Enforcement of Contractual Terms in Australian Law

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Australian Commercial Law

1
PART A
In South America, a tribe developed a constitution which includes regulations regarding
the protection of tribe members from violent acts of another member. Previously, no
such regulations were established in the tribe, and the procedure for adjudication was
informal. The purpose of developing this constitution is to make the process of
adjudication formal by implementing appropriate laws on each tribe member. The
constitution complies with Hart’s three-part legal system rules. The policies included in
the constitution apply over all tribe members equally, and they are clear and
unambiguous as per the rules of recognition. The rules of change are also included in
the constitution because the constitution defines the procedure of changing, amending,
adding and removing of laws1. Lastly, as per rules of adjudication, the procedure of
holding a person liable for his actions is given in the constitution along with the
penalties which imposed on him based on his/her actions.
The rules which are included in the constitution for protecting members from violent
acts include imprisonment for the guilty tribe member and financial penalties. Firstly, if
a member uses violence against another tribe member, then he has to be found guilty in
a proper trial in which he is punished for his/her actions based on which he/she has to
serve a prison sentence. The duration of the sentence depends upon the seriousness of
the crime and the injury suffered by the aggrieved party. Moreover, financial penalties
are also imposed on the guilty tribe member to compensate for the loss suffered by the
aggrieved tribe member due to the use of violence. These rules are developed in the
tribe’s constitution to protect the members from violent acts and hold guilty members
liable for their actions in a formal procedure to prevent the crimes in the future.
1 Clive Turner, John Trone and Roger Gamble, Concise Australian Commercial Law (Thomson Reuters,
2017).

2
PART B
In England, the criminal legal system provides a number of penalties which are imposed
on the people after providing of their crimes. The English criminal legal system
considers that the criminal actions conducted by people are wrongs which are made
against the whole society rather than a single person. The state has given the power to
enact laws regarding criminal offences of parties to hold them liable for their actions.
Until proven without a doubt, a person is not considered guilty in the English criminal
law. The Criminal Justice Act2 and Criminal Law Act3 are two of the key legislatures
which provide provisions regarding criminal actions of people. The penalties which are
imposed by the court after proving a person guilty of a criminal offence include
discharge, financial penalties, imprisonment and life imprisonment4. The legal system
also complies with Hart’s three-part legal system.
Firstly, the rules are clear and unambiguous, and they apply equally to everyone as per
the rules of recognition. The rules of change are also given based on which the
parliament has the right to add, remove or amend criminal laws. Lastly, the rules of
adjudication are clearly defined based on which courts are given the right to hear
criminal cases as per their jurisdiction. The Australian criminal legal system is similar as
well because it is borrowed from the English legal system. The Crimes Act5 and the
Criminal Code Act6 provides penalties which imposed such as criminals include
discharge, imprisonment, life imprisonment and financial penalties. Hart’s three-part
legal system rules are also applied to the legal system. The rules are clear, and the
procedure of change is given as well. The courts have specified jurisdiction which is
defined by the state.
2 Criminal Justice Act 2003
3 Criminal Law Act 1967
4 James F Stephen, A history of the criminal law of England (Cambridge University Press, 2014).
5 Crimes Act 1914
6 Criminal Code Act 1995

3
PART C
ISSUE
In Gumland Property Holdings Pty Ltd. V Duffy Bros Fruit Market (Campbelltown) Pty Ltd7
case, the issue raised whether the landlord has the right to terminate a lease agreement
in case the tenant did not pay rent? Whether the loss of bargain can be demanded on
breach of an essential term?
RULE
The lease agreement which is formed between parties regarding property is considered
as a commercial contract. It means that the lease agreement has the features of a
commercial contract. One of the key features of a commercial contract is that it can be
terminated by the party in case another party did not comply with or violate an
essential term8. In case of a lease agreement, the payment of rent is the consideration of
the contract which is referred as an essential term of the contract. In case the party
failed to pay the rent of the property, then the agreement can be rescinded by the party.
Similarly, on breach of an essential term, the aggrieved party has the right to claim the
loss of bargain from the breaching party for non-compliance with the essential term of
the contract.
APPLICATION
A commercial property was given on lease to Duffy Bros Fruit Market (Campbelltown)
Pty Limited (Duffy) for a period of 15 years by Transit Management Pty Ltd (Transit).
Duffy was responsible for paying the complete rent of the property; however, it
becomes difficult for the company to pay rent on time. Thus, Transit and Duffy formed a
deed in order to sub-let the property to the third party. The property was given to a
third party that has to pay half rent of the property. In 2001, Transit sold the property
along with the lease rights to Gumland Property Holdings Pty Ltd (Gumland). In 2002,
7 (2008) 234 CLR 237
8 Clive Turner, John Trone and Roger Gamble, Concise Australian Commercial Law (Thomson Reuters,
2017).