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Commercial Law - Folio 1

The main difference between the courts and tribunals is that courts decide most disputes and criminal cases whereas tribunals are comparatively less formal and are not restricted by the rules of evidence that are followed by the courts while deciding a matter. Tribunals deal with specialised matters quickly, cheaply and provide the highest quality in decision- making in areas of administration[1]. For example, The Victorian Civil and Administrative Tribunal (VCAT) provides fair, efficient and affordable justice for the Victorian community[2]. There are a number of Tribunals established to provide affordable alternate resolution such as arbitration and mediation in specific areas[3]. The increasing cost of litigation has prompted the parties to opt for alternate dispute resolution; even contracts between individuals and businesses now-a-days have a clause in the agreements that require parties to attempt to resolve the matter by a way of mediation or arbitration before moving the dispute to courts. Even the courts direct the parties in dispute to make a genuine step of resolving the matter through alternate dispute resolutions available.

Commercial Law - Folio 2

Dear Manager, 

Subject: Regarding a faulty Samsung Galaxy phone purchased from Samsung Highpoint City.

I am highly unsatisfied with the Samsung Galaxy phone that I received. A mobile phone technician informs me that I am facing issues with the use of my mobile phone due to water damage. I have tried returning the Samsung Galaxy mobile phone twice, but the manager at Samsung Highpoint insists the phone is not faulty and the problems have occurred because I have not used the phone correctly. I believe that my rights as a consumer are being violated. Section 18 of the Australian Consumer law states that a person must not mislead or deceive or is likely to mislead or deceive any other person in trade. Australian Consumer Law was passed to protect consumers from any malpractices or lewd conduct by service or goods provider. For breach of Section 18 of Australian Consumer Law it is important to show that the consumer was mislead or deceived or was likely to be misled or deceived it is not necessary that the consumer necessarily bears any loss or damage due to such misconduct.[4]For example any false claim made regarding the quality, style, model or history of a product or service may amount to a misleading claim. I have been mislead by Samsung into buying Samsung Galaxy as the company claimed that galaxy phones are water resistant and would survive up to 1.5 metres deep for up to 30 minutes and various advertisement made by Samsung depicts the phones being used in, or exposed to, oceans and swimming pool[5]. The water resistant factor was an important factor that influenced me during my purchase. I have been deceived and mislead by your company and there has been a breach of consumer guarantees as per Australian Consumer Law which states that business must provide automatic guarantee[6] to consumers which includes that the product or service they provide must work and do as advertised. Goods or services must match description made by the salesperson regarding the product in any form or manner and be fit for any purpose that the company claims it to be and meet any extra promises made about the performance, conditions and quality of the product. As the product Samsung Galaxy phone is faulty and doesn’t match the description or special features that were advertised resulting in breach of various provisions of Australian Consumer Laws I am entitled to a replacement or a refund for the Samsung Galaxy phone that I bought from Samsung Highpoint City. On failure of providing me with replacement or refund for the Samsung Galaxy phone I will further take this complain to the ACCC and take a legal action against your company. I hope you resolve my issues expediently as I have already made complaints to the manager of Samsung Highpoint City twice following which I gained no fruitful response. Please reach me on my number to discuss the matter further.

Yours Sincerely,

ABC

Commercial Law - Folio 3

A franchise is a joint venture between franchisor and franchisee[7]. The sale and purchase of a franchise in Australia in regulated by Competition and Consumer (Industry Codes - Franchising) Regulation 2014[8]. Franchisor is a person who establishes a brand and a business system and receives royalty as a consideration for giving the right to do business to the franchisee under franchisor’s name and system. One of the major advantages of choosing franchise of a business is that the franchisor provides a recognized brand name and the work of franchisee is to enhance the reputation of the brand or the company in their market area. Buying a franchise is a viable alternative if one wants to start their own business .Franchisors provide all the training and equipment used for proper functioning of the business[9] and one does not necessarily need to have prior business experience in order to run a franchise. On the other hand, this restricts the creativity of a person as the agreement between a franchisor and the franchisee for the franchise dictates how to run the business, where to operate, and what products to sell and whom to contact for the supplies to run the franchise. One of the advantages of buying a franchise is securing finance for the franchise than a start-up business and would cost less in comparison; disadvantage on the other hand, is that it still requires a significant monetary investment and the profit earned would be shared with the franchisor. These are some of the advantages and disadvantages that needs to be kept in mind.

