Business and Corporation Law - Case Study Example

Business and Corporation Law Name Course Lecturer Date Part A There are possible legal arguments in connection with this legal dispute, there is total false pretence1 and a breach of contract. Advising Bruce, Tony entered in to a contract with Bruce by providing false information about the contents o the agreement knowingly as was in TPC v Cue Design Pty Ltd (1996) A Crim R 500; ATPR 41-475. Tony wilfully and intentionally enters in to a contact by false information2. Bob gives information about breaker which is a complete opposite of what Tony had provided and told Bruce, as was in the case ACCC v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; 166 ALR 74. This is a false pretence and it is an offence under the criminal law in Australia3. Tony submitted and also caused submission of claims deliberately and recklessly disregarded the truth and reality of the conditions of boat4. He should have sought advice from an independent person who is an expert in that field of making and maintaining sea vehicles as was the case in Eastman v. the Queen (c5/1997). In addition to this, Tony exploited Bruce by making him to buy the second hand boat on false information and therefore pretence. In total, tony made a false presentation of which he knows is a false representation about the conditions of the boat (TPC v Pacific Dunlop limited (1994) ATPR 41-307). This is a statutory offence under the jurisdiction of the federal laws of Australia. This presentation that tony makes is false since it was made at the time the title passed from him to Bruce. The Australian law under the criminal law consolidation act 1935 - sect 144b5 , a false pretence is an intentional representation of information whether directly and or through the intermediate of a contract get hold of by a property, obtains anything in respect of falsifying information. However, under the financial transactions act,6 he ought to have subjected the breaker to an evaluation before buying it. This is a reprieve and a claim that tony can stand up with in that Bruce had a duty to carry out his own evaluation of the breaker before entering in to the contract and before buying it as was decided in Australasian Memory pty Limited & Anor v. Brien & Anor (s84/1999). He can present his defense in this form. Although it is unlawful to make false or misleading representations, the other party (Bruce) could have done more to ensure that what he was being told was in fact the truth by ascertaining the information from the item itself, this is what was in the case of ACCC v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; 166 ALR 74. Bruce is more likely to win this legal dispute because tony totally breached his duty if disclosing truth to the other party as under the Australian law. This is in line with Dawson v Motor Tyre Service Pty Ltd (1981) ATPR 40-223 where a repairer of motor vehicles intentionally told his customers that more repair works were needed on their cars than actually were necessary. Part B There are pretence and false statement that appears in Thomas and Simon’s purchase agreement. Thomas is a business man who for sometimes had been willing to buy a motel, and after looking various areas, settled on Aldinga Beach which was the area that gave Thomas the business potential as well as the lifestyle he was looking for. Thomas enquires from real estate agents whether they had any motel on the list for sale through a call and found a motel and general business listed with an estate agent by the name Simon. Simon assured Thomas that once the business commences, it will fetch and make a lot of profits for him. After seeking advices from his accountant, Thomas went on and bought the business, which after six months led him to be bankrupt because there were neither tourists nor the local populace to maintain the business. Thomas was dismayed by the lack of busy business that he was promised by Simon. In this case as it turn out to be, either Simon had presented false information about the business rate that usually happens in this area or Thomas had for some reasons changed some operating procedures that could not support the business and therefore the almost the bankruptcy. It is so asserted that Simon presented false information7 and therefore he is liable for damages for presenting false information as under the Australian criminal law8. Thomas can sue the real estate agent (Simon) for his statement about the business. Based on ACCC v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; 166 ALR 74, Thomas is liable and should pay damages for giving false information in order to sell the property. Thomas will succeed in suing for damages; Simon is responsible of misrepresentation and therefore liable for damages under the crimes Act 1900 – section 428B. However, Thomas must prove in a court of law that he