Assignment on commercial Law- recommended to resolve the internal issues by the means of Alternative Dispute Resolution



Part A

Explanation of the tribal rules

In an empirical tone, the tribal rules of Australian resonate with the notion of Ideal law, in terms of Hart’s legal analysis. Legal researchers have debated that whether the tribal rules deserve to be designated as laws since one of the fundamental features of these rules bear semblance with the customary law. As customary laws, which are mostly based upon treatises, customs and apprehensions of previous case studies, the tribal rules are mostly non-codified which have endowed the legal scholars with the scepticism regarding the capability of tribal laws to be transformed into a legal authority (Singh et al. 2017). One of the additional traits of tribal law is that it is not universal as it is susceptible to vary in accordance with the intensive principles and ethos of a respective tribal community. Furthermore, as it was mostly non-codified, the rules (rather customs) are chiefly propagated in a word of mouth fashion, from generation to generation. Another cardinal trait of the tribal rules of Australia is that the verdicts regarding non-compliance to the customs or committing any offence are mandate specific, which resonates with the sentiments of alternate Dispute Resolution (ADR) such as negotiation, arbitration, mediation etc. 

In terms of Hart’s framework of legal analysis which scholars have conceived mostly as a counter statement of Austin’s framework (law as command), the tribal rules resonates with the notion of primary law due to the tribal rules being non-codified and its verdicts being mandate specific in nature (Christen, 2015). Though the law reform commission of Australia and Western Australia have acknowledged the legal enforceability of tribal rules, it has been seen that the tribal rules are mostly what has been designated as natural or organic law prevalent in the world. However, the tribal laws, though being non-codified and mandate specific, have shown adequate jurisprudence which ensures the presence of requisite legal authority to punish the delinquents who have shown non-compliance regarding the ethos of the community.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                         


Part B

Explaining penalties of a crime; analysis of a legal system

As a statement of justification, the criminal statutes and the corresponding penal wraths of USA can be illustrated since it owns several significant and distinct features as compared to the legal system of Australia. In this regard, it is interesting to note that, The US constitution is the supreme legal authority, which is supposed to govern the federal legal authorities of the country around several states of USA. 

 Before the evolution of criminal law, both in states and federal level of USA, the act of executing the penal columns and sentencing the offender of legal statutes happen to take place in the local courts (Kennedy, 2018). In this regard, the most distinct feature that the US state and federal criminal court has been able to show is that juries have exhibited trifle engagement regarding the verdicts of normal cases. However, in cases of deat6h sentencing only, they have been consulted regarding the permission or exploring the possibilities of death penalties. This feature unveils a significant aspect regarding the synergy of the state and federal level criminal statutes where states happen to dominate the criminal laws across the several federal legislative quarters.

In terms of the legal analysis of Hart, in the criminal statute of USA, the juries have, mainly done the role of recognition. However, they can also be considered as the exponents to respond to the role of adjudication in cases of legal or death penalties.    

Comparative assessment with Australian legal system

The rudimentary aspect of Australian legal system is that it is based upon structured and codified legislative columns, which bears a stark difference from the criminal statutes of USA. In an empirical tone, it can be said that the legal framework of Australia is structurally different from that of USAs (Simons, 2018). In terms of the legal analysis of Hart, the major difference between Australian and USAs criminal law is framed upon the notion of role of adjudication. For instance, the juries in the Australian statute appear to play the most crucial role in terms of proposing ant verdict whereas, in USA, the juries have been consulted only when it is a matter of death sentence. 


Part C

Gumland Property Holdings Pty ltd. V Duffy Bros Fruit Market (Campbeltown) Pty Ltd (2008)


The governing issues of this specific lawsuit are as follows;

1. Gumland Property Holdings have forwarded a notice to Duffy Bros concerning the claim of the payment of a shortfall amount prior to the sub-lease agreement which legal bind Gumland and Duffy Bros. Is the notice legitimate?

2. Apart from that, the Gumland Property has also claimed for bargain damages prior to reinstatement and refurbishment. Is it legitimate for an owner to claim bargain damages from their sub-tenants?

3. Apart from these claims of financial remuneration, Gumland have also appealed to Duffy Bros to terminate the sub-lease contract within 29th March 2008. Is it legitimate to encourage a company to terminate lease contracts due the incapability of the company to pay sub-lease amount.  


It is evident from the issues of the current case that the legal enquiry is supposed to be framed upon the legitimacy of the landowner’s urge to retrieve their losses prior to the inability of the sub-tenant to pay the lease amount and the damages due to bargaining (Sherry, 2016). If we go through the stairs of the current lawsuit between Gumland Property and Duffy Bros, it has been seen that the Duffy Bros have attempted to get rid of their liability of paying the bargain damages. Thus, the ultimate pursuit of the legal enquiry have transformed into an inquiry of finding that whether all the claims forwarded by Gumland Property is legitimate or not. 

