Partnership And Company Law Essay In NSW And Australia, Terra Nullius Doctrine, Rule Of Law, Terms Of Contract And Remedies.

Part A

The website in connection to federal government regulator of New South Wales (NSW) is legislation.nsw.gov.au.

The website in connection to federal government regulator of Australia is legislation.gov.au.

The particular law in the above said source of NSW can be said to be the partnership law, which can be identified as The Partnership Act (NSW) 1892, which can be said to be a statute law. It should be noted that the jurisdiction of the above said statute named Partnership Act of 1892, is the state of New South Wales. The primary features of the above said law include the provisions regarding the partnership business, protection and safeguarding of the rights of partners, penalization of the defaulting partners or other officers, and others (Legislation.nsw.gov.au., 2022).

The particular law in the above said source of Australia can be said to be the company law, which can be identified as The Corporations Act (Cth) 2001, which can be said to be a statute law. It should be noted that the jurisdiction of the above said statute named Corporations Act of 2001, is the entire nation of Australia. The primary features of the above said law include the provisions regarding the company business, protection and safeguarding of the rights of shareholders and members, establishment of the duties of the directors, penalization of the defaulting directors or other officers, and others (Legislation.gov.au., 2022).

The format of the website legislation.nsw.gov.au can be said to be very suitable for the business people as every provision is very easy to search. Furthermore, a good explanation and clarification regarding the laws as well as the legal procedures have been provided in the above said website. The entire information regarding the law could be found in the above said website. Even visually, the website is very attractive to the business people. Similarly, the format of the website legislation.nsw.gov.au can be said to be very appropriate for the business people as every provision is very easy to search. A good explanation as well as clarification regarding the laws as well as the legal procedures have been provided in the above said website. The entire information regarding the law could be found in the above said website. Even visually, the website is very attractive to the business people.

‘Terra nullius’ actually means ‘nobody’s land’. The particular doctrine relating to ‘Terra Nullius’ has actually been present in the particular law of the nations in the course of the development and progression of the Western democracy. The particular fact that ‘Terra Nullius’ is a specific Latin expression provides the evidence that the expression has been derived from the Roman law. The above said doctrine actually gives rise to the notion that the ownership through seizure of any particular thing no one owns is legitimate. Hence, ‘Terra Nullius’ actually meant “Land belonging to no one”. The British colonization of the lands of Australia as well as the subsequent land laws of the nation of Australia had been established on the basis of the claim or prerogative that Australia was actually a ‘Terra Nullius’, thereby justifying the acquisition of the lands of Australia by the Britishers in the absence of any payment or treaty. It should be noted that the above said doctrine was ultimately overturned in the case of Mabo v Queensland (No 2) [1992] HCA 23. Furthermore, it should also be noted that the decision in the above said decision resulted in the legal doctrine relating to native title, thereby enabling more litigation in connection to the indigenous land rights. The doctrine relating to native title was ultimately codified in law, statute or legislation by the ‘Keating Government’, which came to be known as the Native Title Act of 1993 (Parbury, 2020).

Part B

The rule of law can be said to be the political viewpoint and philosophy that every citizen as well as organization in any community, state or nation are answerable and responsible to the same specific laws. To state in a simpler manner, the rule of law actually infers that the formation of the laws, their implementation, and the relations amongst the legal rules are lawfully regulated or governed, so that it is ensured that no one, which includes even the most highly positioned official, is actually above the law (Lacey, 2019). Two instances of rule of law can be stated in connection to the functioning of the businesses in the nation of Australia. The first instance is provision of certainty regarding intellectual property as well as business transactions. It should be said that while making the investment decisions, the business actually looks for certainty in the enforcement of the contractual, intellectual property as well as other associated rights. This actually relates or recounts back to the rudimentary rule of law opinion that law has the capability of being acknowledged by everyone and enforceable against everyone. The second instance can be said to be the transparency and fairness in relation to the dispute resolution.

