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The key areas of identifying the compliance requirements for the business are as follows:
- Property: the property so used by a business shall be that of a real property such as the Land or the Fixture. The property determines the ownership of the land or such other aspects that are attached to the property. Such property shall be acquired from imposition of formalities applicable through statutes and common law. The equitable interests should be checked with regards to the interests in the piece of land and legal interests having priority over equitable interests. According to the case of Armory v Delamirie the ownership is different from possession. Owner has to be registered whereas the possessor may be any for the given period. [Australian trade practices legislation, (2010)]
To ensure that the property is legal and real it may be checked if the property is fixed for more than own weight or intended to be long term or permanent and have substantial damage if it can be removed. The property has to be tested for the joint-ownership wherein the same may be in joint form or be present in common. The joint tenancy is identical in every aspect whereas the tenancy in common is devised according to the share. The ownership is to be determined based on the old system title or the torrens title system. Under the old system title the continuous chain of documents for more than thirty years shall be present whereby if even one is gone missing it can lose the good title. The torrens title is applicable to almost every land around Australia whereby the land is registered the torrens title may be claimed under the four principles such as the mirror principles, curtain principle, insurance principle or indefeasibility principle.
The Registrar creates the folio of documents so acquired by the document in relation to the parcel of land, such title are copy of the folios. The certificate ahs two copies each for the title whereby the original is with the registry whereas the duplicate is with the proprietor. The equitable interest is to be protected by a caveat. If mortgages are under taken the same has to be kept in exchange of the title of the property in case of failing to pay back the costs the torrens title mortgage is the charge over the landwhereby the title in not transferred to the mortgagee and the mortgagor remains the owner.In relation with the security interests in personal property the Personal Property Securities Act, 2009 (PPS) would be applicable.
- Lease and Transfer: Lease is a contract whereby the possession of the property in given to another party for a certain time while creating the interest in the land. A license is the right of use for a particular purpose. A lease shall be proven in writing and required to be entered into through a deed under certain jurisdictions. A torrens lease has to be registered if it is for more than three years. The property owner is required to let the tenant have a quiet enjoyment and refrain from a conduct making the premise unfit for the purpose. The tenant shall pay for the agreed amount and repair the premise. A lease may be terminated through the expiry of the term, frustration, valid notice, forfeiture or surrender. The restrictions so imposed on the real estate sales practices to prevent unfair trade practices are the under quoting, over-quoting, failure to disclose the benefits and failing to obtain written agency agreement complying with the legislative requirements. [Lockhart (2011)
- Sale of Goods: the sale of goods contract illustrates the transfer of the goods from the original owner to the subsequent owner. It is regulated through the Sale of Goods Act. The remedies to the breach of the contract may be found under the Australian Law. The contract for work, labor and materials would be considered to be a sale of goods act for transfer of title. The ownership takes place when the buyer is able to acquire the goods. The transfer can only be transferred through the owner and no one else. The seller should deliver the goods as promised, and of standard quality and the buyer shall accept the delivery of the same on checking for meeting the requirements. The implied terms and conditions are used to protect the buyers against any such breaches. Such implied terms are with respect to the title, correspondence to the description, fitness for purpose and merchantable quality. The remedies available to the unpaid seller are that of being paid, retaining the goods as a lien, redirect the goods in transit or resell the goods of perishable nature. The remedies available to the buyer are that of suing for the damages so taken place, rejecting the goods and suing for specific performance. [Griggs et. Al., (2012)]
- Consumer Protection: the consumer protecting regulatory bodies at State and Territory level have the same powers such as the ACCC. Such bodies include the NSW Office of Fair Trading, Consumer Affairs Victoria, Queensland Office of Fair Trading. The federal Court or appropriate State/Territory Courts hold such cases. The ACCC has the power of investigating the possible breaches, commence civil or criminal actions, and carry out a representative action and run enquiries and hearings. The consumers are protected against the misleading or deceptive conduct. Manufacturers and Importers are required to pay for the breaches with respect to the qualities and characteristics. They are also liable for the loss or injury so suffered in the safety defects of the product.
