Sackville neave australian property law lexisnexis butterworths
Complexity and high costs: Setting up a corporation is complex and it involves higher costs to set up and run a company. It suits people who have an expectation of higher income and profits.
Limited Liability: A corporation is owned by the shareholders and controlled by the directors. The directors, as a result, have limited liability. The money earned by the business belongs to the company.
Requirements under Australian Consumer Law to be satisfied for a court to decide that a term within a consumer contract is unfair and void include:
Significant imbalance: In case a term causes a significant imbalance in the rights and obligations of the parties, the contract would be an unfair contract.
Once the terms are found to be unfair by the court, they are declared as void and unenforceable.
(There is no case law and legislation mention,)
As per the law of tort, negligence refers to the doing of an act which a reasonable person would not do or the failure to do something which a reasonable person would do which results in an inadvertent harm.
It is not necessary for a plaintiff to prove that the defendant either intended to do an act or the consequences. However, it is also important for the plaintiff to take necessary precautions to prevent the damage.
Application:
On application of neighbour rule to the present case, it can be said that the manufacturer owed a duty of care to the plaintiff in ensuring proper functioning of the chainsaw. Manufacturer further had a duty to ensure standard of care since the chainsaw was malfunctioned and the wiring was faulty. There was a reasonable foreseeability that negligent malfunctioning of the chainsaw can cause damage and injury to the person using it.
Hungry Jack, by promoting advertisements that it is being sued by an American burger company, is misleading and deceiving the people to create a false impression and to gain popularity.
Therefore, the advertisements of the Hungry Jack has acted in breach the Australian Consumer Law.
Identical trademark (s. 44)
Similar to trademark which has acquired reputation in Australia (s. 60)
‘Deceptive Similarity test’ requires a real and appreciable risk as per which a significant number of people would be deceived.
In the present case, McDonalds will not be able to benefit from the substantial identity test since there is no total impression of similarity. Further, the relevant question to be asked was whether the ordinary Australian residents would know whether the Big Mac is only available at McDonoald’s outlet.
Key legal features of property under Australian law:
Australian property law governs the laws relating to rights, interests and responsibilities of an individual associated to a property. A person can claim a right over a property for its possession or ownership.
Bundle of rights which are involved in a property acknowledges that rights in things can be split such as:
legal interests (rights recognised at common law)
Firstly, it creates a vehicle of exchange of goods and services and the rights vested in such goods and services which can further aid in generation of wealth and creation of profits.
It further increases the level of economy of a country since it is the main economic engine for the country. Without possession and ownership in any property, people would not have the drive to make investments.
Rules:
The law of agency is created between a principal and an agent wherein the agent acts on behalf of the principle.
There are three types of authorities:
Express Authority: It is a contractual authority given through a contract and is specific to the extent of the authority and duties specified.
In the present case, Billy did not authorise Gina to buy antiques worth $25,000 nor did he authorise her to buy antiques made in the year 1790 and antiques of Holland in 1820s. Even though Gina being an agent performed an unauthorised act, Billy will be liable for the purchase of antiques made by Gina by the principle of Apparent Authority since the client believed agent’s statement and acted on behalf of the same.
Therefore, Billy is liable for Gina’s purchase.
Corporations Act 2001
Pham Global Pty Ltd v Insight Clinical Imaging Pty Ltd [2017] FCAFC 83