Litigation Guardians in a Basic Law - Essay Example

?Part A The case was heard in the Supreme Court of Queensland. 2. The of the judge is Mullins. The is ‘judge’ (J), meaning that Mullinsis an ordinary judge of the supreme court. 3. Litigation guardians are people who have the right to take decisions in court instead of a minor. Usually litigation guardians are necessary for children under 18 (Ontario Ministry of the Attorney General 2010). Andre Sorbello required a litigation guardian because he was only 11 years old. 4. Mullins J decided that it was not necessary to substitute another person in place of Mrs Anderson as a litigation guardian because Mrs Anderson, being the mother of Andre Sorbello, acts in the best interests of Andre. A substitution might be necessary if the court decided a litigation guardian did not act in the best interests of the minor (Queen’s Bench Rules 2008). 5. The burden of proof in this case is carried by Gina Shez Maria Sobello, Jai Desmond Sorbello and Andre Giovani Sorbello. 6. The test of intention leads the court to the statement that it is permissible to have regard to the subsequent conduct of the parties for the purpose of ascertaining whether the intention to be attributed to them was to make a binding agreement or otherwise. 7. The common law presumptions the courts rely upon in deciding if the parties intended to be legally bound is that in social or domestic situations legal relations are not intended. In a business context, however, the courts will presume that the agreement was indented to be legally bounding. In relation to social cases such presumptions can be rebutted in an attempt to show that there was an attempt for legal relations (Online Legal Coach 2008). 8. The English case mentioned in the process is Balfour v Balfour[1919] 2 KB 571; 35 T.L.R. 609 , King's Bench: a husband who worked abroad promised his wife who in England to sent 30 pounds monthly. Then they divorced and she brought that action for the money he promised to her but didn’t pay (Balfour v Balfour [1919] 2 KB 571; 35 T.L.R. 609). 9. The Queensland case cited in the judgment is Riches v Hogben [1986] 1 Qd R 315: a man agreed that his mother would give him a house in Australia if he moved there to take care of her. The family gave up his rent-free house, sold a car and other belongings to depart to Australia on time. The mother bought a house, however, did not put it in his name, but on hers, and made the man’s family leave her house. The son then sued in order to enforce the contract with the mother. The Full Court, however, found the contract unenforceable (Heffey, Paterson and Hocker 1998). Mullins J refers to Riches v Hogben stating that “It is permissible to have regard to the subsequent conduct of the parties for the purpose of ascertaining whether the intention to be attributed to them was to make a binding agreement or otherwise” (Sorbello & Ors v. Sorbello & Anor [2005] QSC 219) 10. Mullins J concluded that the first defendant (John Sorbello) was an honest witness. As a result, John’s evidence evidence on the events was preferred to that of Mrs Anderson or Gina. 11. The order of the court was that the proceeding be dismissed. 12. Regarding the costs of the case, it was decided that Mrs Anderson, as his litigation guardian, was ordered responsible for any costs ordered against Andre. However, the issue of whether she should be ordered to pay all the costs of both defendants was questioned by the judge who promised to hear submissions from both parties regarding the costs. 13. I believe the decision was fair. There was no formal (written) contract. Part B 1. Considering that Harry, who was willing to sell the bar, is representing a business entity, here a contract between Monty and Harry according to the common presumption that in business situations legal relations are intended. Furthermore, the court would assume that the agreement was indented to be legally bounding. In addition, since option is a contract that signifies one party’s intention to acquire a legal right to buy something (Farlex, Inc. 2011), it may again be said that there was a contract – Monty received a right to buy the bar. As a definition of an option suggests, an option gives to its owner a legal right to buy something. So Harry gave Monty a legal right to buy his bar. 2. If Harry had paid Monty $1000 for the option then he would acquire back the legal right, given to Monty before, to buy the bar. In this case Harry would have a right to sell the bar to a person other than Monty. Since Harry did not purchase his option back, he was required to sell the bar to Monty according to their previously concluded contract. 3. This document does not give rise to any legal relationship, nor it is intended by the parties that any legal consequences shall flow from this agreement. No court shall have power or jurisdiction to arbitrate in respect of any matter arising out of this agreement or any breach thereof. The first clause tells that the contract signed by the parties does not imply any legal responsibilities even in case of breach. That means that even if one of the parties violates any clause of the contract, that party will not be legally liable for its actions. Furthermore, the first clause means that the contract has no power at all since it does not give rise to any legal relationship. The document, therefore, cannot be considered a contract at all. The second clause means that, though the agreement might be a contract, no court will have power to arbitrate in respect of anything related to that contract. That means any party won’t be able to defend its rights prescribed by the contract. Consequently, this document also has no legal power of a contract. Neither of the clauses would be valid. References Balfour v Balfour [1919] 2 KB 571; 35 T.L.R. 609 , King's Bench. In Networked Knowledge - Contract Law Casenotes [online] Available at: [Accessed 13 April 2010]. Farlex, Inc. 2011. “Option.” Legal Dictionary. [online] Available at: [Accessed 13 April 2010]. Heffey, P.G., Paterson, M., and Hocker, P.J, 1998. Contract Commentary and Materials. 8th ed. LBC Information Services. Online Legal Coach, 2008. Intentions to Create Legal Relations. [online] Available at: [Accessed 13 April 2010]. Ontario Ministry of the Attorney General, 2010. More About What We Do [online] Available at: [Accessed 13 April 2010]. Queen’s Bench Rules, 2008. “Rules of Practice and Procedure.” Rel. No. 12 - Jan. 2008 Sorbello & Ors v. Sorbello & Anor [2005] QSC 219 [online] Available at: [Accessed 13 April 2010]. Read More