BUSINESS LAW2 Table of Contents Answer to Question 1.................................................................................................................3 Issue........................................................................................................................................3 Rule........................................................................................................................................3 Application.............................................................................................................................3 Conclusion..............................................................................................................................4 Answer to Question 1.................................................................................................................4 Issue........................................................................................................................................4 Rule........................................................................................................................................4 Application.............................................................................................................................5 Conclusion..............................................................................................................................6 References..................................................................................................................................7
BUSINESS LAW3 Answer to Question 1 Issue The main issues pertaining to the facts of the case imply whether David is liable for the breach of contract and the non-repayment of loan granted to Martha by Standard bank Limited. Rule The rules pertaining to breach of contract would apply along with the relevant provisions of the Corporations Act of 2001 accordingly wherever relevant. With regard to breach of contract as inferred and observed form the facts of the case, the aspect pertaining to the restraint of trade clause would be applicable accordingly as far as non-solicitation of business for a certain period of time is concerned. Application The time frame in relation to the clause pertaining to the restraint of trade must be taken in to consideration. It would help in the determination of the aspect pertaining to the breach of the work contract formed between David and Nu Shampoo Pty Limited thereby setting out the terms and conditions of employment for David accordingly. No action is to be undertaken by Nu Shampoo Pty Limited against David if it is observed form the work contract formed between David and Nu Shampoo Pty Limited that the time has already elapsed with regard to the restrained of trade clause. As a result, it would help David to prepare his defence accordingly (Brendel Mathews, 2018). However, if it is identified and determined that David had floated Hair Glow Limited prior to the end of the period stipulated in the clause relating to the restraint of trade in the work contract formed between David and Nu Shampoo Pty Limited, he would be liable for breach of contract thereby resulting in the stringent action to be undertaken by Nu Shampoo Pty Limited against David accordingly as per the work contract (Argenbright Rioux, 2016). It is to be seen whether Nu Shampoo Pty Limited is in direct competition with Hair Glow Limited as far as the aspects pertaining to competing business and non-solicitation are concerned accordingly with regard to the restraint of trade clause in the work contract formed between David and Nu Shampoo Pty Limited taking account of the factor pertaining to time. If it is detected and found that both Nu Shampoo Pty Limited and Hair Glow Limited are in fierce competition with each other and the time period has not elapsed, then the proceedings pertaining to blatant breach of contract may be initiated against David by Nu Shampoo Pty Limited. The aspect pertaining to reasonableness must be taken into account in order to validate the clause relating to restraint of trade (Nicandri, 2010). If it is observed that there is no rationale behind the clause pertaining to restraint of trade imposed upon David by Nu Shampoo Pty Limited with regard to the work contract, then such a clause would not be executed and enforced and be declared as invalid in the interest of equality and fairness as far as the aspects pertaining to natural justice is concerned with regard to the providing of a comprehensive solution to David accordingly. Additionally, it is also to be seen whether the clause relating to the restraint of trade contains the aspect of confidentiality as far as the disclosure of information about
BUSINESS LAW4 employees and customers of Nu Shampoo Pty Limited is concerned. In this aspect also, the factor concerning time would be taken into account. As far as the aspect pertaining to reasonableness is concerned, the employer has to imply that there is an interest in such a restraint of trade accordingly. As a result, Nu Shampoo Pty Limited must have a proper interest with regard to the restraint of trade clause in the contract between David and Nu Shampoo Pty Limited (Piper & Ruda, 2018). In the case of Just Group Pty Limited v Nicole Peck, Just Group Pty Limited imposed a restriction over its Chief Financial officer with regard to working for Cotton On Group Services Pty Limited, one of the rival companies of Just Group Pty Limited. In this case, it was held by the Supreme Court of Victoria that such a clause pertaining to restraint of trade was unreasonable in nature since the aspect of the clause in relation to restraint of trade was in excess of the legitimate interests of Just Group Pty Limited. As a result, it is extremely essential to determine whether the legitimate interests of Nu Shampoo Pty Limited are in compliance with the restraint of trade clause in the contract between Nu Shampoo Pty Limited and David as far as the aspect pertaining to reasonability is concerned. If it is identified and determined that the interests of Nu Shampoo Pty Limited are in excess, then it is to be made sure that the clause pertaining to the restraint of trade must be declared invalid accordingly as far as the providing of a comprehensive solution to David is concerned taking account of the facts of the case. As far as the repayment of loan is concerned, Monica would be solely responsible as she was the one who took a loan from Standard Bank Ltd. If it is detected and identified accordingly that David is the guarantor with regard to the repayment of loan, he would be responsible for the same failing which Standard Bank Ltd would initiate proceedings accordingly with regard to the offences pertaining to default in the repayment of loan since there is no security attached to the loan. Conclusion It is observed form the facts of the case in the light of the cited case law that the aspect related to reasonableness has to be taken into consideration with regard to the breach of the work contract by David in terms of the formation and incorporation of Hair Glow Limited after leaving Nu Shampoo Pty Limited. The aspect related to liabilities imposed by Standard Bank Ltd on grounds of non-repayment of loan has to be taken into consideration as far as David is concerned since the loan is granted to her sister Monica. Answer to Question 1 Issue The main legal issue pertaining to the facts of the case implies that whether there has been a breach of the partnership on part of Jane and Sarah as far as the partnership agreement pertaining to the modus operandi of the clinic Your Local Doctor is concerned thereby Anne and Mary being victimized accordingly. Rule The law of partnership would be taken into account along with the aspect related to breach of contract in addition to the medical ethics with regard to the modus operandi of a
