University Commercial Law Folio: LAW2477/2497 Assessment, Semester 2

This commercial law folio assignment encompasses a range of legal topics. The first section analyzes the Victorian Civil and Administrative Tribunal (VCAT), its structure, and its role in resolving disputes, including case examples like Kamran Zand Basiri vs. Victorian Building Authority and Websdale vs. Chief Commissioner of Police. It further discusses the advantages of specialized tribunals. The second section addresses the Australian Consumer Law (ACL), focusing on misleading or deceptive conduct under section 18, and provides a case study involving a defective vehicle purchased from a dealership. The third section presents a partnership agreement for a pizzeria, outlining the nature of the business, operational details, capital contributions, profit sharing, and terms of termination. The assignment also covers the Australian Administrative Appeals Tribunal (AAT) and its functions. This comprehensive folio provides a detailed examination of key legal principles and practical applications within commercial law.

Running Head: LAW
COMMERCIAL LAW
Name of the student
Name of the University
Author’s Note

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FOLIO 1:
(b):
The Tribunal is segregated into four major divisions:
 Civil: it has Civil Claims List, Owners Corporation List, and Building & Property List.
 Administrative: it has Planning & Environment List, Legal Practice List, and Review &
Regulation List.
 Residential Tenancies: it has Residential Tenancies List
 Human Rights: it has Human Rights List and Guardianship List
 Environmental and Planning which has the list related to the environmental and planning
list.
The segregation is based on the range of matters being heard by the Tribunal. The different
types of matters that are being heard by the Tribunal are:
 Kamran Zand Basiri vs. Victorian Building Authority1: the suit was initiated as a stay
hearing under section 50 of the VCAT Act 1998. In this decision the Authority was
required to consider the history related to the disciplinary history of the party before
making decision2. However, it has been claimed by Basiri that he is apologetic for the
disciplinary errors made in the past and that he has already been convicted in related
proceedings with fines and penalties as punishment. Due to the past disciplinary history
of Basiri, the difficulties faced by the Authority cannot be overlooked and hence, the
court rejected the plea to stay the order for immediate suspension.
1 [2019] VCAT 1376
2 Section 180A (2A) of VCAT ACT

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 Websdale vs. Chief Commissioner of Police3: the suit was initiated against the order
passed to make a firearm prohibition under section 112 D of the Firearms Act 1996 (Vic).
The applicant filed the application to the VCAT Tribunal for the review of the order
passed by the Court under 112L of the Act. The Tribunal had set aside the decision of the
respondent with respect to firearm prohibition order in the interest of the public
considering the risk of public safety with the of the Appelant’s criminal history. Such
exposure to firearm and its possession would put the public safety at risk and hence the
application was set aside by the Tribunal.
(c):
The advantages of specialized tribunal to support business and individuals:
 Specialized Tribunal has been excelled as promotion by many family violence cases for
its strategic practice.
 It ensures that the victims are in touch with the experts in the system including legal
officers, judicial officers, lawyers, advocates, prosecutors, police, and others who have
better understanding of law and legal provisions.
 Judges in Specialized Courts have expert excellence in the understanding of the problem
and hence offer better rulings based on their expert understanding of the facts.
16:
The Administrative Appeals Tribunal reviews merits of the decisions passed under the
Commonwealth Laws of Australia. It does not hold recognition of a court and hence, is not a part
3 [2019] VCAT 666

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of Australian judicial hierarchy. However, the decisions of its review can be reviewed by the
Federal Court of Australia.
The role of AAT are:
 To review decisions passed by the ministers of the Government of Australia, including
the departments and various agencies, and other decisions made by the state government
and other non-governmental agencies.
 It plays the role of the reviewing the decisions in areas of taxation, immigration,
industrial law, bankruptcy, and so on.
 It forms the part of the executive branch of the government.
 While reviewing a decision, it may exercise the powers and discretion of the court that
passed the order which is reviewed by the Tribunal.
 It plays the role of a judicial model4 where the principles of natural justice applied and is
not bound by the Evidence Law.
The three important functions of AAT are:
 Section 43 (1) of the Australian Appeals Tribunals Act explains that the Tribunal can
review the decision and can revise it with the same powers and discretion as that of the
original court which had passed such order5 including the awards of Alternative Dispute
Resolution Systems which are the most common method adopted by the businesses to
solve disputes.
4 Re Becker and Minister for Immigration and Ethnic Affairs (1977) 1 ALD 158 at 161
5 Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 943

