Company and Commercial Law Assignment

Scenario - Make sure that you answer ALL questions:

Mary, Fred and Chris agree to start a real estate business in Melbourne. Mary is a real estate agent, Fred a tax consultant and Chris a lawyer.

In order to save money, they decide to keep it simple and just write down some rules of their agreement on a serviette. They write that they agree to put equal money into the business and to share the profits equally, and that everyone will be involved in the management of the business. They start their business, which is to provide bespoke service to people wanting to enter into the property market. It becomes very popular as all three are very passionate and know their business.

1a) Under what type of business structure are Mary, Fred and Chris running the business?

Give reasons for your answer; in particular support your answer by citing relevant cases and statutes.

Fred also advises clients on the tax implications of any possible purchases. In January 2017, Fred advises X who decided to purchase a property through the real estate agency on the tax implications of purchasing the property. Unfortunately Fred made a mistake in his advice, as he was not on aware of the latest ruling by the Australian Tax Office (ATO). The mistake was quite costly and X had to pay an extra $15.000 in tax. If X had known this, X would have not purchased the property.

1b) Discuss whether Fred and/or his business partners are liable for the damages suffered by the customer X? Please make sure that you only assess the legal risks under tort of negligent misrepresentation. Also support your answer by citing relevant cases and statutes.

Without the knowledge or permission of Fred, X had passed on the tax advice to his best friend Y. Based on the advice, Y decided to purchase a property as well but not through the business that Mary, Fred and Chris are running. Naturally Y had to pay an extra $ 18.000 in tax because the advice was incorrect.

1c) Discuss whether Fred and/or his business partners are liable for the damages suffered by Y? Please make sure that you only assess the legal risks under tort of negligent misrepresentation. Also support your answer by citing relevant cases and statutes.

The business has been mastering all challenges well so far and Mary, Fred and Chris want to take it to the next step. For this they will need to raise capital. They want to limit their liabilities and also be able to keep the number of investors small and if possible chose who can invest in the business.

2a) Under what type of business structure should Mary, Fred and Chris operate now? Again, support your answer by citing relevant cases and statutes.

After several years Mary decides to leave the business and resigns. For years the business had then been operating as a registered company with Mary, Chris and Fred being directors.

As a farewell present to herself, Mary decides to get a new car. She goes to the car dealership and tells them to charge the company. The dealer checked the ASIC database online, which indicated that Mary is indeed a director as ASIC had not been notified about the change. Mary has now left the country and the dealer is pursuing the company for the debt.

2b) Does the business have to pay for the car under statutory rules?

Format -

The first page is a title page which includes:

• your name;
• student ID;
• tutorial day & time;
• tutor's name; and
• word count.

This is to be followed by the first page of the assessment (numbered pg 1 - the title page is not numbered).

Your assessment must be ONE document only, preferably in .pdf format, but acceptable as a .doc or .docx if you can't create a pdf. No other formats will be accepted.

References and Research

Cases can be referred to by just using the parties names, i.e. Donoghue v Stevenson or its commonly used 'nickname' such as Snail in a Bottle. Make sure that we can identify the case though.

Statutes can be referred to by their short name, i.e. Partnership Act or PA.

No other references are needed or should be used, in particular referencing powerpoints or the textbooks is not acceptable. The only acceptable sources are cases and statutes for this assessment.

Nevertheless students may wish to undertake further research. Indeed the extent and quality of research into the principles, construction of relevant statutes, and academic commentary as to the resolution of contentious issues may improve an answer's capacity to reflect the assessment criteria and performance expectations. In order to assist your research, should you wish to undertake it, the recommended texts listed in the Subject Learning Guide might be a good starting point. One word of caution for research - the internet - wikipedia and google - as well as outdated textbooks have proven so far to be NOT recommendable for this subject.