Commercial Law

Commercial Law.

Assessment 2: Essay (1,500 words) (25%)

Overview

The essay must be completed by each student individually. There will be two problem questions, which will be made available on vUWS. An announcement will be posted on vUWS in Week 5, when the essay questions have been uploaded into the Assessment folder.

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Students must answer both questions. This assessment task has a maximum of

1500 words. More specific information will be available on vUWS.

Essay due date

The essay is due in Week 7, Friday, 9 August 2019 before 11.00 pm. Your essay must be submitted to Turnitin, which is available on the vUWS site for this unit.

All students are required to learn how to use Turnitin well in advance of the due date for the essay. Difficulty using Turnitin at the last minute will not be accepted as an excuse for missing the deadline (except in the event of a verifiable problem with our systems at the relevant time). You may resubmit your papers to Turnitin as many times as you wish before final delivery. However, bear in mind that it can take up to

24 hours for a fresh Turnitin report to be generated – so plan ahead to allow yourself time to work on your paper again after the first Turnitin report and still have time to resubmit for another report (or to do this as many times as you wish).

  Make  sure  you  submit  a  final  version  of  your  essay,  as  there  will  be  no resubmissions after the due date without a penalty applying.

  Do not submit the essay by e-mail under any circumstances.

  Students  MUST  KEEP  A  HARD  COPY  of  the  essay  identical  to  the  one submitted to Turnitin.

Return of assessment material

No hard copies of the Essay will be returned in class. Essays can be viewed on vUWS as soon as they are marked.

Criteria and general assessment requirements

Essay questions are fact based legal problems. The following Learning Outcomes will be assessed in the Essay:

2.                            Apply common law and statue law to tortious, contractual, consumer and agency relationships to resolve legal issues.

3.                            Examine the various business entities and their ongoing legal responsibilities to solve practical legal problems.

Presentation & style:

   organises a clear and coherent essay;

   writes clearly, accurately and is grammatically correct;

   punctuates appropriately;

   references sources according to the Australian Guide to Legal Citation (see

‘Referencing’ below) or in accordance with the referencing style adopted by the school that provides the course.

Content and knowledge:

   identifies and  explains the  relevant area of  common  law and  statutory legal systems;

   integrates relevant cases and legislation to support their answer to the legal problem;

   applies the legal principles and legislation to the facts of the legal problem; and

   provides a conclusion to the legal problems (questions raised), including any defences, remedies or penalties.

Submission requirements

Word length       A word limit of 1500 words has been set, which excludes footnotes, titles and headings. The word limit will be strictly enforced. There will be a 1 mark penalty for every 100 words in excess of the word limit

– or part thereof. For example, an essay that is 1,851 words long will be deducted 4 marks. Please remember that this essay has been structured so that a well-considered and scholarly written essay may be achieved within the prescribed word limit.

Format                There are strict formatting requirements with which students are required to comply. The unit coordinator reserves the right to refuse to mark essays that are not submitted in accordance with formatting requirements:

 Do not manipulate the margins of the page.

 Use Arial 12 point font.

 Essays must be one and a half spaced or double spaced.

Ensure your full name and student number appears on the footer of each page.

 Number all pages consecutively.

 Provide a reference list or a bibliography.

Answer format:  Students should use the ILAC method of answering the assessment question:  i.e. Issue, Law, Application, Defence (if any), Conclusion and Remedy (if any).

Referencing       Essays may be referenced in accordance with the Melbourne University Law Review Association, Australian Guide to Legal Citation (Melbourne University Law Review Association Inc, 4th

edition available at: https://drive.google.com/file/d/14fRQZ- U68Zwe6UQEBXykR5o8Xbo1jTTI/edit.

Alternatively, students may comply with the referencing requirements of their course. A business citation system only (it could be Harvard or some modified Harvard system). Full details of referencing systems can be found at: http://library.westernsydney.edu.au/uws_library/guides/referencing- citation. A full range of resources for searching and citing references is available at: http://library.westernsydney.edu.au/uws_library/services/training

Only Electronic submission/ Turnitin

NO Essay cover sheet

Late submission

Students are required to keep a hard copy and electronic copy of all written work, which is submitted. The essay must be submitted electronically via the Commercial Law (PG) Essay Turnitin link on the vUWS site for this unit. Please read the Turnitin Instruction Manual prior to submission. Students may not hand in hard copies. No other method of essay submission will be accepted. Further information in regard to the submission of the essay will be posted in the assessment folder of the vUWS page.

