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Legal guidelines Flashcards

1
Q

ACL implied guarantees: goods

A

S51-59

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2
Q

S51: clear title

A

Supplier must have clear title

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3
Q

S52: undisturbed possession

A

consumer has right to possession of goods uninterfered with

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4
Q

S53: No undisclosed securities

A

goods are supplied without any encumbrances.

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5
Q

S54: acceptable quality of goods

A

goods are priced well, recommendation by supplier, statements made on packaging.

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6
Q

S55: Fitness for purpose

A

when the consumer indicates to the seller the purpose for the use of the goods, the goods will reasonably fit that purpose, except when the consumer doesn’t rely on the sellers advice.

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7
Q

S56: Correspondence with description

A

goods will correspond with description given for the goods.

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8
Q

S57: Correspondence with sample

A

Goods will correspond with the sample provided.

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9
Q

S58: Repair and spare parts

A

The manufacturer will take reasonable action to ensure facilities for repair are available for reasonable time.

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10
Q

S59: Express warranties

A

The manufacturer will comply with any express warranties.

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11
Q

ACL: Implied guarantees for services

A

S60-S62

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12
Q

S60: Due care and skill

A

services will be rendered with care and skill.

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13
Q

S61: fitness for particular purpose

A

Where the consumer indicates a particular purpose for which services are acquired the services will match the purpose. Except when the consumer does not rely on the suppliers expertise.

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14
Q

S62: Reasonable time for supply

A

Where time is not specified in the contract, services are supplied within reasonable time.

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15
Q

S17: states there are implied guarantees

A

the sellers right to sell, the buyers right to quiet possession, the goods are supplied free of any charges or encumbrances.

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16
Q

S20: sale by sample

A

the bulk of the goods will correspond with the sample provided. Buyers will have the guarantee of being able to compare the goods with others in the sample, and that goods will be free from any defect that wouldn’t have been apparent from just looking at the sample.

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17
Q

S:59 Major Failure

A

where the breach amounts to major failure or where the defect in the goods can’t be remedied a consumer can reject the goods or compensation.

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18
Q

S60: other failure

A

for an other failure a consumer can require a supplier to fix the failure within reasonable time. If the supplier refuses the consumer can: pay to have it fixed then recover the costs from the supplier, reject the goods and claim damages resulting from any foreseeable loss.

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19
Q

S260: What is a major failure?

A

a reasonable consumer wouldn’t have purchased the goods if they knew the problem, the goods do not match the description sample, the goods are unfit for purpose and can’t be able to make fit, the goods are unsafe.

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20
Q

S261: fixing a failure

A

repair the good, replace it or refund.

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21
Q

S263: rejecting goods

A

consumer must notify supplier that they are rejecting the goods, consumer must return return goods to supplier, supplier must refund or replace rejected goods.

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22
Q

S262: goods that cannot be rejected

A

goods cannot be rejected if: it is beyond the rejection period, consumer has lost/destroyed the goods, goods are damaged after delivery or goods are incorporated into other property.

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23
Q

Actions against manufacturers S271

A

If there is a breach of guarantees then the consumer can recover damages in payment and any foreseeable losses.

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24
Q

Action against supplier of services S267

A

Same as manufacturers but instead of rejecting goods termination of contract.