- Intellectual Property: the intellectual properties are protected through the Copyright Act, 1968, Designs Act, 2003, Patents Act, 1990 and the Trade Marks Act, 1995. The sources of intellectual property law are that of the Consumer Protection Legislation, passing off under tort law and breach of confidentiality. The remedies available for the breach may be that of the damages, injunctions and court orders for disclosure and corrective advertising. [Miller (2008)]
It has been illustrated that a husband and wife have been running the pizza place named Perfect Domino Pizza and has visited the Tuscan Ovens Pty. Ltd, for the purchase of an oven for their business law. The manager informs them that the new oven can make thirty pizzas per hour and is the best for the requirements you are looking for. Thereby, as suggested by the manager they purchase the oven for $15,000. When they book the machine they advertise for the same in the newspaper that while changing the name of the oven from Tuscan XX to MB Oven. When they receive the oven and they start to function they realize that the oven only makes 12 pizzas per hour that is affecting the business of the pizza place that they run. The areas of law concerning the present situation would be that of consumer rights. The Competition and Consumer Act 2010 (CCA) contains the Australian Consumer Law and was replaced by the Trade Practices Act, 1974 (TPA). It contains the uniformity of the consumer protection across States and Territories. The protections available to the consumers are general protection, specific protection and the consumer transactions. [Corones (2011)]
According to the Section 18 it is prohibited to mislead, deceive or likely to mislead or deceive under a trade and commerce. It is most common and widely accepted under the ACL provisions. It is easy to prove, is very broad, and includes a range of conducts. The test to check if the defendant’s behavior is misleading or not is to check if it was made as a puffery, a statement that is true but creates false impressions, a statement for future and failure to disclose relevant information. According to the case of Henjo v Collins it may be taken as the misleading statements made during the negotiations or false warranties without intentionto mislead as discussed under the case of Accounting systems 2000 v CCH. [Australian trade practices legislation, (2010)]
Second Test to check if the statement was to mislead is that of was it related to trade or commerce. When a business or a person has been involved regularly with a commercial activity then it would amount to a trade. The categories not covered under such a classification is that of the individuals that sell the private residence and the business that accept the donations instead of charges. The following may be the test whether the goods were advertised to being of higher quality. It has been stated that the parties so involved shall not participate in taking the unfair advantage of the other party’s disability such as language and illness. The unconscionable conduct may be classified as that of common law and equity whereby the difference in the bargaining positions, capacity to understand the documents and undues influence or unfairness is considered. The courts have denied to find such a conduct under the b2b dealings as discussed under the case of ACCC v Berbatis Holdings Pty. Ltd. [Griggs et. Al., (2012)]
According to the Unfair Contract Terms, Part 2, 3 ACL it is stated that it is illegal a term that is unfair about goods and services with a consumer law. A standard contract is regarded as a dense written contract or a take it or leave it approach as discussed under the case of Director of CAV v AAPT. The term may be regarded as an unfair term if it affects the consumer’s rights or obligations, is not necessary to protect the supplier and the loss so suffered by the consumer if the term is enforced. According to the act the unfair term is directly, not make the contract void if the contract may be performed still, and be terminated by the court. Other remedies may include penalties and fines. It is illegal to make or represent a false statement regarding the goods and services with regards to the standard or quality, newness of goods, placing of orders, testimonials, sponsorship, accessories, prices, facilities for repairs, origin of goods and buyer’s need of the same as mentioned under the section 29(1)(a)(b) to Section 29(1)(m)(n).
The consumer guarantees are included to protect the consumers if the purchase, hire or lease has taken place for over $40,000 or less for personal, domestic or household use. It is considered illegal to attempt or modify the Consumer Guarantees. It allows the consumers to recover the goods or the damages for it through refund, repair or replacement. The guarantees include provision of the goods that are of good title, acceptable quality, fit for purpose, match the description of sample and repairs and the spare parts as reasonably available. The civil and criminal breaches under ACL may be $1.1 million for companies and $220,000 for individuals and cannot be imposed for the misleading or deceptive conduct. Other remedies available to the consumer are that of the injunctions, damages or order for corrective advertising. Also, the compensation orders, non-punitive order and disqualification persons as well as the public warning notices and court approved undertaking between the regulator and business or individual would be a remedy. The claims shall also be made under the Small Claims (Consumer Claims) Tribunals.
The present scenario provided states that the manager had misrepresented and misled the buyers into over estimating the power of the machine to make pizza per hour in a day. Thereby, the manager had conducted the puffery that resulted in the customers buying the product in the seller’s regular course of business that is unfair and deceptive under the section 18 of the Trade Practices Act, 1974. The remedies so to be claimed by Manny and Bella is that of getting a replacement for the product and claiming for damages so caused from the business so lost due to slow processing of the machine. [Miller (2008)]
Armory v Delamirie (1722) 1 Strange 505
Henjo v Collins (1988) 79 ALR 83
Accounting Systems 2000 v CCH (1933) 42 FCR 470
ACCC v Berbatis Holdings Pty. Ltd (2003) 214 CLR 51
Australian trade practices legislation. (2010). Sydney: CCH Australia
Corones, S. (2011). The Australian consumer law. Rozelle, N.S.W.: Thomson Reuters (Professional) Australia
Griggs, L., Duke, A., Nielsen, J. and Cejnar, L. (2012). Competition law in Australia. Alphen aan den Rijn, The Netherlands: Wolters Kluwer Law & Business, Kluwer Law International
Lockhart, C. (2011). The law of misleading or deceptive conduct. Chatswood, N.S.W.: LexisNexis Butterworths
Miller, R. (2008). Miller's Australian competition law and policy. Pyrmont, NSW: Thomson Lawbook Co.