Note:  Check whether you are permitted to submit your assignment multiple times or only once.

Please do NOT affix an Essay Cover Sheet to your essay. By uploading a submission into Turnitin students certify that: (1) they hold a copy of the essay, if the original is lost or damaged; (2) no part of this essay or product has been copied from any other student’s work or from any other source, except where due acknowledgement is made in the essay; (3) no part of the essay/product has been written/produced for the student by any other person, except where collaboration has been authorised by the unit lecturer concerned; and (4) they are aware that this work may be reproduced and submitted to plagiarism detection software programs for the purpose of detecting possible plagiarism ,which may retain a copy on its database for future plagiarism checking.

Late essays must be submitted to the Late Commercial Law (PG) Essay Turnitin link on the vUWS site for this unit. No other method of late essay submission will be accepted.

A student, who submits a late assessment without approval for an extension, will be penalised by 10% per day up to 10 days, i.e. marks equal to 10% of the essay’s weight will be deducted as a ‘flat

Extension of due date for submission

rate’ from the mark awarded. For example, as the essay has a possible highest mark of 25, the student’s awarded mark will have 2.5 marks deducted for each late day. Saturday and Sunday are counted as two days. Assessments will not be accepted after

the marked assessment task has been returned to students, who submitted the task on time.

The essay is to be submitted via Turnitin by the due date and appointed time. Extensions will only be granted in the event of serious illness or serious misadventure (proved to the satisfaction of the unit coordinator) that prevents you from completing the assessment by the due date.

If students need to apply for a short extension of time to complete an assessment item, they should email the unit co-ordinator requesting an extension and attach to their request all appropriate supporting documentation, including all work done on the essay up to the date of the submission of the application. In accordance with university policy, extensions will only be granted for unforeseen and/or grave illness, misadventure, accident or other extenuating circumstances. An application for an extension does not automatically mean that an extension will be approved.

Students should submit their essays as soon as they are completed and not wait for the outcome of their special consideration application. Remember, not all special considerations applications are approved and/or extensions may be for a shorter period than that which the student requested.

Where special consideration is sought for circumstances involving more than three consecutive days or more than five days within a teaching period, students should complete a ‘Special Consideration During Teaching Session’ application available through eForms via MyUWS.

Marking criteria and standards

Fail (0-49%)   The student’s performance fails to satisfy the learning requirements specified. For example, poor knowledge or application of the law, irrelevant discussion, poor standard of presentation and inaccurate referencing.

Pass (50-

64%)

Credit (65-

74%)

The student’s performance satisfies all of the basic learning requirements specified and provides a sound basis for proceeding to higher-level studies in the subject area. The student’s performance could be described as satisfactory.

The student’s performance, in addition to satisfying all of the basic learning requirements specified, demonstrates insight and ability in analysing and applying relevant skills and concepts. The student’s performance could be described as better than competent.

Distinction

(75-84%)

High distinction (85%+)

The student’s performance, in addition to satisfying all of the basic learning requirements, demonstrates distinctive insight and ability in analysing and applying relevant skills and concepts, and shows a well-developed ability to synthesise, integrate and evaluate knowledge. The student’s performance could be described as distinguished.

The student’s performance, in addition to satisfying all of the basic learning requirements, demonstrates distinctive insight and ability in analysing and applying relevant skills and concepts, and shows exceptional ability to synthesise, integrate and evaluate the law. The student’s performance could be described as outstanding.