The federal system of Australia was modelled meticulously based upon the federal system of U.S. The main features include enumeration of powers of the parliament (the States having an extensive ‘residual’ power), strong bicameralism, a ‘supremacy’ clause, the High Court, as well as a complicated 2-step amending process. A specific example of the effect of federalism upon the businesses in Australia is the attempt to establish a common market as provided in the Constitution. Another similar instance can be said to have occurred in the case of Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129. In the case, it was said that the trend of federalism in Australia has had a specific impact upon the business in connection to taxation as well as regulation, and particularly as the successive decisions by the Court squeezed every state out of the wholesale taxes (for instance, regarding tobacco and petrol).

From the legal perspective, Marvin shall be required to understand the terms of the contracts that might be established by Velocity Shrubs Pty Ltd, in order to adhere to the specific terms of the contracts and evade any breach or violation of the terms. Any breach or violation shall result in penalization in the form of compensation, as was stated in Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61. From a commercial perspective, it shall be important for Marvin to understand the terms of the contracts because such terms shall serve in the form of record of obligations or commitments.

Firstly, a term shall be regarded as a condition when the specific promise is of such significance to promisee that the contract would not have been established by him unless the assurance of a substantial or strict performance of such promise was seeming to the promisor. A term shall be regarded as a warranty when a guarantee is provided to the purchaser by the seller regarding the fitness, quality as well as performance of the service or product. Secondly, a condition relates to the wholesomeness of the service or product, whereas, warranty relates to the uninterrupted possession of the purchaser. The above said differences are from the legal perspective. Commercially, a condition can be said to be a responsibility that has to be fulfilled prior to the occurrence of another proposition, whereas, a warranty can be said to be a surety that is provided by the seller concerning the condition of the specific product.

As stated in Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd [1938] NSWStRp 37, in case of a violation of a condition, any aggrieved party shall have the entitlement to cancel irrespective of the consequences or severeness of that violation. In the case of Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA 7, it was said that in case of a violation of warranty, any aggrieved party shall not have the entitlement to cancel simply due to any violation of the term, however, it shall be able to receive compensation.

Two primary forms of dispute resolution regarding contract disputes include mediation and negotiation. Advantages relating to mediation shall include confidentiality, convenience, speedy result, less expensive and voluntary participation. Advantages relating to negotiation include prevention of conflict escalation, resolution within short time period and turning the odds into positive outcomes.

In regard to the enforceability of the exclusion clauses in the contracts, the case of TNT v. May and Baker (1966) 115 CLR 353 can be regarded as a pertinent case. In the case, it had been stated that exclusion clause shall be considered to be legally enforceable in any common law contract, only when such exclusion clause is constructed in a proper and reasonable manner. The construction of the contract should be such that the exclusion clause is reasonably included in the contract. In Darlington Futures Limited v. Delco Australia Pty Ltd (1986) 161 CLR 500, it was said that in order for an exclusion clause to be valid, the exclusion clause should be communicated to the customers in a proper manner. Therefore, it should be ensured by Marvin that the disclaimer that he wishes to provide to customers, are properly and reasonably constructed and properly communicated to customers.

References

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.

Corporations Act, 2001 (Cth).

Darlington Futures Limited v. Delco Australia Pty Ltd (1986) 161 CLR 500.

Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1961] EWCA 7.

Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61.

Lacey, N. (2019). Populism and the Rule of Law. Annual Review of Law and Social Science, 15, 79-96.

Legislation.gov.au. (2022). Corporations Act 2001. Legislation.gov.au. Retrieved 27 April 2022, from https://www.legislation.gov.au/Details/C2019C00216.

Legislation.nsw.gov.au. (2022). View - NSW legislation. Legislation.nsw.gov.au. Retrieved 27 April 2022, from https://legislation.nsw.gov.au/view/whole/html/inforce/2004-04-05/act-1892-012.

Mabo v Queensland (No 2) [1992] HCA 23.

Native Title Act, 1993.

Parbury, N. (2020). Terra nullius: Invasion and colonisation. In Teaching Aboriginal Studies (pp. 68-89). Routledge.

Partnership Act, 1892 (NSW).

TNT v. May and Baker (1966) 115 CLR 353.

Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd [1938] NSWStRp 37.