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25
S18
a person must not engage in conductive that is misleading or deceptive or is likely to mislead or deceive.
26
S20 unconscionable
a person must not in trade or commerce, must not engage in conduct that is unconscionable, within unwritten law from time to time.
27
S21: statutory unconscionability
A person not engage in trade or commerce in connection with: the supply or possible supply of goods or services to a person or the acquisition or possible acquisition of goods or services from a person.
28
What is unconsionable?
Court considerations are: Strength and bargaining positions, conditions are not reasonably necessary to protect the suppliers interests, customers ability to understand the documents, under influence or pressure of unfair tactics, price of similar good/service elsewhere, conduct similar to other transactions, industry code requirements.
29
S23 Unfair terms
A term is void if the term is unfair and the contract is a standard form contract. The contract still binds the parties if it is capable of functioning without the unfair term. A contract is a consumer contract if it is for sale of goods and services or sale or a grant of interest in land. To an individual for domestic, personal or household use or consumption.
30
S24 What are unfair terms
A term of a consumer contract is unfair if: it would involve a significant imbalance in the parties rights and obligations and it is not necessary to protect the interests of the party advantaged by the term and it would cause detriment to a party if it was applied or relied upon.
31
Trespass
Direct, intentional and wrongful interference with another's land/person/goods. trespass to land, assault.
32
nuisance
unreasonable conduct.
33
Deceit (fraud)
dishonest statements.
34
defamation
publishing false statements that damage ones reputation.
35
Negligence
carelessness causing foreseeable harm.
36
Partnership
relationship when people are engaging in business with the shared goal of profit.
37
agency by estoppel
Where the principal terminates the agent but fails to advise third parties of this. Occurs when: agent is assumed to be acting on behalf of the principal, the third party believes this to be true, it is reasonable for the third party to rely on this, the third party's position has changed as a result of relying on this representation.
38
agency by necessity
when the principal does not directly communicate to the agent but the agent acts prudently.
39
Duties of an agent
1. duty to perform what they have undertaken to perform 2. Duty obey instructions. 3. Duty to obey care and skill. 4. Duty to act personally.
40
Duties of the principal
To remunerate the agent the agreed amount. To indemnify the agent except for unauthorised actions and losses caused by agents own default or negligence.
41
Sources of rules governing companies
The corporations act 2001, corporation regulations common law ASIC act 2001 Set accounting standards for companies ASX listing rules Company constitution.
42
S124
A company has the legal capacity of an individual both in and outside this jurisdiction.
43
Civil wrongs
A persons act/omission brings liability to pay compensation to someone who suffers a loss caused by the act or omission. Primarily remedied by payment.
44
Criminal wrongs
a persons act or omissions that constitutes a legal offence for which organs of government can impose punishment. Concerned primarily with punishment.
45
Corporations act, Section 181
1. a director or other officer of a corporation must exercise their powers and discharge their duties: a. in good faith. b. for a proper purpose.
46
Conflict of interest
when a person such as the director, has personal interests that conflict with the interests of the company.
47
Exceptions to conflict of interest
If the conflict is disclosed in a meeting, a companies constitution allows for certain conflicts.
48
Ways someone can become a member
allotment, registration of a transfer, by transmission under will, by converting convertible notes and by taking up a directors' share qualification
49
Allotment
issuing new shares
50
registration of a transfer
transferring or purchasing shares from an existing shareholder.
51
transmission under will
shares left to someone in a will
52
converting convertible notes
usually starts as a life loan, with rights attached for a lender to have the loan converted into shares.
53
by directors' share qualification
directors will often be entitled to a passel of shares as part of their remuneration package or as incentives for good performance.
54
Substantial ownership
In public companies shareholdings of 5% or more need to be disclosed (S671B). In listed companies, members need to disclose share holdings and changes in these holdings of 1% or more.
55
Voting rights
members and shareholders have a number of rights attached to them. Typically, these are voting rights one per share.
56
Dividend rights
A return on investment as a shareholder. If a company has excess funds, makes a profit ect., it Amy return money to shareholders in the form of dividends. Dividends get taxed.
57
Discounts/preferential treatment
Another benefit of being a shareholder is sometimes they are entitled to discounts or special treatment at businesses owned by the company.
58
Court hierarchy
High court Superior courts: court of appeal, supreme court Intermediate courts: county court, district court Lower courts: magistrates, local court.
59
Elements for contract formation
Consensus ad idem (meeting of minds), offer, acceptance, intention to create legal relations, capacity to contract, consideration,
60
When does an offer end
expiry, withdrawal, counter-offer, acceptance.
61
Acceptance
express, implied, through performance.
62
Non-acceptance
silence/inaction, through different mode of comms than requested, when person is not responding to the offer, when it is actually a counter-offer.
63
non-term statements
Puffery, opinions, representations.
64
Term implied in ad-hoc conditions
term must be reasonable and equitable, be necessary to give business efficacy to achieve what the party intended, be so obvious it goes without saying, not contradict any express terms.
65
Discharge of a contract
consent/agreement, performance, frustration, rescission, breach.
66
remedies for contract breach
Common law: damage to compensate for loss, termination, Equitable remedies: specific performance, injunctions. Statutory remedies: sale of goods legislation, ACL
67
Piercing the corporate veil
to assist in a director's breach of fiduciary duties, as a vehicle for fraud, to avoid existing legal obligation, to trade while solvent, to enter uncommercial transactions, to give security interests to company officers.
68
S9
A director is: someone appointed as a director, de facto director, shadow director
69
Section 588G of corporations act
Preventing insolvent trading: punished by disqualification, pecuniary penalty, order to pay commonwealth government
70
Consequences of breaching duties as Director
rescission, civil remedies including damages, disqualification, pecuniary penalty, compensation order
71
Types of shares
Ordinary shareholders, preference shareholders, cumulative preference shareholders, partly paid shareholders, options
72
Insolvent
When a company is unable to pay its debt. (S95A)
73
Alternatives to insolvent
compulsory windup, voluntary windup, voluntary administration, receivership.

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