COMMERCIAL LAW Commercial Law Name of Student Name of University Author note

Running head: COMMERCIAL LAW
Commercial Law
Name of Student
Name of University
Author note

1COMMERCIAL LAW
Answer 1:
A) The purpose of the act is to regulate transactions in the nature of sale. It ensures
that sellers are accountable for their product’s quality and provides guidelines for them.
This act additionally establishes the rights and obligation of buyers and sellers.
B) i. In the scenario Lisa and Paul enter into a written contract of sale for the shed. As
per section 2 contract includes agreement to sell and on fulfilling all the criteria in
Section 3 a contract is formed under section 5
ii. The property belongs to the seller until the delivery of goods and payment of
price. The fixing of the window does not transfer ownership from Lisa to Paul. Applying
Section 20 Rule 2 where a seller has to do something in order for the good to become
deliverable in this case fix the window the property does not pass unless the buyer is
aware that such a change has happened.
iii. Section 22 explicitly hold the seller responsible for the property until the transfer
has taken place. As the good no longer exists due to an accident which is neither the
seller or buyers’ fault and have perished the contract become void under Section 9.
C) As the subject matter of the contract of sale has perished between the sale and
agreement to sell the agreement is avoided. As no risk passes to the buyer Samantha
would be responsible for all the losses that occur from the burning of the tables. As per
Taylor v Caldwell when the subject matter of a contract is destroyed without the fault of
the buyer or seller
D) As per Section 15 in all sale that happens on the basis of description the goods
must match the description, additionally section 16 extends the duty of the seller to
provide goods that comply with the quality and fitness of the good as per the description.
The advertisement was for Amphitrite Soybean Oil and the order by Jo mentioned the
same however lubricating oil was delivered. Applying the principle held in Harlingdon v
Christopher a breach only happens when the buyer relies on the description. The
description not matching the goods there has been a violation of the provisions of the Act
and Jo is justified in rejecting the delivery.
E) i. In this instance there exists an agreement to sell as the property remains with the
seller and the seller must bear the risk of loss and the contract is frustrated when the
goods perish. The burning down of the store and subsequently the carpers that Charles
ordered invites section 9. The House of Lords in Fibrosa Spolka Akcyjna v Fairbairn

2COMMERCIAL LAW
Lawson Combe Barbour Ltd held that if a payment is received and no consideration
happens by the other person such payment must be reimbursed.
ii. Even when a roll of the carpet is cut for Charles, the sale is not complete as the
property is not transferred. The destroying of the carpet that is in possession of the store
frustrates the contract making it void. As Charles has paid for the same he is liable to get
his amount back from Carpetland Ltd.
iii. As the Supasystem Mark X is destroyed, the subject matter of the contract no
longer exists, by applying Section 9 the contract is void. However, this does not imply
that Rick Jones Electrical Ltd has no remedy, they can claim $5000 the cost of the music
system. As established in the Fibrosa case there can be no unjust enrichment and one can
be disadvantaged from the frustration of contract.

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Answer 2:
a. The Consumer Guarantees Act of 1993 replaces the previous Sale of Goods Act
1908. The act aims to protect consumers for their purchase of goods and availing
services. The Act guarantees that goods should comply with their description and the
sample and be safe ad fit to use, while services should be carried out with care and
skill. The scope of the act has been further expanded to include online sale of goods
and web-based auctions. The act is however only applicable for purchases for
personal use and not for contracts of service or services by charitable institutions
b. The goods that are supplied to a consumer must be of acceptable quality Section
6. An integral part of acceptable quality are goods that are safe and durable. The
yacht that was bought from Nelson Marine Ltd is ‘not seaworthy’ and a ‘death-trap’
which makes the yacht not fit for the purpose for which it was bought, along with
being unsafe and is therefore not acceptable quality.
The life jackets as they are not bought from a second-hand dealer or a person
who is in trade does not fall within this act and Alex has no remedy for the same.
As none of the provisions of Section 20 are applicable Alex is entitled to be
redressed. Applying Section 18 and 19 gives Alex the right to receive damages or
replacement from NML as the failure cannot be remedied. NML has supplied goods
that are of unacceptable quality and ignorer to remedy the situation and protect Alex
they either repair the goods, replace the goods or provide a refund and other
damages. In this instance as repair is not possible the other two options can be
resorted to.
c. i.As per Section 9 all goods must comply with the description, this description
includes those made by advertisements, brochures and sales assistants. As Bob had
told Sarah that this paint is for rims wood and the same was not the guarantee that
goods comply with description is violated.
ii. As Sarah relied on Bob’s description who is a Sales assistant in the store she can
expect to get remedy from the store. The mode of remedy that the store wants to give
is their discretion. They can either replace the paint and give Sarah a paint that fits
the description or refund her money.

