Australian Commercial Law: Legal System, Criminal Law, Contract Law, and Misrepresentation

This article discusses Australian Commercial Law, covering topics such as the legal system, criminal law, contract law, and misrepresentation. It explains the principles of contract law, remedies for breach of contract, and the consequences of fraudulent misrepresentation. It also explores case laws and their applications in different scenarios. The article includes references to relevant statutes and scholarly works.

LAWS20058 – AUSTRALIAN COMMERCIAL LAW
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PART A
The constitution that the tribe had developed previously contains various rules and
regulations that are required to be followed by the members of the tribe while dealing with
their own members and while dealing with the members of other tribe. According to the
concept of law which has been written by H.L.A.HART, there needs to be the existence of a
legal system in every society (d’Angeville et al., 2017). For the existence of a valid legal
system in the society two basic requirements needs to be followed that is a valid rule of
behaviour which is in conformity with the system and proper rules of recognition which are
reasonable enough to get accepted effectively. Every society has its own primary and
secondary rules which confer duties and powers on its members respectively. For the purpose
of survival, there needs to be the existence of natural law in the ordinary rules and regulations
of the society. Living in a tribe or a community will require the minimal level of association
with other people also hence forth to tackle those situations natural law is very essential.
Since humans are vulnerable to bodily harms as they possess the same level of bodily
strength and intellectual setting of sanctions is necessary to punish the miscreants. Through
these rules and regulations a minimum level of security can be granted in respect of persons,
property and the rights guaranteed (Hart, 2016).
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PART B
The research question states that commission of crime in any society is an act which is
prejudicial to the society as a whole. In any community existence of a definite legal system
provides a clear view regarding the offences and the prescribed penalties that are
incorporated in the legislations so that the guilty can be booked under those laws (Jain, 2017).
CRIMINAL LEGAL SYSTEM IN INDIA
In any country, the foremost priority and object of the criminal laws is to protect the society
and its members from the hands of wrongdoers and law breakers. In India there are a vast
range of laws that deals with the criminal offences and its punishments. India is having both
kinds of criminal laws that are the substantive law and the procedural laws. Under the
substantive criminal laws offences are defined with their penalties and under the procedural
law the process of administration of the substantive law is given.
In India the two main statutes which hold provisions and laws regarding the criminal offences
is the Indian Penal Code 1860 and the Code of Criminal Procedure 1973. IPC contains all
the various kinds of offences that can be committed against a human being or property with
the schedules annexed to the Act regarding the penalties and punishments for the same
(Sharma, 2016). The code contains stringent punishments with a jail term of at least 7 to 10
years for the maximum number of offences and for heinous crimes lifelong imprisonment
along with capital punishments are also rendered in case of hardened criminals.
Administration of criminal justice in the Indian courts are done under three categories namely
the investigation, inquiry and trial regarding which procedures are provided in the criminal
procedure code for every offence under the Indian penal code 1860 (Subramanian,
Ramanathan, Kumar, Chellappan, & Ramasamy, 2016).
Section 53 of IPC, 1860 states about the kinds of punishments that are given for the various
offences:
 Death penalty
 Life imprisonment
 Forfeiture of property
 Fine
CRIMINAL LEGAL SYSTEM IN AUSTRALIA
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The purpose of criminal laws in Australia is to enforce criminal sanctions against the
offenders. Australian criminal laws originated mainly from the common laws and the laws
created by the legislatures (Hayes, & Luther 2018). In Australia very less statutory
legislations are enacted to deal with the criminal offences as compared to the criminal laws
existing in India. Here exists a division of law that is the indictable offences (felonies) and
summary offences (misdemeanours). Felonies are treated with death punishments and
misdemeanours are treated with life imprisonment (Hardy, 2016).
The criminal code Act 1995 consolidates the laws and general principles which are in
accordance of the commonwealth laws. It states about criminal responsibility that applies to
any offence committed under the act (Van der Veen, 2017). Under the criminal laws in order
to prove the guilt of any person prior existence of physical and fault elements are necessary
which is the conduct of the person concerned with negligence as well (Lynch, McGarrity &
Williams 2015).
