This assessment provides you with an opportunity to formalise a written answer to legal problems (hypothetical fact scenarios – HFS), with an expectation of legal research. This assessment is the first step in acquiring the skill of legal argumentation, which is set as a discipline-specific skill with which to enhance your critical faculties and writing abilities, as well as provide a deeper understanding of the workings of law for business law. It is important that your discussion focuses on analysing the facts of the HFS and applying the law to those facts.
Marks will be awarded for your identification of the issues and the material facts that are relevant to those issues; your identification of the law that applies to those facts and issues; and most importantly, the application and analysis of the law as it applies to those facts and issues. Generalised statements of legal principles – that is, those that are not sufficiently relevant to the facts – will attract only limited marks. It is also expected that you observe tertiary level academic writing standards – organise your writing in proper paragraphs, with correct grammar,
punctuation and spelling.
1. Research: This is a research assignment (beyond the textbook), so you are strongly advised to complete the Legal Research for Commerce Units Module before commencing work on the assignment. This module can be found on the CloudDeakin unit site under ‘Content’.
2. Group work: It is a group assignment and students will randomly be put in groups of 3 (three): 1. You are not allowed to form your own groups or to move to another group; 2. No individual assignment will be allowed, except based on medical reasons, supported by proper documentation / medical certificates, or providing a Statutory Declaration (Stat Dec) why it is impossible to do a group Assignment. Please do not waste time to challenge these arrangements as no other exceptions will be allowed. The assignment is compulsory and is worth 40%.
Note 1: As this is a group assignment, it is your responsibility to work together harmoniously as a team. Complaints about other group members will generally not be considered as a reason for late or inadequate submission. Special Considerations based on medical reasons or Statutory Declarations (Stast Decs) for extensions will be considered on their own merits.
Note 2: You will have access to your Group (accessing your Group Number) under the Group Discussion Folder in CloudDeakin. It is essential that you use this Group Discussion Folder for all your group discussions. The reason is that it provides a single area of discussion and avoids miscommunications or missing essential group discussions by other member of your group. It also provides a single reliable source for group discussions in case there is no, or limited participation by 1 member of the group.
Note 3: Only one mark will be allocated for each group assignment and all the members of that group will receive the same mark. In other words, even if there are 3 different parts of the assignment, and each member of the group has primary responsibility for one part, no individual mark will be allocated for that part and no individual mark will be allocated for the individual members for their individual parts. This implies that you should plan and work as a group, checking the work of other members, and making suggestions to ensure consistency in presentation and style of the assignment. In short, you are expected to conduct your research as a group, and collaborate as a team.
3. The Jurisdiction to be Assumed
Students are directed to assume that fact scenarios in the assignment take place in Australia and that relevant state legislation may be applicable. You will need to determine which legislation is applicable on the facts of the question.
NOTE that unless you are told otherwise, you should assume in seminars and in the exam that fact scenarios take place in Victoria and that if state legislation applies, Victorian legislation applies. You should not discuss legislation from other states/territories unless you are told otherwise.
4. Research and referencing: There is no minimum or maximum number of resources that you must include, but all material must be correctly referenced, following the Australian Guide to Legal Citation (AGLC)As this is a law unit, the AGLC is the most appropriate way of referencing research assignments in law and you will not be allowed to use the Deakin Harvard Referencing Guide (Harvard) for purposes of this assignment.
Learning Outcome Details for this Assessment
This assignment allows you to demonstrate achievement towards the unit learning outcomes.
The ULOs are aligned with specific graduate learning outcomes – that is, the skills and knowledge that graduates are expected to have upon completion of their studies – and this assessment task is an important tool in determining achievement of those outcomes.
If you do not demonstrate achievement of the unit learning outcomes, you will not be successful in this unit.
It is good practice to familiarise yourself with the ULOs and GLOs, as they provide guidance on the knowledge, understanding and skills you are expected to demonstrate upon completion of the unit. In this way they can be used to guide your study.
ULO1: Explain and apply the fundamental principles of Australian commercial law.
ULO2: Analyse how Australian Commercial Law has developed to resolve business challenges and identify limitations to its current scope.
GLO1: Discipline-specific knowledge and capabilities
GLO2: Critical Thinking
Read the below hypothetical factual scenario and respond to the questions that follow.
