Commercial Law Case Study | Assignment

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

1COMMERCIAL LAW
Part A
Question 1
Issue
The issue is that whether there is an existence of an agreement that may be enforced in
relation to Tom and Wing.
Rule
The employees in the nation of Australia shall be a part of a common law contract
relating to their employment. Such contract may either be in an unwritten form or in a written
form. Such employment contract stipulates certain conditions and terms in relation to their
employer.
The case of Dare v Hurley [2005] FMCA 844 is a relevant case in this regard1. In this
case, the appointment letter provided by the employer in respect of the employees acted as a
manual and comprised of the guidelines that had to be followed by the employees. This
particular manual also comprised of references in relation to the commitment of the employer
itself regarding certain procedures and standards in connection to the dismissal of the workers for
transgression, misconduct, ineptitude and incompetence. It was held that such commitments
relating to the employer shall be considered as a part regarding the contract of employment.
The case of Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army –
Salvos Stores [2017] FWC 32 is another relevant case in this regard2. In this case it has been
stated that when the employer is large, the expectation in relation to disciplinary process must be
1 Dare v Hurley [2005] FMCA 844
2 Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army – Salvos Stores [2017] FWC 32

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high. In this particular case, the Salvation Army is a large employer, and an adoption of severe
and arduous procedures was expected form such large employer in relation to the investigation of
misconduct on the part of the employee. It may be mentioned that being a small organization
shall not be considered as an excuse regarding the implementation of poor disciplinary methods,
however, the expectations regarding large organizations or employers are elevated.
Application
Wing worked for Tom. Wing is the primary reason for the success of Tom’s business.
Jerry advanced a worthy offer to Wing in order to hire him. However, after Wing had a
discussion with Tom, it was decided that Tom would raise the salary of Wing and give him the
position of a partner in Tom’s business. Hence, Wing accepted the offer of Tom. Afterwards,
Tom refused everything regarding the advancement of Wing and after arguments, Tom
terminated the employment of Wing.
It may be mentioned that as per the law of the nation of Australia, the employees in the
nation shall be a part of a common law contract relating to their employment. Such contract may
either be in an unwritten form or in a written form. Any particular employment contract
stipulates certain conditions and terms in relation to their employer. In the given scenario, it may
be said that an employment contract exists between Tom, the employer and Wing, the employee.
Applying the case of Dare v Hurley [2005] FMCA 844, it may be said that a specific
manual should exist in relation to both Tom and Wing3. Such manual should provide guidelines
for the employee as well as the employer. Such manual should contain, in relation to the
commitment of the employer, certain procedures and standards in connection to the dismissal of
the workers for transgression, misconduct, ineptitude and incompetence. If such standards or
3 Dare v Hurley [2005] FMCA 844

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procedures are not met by the employer then the employee may contradict the actions of the
employer regarding any probable incompetency or misconduct. In this case, it may be said that if
Tom failed to meet the required standards or methods in relation to Wing, then Wing shall have
the opportunity to contradict the actions of Wing.
Applying the case of Walker v Salvation Army (NSW) Property Trust t/as The Salvation
Army – Salvos Stores [2017] FWC 32, it may be said that if Tom is a big employer, then the
expectation in relation to disciplinary process shall be high. However, it may be mentioned that
being a small organization shall not be considered as an excuse regarding the implementation of
poor disciplinary methods4. If Tom is a big employer then the expectations regarding large
organizations or employers are elevated, as compared to small organizations.
Conclusion
To conclude it may be said that there is an existence of employment contract between
Tom and Wing that is legally enforceable.
Question 2
Issue
The issue is what may be the probable remedies for Wing if a successful legal action is
brought against Tom for causing the violation of employment contract.
Rule
The case of Coghill v Indochine Resources Pty Ltd (No 2) [2015] FCA 1030 is a
significant case in relation to the given scenario5. In this particular case, a previous employee
4 Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army – Salvos Stores [2017] FWC 32
5 Coghill v Indochine Resources Pty Ltd (No 2) [2015] FCA 1030

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held the position of chief financial officer, company secretary and chairman in the mining
organization known as the Indochine Resources. This previous employee was awarded an
approximate amount of three million because the mining organization caused a violation of the
employment contract when the organization failed to make payment in relation to
superannuation, salary, annual leave and several other expenses relating to business. The
organization also wrongfully terminated the employment of this previous employee.
Application
Wing worked for Tom. Wing is the primary reason for the success of Tom’s business.
Jerry advanced a worthy offer to Wing in order to hire him. However, after Wing had a
discussion with Tom, it was decided that Tom would raise the salary of Wing and give him the
position of a partner in Tom’s business. Hence, Wing accepted the offer of Tom. Afterwards,
Tom refused everything regarding the advancement of Wing and after arguments, Tom
terminated the employment of Wing.
Applying the case of Coghill v Indochine Resources Pty Ltd (No 2) [2015] FCA 1030, it
may be said that award or compensation may be demanded by Wing from Tom because Tom has
caused the violation of the employment contract and wrongfully terminated Wing6.
Conclusion
To conclude it can be stated that the aforementioned remedies may be extracted by Wing
against Tom.
Part B
Issue
6 Coghill v Indochine Resources Pty Ltd (No 2) [2015] FCA 1030