Commercial Law - Folio 4

The most important thing that I learned in this semester was that each word of the contract or any document holds meaning that could make or break your case. As an aspiring advocate one must research about all the conditions of any document before signing it or letting your clients sign it. There could be various ways in which any circumstance or condition may be drafted in a contract and it is the job of an advocate to decipher those words and protect the clients from any harm that could be caused in the future. Many people sign a contract just relying on the words of an agent or any person with whom they are dealing. The person can deceive and trick you into signing a contract which would later turn out to be your disadvantage. It is the duty of the people signing the contract or any document to read it thoroughly and understand their words and if any point is missed by the parties they would not, in most cases, get relief from the court for their negligence. One of such cases was Butcher v Lachlan Elder Realty Pty Ltd[10] where the appellants filed a case against the agent for misleading and deceptive conduct. The appellants purchased a property in Sydney through auction. Prior to which they received a brochure stating that the pool was within the boundaries of the property. What the appellants did not read was a small printed disclaimer saying that the information was gathered from a reliable source, however, there was no guarantee of accuracy of the provided information and that the interested person should rely on their own enquiries. The High court in this case stated that there was no misleading or deceptive conduct on the part of the agent and any reasonable purchaser would have read the full document including the disclaimer. This case sets an example for me as an advocate to never let my clients and myself be misled and be thorough in understanding any document. Another discovery that I made was that there are automatic guarantees for consumers and that there are n number of remedies available for consumers under commercial law which i was unaware of. Finally, I came to realise that reality of application of law in practical life is different than what we study in law schools.

Bibliography for Commercial Law

Case law-

Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd(2006) ATPR 42-106

Butcher v Lachlan Elder Realty Pty Ltd [2004] 218 CLR 592

Websites-

Advantages and Disadvantages of Buying a Franchise | Business Queensland(2016) Qld.gov.au <https://www.business.qld.gov.au/starting-business/buying-business/buying-franchise/advantages-disadvantages>

Australasian Legal Information Institute(2015) Austlii.edu.au <https://www.austlii.edu.au/>

International Comparative Legal GuidesInternational Comparative Legal Guides International Business Reports <https://iclg.com/practice-areas/franchise-laws-and-regulations/australia#:~:text=The%20sale%20and%20offer%20of>

Justice, Hon and Garry Downes, “TRIBUNALS IN AUSTRALIA: THEIR ROLES AND RESPONSIBILITIES” <https://www.aat.gov.au/AAT/media/AAT/Files/Speeches%20and%20Papers/tribunals.pdf>

Street, King, Home | VCAT(October 11, 2019) Vic.gov.au <https://www.vcat.vic.gov.au/>

The Role of Courts and Tribunals | Administrative Appeals Tribunal(2020) Aat.gov.au <https://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-garry-downes-am-former-pres/the-role-of-courts-and-tribunals>

What Is a Franchise?(2019) IFA <https://www.franchise.org/faqs/basics/what-is-a-franchise >

Competition, Australian Competition and Consumer Commission (April 2019) Australian Competition and Consumer Commission <https://www.accc.gov.au/>

[1] Hon Justice and Garry Downes, “TRIBUNALS IN AUSTRALIA: THEIR ROLES AND RESPONSIBILITIES” <https://www.aat.gov.au/AAT/media/AAT/Files/Speeches%20and%20Papers/tribunals.pdf>.

[2] King Street, Home | VCAT (October 11, 2019) Vic.gov.au <https://www.vcat.vic.gov.au/>.‌

[3] The Role of Courts and Tribunals | Administrative Appeals Tribunal (2020) Aat.gov.au <https://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-garry-downes-am-former-pres/the-role-of-courts-and-tribunals>.

[4]Astrazeneca Pty Ltd v GlaxoSmithKline Australia Pty Ltd (2006) ATPR 42-106

[5] Australasian Legal Information Institute (2015) Austlii.edu.au <https://www.austlii.edu.au/>.

[6] Competition and, Australian Competition and Consumer Commission (April 2019) Australian Competition and Consumer Commission <https://www.accc.gov.au/>.

[7]What Is a Franchise? (2019) IFA <https://www.franchise.org/faqs/basics/what-is-a-franchise>

[8]International Comparative Legal Guides International Comparative Legal Guides International Business Reports <https://iclg.com/practice-areas/franchise-laws-and-regulations/australia#:~:text=The%20sale%20and%20offer%20of>.

[9]Advantages and Disadvantages of Buying a Franchise | Business Queensland (2016) Qld.gov.au <https://www.business.qld.gov.au/starting-business/buying-business/buying-franchise/advantages-disadvantages>.

[10]Butcher v Lachlan Elder Realty Pty Ltd [2004] 218 CLR 592

Explanation of s18 ACL including requirements to be met in determining a breach of this section

Explanation of how s18 and any guarantees of the ACL have been breached in your situation

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