Explain the property law doctrine of adverse possession and how it operates in New South Wales.
The doctrine of adverse possession is enforced in Common Law nations whereby the legal rights of a land are shifted onto an individual who in essence is not the legal heir of the piece of land. It is important to note that the rights to any piece of land fundamentally come under the purview of constitutional law. In terms of the enforceability within Australia, the doctrine of adverse possession is applicable based on the specific laws and regulations of the States and Territories within the country. The laws currently existent in the Australian Capital Territory and the Northern Territory do not recognize any loss of title of land through the doctrine of adverse possession, but specific states such as that of New South Wales recognizes the doctrine through state legislations. The most important criteria for obtaining land under the doctrine of adverse possession relates to the concept of factual possession that is in conjuncture to the maxim animum possidendi, which translates into an intention to possess. The factual possession must also comprise of exclusivity, whereby the adverse possession would entail no presence of confrontation or violence or a forceful measure. Several cases have also been witnessed where the original owner grants the possession of the land to the possessor. Naturally, the doctrine of adverse possession would not be applicable in this context.
Moving onto the applicability of the doctrine of adverse possession within New South Wales, the limitation period that the owner must bring forth any attempt at recovery is set at 12 years. Furthermore, the principles of good faith and compensation are not entailed within the enforceability of the doctrine of adverse possession. Good faith is not a condition of sufficiency whereby a possessor may obtain the title of a land through the doctrine of adverse possession. Subsequently, cases that pass on the title to the adverse possessor require no compensation or consideration to be paid or extended onto the original owner of the land by any means. Historically speaking, it was not possible to obtain the title right to a piece of land within the territory of New South Wales under the doctrine of adverse possession. However, it only became possible in 1979, when pt 6A was introduced into the Real Property Act 1900 that allowed for claims for adverse possession. It is imperative that the claimants appealing for the rights to a piece of land under the doctrine of adverse possession adhere and maintain the fundamental principles of common law as enforced within NSW and Australia. Section 45D of the said statue determines the legality of the claim for an adverse possession of land.
In terms of the process involved, any intention to grant an order of adverse possession by the Registrar General would have to specify a period of not less than one month for the party affected by the claim for the land under adverse possession to file a caveat in relation to the standard provisions. Contradictorily to the state laws in Victoria and Western Australia, the statute in force within New South Wales does not allow for the applicant under the adverse possession doctrine to obtain the rights until the completion of the registration process. An important issue that has come up numerous times in recent cases is the rights of the possessor prior to the completion of the registration. While certain authorities have hinted that the claimant acquires an inchoate title of possession, other authorities have gone on to mention that there is no inchoate right involved for the possessor. The statute within NSW does not expressly state that the possessory claim would not be exception to the aspect of indefeasibility. It is more aligned with a possessory claim that is regulated through statutes against the existing proprietor one the limitation period comes to a close.
The doctrine of precedent is a major characteristic of the law in countries following a common law system. Explain what is meant by the doctrine of precedent and how it is utilised in Australia.
The doctrine of precedent is an extremely common characteristic that is followed within countries governed under the common law system. In terms of a definition, the doctrine of precedent in essence refers to the need for courts of law within the common law countries to follow the line of through and reasoning taken in past decisions. The key fundamental in this regard is that the case at hand must raise facts similar to or in an alignment with the facts that were raised in the previously decided case. The doctrine of precedent has sustained within the common law system for decades predominantly based on serving the political ideology of the rule of law. The prerogative in this regard relates to maintaining the consistency and predictability within the law along with ensuring that the subjects of the law are able to trust and gain confidence within institutions of the state such as the legal system. However, it is important to note that there have been several important questions raised over the past few years in terms of the moral correctness of the enforceability within the doctrine of precedent. The most prominent questions have been the timing and the reason as to why the courts of law within common law nations are required to follow cases that raise similar facts and have been decided in the past along with what the implications tend to be of the application of the doctrine of precedent on the lower courts within the common law country.
Considering the application of the doctrine of precedent within the territories of Australia, it is often referred to as the hallmark of the common law system. While its importance in regular legal practise may have been subdued due to the pervasiveness of the statutory law, it has firmly established its presence as the cornerstone within the Australian legal system. The primary considerations in this regard are essentially related to the aspects of consistency, continuity and predictability. However, it is important to note that the doctrine of precedent manifests as a guiding line as opposed to a rigid and definitive doctrine of implementation. The maxim ratio decidendi or the majority opinion of the judges is the key fundamental in this regard, whereby the opinions of the judges throughout the course of legal history follow along a similar line that is based upon tangential or additional questions based upon the specific facts and circumstances of the case.
