Bob needed to be advised on fair trading laws based on which his business will operate fairly and competitively. In addition to this, Bob also needed to be combined himself with Australian federal and State laws based on which both the business and the customers can get protected from unfair trading practices. Federal as well as the State laws altogether with the industrial codes of practice helps a business in operating fairly and competitively (Andy, 2020). As per the case study, Bob wanted to open his own businesses within a new shopping centre located in Melbourne where he had verbally told Keen of the shopping centre “Southfield” that not to allow any other similar businesses to lease premises in the shopping complex before Bob.
Hence Bob had signed the contract of leasing premises without checking the document where it is written that no verbal representations is possible and it is the entire responsibility of both the parties to follow terms and conditions of contracts. After some months, the shopping complex have proved to be one of the financial failure and hence to survive it allowed other similar businesses like Bob’s to enter the market by leasing the premises. This is the reason, the business of Bob got declined due to competitors. When he complained regarding this, he was told that in the contract nowhere is written that any other businesses cannot be permitted in the shopping complex and the verbal assurance provided by Ken is also not binding according to the terms and conditions of the lease contract (Nortonrosefulbright, 2019).
The leases of the business premises in South Australia have been regulated through Retail and Commercial Leases Act 1995. The application of the Act on any lease for rent does not exceeded by USD 400,000. There are two types of leases under commercial leases that is retail and the other one is non-retail leases. Within the Australian Capital Territory, there exists two types of leases, one is Retail lease and the other one is non-retail lease. Before signing the contract, it was the responsibility of Bob to check that whether the reviews on rent are included in the lease and could also needed to be aware regarding capital expenditure, repairs as well as mantainance (commercialproperty2sell, 2020). Before signing the contract, Bob should show the awareness regarding certain elements like Offer and Acceptances, Legal Objects, The Capacity of Parties, Considerations etc. In addition to this , Bob could show his right with respect to common statute laws after checking certain things under lease lie names , addresses , registration and phone numbers of thee agents , the landlord’s (here Ken’s information ) like names and addresses should be there in the contract.
Along with this, the address of the premises should also exist along with other things like the domestic appliances in the property which involves certain instructions (commercialproperty2sell, 2020). The case on Bob that had been highlighted was regarding the unfair contract terms other than the credit contracts which must not contain the unfair terms. The issue that had been reflected through the case is that Bob had signed the lease contract with Ken without checking that verbally what Kent have promised regarding the lease was there in the contract paper or not? The primary problem was that Bob had signed the contract without checking the details properly (smallbusiness, 2020).
In this situation, it will be the responsibility of Federal Law Court to analyze the real intentions of both the parties. In one of the case , Collector of Customs v Agfa-Gevaert Ltd  HCA 36; (1996) 186 CLR 389, 397, the Federal law court have highlighted the distinction between the law and fact. As per the Federal Court of law in Australia, the meanings and construction are interdependent to each other and it is also difficult to evaluate that how the meaning is a question of fact where the construction is a question of law without insisting on certain qualifications concerning construction that is currently unavailable from the law. Again in the case of Mason J in Codelfa (at 352), it have been highlighted by the Federal Court of Australia that rectification is important in the context of contracts and documents , not at all with the intentions (tenants, 2020).
Hence in the mentioned case, it was the responsibility of Bob o abide by certain policies and rules of Commercial Tenancy Agreements Act 1985 where it will be the responsibility of the landlord to provide tenant with a disclosure statement, a proposed lease, a tenant guide and also an operational expenses budget which was probably missing at the time of signing the contract by Bob. In this type of lease contracts, covered under the Act, firstly needed to be considered by the Small Business Commissioner (Andy, 2020). If the matter cannot get solved through Small Business Commissioner, it needed to be referred to the State Administrative Tribunal to make certain decisions and actions. Most of the business owners did not have adequate knowledge of the leases and also unaware of the commercial as well as legal advices.
The lease as well as the clauses might appear to be simple, standard as well as acceptable (commercialproperty2sell, 2020). In this context , the important actions that needs to be undertaken involves legal as well as commercial advices before taking decision regarding any commitments in relation to buying , lease as well as incurring any other obligations. Again the advice should be obtained before signing of any offer or any other lease related document and the payment of any deposit or the other monies (smallbusiness, 2020). The businesses as well as the property advices also needed to be seeked to ensure that the lease is sound on business along with the property principles (Andy, 2020).
Hence to conclude, it can be stated after evaluating the cases, in the case of Bob, in order to win a claim for the rectification the usual burden of proof for the civil claims needs to meet in such a way such that the Federal Court of Law could act upon certain relevant facts and can be easily proved on the balance of probabilities so that contract can correctly set out the common continuing intention of both parties. The application of Commercial Tenancy Agreements Act 1985 also highlights certain assistances from the business local service providers defined as State-wide network of advisers who actually helps in development, management and also expansion of business through the different business associations of members like WA Retailers Association along with Chamber of Commerce and Industry. Actually leasing involves the application of different practical, financial as well as legal and commercial issues. It is not always possible that one assistance source will meet the leasing assistance needs.
Andy, K. (2020). Breaking a rental lease . Retrieved from https://www.choice.com.au/money/property/renting/articles/breaking-a-rental-lease
commercialproperty2sell. (2020). 10 Things to Consider Before Leasing a Commercial Property. Retrieved from https://www.commercialproperty2sell.com.au/blog/2015/01/10-things-to-consider-before-leasing-a-commer.php
James, E. (2020). Three Issues in Construction of Contracts. Retrieved from https://www.fedcourt.gov.au/digital-law-library/judges-speeches/speeches-former-judges/justice-edelman/edelman-j-20160127
Nortonrosefulbright. (2019). No oral modification or variation clauses:. Retrieved from https://www.nortonrosefulbright.com/en-in/knowledge/publications/faa7cea4/no-oral-modification-or-variation-clauses
smallbusiness. (2020). Leasing business premises. Retrieved from https://www.smallbusiness.wa.gov.au/sites/default/files/leasing-business-premises-edition4.pdf
tenants. (2020). Repairs and maintenance. Retrieved from https://www.tenants.org.au/factsheet-06-repairs-and-maintenance
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