made the decision to buy the property wholly on the information provided by Simon that he wanted to invest in the property to get the “gold mines” as he was told by Simon. He may have some handles in explaining why he made the decision yet he sought advice from his accountant (a professional in this field). This demonstrates that he did not entirely rely on the information provided by Simon to make decision to buy. Furthermore, he ought to have carried out his own survey and research to establish the correctness9 of the information that he was being given by Simon. He failed to gather additional data and therefore he overlooked his duty to confirm the information. He was unable to confirm the truth of the information; this is his literal duty to do so. Conclusively, Thomas may succeed in suing Simon for damages and or remedy in that Simon ought to have told him the truth about the number of tourists and customers to sustain the business. This is in line with Du jardin v. Beadman [1952] 2 Q.B. 712; Pearson v. Rose & Young Ltd [1951] 1 K.B. 275 case. On the other hand, Thomas may fail to succeed in suing Simon for damages and or remedies because of failure to prove he made the decision to buy purely (only) on the information provided by Simon as was the case in Scriven Bros v Hindley [1913] 3 KB 564. Part C Sarah has very little if any defensive mechanism that she can present because she failed to observe all she was supposed to know in search of services from Ezy Conversions Ltd. She ought to have observed and if necessary ask all information in order to come across the disclaimer that the company had put in place. On the other hand Ezy Conversions Ltd has the full support of the law as they vehemently put in place defensive mechanism to guard themselves from unnecessary liabilities that may befell them, Sarah’s case is no exemption. The purposes of disclaimers are purely defensive as was in Griffith v Brymer (1903) 19 TLR 434. These disclaimers must however be registered with the law enforcement agencies for them to be effective as the law requires. The registration of this disclaimer by Ezy Conversions Ltd remains to be confirmed thereby giving some light and grounds to Sarah for reprisal. This sets the bar for the case. Considering to what was decided in McRae v Commonwealth Disposals Commission (1950) 84 CLR 377, the plaintiff (Sarah) has no claim to make as the defendant (Ezy Conversions Ltd) has observed all requirements up to where the company is prepared to meet the responsibilities10. In this case, there is renunciation of the defendant to the claim she is making concerning the subject of the demands she is making to the company. The subject of the demand being made by Sarah is subject to some changes11 from the original claim of conversion of Triton 1 tonne utility vehicle from using petrol to running on liquid petroleum gas (LPG). Accident may have been caused by some parts other than the conversions inserted by the company. This, as investigated and reported by the Inspector in charge of department of road transport in Australia, indicate that the accident may has been caused by rubber tubing which are used in the LPG conversion process. In this case, Ezy Conversions Ltd will claim that, under their agreement to carry out their services to Sarah's car, their responsibility was to replace12 any parts that are found to be defective but not the any other damage or loss which is caused partly and or wholly by any fault or failure of the component parts fitted by the company, is what was decided in Pilmer & Ors v. the Duke Group Limited (in liquidation) & Ors (a46/1999) and Ezy Conversions Ltd will build their defense using this claim. References ACCC v Giraffe World Australia Pty Ltd (1999) 95 FCR 302; 166 ALR 74 ACL reference: Sections 29 – 38 and sections 151 - 160 Australasian Memory pty Limited & Anor v. Brien & Anor (s84/1999) Couterier v Hastie (1856) 5 HL Cas 673 Crimes Act 1900 – section 428B Criminal Law Consolidation (Identity Theft) Amendment Act 2004 Criminal law consolidation act 1935 - section 144b Dawson v Motor Tyre Service Pty Ltd (1981) ATPR 40-223 Du jardin v. Beadman [1952] 2 Q.B. 712; Pearson v. Rose & Young Ltd [1951] 1 K.B. 275 False pretences - s. 195 Criminal Law Consolidation Act 1935 Financial Transaction Reports Act 1998 Galloway v Galloway (1914) 30 TLR 531 Griffith v Brymer (1903) 19 TLR 434 McRae v Commonwealth Disposals Commission (1950) 84 CLR 377 Pilmer & Ors v. the Duke Group Limited (in liquidation) & Ors (a46/1999) Scriven Bros v Hindley [1913] 3 KB 564 Scriven Bros v Hindley [1913] 3 KB 564 TPC v Cue Design Pty Ltd (1996) A Crim R 500; ATPR 41-475 TPC v Pacific Dunlop limited (1994) ATPR 41-307) Vic.– Crimes Act 1958 ss.81 (obtaining property by deception), 82 (obtaining financial advantage by deception) an Wilde v Menville Pty Ltd (1981) 50 FLR; 3 ATPR 40-195 Read More