Legal Forms of Doing a Business - Case Study Example

Name: Instructor: Course: Date: Law case study Case study 1.1: Legal forms of doing a business Issue 1 Registering a business name Rule Trade Marks Act 1955 (cth) postulates that, through what is called tort of passing off, it is universally acknowledged that the plaintiff can establish that the name of the business is unique and that the defendant’s behavior could in one way or the other cause or mislead detriment (Sare, week 4). Application A business name holds a greater purpose on the business such that they give the hamburger owner virtual monopoly rights and freedom on registration. Therefore registering the business name will be important in identifying the hamburger owner and help in eliminating confusion when it comes to registration of similar names Sare, week 4). Conclusion In this case, the business name should be registered in South Australia under the name of the Hamburger restaurant owner because it is mandatory that individuals register their business and organization names in each territory and State in which they wish to carry on their business related activities (Sare, week 4). Issue 2: Analyzing the best form of business Rule Partnership Act postulates rules and regulations that govern partnership (Sare, week 4). Additionally, the holding from Smith v Anderson (1880) 15 Ch. D 247 postulates that, continuity must exist for partnership to be termed legal. According to the Corporations Act 2001 (Cth), a company is a corporation type that involves an association of individuals who meet the standards of the corporations Act (Sare, week4). Application By deciding against a franchise, the owner will have avoided paying the franchisor a stipulated fee or a fraction of net revenues their business makes. The other remaining options are sole trade, proprietary limited company or partnership. As far as partnership is concerned, there are no formalities and it is inexpensive to start (Sare, week 4). However, partnership lacks permanence and it’s kind of challenging to manage between borders. On the other hand, proprietary limited company can be sued and sue in their own name because it is a separate entity legally from the owner (Sare, week 4). However the legal requirements and formalities needed are expensive as well as the operation fees. Conclusion Therefore the best business model for the hamburger restaurant is starting it as a sole trader since the owners are entitled to all the net revenues and have the sole control and administration over the business operations (Sare, week 4). However, the inadequacy of relevant business skills and knowledge may make the business owner more vulnerable. Finally, the business owner may incur challenges in raising finances (Sare, week 4). Issue 3 The best form of business with Adams Rule Partnership Act postulates alongside the common law states that, the individuals carry on their business activities with commonness and with an objective to profit. Additionally, Smith v Anderson (1880) 15 Ch. D 247 suggests that there must be repetition of activities in this kind of business for it to be termed legal (Sare, week 4). Application It will be necessary that both Adam and the business owner acts on behalf of their partners as well as their own individual self since they will both share in the capital required to start up the business (Degiorgo v Dunn (2004) NSWSC 767). By so saying, it means that, as much as Adams and the hamburger owner have not clearly identified their business as partnership, they are indeed in partnership because of their intention to start up the business together (Sare, week 4). Conclusion Entering into a partnership is advantageous for both Adam and the hamburger owner since it is inexpensive to run and form, the business nature can be easily changed and there is a greater potential for business partners to assemble capital and business experience (Sare, week 4). However, in partnership business there is no separate legal entity in its partnership contract and it’s sometimes difficult to manage across borders (Sare, week 4). Case 1.2: employing staff Issue 1 Termination of ben’s contract Rule It is of utmost importance to understand the regulations and postulations of the law of employment under the Fair Work Act 2009 (cth). Additionally, it is basically a general rule; the boss must give their employee a notice before terminating their employment contract (Sare, week 7). Applications In this case, Ben left a shift earlier, had become incompetent since the customers had complained about the burgers and neglected his employer in front of the whole group. Owing to this, Ben had failed to honor and respect his employer as stipulated in their working contract (Sare, week 7). Conclusion Ben as an employee has a duty to the employer to obediently and faithfully carry out their assigned duties and tasks (Sare, week 7). Therefore, as an