QUESTION 1 (15 Marks)

On 15 January 2019, Krispy Kreme Doughnuts Inc. (‘Krispy Kreme’) delivered boxes of doughnuts to Osman, the manager and owner of, 7-Eleven Inc., (‘7-Eleven’). Osman noted that the boxes had the following expiry date stamped on the boxes: ‘best before

10  January  2019’.  Osman  was  about  to  call  Krispy  Kreme  to  return  the  boxes  of doughnuts as the best before date had expired five days earlier. However, he became distracted  when  Isaac,  an  employee,  spilt  some  orange  juice  on  the  floor.  Osman placed the doughnut boxes on the counter and told Isaac to mop the orange juice off the floor. Osman was concerned that someone may slip on the wet floor and hurt themselves. Sara, a famous novelist, drove into 7-Eleven to fill her car with petrol. She was  slightly  tipsy  having  enjoyed  a  celebratory  wine  after  coming  back  from  her successful book launch. While filling up the car with petrol, she noticed Isaac mopping the floor in the store. She entered the 7-Eleven store to pay for the petrol. As she walked towards the cash register, Sara slipped and fell down. Sara injured her wrist trying  to  break  the  fall.  Osman  felt  bad  for  her  and  handed  Sara  two  boxes  of doughnuts that had been delivered to his 7-Eleven outlet earlier. Osman also offered to drive Sara to the local doctor, Dr Ozzie.

After examining Sara’s wrist, Dr Ozzie assured her that the x-ray showed that Sara had  nothing  to  worry  about.  Dr  Ozzie  bandaged  her  wrist  and  prescribed  some painkillers. Sara thanked the doctor and handed him the same box of doughnuts which Osman had gifted her earlier. The doctor took the doughnuts home, but ate them only after two weeks.

In early March 2019, Sara realised her wrist still had not healed and she was in a lot of pain. Sara decided to visit her family doctor, Dr Esha. Dr Esha conducted a CT scan on her wrist and diagnosed that Sara had in fact fractured her wrist. Dr Esha told Sara that  in  her  view,  according  to  current  medical  guidelines,  Dr  Ozzie  should  have performed a proper CT scan and set the fracture using a cast so the wrist could heal quicker.  Dr Esha also told Sara that Dr Ozzie should have advised her to come back to his clinic if she was in pain and if the mobility of her wrist did not improve within a week. Due to the delay in receiving appropriate treatment, Sara developed arthritis on her wrist. She is unable to work as a writer. She now wishes to sue Dr Ozzie. Dr Ozzie, is in hospital with food poisoning and he thinks the food poisoning may be due to the consumption of the doughnuts Sara had gifted him.

Advise Sara, Dr Ozzie and 7-Eleven of any rights they may have and if Dr Ozzie and

7-Eleven will be liable under the Tort of Negligence ONLY. Give full legal authority for your answers.

QUESTION 2 (10 Marks)

Kabir wanted to expand his garment business, ‘Kabir Clothing Pty Ltd’ and decided to acquire  a  competitor’s  business  in  Bankstown  valued  at  $600,000.  He  required  a further $300,000 to acquire the business.  Kabir decided to apply for a business loan from  the  National  Australia  Bank.  As  part  of  the  National  Australia  Bank’s  loan assessment process for loan applicants, the bank informed Kabir that they required the latest financial statements from Kabir Clothing Pty Ltd to complete the credit check. The  financial  statements  for  the  financial  year  July  2017-June  2018  had  not  been prepared as his accountant had retired and had closed his business. Kabir decided to engage his uncle, Mr Singh, the principal of a prominent accounting firm, Singh & Associates in Paramatta to prepare the financial statements. Kabir informed his uncle that  he  needed  the  financial  statements  urgently  as  the  National  Australia  Bank required the financial statements before approving his loan.

Singh agreed to prepare the statements but informed Kabir that due to the urgent nature of the request, he could only prepare an initial draft of the financial statement. In his initial draft of the financial statement, Singh clearly printed the words, ‘DRAFT

FINANCIAL   STATEMENT   FOR   2018.   Singh   then   handed   the   draft   financial statement to Kabir. Singh had in fact over-valued ‘Kabir Clothing Pty Ltd’ as he had omitted to include the depreciation of fixed assets for the financial year. Although the National Australia Bank does not directly deal with Singh, they are aware that he is a prominent and reputable accountant, who has recently been awarded the title: ‘best business accountant in Paramatta’.  The National Australia Bank approved the loan in reliance  of  the  statement  prepared  by  Singh  and  submitted  to  them  by  Kabir. Unfortunately, Kabir’s business ends up making a loss and Kabir Clothing Pty Ltd goes into liquidation.

Advise the National Australia Bank if it can successfully sue Kabir, Singh, and Singh

& Associates? Consider all relevant common law and statute law applicable in relation to the Tort of Negligence in your answer.