The High Court of Australia has reiterated in several cases that the decision of a case manifests as a legal binding. The key argument in this regard related to how the restriction entailed therein would essentially be inappropriate and lack feasibility, especially when considering how courts of law within Australia are tasked with the governance of the nation. While there has not been any explicit or precise establishment as to how a previous decision is overruled, a personal disagreement of the judge would certainly not be sufficient. Several cases that have overruled previous decision use phrases describing the erroneous manifestation of the decision in relevance to the adjudication required within the case at hand.
However, the general rule of law is that precedents that are specifically relevant to a case must be followed. The aspect of overruling the doctrine of precedent must be exercised with extreme caution and only be engaged in during exceptional circumstances. The High Court of Australia has also gone on to state that the in the existence of a ratio decidendi, it would not be permissible for any other Australian court of law to traverse beyond the reasoning stated in the law. While an analysis of the rule may be engaged in by the trial and appeal courts along with necessary elaborations, the legal duty of obedience would have to be accommodated and adhered to. Considering the effectiveness of the doctrine of precedent within Australia, there have been cases where a previous case paved the way for new case to be decided in a precise manner, which could otherwise have been difficult. The judgement passed in Imbree v McNeilly is highly relevant, as it was regarding the duty of care owed by a driver as compared to that of a driving instructor. The implications of the doctrine of precedent are primarily aligned with the conscientious articulation of the content of practice and ensuring consistency. While a number of civil law nations have placed questions of the dissenting opinions, the doctrine of precedent has certainly brought about a sense of stability within the legal system in Australia.
A number of structures are available for businesses under Australian law. Two of these structures are the sole trader and the company. Explain these two structures as well as the benefits and detriments of each.
The business ecosystem within Australia offers a number of structures to individuals looking to set up their ventures. The two most common forms of business structures include the sole trader, which is also referred to as the sole proprietorship and the other is that of a registered company. The sole trader refers to a business strcuture where the sole trader is in charge of the operations and management of the business completely in singular manner. In terms of the benefits, the fact that all the profits are retained by the trader finds the highest degree of prominence. There is not requirement for any sort of profit sharing with any other individual or organisation and any revenue that the sole trader business generates rests solely with the sole trader. Furthermore, the start-up costs are also relatively low as compared to other business structures available within Australia such as the partnership or the registered company form. The ease of formation in terms of the financial implications along with the limited requirements of formalities such as governmental registration and notifying the ASIC are also not required. The privacy entailed within the business is also very high, and the sole trader can maintain secrecy over the trade secrets to the fullest possible extent. Another major advantage associated with the sole trader structure is that the business operations are relatively simple and easy to manage, while also entailing the benefit of being able to change to a different legal structure as and when desired by the sole trader.
While the advantages are in plenty, the sole trader structure also suffers from a distinct set of demerits and limitations. The most prominent among them relate to the lack of liability sharing similar to the lack of any requirement to share profits. If the sole trader runs in losses and leads to liabilities for the business, the sole trade would have to bear them alone. In terms of the legal principle, the sole trader structure does not benefit from the doctrine of a separate legal entity, where the business is considered as an artificial legal person as compared to the sole trader. It also affects the continuity of the business in a negative manner in terms of the death of the sole trader and leads to a plethora of legal complications and adversities. Another major disadvantage of the sole trader structure is that the ability to raise capital is extremely limited due to the lack of transparency. The sole trader structure typically finds it very difficult to generate external finances through investors owing to the very same reason.
Comparatively, the company structure is far more formalised and entails a higher degree of security for the individuals involved therein. Companies within Australia are governed by the Corporations Act 2001. There are predominantly two types of companies broadly, with one being private companies that require Pty Ltd and stand for proprietary limited and the other being public companies. Public companies can further be limited by guarantee, unlimited or no liability. The most prominent benefits of a company are that is entails a massive degree of transparency, which subsequently translates into consumer as well as investor confidence. The company structure can also engage in business expansion in an unrestricted manner as compared to the sole trader structure owing to the larger availability of resources and funds. Another benefit entailed within the company structure is that the liabilities of the owners or the directors are limited to their investment generally, and their personal assets cannot be attached to the liabilities of the business. The company structure also benefits from the separate legal entity, where the business would continue even upon the death or demise of the owners. Governance agreements are also well defined owing to the regulatory requirements along with governmental grants and incentives to facilitate scalability.
