Legal Arguments to Reduce Liability for Dead Koi Carp

Running head: BUSINESS LAW
BUSINESS LAW
Name of the Student:
Name of the University:
Author Note:

BUSINESS LAW1
1.a) Issue:
The issue arising out of the present case study is whether Mary has entered into contract.
Rules:
Under the common law of contract, in order to create a valid contract, the essentials of
the contract must be present. The essentials are presence of an agreement consisting of an offer
and its acceptance, consideration, intention of the contracting parties to create a legally
enforceable contract and lawful object of the contract.
To create an agreement, an offer must be made by one party which must be accepted in
an unconditional and unqualified manner by the other party as in R v Clarke1. The agreement
must be supported by presence of consideration that can be in the form of money, promise or
service as in Beaton v McDivitt2. Consideration can be given in future too but no past
consideration can be considered to be valid as in Roscorla v Thomas3. The contracting parties
must create the contract having an intention to create a legal relation as in Helmos Enterprises
Pty Ltd v Jaylor Pty Ltd4 where it is held that in commercial agreement, it is presumed that the
parties have intention to result legal consequences. Finally the contract must be legal and not
against the public policy as in Fitzgerald v F J Leonhardt Pty Ltd5. When all these conditions
are fulfilled, a valid contract is formed.
1 R v Clarke [1927] HCA 47, (1927) 40 CLR 227, High Court.
2 Beaton v McDivitt (1987) 13 NSWLR 162.
3 Roscorla v Thomas [1842] EWHC J74, (1842) 3 QB 234.
4 Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235, Court of Appeal (NSW).
5 Fitzgerald v F J Leonhardt Pty Ltd [1997] HCA 17.

BUSINESS LAW2
Application:
From the facts of the case, it is observed that Mary has entered into a contract with Brad
on behalf of Smith trades for landscape therapy of her house. He even gave verbal quotation of
370,000$ for the entire tasks for which he was contracted. This serves as a consideration. Since it
is an agreement of commercial nature, the parties are intended to create a legal relation. the
object of the agreement is also valid. Hence all the elements of contract are present.
Conclusion:
Hence, valid contract has resulted between Mary and Brad.
1b) Issue:
Whether any option is available to Mary for recovering money paid to Brad and Smith
Trades Unlimited Pty Ltd.
Rules:
Unconscionable conduct in business transactions refers to the unfair conduct or
unreasonable conduct which is very unreasonable that it is against equity, justice and good
conscience6. Imposing pressure, coercing or making false claims can amount to unconscionable
conduct. It is generally assessed by considering the facts of the case. When it is seen that in one
party takes another party’s advantage because of the latter’s incapability because of health, age
or education, then the aggrieved person can sue the other person in the court for such
unconscionable conduct to claim damages as well as reimbursement of any money paid out of
such unconscionable conduct.
6 Brody, Gerard, and Katherine Temple. "Unfair but not illegal: Are Australia's consumer protection laws allowing
predatory businesses to flourish?." Alternative Law Journal 41.3 (2016): 169-173.

BUSINESS LAW3
Application:
In the present case scenario, it is seen that Mary is an aged lady of 85 years. She has no
idea about building contracts. She considered Brad as a truthful and trustworthy person. She
believed in the words of Brad blindly. Here Brad was in a better position than Mary and hence
involved in unconscionable conduct with her. Brad can be considered as a property developer
who misused his position while dealing with Mary.
Conclusion:
Hence on the basis of unconscionable conduct of the property developer Brad, Mary can
recover money paid to Brad and Smith Trades Unlimited Pty Ltd.
2a. Issue:
The issue arising out of the situation is determining whether Mary can be considered to
be the employer of the backpacker.
Rules:
The multi factor test can be referred to determine whether a person is an employer of the
other. The test considers various factors for determining whether a person is an employee or an
independent contractor as laid in Ready Mixed Concrete (South East) Ltd v Minister of
Pensions and National Insurance7. It is basically a three parts test where it is checked whether
the service contract requires the duty of personal service, presence of control and the contract
terms being according to the service terms. When it is seen that there lies an employment
contract or if there is a determining factor present then the person is regarded as the employee.
Moreover, if it is seen that the person agrees to provide his work as well as skill while doing his
7 Ready Mixed Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497.