The Hospitality Pty Ltd (H P/L) is a business that provides entertainment, accommodation, and hospitality services. One of H P/L’s businesses was the Big Ten Park, an accommodation and entertainment complex at a beachside location in Gosford, about 2 hours drive north of Sydney, NSW. Big Ten Park is a very popular destination for families who live in Sydney as they can easily travel from Sydney for a weekend escape and the Big Ten Park provides activities for all age groups. In fact, the Big Ten Park is so named because it provides ten different entertainment and activity areas including supervised play areas for under 5 year olds, a supervised activity centre for 5 to 12 year olds, an adventure sport ground with BMX bike tracks and skateboard ramps for 13 to 18 year olds, five restaurants with different food styles and price ranges, one wine bar, and one small gambling casino. Onsite accommodation is available in camping areas, as well as hotel style rooms ranging from budget to five star in price and quality. H P/L found that the gambling casino was the most profitable aspect of its business and so it decided to restructure and focus on that area of business in future. To fund its development of a new casino in the heart of Sydney, H P/L decided to sell the Big Ten Park property and business as a going concern.
Adventure Holidays Pty Ltd (AH P/L), a company based in Perth Western Australia, was interested in expanding the number of holiday resorts and entertainment venues in its business portfolio and expressed interest in buying the Big Ten Park property and business as a going concern. AH P/L thought that the Big Ten Park would be a good strategic purchase because it had scope for capital improvement and also had excellent cash flow generated by the restaurants, bar, and small casino. The cash flow from the Big Ten Park would have substantially funded the loan that AH P/L would have taken out for the purchase price.H P/L and AH P/L entered into negotiations for the sale of the Big Ten Park and eventually agreed on a price of $15.5m total for the site, building and facilities, equipment, and the business as a going concern. The negotiations were largely conducted by email between H P/L’s managers in Sydney, NSW, and AH P/L’s managers in Perth, Western Australia.
The parties met in Sydney at the head office of H P/L and signed the contract of sale, negotiated and drafted by their lawyers. The contract was signed on 1 April 2020.
The contract includes the following clauses:
15.1 Dealings Pending Completion
Subject to clause 15.2, from the date of this contract until Completion, the Vendor must carry on the Business in the usual and ordinary course as regards its nature, scope and manner and repair and the Vendor mustmaintain all assets of the business in the same state as those assets are at the date of this Contract and use reasonable endeavours to ensure all assets are kept in good repair and in proper working order, fair wear and tear excepted.
15.2 Exceptions Clause 15.1 does not:
(a) prevent any action contemplated or required by this contract;
(b) prevent the Vendor from terminating any contract to which it is party; or
(c) prevent any action or omission agreed in writing between the Vendor and the Purchaser.
15.3 Before Completion
Before Completion, the Vendor must not, other than in the ordinary course of Business:
(a) dispose of any assets used in the Business (whether owned, hired or otherwise held by the Vendor);
(b) acquire any Business asset;
(c) enter into any new Material Contract without the Purchaser’s written consent that imposes any liability on the Purchaser and if the Vendor does enter such a Material Contract then the Vendor remains solely responsible for any obligation under any such Material Contract; and
(d) employ any new person on a full-time or part-time basis, terminate any full-time or part-time Employee, change any term of employment or provide any bonus to any Employee.
An obligation contained in clause 15.1 or a limitation contained in clause 15.3 does not apply if the Purchaser has given its prior written consent to the Vendor in respect of a failure to comply with that obligation or limitation.
21 Date for Completion
Settlement is to take place 75 days after the date the parties sign this contract, unless some other date is agreed in writing between the parties.
The Purchaser must pay the Deposit of 10% of the purchase price to the Vendor on the signing of the contract and the remainder of the purchase price must be paid to the Vendor at Settlement date in clause 21.
27 Effect of breach
Either party may terminate this contract if the other party commits a breach of condition. Applicable laws
This agreement is governed by the relevant laws of Australia applicable, provided that the parties will meet and negotiate any dispute before commencing legal action.
On 1 March 2022 AH P/L came to you for advice. AH P/L asked you whether the contract can be terminated for any of the following reasons:
• On 12 April 2020 BT P/L sold a ride on mower owned by the business and used to mow the grass at the Big Ten business property.
• On 15 April 2020 the NSW Government declared that all entertainment and hospitality venues must close due to concerns regarding a possible new variant of the highly contagious COVID 19 virus known as the Krypton variant. The NSW Government did not allow venues to re-open until 1 May 2020.
Do not discuss other actions that AH P/L might seek.
Identify and explain any legislation relevant to AH P/L’s claim that the contract was frustrated.
Ensure that you consider jurisdictional issues when identifying relevant legislation. If the legislation applies, what effect will it have on the parties’ rights and obligations?
Explain any differences between the legal position under common law and legislation.
Do you think that the doctrine of frustration achieves a fair result?
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