In terms of an apparent perspective, it is evident that Duffy Bros have unable to pay the arrear rents, which they are legally obliged to pay as per the sub-lease agreement they have with Gumland Property. In this regard, Gumland Property has proposed the claim that Duffy Bros are also liable to pay the bargain damages prior to the expenditure of reinstatement and refurbishment (Collins, 2016). Furthermore, after hovering around the nuances of the case, it is also evident that Duffy Bros is also obliged to pay the pending amount prevalent between the arrear rent and the outgoing. Furthermore, the appeal of terminating the sub-lease agreement is based upon a condition in order to propose Duffy Bros a time constraint within which the entity is supposed to pay the shortfall amount along the damages prior to bargain and expenditure associated with refurbishment and reimbursement. 

In this regard, Duffy Bros have been discovered to refer to the notorious case of Shevil V Builders (1982) in order to get rid of their liability to pay the amount prior to bargain damages. However, after the intervention of the Australian Capital Territory (ACT), the claim of Gumland Property happens to be established which also suggests that Duffy Bros is legally obliged to pay the bargain damages along with the shortfall of the sublease amount.   


Legal analysis of this case concerning the breach of sub-lease agreement seem to suggest that any violation of such agreements must hold the defendant responsible all the damages and expenditure prior to reinstatement and refurbishment along with the shortfall amount. However, the attempt of Duffy Bros to defend this blatant violation of contract agreement (by refusing to pay the damage amount) is based upon the verdicts of Gibbs CJ. However, after the active intervention of the tenancy tribunal and capital territory of Australia, it holds Duffy Bros liable to pay the shortfall of sub-lease agreement. 


The current case can be considered an exemplary one in terms of getting the attitude of Australian Capital Territory (ACT) and tenancy tribunal regarding the violation of any principles of sub-lease agreement. The study suggests that though the sub-tenants are not legally obliged to pay the interest of the outstanding rent, the defendant entities are legally obliged to pay the financial assistance prior to reinstatement and reimbursement. Furthermore, in case of any shortfall of the sub-lease payment, the owner is adequate to decide the termination of the lease contract. 

Part D

Misinterpretation of a contract; An Australian Case

Misinterpretation or misrepresentation of the terms or principles of a legal contract are a fraudulent aspect where the defendant attempts to wind a particular contract by the means of the statement or pledges regarding the legal statute that the exponents of the contract are bound with. There are relevant legal columns in every common law statute, which has been hold liable to prevent these deceiving statements in the courtroom premises and these statutes have been congregated under the Misrepresentation act 1967 (Irakli, 2017). Australia, being a common law statute has also ensured the enforceability of the respective act and that ahs been known as Alati V Kruger (1955).     


1. In the course of convincing the plaintiff, the defendant have made several misleading statement while selling the business of fruit selling to the plaintiff

2. The plaintiff have realized that the business is not that profitable and shows the interest to rescind the contract 

3. When confronted to the plaintiff, the legal constraints of the law statute happen to suggest that the parties are not been able to restore their previous positions 


What are the possibilities of the contract to be rescinded since the parties are not been able to retrieve their previous position?


In the case of approaching the case with jurisprudence, rescission is the only option that might help the parties to retrieve their previous positions while evading the possibilities of misrepresentation. Australia, being a common law country, does not entertain the appeal regarding the rescission of the underlying contract. In this regard, the plaintiff is legally constrained to accuse the defendant regarding the violation of warranty or pass comments which are fraudulent (Hawkins, 2017). Furthermore, it is evident that there lies an evident quotient of untrue statement, which enables the case to resonate with Wilkinson V Bisset. Apart from that, the notion of misrepresentation in common law statutes has been further amended to Contract Terms Act 1977. Furthermore, the plaintiff can be also recommended to execute the Consumers Rights Act 2015 in order to consolidate the malicious intent present in the mindset of the defendant. This is imperative since the common law statutes have been seen to categorize the notion of misrepresentation into two distinct categories and those are Innocent and Fraudulent respectively. Thus, the plaintiff is legally obliged to establish that the defendant have sold the business to the plaintiff while having the awareness that the business is not that productive.        


In accordance with the nuances of the current case, it is evident that it is potentially impossible for both of the parties of the contract to retrieve their primordial position since the appeal associated with rescinding the contract is not available in any common law statute. Furthermore, being a common law country, Australia is unable to entertain any pleadings regarding the scope of introducing the rescission of the underlying agreement. In this regard, the plaintiff can be recommended to avail the option of equity since it will provide a substantial remuneration against the incurred losses.  


It is evident from the case study that, the verdicts have been introduced the notion of misrepresentation that leads the entire thing towards fraudulent admission. Furthermore, the study also has been able to identify a governing trait of the common law statutes, which is legally impotent to entertain any pleas regarding the rescinding of a particular contract. Thus, the plaintiff has been recommended to avail equity, which sustains.

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