Assessment 2: Essay (1,500 words) (25%)

Overview

The essay must be completed by each student individually. There will be two problem questions, which will be made available on vUWS. An announcement will be posted on vUWS in Week 5, when the essay questions have been uploaded into the Assessment folder.

Students must answer both questions. This assessment task has a maximum of

1500 words. More specific information will be available on vUWS.

Essay due date

The essay is due in Week 7, Friday, 9 August 2019 before 11.00 pm. Your essay must be submitted to Turnitin, which is available on the vUWS site for this unit.

All students are required to learn how to use Turnitin well in advance of the due date for the essay. Difficulty using Turnitin at the last minute will not be accepted as an excuse for missing the deadline (except in the event of a verifiable problem with our systems at the relevant time). You may resubmit your papers to Turnitin as many times as you wish before final delivery. However, bear in mind that it can take up to

24 hours for a fresh Turnitin report to be generated – so plan ahead to allow yourself time to work on your paper again after the first Turnitin report and still have time to resubmit for another report (or to do this as many times as you wish).

  Make  sure  you  submit  a  final  version  of  your  essay,  as  there  will  be  no resubmissions after the due date without a penalty applying.

  Do not submit the essay by e-mail under any circumstances.

  Students  MUST  KEEP  A  HARD  COPY  of  the  essay  identical  to  the  one submitted to Turnitin.

Return of assessment material

No hard copies of the Essay will be returned in class. Essays can be viewed on vUWS as soon as they are marked.

Criteria and general assessment requirements

Essay questions are fact based legal problems. The following Learning Outcomes will be assessed in the Essay:

2.                            Apply common law and statue law to tortious, contractual, consumer and agency relationships to resolve legal issues.

3.                            Examine the various business entities and their ongoing legal responsibilities to solve practical legal problems.

Presentation & style:

   organises a clear and coherent essay;

   writes clearly, accurately and is grammatically correct;

   punctuates appropriately;

   references sources according to the Australian Guide to Legal Citation (see

‘Referencing’ below) or in accordance with the referencing style adopted by the school that provides the course.

Content and knowledge:

   identifies and  explains the  relevant area of  common  law and  statutory legal systems;

   integrates relevant cases and legislation to support their answer to the legal problem;

   applies the legal principles and legislation to the facts of the legal problem; and

   provides a conclusion to the legal problems (questions raised), including any defences, remedies or penalties.

Submission requirements

Word length       A word limit of 1500 words has been set, which excludes footnotes, titles and headings. The word limit will be strictly enforced. There will be a 1 mark penalty for every 100 words in excess of the word limit

– or part thereof. For example, an essay that is 1,851 words long will be deducted 4 marks. Please remember that this essay has been structured so that a well-considered and scholarly written essay may be achieved within the prescribed word limit.

Format                There are strict formatting requirements with which students are required to comply. The unit coordinator reserves the right to refuse to mark essays that are not submitted in accordance with formatting requirements:

 Do not manipulate the margins of the page.

 Use Arial 12 point font.

 Essays must be one and a half spaced or double spaced.

Ensure your full name and student number appears on the footer of each page.

 Number all pages consecutively.

 Provide a reference list or a bibliography.

Answer format:  Students should use the ILAC method of answering the assessment question:  i.e. Issue, Law, Application, Defence (if any), Conclusion and Remedy (if any).

Referencing       Essays may be referenced in accordance with the Melbourne University Law Review Association, Australian Guide to Legal Citation (Melbourne University Law Review Association Inc, 4th

edition available at: https://drive.google.com/file/d/14fRQZ- U68Zwe6UQEBXykR5o8Xbo1jTTI/edit.

Alternatively, students may comply with the referencing requirements of their course. A business citation system only (it could be Harvard or some modified Harvard system). Full details of referencing systems can be found at: http://library.westernsydney.edu.au/uws_library/guides/referencing- citation. A full range of resources for searching and citing references is available at: http://library.westernsydney.edu.au/uws_library/services/training

Only Electronic submission/ Turnitin

NO Essay cover sheet

Late submission

Students are required to keep a hard copy and electronic copy of all written work, which is submitted. The essay must be submitted electronically via the Commercial Law (PG) Essay Turnitin link on the vUWS site for this unit. Please read the Turnitin Instruction Manual prior to submission. Students may not hand in hard copies. No other method of essay submission will be accepted. Further information in regard to the submission of the essay will be posted in the assessment folder of the vUWS page.