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 The Tribunal has the power to review the decisions made under the Corporations Act
2001 and pass orders for disqualification of a director, or cancellation or suspension of an
auditor or liquidator.
 The Tribunal has power to deal with matters of banking, insurance and superannuation
under Insurance Act 1973 and the Life Insurance Act 19956 and review decisions passed
by Australian Prudential Regulation Authority (APRA)7.
FOLIO 2:
To whom it may concern
On 2016, I purchased Ford Focus vehicle from Essendon Ford Dealership.
The car has been returned for four times due to transmission problems. The manager of
the Dealership says that the car has no manufacturing defect and the problem of transmission is
due to my driving techniques.
I would like to draw your attention to the purpose of the Australian Consumer Law which
is to provide a codified recognition for the consumer related transactions within the boundary of
Australia. The main purpose of the provision of law is to control the conduct of corporations, and
protect the consumers of Australia from unfair terms, unconscionable conduct and the duties of
corporation towards their consumers. The Act regulates the conduct of the corporations, supply
of goods and services to the corporate body by any person and acquisition of services and goods
from any person by the corporate body (Section 131 of the Act). The provisions of the federal
6 Kamha v Australian Prudential Regulation Authority [2005] FCAFC 248
7 Re VBJ and Australian Prudential Regulation Authority (2005) 87 ALD 747

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jurisdictions regulate the actions of the persons and corporations carrying out their businesses
outside Australia but are original residents of Australia (Section 5 of ACL).
Section 18 of the Consumer Law relates to the doctrine of misleading or the deceptive
conduct. The provision prohibits any corporation to engage in any misleading or deceptive
conduct based on which the trade or the businesses are established. The elements for the
establishment if misleading or deceptive conduct are as follows:
 The conduct was performed as a part of the trade or commerce.
 The conduct in all the circumstances was performed to mislead to deceive the consumers.
It means that the performance of conduct of the respondent was with the sure intention to
deceive the claimant.
 The decision of the claimant to enter into the trade or commerce with the corporation was
relied upon the misleading to deceptive conduct of the corporation. However, the
intention of the corporation is not concerned in this aspect.
 Cause of action arises from the misleading or the deceptive conduct due to which the
claimant suffered loss or damage.
In my scenario, the manager states that the car has no defect but it is because of my
driving issues that the car is incurring transmission problems. I would like to draw you
logical concern to the viable connection between my driving issues and the transmission
problem. The conduct of the manager of the Dealership is misleading because he is trying to
impose the burden of fault on my shoulders to evade liability for the replacement of the
product and provide me with the correct product without any manufacturing defects.
Applying the elements of section 18 of the Act, we can observe that the manager of the

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Dealership is acting in relation with the trade of the product, such conduct is to mislead me
with the defect of the car, relying upon his duty towards the consumers, I bought the car
expecting to receive a product in standard condition without any defect and due to his
misleading comments about my driving techniques, I have suffered loss by purchasing the
defective product at the cost of the standard product.
I expect the product to be replaced with a fresh new non-defect product by the
Dealership based on the automatic guarantees provided to the consumers under the Act.
However, in case I do not hear from you within 15 days, I will lodge a complaint with
ACCC for following remedies:
 Seek imposition of fines up to 1.1 million$ from corporations and 220,000$ from
individuals. Or,
 The compensation for the amount of actual damage or loss being incurred by the victim
which in my case is the cost of the car and repairing costs with respect to the transmission
repair.
You can contact me about this complaint via email @ [e-mail] or call me at
[phone] during business hours.
Thank you for your assistance in this matter.
Regards,
Name

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FOLIO 3:
THIS PARTNERSHIP AGREEMENT is made this 9th day of October, 2019, by and between
the following individuals:
Andre Peter Address Newcastle
State/Postcode: 19720
Mary Gomes Address: Newcastle
State/Postcode: 19720
1. Nature of Business. The partners listed above hereby agree that they shall be considered
partners in business for the following purpose:
Pizzeria which shall serve freshly baked pizza in a stone oven with pizzicones as its specialties.
Pizzicones are Pizza in a freshly baked waffle cones.
2. Name. The partnership shall be conducted under the name of Pizzeria and Pizzicones and
shall maintain offices at 30 Bindera Road, New Castle, Australia-19720.