Other criminal legislations promulgated in Australia are The Crimes Act 1900 (NSW), Anti-
terrorism Act (no.2) 2005 and The Summary Offences Act 1988(NSW). The provisions
under these laws contribute in controlling the societal balance in Australia (Hogg &
Quilter2017). Moreover the circumstances of the societies in India and Australia are very
different with a different mindset of population existing in both the countries. So what is
applicable in Australia might not be fruitful for India. The only disadvantage that Australia
might be having as compared to India is the absence of any defined criminal legislation as
compared to any other country.
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PART C
Gumland Property Holdings Pty ltd. V Duffy Bros Fruit Market (Campbell town) Pty Ltd
Issue: in this case landlord transit management Pty ltd owned a grocery shop in a shopping
centre. In the year 1993 Duffy Bros Fruit market ( campbelltown) private ltd entered in to a
contract of lease with transit regarding the store for a period of 15 yrs. In 1999 Duffy
experienced downfall in his trading entered into a sub tenancy deed which stated the payment
of subtenant rent a responsibility of Duffy. The deed mentioned the expiration year of the sub
tenancy to be July 2002. But in the year 2001, transit sold the free hold of the premises to
Gumland property holdings private Limited. After the expiry of the term of sub tenancy in
July 2002 the sub tenant decided not to enter into any further term and henceforth entered
into a period of over holding. The sub tenant then started paying half of the rent that is
usually payable under the sub lease. As a result of which Duffy was unable to pay the
complete rent to gumland, which directly resulted in the breach of the lease and the deed.
Gumland then bought an action against the Duffy for the damages and all rent due under the
lease (Collins, 2016).
Rule: under the Australian principles of contract law in order to form a valid contract there
has to be the existence of an agreement which provides obligations for the parties to be
fulfilled. These obligations are created from the contractual intentions of both parties
concerned and with consideration for the same. Then only the contract becomes enforceable
by law (Wright, 2016).
In the present case, both the parties to the contract that is the transit and Duffy wilfully
entered into an agreement of lease the terms of which were expressly written down. In this
case the rule of breach of contract will be applicable on the part of Duffy as he has violated
the express terms of the deed regarding the payment of the complete rent as it was his
responsibility.
Application: in this case the rule of breach of contract has been applied. High court of
Australia while dealing with the case allowed gumland’s appeal and granted him with the
required amount of damages.
Conclusion: in this case at last the commercial lease was terminated due to failure on the part
of lessee to pay the required rent under the deed and the lessor got entitled to damages. Under
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the Australian principles of contract law breach of a contract is committed when either party
to the contract fails or refuses to perform the contractual obligation.
Remedies: in order to compensate the injured party it is necessary that a substantial damage
has been caused as a result of the breach of the contract. Payment of compensation is
sometime an inadequate remedy hence under the principles of contract law the other remedies
available are the specific performance of the contract or asking for an order of injunction.
Case law on damages for breach of contract or agreement
Hadley vs. Baxendale (1854)
In this case it was held that when a breach of contract has occurred then the damages which
have been suffered by the injured party should be fair and reasonable in nature. Basically the
test of remoteness of damages in contract law was evolved under this case law. The damage
which has been caused must be result of gradual breach of the contract but not something
completely remote from the terms of agreement or contract (Teng, 2018).
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PART D
Case law on fraudulent misrepresentation
Museprime properties vs Adhill properties (1990)
ISSUE: in this case three properties were being sold through auction but the particulars were
being represented wrongly. The fact that was being represented wrongly was the rents from
the properties are open to negotiation. The auction particulars were not properly stated and
the auctioneer as well misrepresented the rent reviews. After successfully bidding of all the
three properties by the plaintiff companies they came to know about the actual situation. The
plaintiff then established a case of fraudulent misrepresentation and prayed for rescission of
the contract.
Rule: under the Australian principles of contract misrepresentation is one of the grounds for
termination of the contract. In this case a fraudulent representation was made recklessly to the
plaintiff company by concealing the fact regarding rent review (Andrews, 2016).
Application: in this case breach of contract would apply by simply following the procedure of
rescission which invalidates the complete contract.