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iii. Section 18 where a supplier who is required to provide a remedy fails to do so
within reasonable time as in this case, Sarah can get the paints from a mother store
and claim the costs from the hardware store.
iv. As the store an decide the remedy they feel best fits the situation under Section
19, if no such paint is available to them they can decide to refund the money under
sub section (c) and all other costs that Sarah might have to incur to get such paint.
d. The act covers purchases done in one’s personal capacity, however as the Freezit
was bought for Lucky’s house the act extends to this purchase. Section 7 specifies
that the goods need to be of acceptable quality this implies that the goods should be
durable. The Freezit only worked for a month, not normal for appliances of this
nature, and therefore Lucky has a remedy for the same.
If the Freest can be fixed Lucky must ask Aukland Fridge Suppliers (AFL) to
repair the same within a reasonable time and without any additional cost Section 18.
The seller can either repair the goods, replace them or refund the purchase price.
Additionally, Lucky can claim for the collateral damages that were caused to his
carpet.

5COMMERCIAL LAW
Answer 3:
1. As the act prevents traders from misleading and deceiving consumers by false
and misleading representations about the standard, quality, kind and composition of the
good as per Section 13 and again in section 9. Section 9 specifies that conduct should not
lead to misrepresentation about ‘nature, manufacturing process, characteristics’ the
product advertises as being made in New Zealand from 100% New Zealand Merino
Wool which are incorrect description.
By giving inaccurate description of the manufacturing process and the place of
origin of the thermals are made and the composition as it is originally 85% Australian
Merino and 15% Polyester the company has made a false and misleading representation
making them liable under the Fair Trading Act 1986.
2. a. a. The advertisement makes an unsubstantial representation. Additionally, there has
been misrepresentation about the place of origin of the product.
a.b. As per Section 40 every person who contravenes Part one that includes the
contraventions made in this case is liable to pay $600,000 as compensation if they are a
body corporate or claims of lesser value before the Disputes Tribunal. As defined in
Section 12A unsubstantial representation is when traders make an untrue claim that is
misleading. This section also uses the test of a reasonable person to evaluate if such a
claim would be normally believed. There is also a violation of Section 13 that is false
and misleading representation in the place of origin of the product.
b. Keen’s advertisement is incorrect on two accounts. Firstly, there is a
misrepresentation of his skill and qualification as he is a new trainer and has not trained
any athletes as claimed in the advertisement, this is violative of Section 13. Additionally,
be makes claims that are unfound and not well researched or tried out, all claims made
must have reasonable grounds and evidence to support the same. The unsubstantial
representation of a guaranteed loss of 1 kilo in a week is violative of Section 12A. These
would open up Keen to be liable under Sections 40,41,42. Keen would be liable for fine,
open up his training to investigation, criminal penalties other actions by the Commerce
Commission.
3. The store makes a claim of its goods being of a particular kind, standard and
quality when in fact this is incorrect and a false and misleading representation. The store
violates the provisions of the Fair Trading Act. This is a violation of Section 13 of the
act and also Section 9 and 10.

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Answer 4:
Case 1-
a) Alan dismissed Han’s employment on the grounds of his poor performance. An
unfair dismissal is one that is harsh, unreasonable or not genuine. Hans dismissal
however was on the basis of the student evaluations and was done after giving him a
warning on his performance. Alan had informed Hans on a previous occasion that
his performance needed improving, however the opposite happened. Alan did
attempt to discuss with Hans the grounds for his dismissal but that conversation was
not encouraged by Hans.
b) When dismissing an employee rules must be followed about dismissal notice and
final pay. Generally, a notice must be served to an employee in writing specifying
their last date of employment, the prior of notice depends on the age of the employee
and the period of continuous service Notice of termination is part of National
Employment Standards. As Hans dismissal is not for a serious misconduct and his
nature of employment is such that having worked for about a year he should be given
a notice period of one week, however the given situation does not specify any notice
to Hans but implies how Hans left the discussion not wanting to get humiliated. This
does not reflect on Alans intention of serving the notice as Hans does not give him
the opportunity for the same.
In order to end all ambiguity Alan should have given Hans a one week notice for
his termination.
Case 2-
The Sex Discrimination Act 1984 defines sexual harassment under Section 28A
This instance falls within this definition of sexual harassment in the workplace and is
unlawful. Lars on behalf of TIL can make a complaint to Australian Human Rights
Commission. In order to ensure that the company does not become vicariously liable
under Section 106 of the Act they must now take remedial actions as they have received
a complaint from Lucretia. TIL must have a policy on discrimination and harassment,
and conduct regular training for their employees. They must take disciplinary action
against Sextus after conducting proper investigation by a Disciplinary Body or
Committee.

