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Exam question - Essay Example

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1. Whether Beta Restaurant can successfully sue Commercial Ovens Co. under the Trade Practices Act 1974 (Cth) (You should consider the implied terms as well as the misleading and deceptive provisions of the TPA) (6 marks)
Part V Div 1 is the core of this act, whereby it prohibits the use of false trade descriptions, because it deals with unfair practices; whereby there has been misrepresentation in some form or other…
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Download file to see previous pages The case of Taco Co of Australia v Taco Bell P/l (1982) ATPR 40-303 sets forth the guidelines of what is deceptive and misleading. There must be a relevant section of the public that the statement is aimed; in this case as good as new are the purchasers of ovens; as is the information of serving in the last month. That there was a misled consumer/bystander who came to an erroneous conclusion, which is the belief that the oven was just serviced. Finally, the reason for the misconception needs to be discerned, which in this case is directly from the mouth of the representative. Therefore in the case of Commercial Ovens co there is a breach of s. 52, but there has also been a breach of s. 53, which is a specific false representation which is also a criminal offence.
There are a variety of remedies for Beta Restaurant which are under s. 79 fines if there is a breach of a criminally sanctioning section, such as s. 53. Prosecutions have to be done by the ACCC. In addition there are injunctions, as s. 80, which can be made by any person. The applicant need not have suffered from the misrepresentation, as per World Series Cricket P/L v Parish (1977) ATPR 40-040. There can also be the disclosure of information or corrective advertising, which is also contained within s. 80, as per Janssen Pharmaceutical P/L v Pfizer P/L (1986) ATPR 50-654. There are also damages as covered under s. 82 that Beta may also receive. The applicant needs to establish three scenarios, which are; a loss or damage has occurred; the conduct contravenes; and the loss or damage was caused by the respondent's conduct. In this case there has been a loss due to the loss of business, because the deserts were not ready. The conduct has contravened Part V because there has been a misrepresentation. Finally, if Beta had known about the servicing and actual state of the oven then they would have bought or planned differently. The misrepresentation therefore has caused the loss. The damages would be the amount if the misleading conduct had not happened, in addition as per Steiner v Magic Carpet Tours P/L (1984) allows for mental anguish or loss of enjoyment damages also to be added to the actual damages. Beta is probably entitled to both sets of damages because the misleading information will have led to loss of reputation, which would cause mental anguish. The one fact that Beta has to remember is to sue within 6 years from when the damage is suffered.
3. Will the ACCC be interested in Commercial Ovens Co. (2 marks)
The answer is yes because Commercial Ovens will have breached s. 53 for direct misrepresentation over the servicing of the ovens, which lends itself directly to the statement of as good as new. Therefore criminal sanctions should be taken by the ACCC.
Question 2:
Matt and Bill's partnership to be a legitimate partnership in business has to satisfy three categories, which are; carrying on a business; in common; with a view to a profit. Matt and Bill's partnership has satisfied these three factors. They are carrying on a business, which is a restaurant called Silver Spoons. They are both ...Download file to see next pagesRead More
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