Note:  Check whether you are permitted to submit your assignment multiple times or only once.

Please do NOT affix an Essay Cover Sheet to your essay. By uploading a submission into Turnitin students certify that: (1) they hold a copy of the essay, if the original is lost or damaged; (2) no part of this essay or product has been copied from any other student’s work or from any other source, except where due acknowledgement is made in the essay; (3) no part of the essay/product has been written/produced for the student by any other person, except where collaboration has been authorised by the unit lecturer concerned; and (4) they are aware that this work may be reproduced and submitted to plagiarism detection software programs for the purpose of detecting possible plagiarism ,which may retain a copy on its database for future plagiarism checking.

Late essays must be submitted to the Late Commercial Law (PG) Essay Turnitin link on the vUWS site for this unit. No other method of late essay submission will be accepted.

A student, who submits a late assessment without approval for an extension, will be penalised by 10% per day up to 10 days, i.e. marks equal to 10% of the essay’s weight will be deducted as a ‘flat

Extension of due date for submission

rate’ from the mark awarded. For example, as the essay has a possible highest mark of 25, the student’s awarded mark will have 2.5 marks deducted for each late day. Saturday and Sunday are counted as two days. Assessments will not be accepted after

the marked assessment task has been returned to students, who submitted the task on time.

The essay is to be submitted via Turnitin by the due date and appointed time. Extensions will only be granted in the event of serious illness or serious misadventure (proved to the satisfaction of the unit coordinator) that prevents you from completing the assessment by the due date.

If students need to apply for a short extension of time to complete an assessment item, they should email the unit co-ordinator requesting an extension and attach to their request all appropriate supporting documentation, including all work done on the essay up to the date of the submission of the application. In accordance with university policy, extensions will only be granted for unforeseen and/or grave illness, misadventure, accident or other extenuating circumstances. An application for an extension does not automatically mean that an extension will be approved.

Students should submit their essays as soon as they are completed and not wait for the outcome of their special consideration application. Remember, not all special considerations applications are approved and/or extensions may be for a shorter period than that which the student requested.

Where special consideration is sought for circumstances involving more than three consecutive days or more than five days within a teaching period, students should complete a ‘Special Consideration During Teaching Session’ application available through eForms via MyUWS.

Marking criteria and standards

Fail (0-49%)   The student’s performance fails to satisfy the learning requirements specified. For example, poor knowledge or application of the law, irrelevant discussion, poor standard of presentation and inaccurate referencing.

Pass (50-

64%)

Credit (65-

74%)

The student’s performance satisfies all of the basic learning requirements specified and provides a sound basis for proceeding to higher-level studies in the subject area. The student’s performance could be described as satisfactory.

The student’s performance, in addition to satisfying all of the basic learning requirements specified, demonstrates insight and ability in analysing and applying relevant skills and concepts. The student’s performance could be described as better than competent.

Distinction

(75-84%)

High distinction (85%+)

The student’s performance, in addition to satisfying all of the basic learning requirements, demonstrates distinctive insight and ability in analysing and applying relevant skills and concepts, and shows a well-developed ability to synthesise, integrate and evaluate knowledge. The student’s performance could be described as distinguished. The student’s performance, in addition to satisfying all of the basic learning requirements, demonstrates distinctive insight and ability in analysing and applying relevant skills and concepts, and shows exceptional ability to synthesise, integrate and evaluate the law.