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3. Day-To-Day Operation. The partners shall provide their full-time services and best efforts
on behalf of the partnership. No partner shall receive a salary for services rendered to the
partnership. Each partner shall have equal rights to manage and control the partnership and its
business. Should there be differences between the partners concerning ordinary business
matters, a decision shall be made by unanimous vote. It is understood that the partners may elect
one of the partners to conduct the day-to-day business of the partnership; however, no partner
shall be able to bind the partnership by act or contract to any liability exceeding $10,000 without
the prior written consent of each partner.
Capital Contribution. The capital contribution of each partner to the partnership shall consist of
the following property, services, or cash which each partner agrees to contribute:
Name of Partner Capital
Contribution
Agreed-Upon Cash % Share
Andre Peter 20,000 10,000 50%
Mary Sweety 20,000 10,000 50%
4. The partnership shall maintain a capital account record for each partner; should any partner’s
capital account fall below the agreed to amount, then that partner shall (1) have his share of

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partnership profits then due and payable applied instead to his capital account; and (2) pay any
deficiency to the partnership if his share of partnership profits is not yet due and payable.
5. Profits and Losses. The profits and losses of the partnership shall be divided by the partners
according to a mutually agreeable schedule and at the end of each calendar year according to the
proportions listed above.
6. Term/Termination. The term of this Agreement shall be for a period of 15 years, unless the
partners mutually agree in writing to a shorter period. Should the partnership be terminated by
unanimous vote, the assets and cash of the partnership shall be used to pay all creditors, with the
remaining amounts to be distributed to the partners according to their proportionate share.
7. Disputes. This Partnership Agreement shall be governed by the laws of the State of New
South Wales.
8. Withdrawal/Death of Partner. In the event a partner withdraws or retires from the
partnership for any reason, including death, the remaining partners may continue to operate the
partnership using the same name. A withdrawing partner shall be obligated to give sixty (60)
days’ prior written notice of his/her intention to withdraw or retire and shall be obligated to sell
his/her interest in the partnership. No partner shall transfer interest in the partnership to any other
party without the written consent of the remaining partner(s). The remaining partner(s) shall pay
the withdrawing or retiring partner, or to the legal representative of the deceased or disabled
partner, the value of his interest in the partnership, or (a) the sum of his/her capital account, (b)

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any unpaid loans due him/her, (c) hi/hers proportionate share of accrued net profits remaining
undistributed in his capital account, and (d) his/her interest in any prior agreed appreciation in
the value of the partnership property over its book value. No value for good will shall be
included in determining the value of the partner’s interest.
9. Non-Compete Agreement. A partner who retires or withdraws from the partnership shall not
directly or indirectly engage in a business which is, or which would be competitive with the
existing or then anticipated business of the partnership for a period of 4 (Four) Years, in those
areas of this State where the partnership is currently doing or planning to do business.
IN WITNESS WHEREOF, the partners have duly executed this Agreement on the day and year
set forth hereinabove.
Andre Peter
Partner
Mary Sweety
Partner
FOLIO 4:
 I am a law student and being a law student, I would pursue my career in the legal
practice. The Australian Legal System is diverse and provides a codified framework to

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protect all the aspects of fundamentals of rights and freedoms of its citizens. Being a law
expert, and a practitioner, I am most intrigued by the Code of Conduct which binds all the
professionals to serve their clients irrespective of the personal judgments being held by
us. the ethical duties binds the professionals to protect the information shared to us by the
clients by all means without any prejudice on personal grounds.
 While researching for my recent assignment, I came across a recent case study where the
employer was sued for the negligent behavior of its employee8. The employee was a
driver employed by the company and while handling the wheelie walker of an old patient
lady, the employee failed to exercise professional skills resulting in damages. The
defendants had argued that the task was a regular one and owing to the light weight
nature of the product, the Manual Handling Guidelines was issues to the employees as the
duty of care towards the fellow patients. It was held by the court that the defendants
failed to exercise care because handling of such items not only involves mere guidelines
but also intricate and practical trainings.
 While studying the law of contracts and going through various legal articles, I came
across a recent case law where the contract was under the interpretation of the court for
the determination of the intention of the parties to create the legal relationship9. The
contract was formulated between the parties as a 99 year lease and hence, the intention of
the parties was under the construction and interpretation of the court. The court held that
the intention of the parties is the founding framework for the determination of the
agreement between the parties. The absence of the intention of the parties would render
the contract as fundamentally altered and hence, the contract shall be held void. Thus, the
8 D’Arcy vs. Corporation of the Synod of the Diocese of Brisbane [2017] QSC 103
9 Ecosse Propoerty Holdings Pty Ltd. vs. Gee Dee Nominees pty Ltd. [2017] HCA 12