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BUSINESS LAW5 clinic on a partnership basis accordingly as far as the laws pertaining to health care are concerned. It may imply medical jurisprudence accordingly. Application Since it is imperative form the facts of the case that Anne, Mary Jane and Sarah have the common objective of providing comprehensive solution to the patients as far as healthcare in an effective and efficient manner is concerned, such an agreement formed on the basis of partnership is valid (Berry, 2019). If they disagree with each other on various aspects, the concept pertaining to the dissolution of a firm formed on the basis of partnership would be applicable accordingly as far as the liquidation of the clinic Your Local Doctor is concerned. Since different states and territories of Australia have their own laws pertaining to partnership, the law of the respective state or territory would be applicable accordingly as far as the partnership agreement in relation to the proper and appropriate functioning of the clinic Your Local Doctor. With reference to Section 115 of the Corporations Act of 2001, the clinic Your Local Doctor is not under any kind of obligation as far as incorporating itself is concerned since the number of partners is less than twenty. Additionally, one of the main objectives of an organisation formed on the basis of partnership is to generate profits and revenues in the desired manner as far as the welfare and up gradation of the partnership firm is concerned (Allen & Kraakman, 2016).As a result, if it is identified and determined that the acts of Jane and Sarah pertaining to the entering into contracts in excess of ten thousand dollars would benefit the clinic Your Local Doctor to a considerable extent, then they are not in breach of the partnership agreement and as a result, should not be held liable provided that the ethics pertaining to the profession of medicine and health care are complied with accordingly as far as the treatment of patients in a proper and appropriate manner is concerned thereby catering to their needs in an effective and efficient manner. Any agreement formed on the basis of Joint Venture should be treated as a partnership agreement thereby implying that all Joint Venture agreements are partnership agreements as far as the activities of the business are concerned with regard to the join entrepreneurialism of the partners involved in the modus operandi of the business. As a result, it is inferred form the facts of the case that the clinic Your Local Doctor has the characteristics in relation to a Joint Venture as far as the activities of the partners Anne, Mary Jane and Sarah are concerned. The health and safety of the patients and the staff would also play the key role in the determination of the beneficial aspects pertaining to the modus operandi of the clinic Your Local Doctor in the desired manner as far as its possibilities pertaining to growth and progress is concerned in accordance with the respective applicable legislation of partnership. In the case ofChristie v Harcourt, the aspect pertaining to the concept of partnership was the conflict of interests amongst the partners as far as the modus operandi of the agency is concerned. In this case, it was held by the High Court of New Zealand that there should be no conflict of interest amongst the partners as it would eventually lead to the detrimental effect over the organization formed on the basis of partnership. Such an aspect is also implied by the principles of common law of England and Wales as far as the law of agency pertaining to a contract is concerned. The facts of the case imply that there are conflicts of interest amongst the partners as far as the clinicYour Local Doctor are concerned (Koh, P., & Bull, 2016).As a result, the common law of agency would be taken into account along with the decision made by the High Court of New Zealand inthe
BUSINESS LAW6 case ofChristie v Harcourt as aforesaid. In the case of Bentley v Craven, it was held by the Civil Division of the Court of Appeal of England and Wales that the profits must not be made by a partner in a secret manner as far as personal benefits and interests are concerned. Similar kind of approach was undertaken by the High Court of Australia in the case of Birtchnell v Equity Trustee, Executors & Agency Co. As a result, if it is imperative that Jane and Sarah made profits out of the modus operandi of the clinicYour Local Doctor they would be in gross contravention of the principles pertaining to the common law of agency as far as partnership is concerned. Conclusion In the light of the facts of the case pertaining to the issues along with the case laws cited and the relevant provisions of the respective legislations taken into account, it is imperative that the partnership agreement has been breached by Jane and Sarah thereby resulting in the victimization of Anne and Mary accordingly. As a result, it is imperative that proceedings must be initiated accordingly against Jane and Sarah as far as the claiming of compensation by Anne and Mary in the form of damages are concerned with regard to the acting in contravention of a contract.
BUSINESS LAW7 References Allen, W. T., & Kraakman, R. (2016).Commentaries and cases on the law of business organization. Wolters Kluwer law & business. Argenbright Rioux, R. (2017). The Necessity for Employer Liability in Unenforceable Non- Compete Agreements.UMKC L. Rev.,86, 995. Berry, E. (2019). Limited partnership law and private equity: an instance of legislative capture?.Journal of Corporate Law Studies,19(1), 105-135. Brendel Mathews, E. (2018). Forbidden Friending: A Framework for Assessing the Reasonableness of Nonsolicitation Agreements and Determining What Constitutes a Breach on Social Media.Fordham L. Rev.,87, 1217. Koh, P., & Bull, S. (2016). Agency and partnership law.SAL Ann. Rev., 76. Nicandri, A. S. (2010). The growing disfavor of non-compete agreements in the new economy and alternative approaches for protecting employers' proprietary information and trade secrets.U. Pa. J. Bus. L.,13, 1003. Piper, J. M., & Ruda, E. (2018). Employee" No-Poaching" Clauses in Franchise Agreements: An Assessment in Light of Recent Developments.Franchise Law Journal,38(2), 185-205.