employer, they are free to welcome Frank and give them the new Job. Issue 2: Making Carol a supervisor without paying the reward in the Award clause Rule It is of utmost importance to understand the regulations and postulations of the law of employment under the Fair Work Act 2009 (cth) (Sare, week 7). Application Employee and workers entitlements must in one way or the other be met within a particular industry, or occupation. Carol as a hamburger employee, her entitlements therefore must be realized. Conclusion In the case of Carol as a supervisor failure to honor the shift minimum compensation fee as agreed upon in the award, the employer may be risk facing a penalty or may be prosecuted for the offence. Issue 3 Donna’s work injury case Rule Workers Rehabilitation and Compensation Act 1986 (SA) postulates that it’s mandatory for employers to take insurance covers for their workers, failure to do so they will be fined. Application According to the Australian legislation, hamburger restaurant must take necessary precautions to guard and protect the safety and health of Donna. Employee compensation legislation gives room for the compensation and rehabilitation of workers who incur work-related injuries (Sare, week 7). Conclusion Donna gets injured while on work duty, therefore he is entitled to a compensation for work related injuries. Issue 4 The pedestrian injury compensation Rule Workers Rehabilitation and Compensation Act 1986 (SA) as well as the WorkCover Corporation Act 1994 (SA) require the employer to compensate and be in control of the safety of the areas around and in the workplace (Sare, week 7). Application Eddie was in line of duty when he hit a pedestrian with a motorcycle meaning he was working under the company name. Conclusion Since the employer is also responsible for individuals around or in the workplace place, the pedestrian who was hit by Eddie in line of duty is entitled to compensation by the business owner. Case 1.3: Dealing with customers Issue 1 Aussie burger Sunday Rule Common law principles clearly identify what is termed as deceptive and unconscious conduct. Additionally, Commercial Bank of Australia v Amadio (1983) 151 CLR 447 (Sare, week 6) Application In this case, by floating the price, Carol had made the hamburger restaurant to engage in unconscionable conduct since it pressurized the consumers in relation to the changed price on Sunday. In other words, Carol made people believe in what is false (Sare, week 6). Conclusion Carol’s action may make the harmburger restaurant to legally refund the extra money on hamburger, declare the contract of agreement void and compensate the customers. Issue 2 The Big Mackenzie case Rule Competition and Consumer Act 2010 (Cth) schedule 2 presents the Australian Consumer Law which lays down civil and criminal consequences for business that in one way or the other contravene consumer laws (Sare, week 5). For instance, McWilliams v McDonald’s (1980) 49 FLR 455 held that as much as their must have been traces of confusion, there was no notable deceptive or misleading conduct (Sare, week 5). Applications In the Big Mackenzie case, the potential for consumers confusing the Big Mackenzie of the harmburger restaurant and MacDonald’s coffee Cappuccino are not necessarily deceptive and misleading Conclusion In this case, there was no case of misleading and deception since a burger is just a burger, it cannot be a coffee Cappuccino Issue 3 The charity claim Rule According to the Australian Consumer Law section 29, it is prohibited that any business should not make a false representation at any one point of their product in terms of standard, value, quality, that it has particular affiliation or sponsorship it does not have or its products are new. Application By claiming through the advertisement that all the money that is contributed from burger sales goes to charity is an act of false representation such that, the hamburger restaurant is claiming to have an affiliation to an institution when indeed it is not true (Sare, week 6). Conclusion In this case, the restaurant had engaged in a case of misrepresentation by claiming to be associated with sponsorship or rather the charity institution. Issue 4 Claiming that all the burgers are made fresh daily Rule Australian consumer Law Act section 29 prohibits representation that its goods are of a particular quality, standard or a particular history. Additionally it prohibits representation against a business claiming that its goods are new (Sare, week 6). Application The harmburger restaurant falsely claimed that its goods are made fresh daily in their ovens when they are indeed frozen and baked until when next they will be needed. Conclusion In this case, the hamburger restaurant participated in an activity of false representation according to the ACL Act section 29 (Sare, week 6). Work Cited Sare R., Business Law, (2015), University of South Australia Read More