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TIL should also ensure that is no victimisation of Lucretia after she has made
such complaint. As seen in Richardson V Oracle the court offered Ms. Richardson over
$100,000 for the pain and suffering caused to her. Instances like this have an adverse
impact on a company and must be handled carefully.
TIL must now conduct investigation after it has received the complaint, based on
the findings of such investigation they need to take disciplinary action against Sexuts.
Such investigation must be prompt and thorough. TIL should also inform Lucretia about
the other measures theatre available to her.
Case 3-
The dismissal of an employee requires formal notice and procedure. For all
employees that have worked for five years the period of notice for termination is 4
weeks. This is not required only in instances of serious misconduct. Rob by breaking the
law has jeopardised the company’s reputation and his own employment and been
dismissed because of serious misconduct. The reputation of a company are important to
maintain and hard to end once cracked (Wilson 2016) In such instances no notice is
required. His conduct with the motorist does not directly influence his termination, but
no one can break the law claiming it to be a normal practice, the same happened due to
company deadlines which could have been discussed with the employer. Thus, Rob’s
actions justify the dismissal without proper written notice of 4 weeks.
Case 4-
This is an instance of unfair dismissal as it was unreasonable and not genuine.
Mary had a contract with the supermarket and had complied with the working hours and
all the other requirements. There was no mention of training in their contract.
Additionally, the reason for dismissing her services are not justifiable as the same was
not entirely related to the employee’s capacity. However, Mary has only been in
employment for a month thus not fulfilling the minimum employment period to
complaint to the Fair Work Commission.
Case 5-
As making an internal complaint did not bring Mary any beneficial or
satisfactory results she has some other available options. She can apply to the Australian
Human Rights Commission or state Anti-Discriminatory Commission. Such a complain

8COMMERCIAL LAW
must be in writing and made by Mary herself. It should be a detailed complaint
highlighting the details of the events including the employer’s inability to address the
complaint and make light of the situation. Such complain would not make the employer
vicariously liable under Section 106, as the actions were done by the customer and the
act does not extend the liability of the company for customers actions. even though the
other employees indulged in gossip and sniggering this does not amount to sexual
harassment at workplace, Mary’s only remedy is to make a formal complaint, McDonald
and Charlesworth discuss the various course of action.
Mary can only make a complaint within six to twelve months of the instance
taking place. Additionally, her dismissal by the company is unfair and made on
unreasonable grounds and because of the employer’s own anger on having her damage
his car. After a notice that was given five months back there was no further comment or
action on her performance therefore this sudden dismissal being unreasonable Mary can
approach the Fair Work Commission.

9COMMERCIAL LAW
Answer 5:
1 a) The owners are responsible for maintaining a safe and comfortable working
environment. The nature of work and the stress was so high in Thomas Aluminium that
the employers ignored to implement any safety measures or follow any health and safety
guidelines, just to save time and generate higher income. The same resulted in the
accident and makes the owners liable as it happened in the course of Grants work
1 b) Business owners must meet the Workplace Health and Safety WHS
requirements. This includes the health of employees, customers, suppliers, volunteers,
contractors, all that come in contact with the business. Business must provide safe
working environment; suitable facilities; maintain machinery, facilities and premise;
implement measures for controlling and monitoring risks.
2 a) There is no rotation of shifts and no breaks and proper schedule.
Employees working for more than one shift without taking proper beaks in between.
No supervision to monitor employee actions are safe or not.
No communication with supervisors and management.
Not following safety norms, no supervision by management.
Unsafe handling of machinery.
Unusable working environment
2 b)
Maintenance Required Comments
Urgent Not urgent
Electrical outlets hoarded safely
Equipment maintained
Equipment in good condition
No entrapment hazard
All materials stored safely

10COMMERCIAL LAW
All chemicals and industrial substance
stored safely
Safety latches on equipment when not in
use
Entry and exit clearly labelled
Floor and building clean
Windows and doors clean and
maintained
Fire exit clear and labelled
No moving part of equipment left
unarmed
Waste managed
Are staff aware of facilities and how to
use them
Are staff aware where to access WHS
policies and procedures
Are first aid first available and,
accessible and regularly refilled and
checked
Has fire compliance been obtained
Risk assessment for tasks involving
manual labour
Adequate space for rest and work
Are trolleys available for heavy lifting
Are step ladders available to access
items stored in high shelves
Are light covers and fixtures secure and
safe

11COMMERCIAL LAW
Is the noise level acceptable and within
control
Is the temperature, air flow and humidity
acceptable and suitable for working
Is lighting adequate for tasks
Are employees aware of shift timings
Register maintained for all employees
and their timings and work done

12COMMERCIAL LAW
Reference List:
Australian Human Rights Commission Act 1986
Consumer Guarantee Act 1993
Fair Trading Act 1986
Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1942] AC 32
Harlingdon & Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd [1990] 1 All ER 737
McDonald, P., & Charlesworth, S. (2019). Academic evidence on the causes, manifestations and
responses to workplace sexual harassment: Initial submission to the Australian Human
Rights Commission's National Inquiry into Sexual Harassment in Australian
Workplaces.
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Sale of Goods act 1908
Sex Discrimination Act 1984
Wilson, J. (2016). Employment law: A balancing act: Effective management of workplace
disrepute by employees. Ethos: Official Publication of the Law Society of the Australian
Capital Territory, (239), 38.
Workplace Health and Safety Acts