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The issue in the provided scenario is that what action may be taken by Wing against the
organization named Lies IT Pty.
Rule
The case of Australian Competition and Consumer Commission v Bunavit Pty Ltd [2016]
FCA 6 may be considered to be a relevant case law in this regard7. In this particular case, an
order was passed to in relation to the franchise named ‘Harvey Norman’. Such order was made
in order to make a payment of fifty two thousand dollars as a penalty for causing a contradiction
of section 29 and section 18 as provided in the Australian Consumer Law, regarding false and
misleading representations in relation to guarantee rights of the consumers. In this case, it was
stated that the staff members of Bunavit made false representations to the consumers in relation
to the existence of a particular right or guarantee.
The case of Australian Competition and Consumer Commission v Reckitt Benckiser
(Australia) Pty Ltd (No 4) [2015] FCA 1408 is another significant case in the given scenario8. In
this case it was held that Reckitt Benckiser caused a contradiction of the Australian Consumer
Laws. Restraining orders were forwarded by the court against Reckitt Benckiser and other orders
were also passed mandating Reckitt Benckiser to make payment regarding the costs and
expenses of ACCC.
The case of Google Inc. v ACCC (2013) 249 CLR 435 is another important case in this
regard. In this case it was stated that the conduct or comportment of defendant shall be
characterized as deceptive or misleading depending upon the conveyance of such conduct in
relation to the intended audience.
7 Australian Competition and Consumer Commission v Bunavit Pty Ltd [2016] FCA 6
8 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 4) [2015] FCA
1408

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Application
Wing bought scanner and laser printer from a company named Lies IT Pty Ltd. It was
advertised by Lies IT that there is unconditional guarantee of twelve months in relation to all the
products, along with complete refund if demanded. A particular product that had been bought by
Wing was defective. However, when Wing tried to avail the guarantee and refund policy, Lies IT
rejected to provide such guarantee or refund.
The case of Australian Competition and Consumer Commission v Bunavit Pty Ltd [2016]
FCA 6 is applicable in the given scenario9. It may be said that Lies IT Pty Ltd caused a violation
of section 18 as provided in the Australian Consumer Laws. Lies IT refused to give the
unconditional guarantee and the refund policy to Wing. Hence, it may be said that Lies IT
misrepresented and caused deception when it advertised in relation to such guarantee and refund.
The case of Australian Competition and Consumer Commission v Reckitt Benckiser
(Australia) Pty Ltd (No 4) [2015] FCA 1408 should be applied in the given scenario10. It may be
said that Lies IT caused a violation of the Australian Consumer Laws. Hence, Wing may file a
suit against Lies IT Pty Ltd, in order to claim fines or damages. Wing may claim either pecuniary
penalties, or monetary compensation from Lies IT as he has suffered damages because of the
violation caused by Lies IT.
Applying the case of Google Inc. v ACCC (2013) 249 CLR 435, it may be said that
misrepresentation and deceptive conduct and comportment has been caused by Lies IT11.
Conclusion
9 Australian Competition and Consumer Commission v Bunavit Pty Ltd [2016] FCA 6
10 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 4) [2015] FCA
1408
11 Google Inc. v ACCC (2013) 249 CLR 435

7COMMERCIAL LAW
In conclusion it may be said that the aforementioned actions may be taken by Wing
against Lies IT.

8COMMERCIAL LAW
Part C
Issue
The issue is whether Wing shall be able to give effect to any kind of legal action against
Betty in relation to negligence.
Rule
The case of Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465 is a relevant
case in relation to the given scenario12. In this case, it was stated that a particular negligent
misstatement may result in an action regarding damages in relation to economic loss. When a
particular party strives for an advice or an information from any other individual, who has a
special and superior skill, and puts his faith on that individual relating to application of due
diligence and care, and that individual is fully aware that the party is dependent on such skill and
expertise, then in such a situation, the responsibility to care shall be considered as an implied
factor.
The case of Boyd v Ackley is a relevant case in this regard13. The issue in this particular
case included a claim established against the accountants in connection to professional
negligence.
In this case, an action was brought by the plaintiffs against
defendants because of the violation, which has been caused by the defendants. The defendants
violated the responsibility to care and were negligent regarding the issue of an erroneous
statement. Such negligence created a situation where the plaintiffs had to pay much more than
the usual amount. The plaintiffs successfully claimed against defendants. It was a success for the
12 Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465
13 Boyd v Ackley

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plaintiffs in relation to the recuperation of the overpaid amount. Such overpayment was because
of the negligence on the part of the defendant. The plaintiff also successfully claimed the amount
or quantum in relation to the proceedings of the court.
Application
Wing hired Betty, an accountant, to perform investigation and inquiries in relation to the
business bought by Wing. However, Betty misread and therefore, her actions resulted in the
failure of the business of Wing.
The case of Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465 should be
applied in the given scenario14. It may be said that Betty did not perform the actions in an
adequate manner. Betty performed her responsibilities in a negligent manner, which caused the
economic loss of Wing. It may be mentioned that Betty failed to show proper care in relation to
her responsibility.
The case of Boyd v Ackley should be applied in the given scenario15. It may be said that
Wing shall be able to recuperate damages and compensation in relation to any economic loss
suffered by him because of the negligent actions of Betty. Wing shall be able to recover the
amount or expenses in relation to the proceedings of the court from Betty. The negligent actions
of Betty and the failure to fulfil her responsibility to care caused the economic loss of Wing,
hence she shall make the payment of compensation to Wing.
14 Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465
15 Boyd v Ackley

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Conclusion
In the conclusion, it may be mentioned that Wing may file a suit against Betty in order to
claim damages and compensation from her because her negligent actions caused the economic
loss.

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Bibliography
Australian Competition and Consumer Commission v Bunavit Pty Ltd [2016] FCA 6.
Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No
4) [2015] FCA 1408.
Boyd v Ackley.
Coghill v Indochine Resources Pty Ltd (No 2) [2015] FCA 1030.
Dare v Hurley [2005] FMCA 844.
Google Inc. v ACCC (2013) 249 CLR 435.
Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) AC 465.
Walker v Salvation Army (NSW) Property Trust t/as The Salvation Army – Salvos Stores [2017]
FWC 32.