Analysis of Corporate Governance and Ethics: MBS 518 Assignment

This report analyzes two case studies related to corporate governance and ethics. Part A examines the concept of right of way and easements, specifically focusing on a scenario where an individual claims a right of way by prescription after cycling in a park for 20 years. The analysis includes relevant case laws like Re Ellenborough Park and elements required to establish a right of way. Part B delves into contract law and negligence. It addresses an exclusion clause and the liability of a railway cloakroom regarding a lost bag. The analysis considers whether an exclusion clause limits liability, the railway's potential negligence in allowing third parties to handle luggage, and the implications of the absence of a warning sign. Relevant legal principles, including exclusion clauses, negligence, and breach of contract, are discussed, and the analysis supports its conclusions with legal precedents and case laws.

RUNNING HEAD: CORPORATE GOVERNANCE AND ETHICS
Corporate Governance and Ethics

CORPORATE GOVERNANCE AND ETHICS
Part A
An arrangement between parties to give an individual or a corporation the right to use a
certain land of a landowner for a particular purpose is a freedom of way or easement
(Bradbrook, Bradbrook and Neave's Easements and Restrictive Covenants 2011). In this case
study, the right of way and easmentary rights will be defined. It will also deal with the given
situation relevant case laws and legislation dealing with the given case study.
Right of way restricts the use of the land impacted by the right of way or easement by a
landowner however; it also provides privileges of right of way (Esmaeili and Grigg 2016).
Often it is so vital to be able to use another person's property in association with a piece of
property that it has to be granted the continuous status of a legal right. In English-based
legislation, this continuous right is also called as an easement. The right of way can be taken
by method known as prescription through use of land for long time (bradbrook and
MacCallum 2011).
As per the standard concept of prescription if a right of use over the estate of the neighbours
of the landowner is used by the landowner that is not by compelling or permission and the
landlord has effectively give up his right to object to that right for a long time and has granted
that right to be legalized. Likewise, in the provided instance, every weekend Mary has been
cycling in the park for the last 20 years. As prescribed by the right of way Mary obtained a
right of way by cycling in the park in the same manner for 20 years.
If an individual wants to file a suit under right of way by prescription, an individual requires
to show its elements, like; primarily, it must be shown by the landlord that he exercised his
right for at least 20 years without interference. It is not necessary to determine the periodic
use, however it must be ensured that any intervals in use are relatively transitory. Secondary,
it must be demonstrated to the landowner that such right has been applied for the period of 20
years in the same manner. Lastly, such right is not exercised by the landowner by force or
stealth or with neighbour’s consent. Similarly, it can be shown by Mary that such right is
practised by her without any interference to establish her right in the right of way by
prescription for the last 20 years. As per the second element of the right of way, it can be
proved by Mary to show her right that she used to cycle on every weekend however she used
to ride once a weekend although this process was constant which was adopted by her. Lastly
as per the last element, such right was not exercised by the respondent by force or stealth.
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CORPORATE GOVERNANCE AND ETHICS
Thus, all the components are present which gives rise to effective case of violation of right of
way.
As in the case of Re Ellenborough Park (1955) EWCA Civ 4, using a common garden by
way of easement was considered as valid by the court. It is not necessary for all houses, in
order to profit from the garden to be immediately next to it. As per the case of Re
Ellenborough Park, by using the garden for years gives a right of way to the public likewise
Mary used to ride cycle in the park that give right of way as it was a constant process which
was followed by her for last 20 years.
Concisely it can be said that Roger is not entitled to put restriction on Mary for use of park as
she obtained right of way by prescription.
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CORPORATE GOVERNANCE AND ETHICS
Part B
[A]
In this case study it will be determined that whether Yvonne will succeed in demanding a loss
of $ 3,000.
An exclusion clause is a manifestation of an contract directed at excluding or restraining the
obligation of one of its parties; it may, for example, state that a party is not responsible if the
contract is violated or, alternatively, seeks to restrict the range of available remedies or the
time in which they can be demanded (Lawson 2011). Likewise, Yvonne paid for the ticket
without consulting the ticket, as per the case study provided. As it was apparent that see the
terms and conditions behind the card on the top of the ticket. Rail cloakroom was adequately
depicted to limit their responsibility.
