braistina [1986] HCA 20
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Miletich v Murchie [2012] FCA 1013
Podrebersek v Australian Iron and Steel [1985] HCA 34
Revelations Perfume and Cosmetics Inc. v. Prince Rogers Nelson
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