QUESTION 1 (15 Marks)

On 15 January 2019, Krispy Kreme Doughnuts Inc. (‘Krispy Kreme’) delivered boxes of doughnuts to Osman, the manager and owner of, 7-Eleven Inc., (‘7-Eleven’). Osman noted that the boxes had the following expiry date stamped on the boxes: ‘best before

10  January  2019’.  Osman  was  about  to  call  Krispy  Kreme  to  return  the  boxes  of doughnuts as the best before date had expired five days earlier. However, he became distracted  when  Isaac,  an  employee,  spilt  some  orange  juice  on  the  floor.  Osman placed the doughnut boxes on the counter and told Isaac to mop the orange juice off the floor. Osman was concerned that someone may slip on the wet floor and hurt themselves. Sara, a famous novelist, drove into 7-Eleven to fill her car with petrol. She was  slightly  tipsy  having  enjoyed  a  celebratory  wine  after  coming  back  from  her successful book launch. While filling up the car with petrol, she noticed Isaac mopping the floor in the store. She entered the 7-Eleven store to pay for the petrol. As she walked towards the cash register, Sara slipped and fell down. Sara injured her wrist trying  to  break  the  fall.  Osman  felt  bad  for  her  and  handed  Sara  two  boxes  of doughnuts that had been delivered to his 7-Eleven outlet earlier. Osman also offered to drive Sara to the local doctor, Dr Ozzie.

After examining Sara’s wrist, Dr Ozzie assured her that the x-ray showed that Sara had  nothing  to  worry  about.  Dr  Ozzie  bandaged  her  wrist  and  prescribed  some painkillers. Sara thanked the doctor and handed him the same box of doughnuts which Osman had gifted her earlier. The doctor took the doughnuts home, but ate them only after two weeks.

In early March 2019, Sara realised her wrist still had not healed and she was in a lot of pain. Sara decided to visit her family doctor, Dr Esha. Dr Esha conducted a CT scan on her wrist and diagnosed that Sara had in fact fractured her wrist. Dr Esha told Sara that  in  her  view,  according  to  current  medical  guidelines,  Dr  Ozzie  should  have performed a proper CT scan and set the fracture using a cast so the wrist could heal quicker.  Dr Esha also told Sara that Dr Ozzie should have advised her to come back to his clinic if she was in pain and if the mobility of her wrist did not improve within a week. Due to the delay in receiving appropriate treatment, Sara developed arthritis on her wrist. She is unable to work as a writer. She now wishes to sue Dr Ozzie. Dr Ozzie, is in hospital with food poisoning and he thinks the food poisoning may be due to the consumption of the doughnuts Sara had gifted him.

Advise Sara, Dr Ozzie and 7-Eleven of any rights they may have and if Dr Ozzie and

7-Eleven will be liable under the Tort of Negligence ONLY. Give full legal authority for your answers.

QUESTION 2 (10 Marks)

Kabir wanted to expand his garment business, ‘Kabir Clothing Pty Ltd’ and decided to acquire  a  competitor’s  business  in  Bankstown  valued  at  $600,000.  He  required  a further $300,000 to acquire the business.  Kabir decided to apply for a business loan from  the  National  Australia  Bank.  As  part  of  the  National  Australia  Bank’s  loan assessment process for loan applicants, the bank informed Kabir that they required the latest financial statements from Kabir Clothing Pty Ltd to complete the credit check. The  financial  statements  for  the  financial  year  July  2017-June  2018  had  not  been prepared as his accountant had retired and had closed his business. Kabir decided to engage his uncle, Mr Singh, the principal of a prominent accounting firm, Singh & Associates in Paramatta to prepare the financial statements. Kabir informed his uncle that  he  needed  the  financial  statements  urgently  as  the  National  Australia  Bank required the financial statements before approving his loan.

Singh agreed to prepare the statements but informed Kabir that due to the urgent nature of the request, he could only prepare an initial draft of the financial statement. In his initial draft of the financial statement, Singh clearly printed the words, ‘DRAFT

FINANCIAL   STATEMENT   FOR   2018.   Singh   then   handed   the   draft   financial statement to Kabir. Singh had in fact over-valued ‘Kabir Clothing Pty Ltd’ as he had omitted to include the depreciation of fixed assets for the financial year. Although the National Australia Bank does not directly deal with Singh, they are aware that he is a prominent and reputable accountant, who has recently been awarded the title: ‘best business accountant in Paramatta’.  The National Australia Bank approved the loan in reliance  of  the  statement  prepared  by  Singh  and  submitted  to  them  by  Kabir. Unfortunately, Kabir’s business ends up making a loss and Kabir Clothing Pty Ltd goes into liquidation.

Advise the National Australia Bank if it can successfully sue Kabir, Singh, and Singh & Associates? Consider all relevant common law and statute law applicable in relation to the T

Commercial Law

 
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