Melbourne Institute of Technology Pty Ltd CRICOS Provider No: 01545C, 03245K NSW
Business and Company Law
Tutorial One
Unit Coordinator: Dr. Tushar Das
Tutorial Questions
Discussion Questions
1.15 Under what constitutional basis does the Competition and Consumer Act 2010 (Cth) operate?
1.16 How did Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam Case) extend the Commonwealth’s power to make laws?
1.17 What is the “purposive construction” of a statute? How does it differ from the “literal rule”?
1.18 What is “equity”? What is the relationship between equity and the common law?
1.19 Briefly, what are the alternatives to suing somebody in court to enforce your legal rights, and why would you consider them?
Problem Questions
1.20 Tony is a researcher for an Australian consumer organisation, called Consumer National. Consumer National is very concerned about the software several overseas companies are marketing in Australia, either directly or through local Australian businesses licensed to manufacture or sell it. Consumers can buy the software by mail order from overseas, in several chain stores in Australia, or by downloading it from websites in Australia or overseas. Consumer National wants to lobby to make the software illegal. Tony’s job is to work out which governments to lobby. Advise Tony.
1.21 Anne is the Queensland Minister for Consumer Affairs. She has introduced a Bill into Parliament to outlaw some real estate scams which have recently been exposed by TV journalists. The Bill has been through its first reading when Anne realises, in response to an Opposition question, that the Bill has a serious defect. Is it too late for Anne to do something about it? If not, what can she do and when will the Bill become law?
1.22 The Wills Probate and Administration Act 1898 (NSW) used to provide in s 61B(3) that:
If the intestate leaves a husband or wife and also leaves issue, then if the value of the estate … does not exceed the prescribed amount then the whole estate shall be held in trust for the husband and wife …
The “intestate” is a person who has died without leaving a valid will, and “issue” are children, grandchildren, etc. The “prescribed amount” is currently $150,000. The problem here, though, is that if the estate is worth less than $150,000 it is to be “held in trust for the husband and wife” one of whom is dead, the “intestate”. You cannot hold assets in trust for a dead person. How would a court resolve this problem?
1.23 Australian Consumer Law (ACL), s 22 – Unconscionable conduct in business transactions
(1) A person must not, in trade or commerce, in connection with:
(a) the supply or possible supply of goods or services to another person (other than a listed public company); or
(b) the acquisition or possible acquisition of goods or services from another person (other than a listed public company); engage in conduct that is, in all the circumstances, unconscionable.
Under s 22(2) a court, in considering whether a person contravenes the unconscionability provisions, may have regard to (noting that the following considerations are not a complete list):
- the relative strengths of the bargaining positions of the supplier and the business consumer; andTop of Form
- whether, as a result of conduct engaged in by the supplier, the business consumer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and
- whether the business consumer was able to understand any documents relating to the supply or possible supply of the goods or services; and
- whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the business consumer or a person acting on behalf of the business consumer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services; and
- the amount for which, and the circumstances under which, the business consumer could have acquired identical or equivalent goods or services from a person other than the supplier; and
- the extent to which the supplier’s conduct towards the business consumer was consistent with the supplier’s conduct in similar transactions between the supplier and other like business consumers; and
- the requirements of any applicable industry code.
Applying ss 20 – 22 of the ACL, consider the following situation: the tenants of a shopping centre are told by the owner that they will not have their shop leases extended, unless they abandon any legal claims against the owner. The owners will only receive a new lease if they contractually agree to drop what would otherwise have been legitimate claims under the law.