However, the company structure also suffers from a number of limitations; with the most prominent being the relatively high set up costs and the compliance requirements during the formation process. Moreover, the operational responsibilities are typically shared among a number of individuals including the directors, managers, shareholders and the members. Naturally, it runs the risk of power drives and subsequent reduction in the concentration of control. The operational expenses for a company are also far higher as compared to other structures such as the sole trader, and this is predominantly due to the larger number of requirements in terms of regulations and governmental protocols. The company structure also requires a deeper understanding of the corporate environment, as failing to do so could essentially jeopardise the operations over time. Tax concessions are also limited despite the presence of incentives and subsidies, and it could lead to higher operational expenses. The company structure also warrants the publication of working operatives and financial accounts, which limits the potential of maintaining trade secrets, thus giving rise of competition.
Name and explain the meaning of four (4) of the consumer guarantees set out in the Australian Consumer Law.
The Australian consumer law is fairly extensive in essence, and predominantly strives to safeguard the rights of the consumers through explicit provisions. The key governing statute in this regard is the Competition and Consumer Act 2010, where the text relevant to Australian Consumer Law is set out in Schedule 2 of the enactment. It sets out a number of key guarantees for both products and services bought within the territories of Australia and from Australian suppliers, manufacturers or importers. The key prerogative within the statute in terms of safeguarding consumer law and facilitating protection relates to ensuring that the consumer receives the goods that he or she has paid for in accordance to the intentions of purchasing. However, there occur a number of situations where the products or commodities break easily, do not work as mentioned or as reasonably expected. The enforceability of the guarantees are applicable in such context and while consumer protection is the central theme within the text, the legal system in Australia has tried to maintain a balance in terms of the rights of the buyers and the rights of the sellers in conjuncture.
One of the most fundamental guarantees within Australian consumer law is that of an acceptable quality. Acceptability of quality as defined within the statute predominantly revolves around the aspects of safety, durability and being free from any sort of manufacturing or production defects. Furthermore, the appearance and the finish of the product are also stressed upon in terms of ensuring that they are of a reasonably acceptable quality along with the fact the products do everything that they are commonly used for. Several key criteria determine the acceptability of a product that is purchased in the context of Australian consumer law including the nature and type of the products, the price point attached, the information provided to the buyer by the seller or manufacturer prior to purchasing the product and the packaging or any relevant promotional material. The usage of the product post purchase is also a key area of consideration, whereby damage deliberately caused by the user would essentially negate the applicability of the guarantee. It is important to note that goods and commodities are not general expected to be indestructible as a thumb rule. The guarantee of acceptable quality is also applicable to second hand goods that are sole in a formalized manner.
The guarantee of being fit for a particular purpose is also a key highlight within the different guarantees put forward by Australian Consumer Law. It relates to the product being suitable for any use that is made suitable for any particular purpose that is made known to the seller by the buyer prior to purchasing the product. If a consumer explains to the seller the product being purchased would be used for a specific purpose, and the product is subsequently bought based on the information provided by the seller along with their claims and expertise, it translates into the guarantee of being fit for a particular purpose. However, the guarantee would not be applicable where it would come under the purview of buyer if it would be unreasonable to rely on the skill and expertise of the seller due to any specific conditions. Furthermore, if the buyer purchases the product despite nay warning or advice from the seller in the context of the product not meeting the particular purpose, the guarantee would not be applicable or enforceable.
Another guarantee as mentioned within the Australian Consumer Law relevant to the purchase protection of goods and commodities is the guarantee that the product would match any sample that is shown to the buyer or any demonstration model. However, it would only be applicable if the purchaser was influenced to buy a specific product or commodity based on the demonstration of a sample. The purchased product would have to match the quality, state and condition of the sample product by all means, and any discrepancy would automatically protect the purchaser in terms of the guarantee to match the sample or the demonstration model. The guarantee of matching the description is also enforced within Australian Consumer Law, especially in terms of the product description that is usually contained in the packaging outside. The guarantee also extends to any descriptions or working operatives of the product that have been mentioned verbally to the purchaser by the seller. The key criteria in this regard are the accuracy of the description in terms of how the information is presented and whether it accurately matches to the product.
The fourth guarantee as enforced within Australian Consumer is that the product must be replaced, repaired or refunded based on the specifications of the errors contained therein. Repairs are typically warranted when the fault with the product is minor and the business that sold the products offers to repair it. However, it must be done within a reasonable time period and must entail a formal repair notice. Replacements or refunds are typically warranted when the fault with the product is a major problem and is essentially usable. The concept of a major product fault is dependent on a number of aspects, which include any aspect that would have stopped anyone from buying it in a reasonable manner, it is different from the sample or the description, it is unfit for usage in common purpose, and it does not do what it is meant to do and is unsafe.
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