In the case of Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) HCA 52, it was held by the
court that an individual is efficiently creating a reference to the world by signing a paper that
you have either read and interpreted the contents or are prepared to take the opportunity to be
bound by whatever conditions the paper may contain. As applying the case of Toll (FGCT)
Pty Ltd v Alphapharm Pty Ltd, Yvonne paid for the ticket without even looking back on the
ticket. She accepted the ticket, which in such given case study meant that she agreed to the
terms and conditions of the ticket.
Concisely it can be concluded that, Yvonne would not be allowed to receive $3000 because
she read the conditions stated in the ticket limiting the rail cloakroom's liability.
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CORPORATE GOVERNANCE AND ETHICS
[B]
This case study will describe about the liability of railway if they allow third party to carry
Yvonne’s bag without displaying a ticket.
If one party fails to fulfil its commitment or fails to fulfil it is referred to as a violation of
agreement (Anson, et al. 2010). Whereas, if one party has behaved carelessly and harmed
another, it is known as negligence. If the aggrieved party wishes to lodge a lawsuit against the
wrongdoer, it must demonstrate two aspects that was the duty of care of the wrongdoer and
there has been a violation of that obligation. Likewise, as in the scenario, if the railway
cloakroom enables third parties to grab Yvonne's purse without her permission, knowledge
and, most importantly, without displaying tickets, it will be dealt as negligence. As Yvonne
paid for the ticket, it is created the first aspect of negligence that the cloakroom of the railway
had an obligation of care for her. While if the cloakroom enables third parties to bring their
wallet without displaying the pass, it will be handled as an infringement of that obligation.
Yvonne can therefore lodge a lawsuit against the cloakroom of the railway.
Thus, it can be found from the above that the rail cloakroom has committed negligence.
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CORPORATE GOVERNANCE AND ETHICS
[C]
This case study will be dealing with situation that whether Yvonne can claim loss if there is
no sign above the counter or on the ticket board.
The promises given to another by one person are the conditions of a contract, but not every
depiction will always count as a phrase before it is accepted (Davies 2018). The fundamental
concept of construction is that a portrait is a term if it looks like it has been intended from a
prudent person's point of view (Gooley, Radan and Vickovich 2013). If an offer is approved
and considered, it is only called a legitimate contract (Gooley, Radan and Vickovich 2013). A
violation of the agreement happens if either party fails to fulfil its promise part (Swain and
Campbell 2019). Similarly, Yvonne purchased a $5 ticket as per the scenario. Yvonne and the
train cloakroom entered into a valid contract. Once Yvonne has received and paid the same
fare. Therefore, all parts of the agreement are present. No fare rules limited the responsibility
of the railway cloakroom. So if Yvonne's bag containing $3000 worth of objects has been
stolen, the train cloakroom will be liable for the damages.
It can be found from the above that the rail cloakroom is liable for the loss of Yvonne as there
was no exclusion clause restricting the liability of the rail cloakroom.
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Bibliography
Anson, Sir Williams Reynell, J Beatson, Andrew S Burrows, and John Cartwright. Anson's
Law of Contract. Oxford: OUP Oxford, 2010.
Bradbrook, A J. Bradbrook and Neave's Easements and Restrictive Covenants . New York:
LexisNexis Butterworths, 2011.
—. Bradbrook and Neave's Easements and Restrictive Covenants. New York: LexisNexis
Butterworths, 2011.
bradbrook, Adrian John, and Susan V MacCallum. Bradbrook and Neave's Easements and
Restrictive Covenants. New York: LexisNexis Butterworths, 2011.
Carter, John W. Carter's Guide to Australian Contract Law. New York: Lexis Nexis
Butterworths, 2011.
Davies, Paul S. JC Smith's the Law of Contract. Oxford: Oxford University Press, 2018.
Ellis, Elizabeth. Principles and Practice of Australian Law. New York: Thomson Reuturs,
2012.
Esmaeili, Hossein, and Brendan Grigg. The Boundaries of Australian Property Law.
Cambridge: Cambridge University Press, 2016.
Gooley, John V, Peter Radan, and Ilija Vickovich. Principles of Australian Contract Law.
New York: Lexis Nexis Butterworths, 2013.
Lawson, R G. Exclusion Clauses and Unfair Contract Terms. Sweet & Maxwell,: New York,
2011.
Lunney, Mark. A History of Australian Tort Law 1901-1945. Cambridge: Cambridge
University Press, 2017.
Poole, Jill. Casebook on Contract Law. Oxford: Oxford University Press, 2016.
Radan , Peter, John V Gooley, and Ilija Vickovich. Principles of Australian Contract Law.
New York: Lexis Nexis Butterworths, 2017.
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Schwenzer, Ingeborg, Pascal Hachem, and Christopher Kee. Global Sales and Contract Law.
Oxford: OUP Oxford, 2012.
Stwart, Pamela, and Anita Stuhmcke. Australian Principles of Tort Law. New York:
Federation Press, 2017.
Swain, Warren, and David Campbell. Reimagining Contract Law Pedagogy: A New Agenda
for Teaching. Abingdon-on-thames: Routledge, 2019.
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