Conclusion: in the present case it was held by the judge that the plaintiffs had succeeded in
the claim put forwarded by them of misrepresentation and ordered the defendant to return
their deposit.
Remedies: the remedies available against the case of misrepresentation are:
Rescission – through this method the contract gets fully repudiated and allows the parties to
the contract to regain their actual position. This remedy can be pleaded before the court for
all sort of misrepresentations committed.
Indemnity and damages- here the court asks the defendant to pay back any expenses that
might have been incurred by the plaintiff in order to comply with the terms of the contract.
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PART E (600 WORDS)
Issue: in the given scenario Pedro and Lisa were retailers of imported French jewellery which
they use to carry out in Melbourne, Victoria. In the mean time lisa sold her part of the
business to pedro an entered into a contract as well which stated that she would not engage in
this business for a period of two years. One year after entering into the agreement lisa
engaged herself once again in selling imported French jewellery resulting in breach of the
agreed contractual terms.
Rule: under the Australian principles of contract law the agreement or the contract gets
vitiated on breach of any of the express terms of contract (Poole, 2016). Here in this case Lisa
has expressly repudiated the contract by violating the terms of the agreement.
Remedies: under the provided circumstances Pedro can enforce the contractual promise made
by Lisa. The remedies that are available to him include:
(1) Damages or compensation- Pedro can ask for an amount of compensations for the loss
that has been sustained by him directly due to breach of the contract. Based on the degree of
loss occurred he will be granted compensation.
(2) Injunction- Pedro can also ask for an action of injunction against the court of law.
Following the process of injunction the court will restrain Lisa from continuing the business
further. Disobeying the same would lead to facing of consequences by Lisa.
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References
Andrews, N. (2016). Misrepresentation and Coercion. In Arbitration and Contract Law (pp.
189-203). Springer, Cham.
Collins, T. L. (2016). The doctrine of frustration, commercial leases and the Canterbury
earthquakes.
d’Angeville, C., Darwin, C., Deflem, M., DeLone, M. A., Denzin, N. K., Dernberg, H., ... &
Dollfuss, E. (2017). 348 Classic Writings in Law and Society. Classic Writings in
Law and Society: Contemporary Comments and Criticisms, 347.
d'Entreves, A. P. (2017). Natural law: an introduction to legal philosophy. Routledge.
Hardy, K. (2016). Violent extremism online and the criminal trial. In Violent Extremism
Online (pp. 103-121). Routledge.
Hart, H. (2016). The New Challenge to Legal Positivism.
Hayes, R. M., & Luther, K. (2018). # CSI Effect: How Media Impacts the Criminal Legal
System. In # Crime (pp. 43-78). Palgrave Macmillan, Cham.
Hogg, R. G., & Quilter, J. (2017). Submission to ALRC, incarceration rates of Aboriginal and
Torres Strait Islander peoples.
Jain, M. P. (2017). Outlines of Indian legal history. NM Tripathi Private Ltd.
Lynch, A., McGarrity, N., & Williams, G. (2015). Inside Australia's anti-terrorism laws and
trials. NewSouth.
Poole, J. (2016). Textbook on contract law. Oxford University Press.
Sharma, A. (2016). Fines as a punishment in Indian Penal Code, 1860: A jurisprudential
failure or commodification of an offense?. Journal of Contemporary Criminal Justice,
32(3), 243-263.
Subramanian, N., Ramanathan, R., Kumar, V. M., Chellappan, D. K. P., & Ramasamy, J.
(2016). Legal terms used in reception order and their relevance to judicial process.
Indian journal of psychological medicine, 38(5), 431.
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Teng, J. (2018). Transaction Costs and Optimal Liability Rule in the Context of Hadley v
Baxendale (1854). International Journal of Trade and Policy, 1.
Van der Veen, A. (2017). Criminal law: Examining liability for felony murder through joint
criminal enterprise. LSJ: Law Society of NSW Journal, (38), 88.
Wright, B. (2016). Codification, macaulay and the indian penal code: The legacies and
modern challenges of criminal law reform. Routledge.
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