Essay: Legal Issues In Conveyancing And Business Startup In Australia.

Conveyancing and Sale of Goods Contract

Question:

Discuss about the Contract to Exchange Equitable Interests.

According to the case facts, the issue has found whether Sleazy can take any legal action for recovers her money or not?

Conveyancing is a form of business where the title of real property has transferred to one person to another where it guarantees to grant the encumbrance for a mortgage or lien. Two or more than two parties form a contract to exchange the equitable interests for settlement the title rights of the property. The sale of the land is governed according to the jurisdiction of the location of that property. It is a contract for sale agreement for changing the rights of title of any property.

According to the contract, it must meet with the elements, which includes the essential elements of a contract like free consent, consideration, competency of the parties, certainty and lawful objects. The basic elements of the sale of goods contract are:

• The two or more than two parties, the sale of the actual goods or any property
• Transfer of the ownership and exchange of price of the goods.

Therefore, it is necessary to satisfy all the terms of the sale of any goods or property. When an agreement has formed for selling any property or take loans then it must processed with appropriate rules and regulation. A contract for sale must formed between the parties where the vendor will make the offer for the purchase and purchaser can negotiate the terms with the vendors. The paying amount of the property will decided according to the value of the property. The decided amount may negotiate according to the terms of the contract. The property, which is sold through any auction then the amount of the property will, decided according to the highest bid in the auction. In this part, the vendor and purchaser both can negotiate the price. The exchange of contract depends according to the nature of the formed contract. The cooling off period is another part where the purchaser has the period where the contract can be rescind by the purchaser. For the sale of auction, the cooling off periods never applies. In the case of Westpac Banking Corporation vs. Cronin (1990)[1], the plaintiff found to apply for a Certificate of Title for his property. However, later he claimed that the certificate was delivered as security for amounts due to the bank in respect of the companies. In another case, Gurfinkel vs. Bentley Pty Ltd (1996)[2] through an action the defendant has found to bankrupt and the plaintiff was the trustee in bankruptcy of the estate.

Elements of a Contract for Sale

For the transfer of the property title the purchaser must transfer the property documents with the signs of both the purchaser and vendor. Through the conveyancer the registration of any property swill processed after the settlement of between the purchaser and vendor. In the time for completion, the contract can be completed after the development of new titles has issued.

According to the fact, Cool has handover the Certificate of Title of his property to his accountant Happy and asked for arrange a loan. In a letter Happy inform to Cool that she has enclose a cheque for $25,000 for his business startup and her client Sleazy has provided the fund. She also mentioned about to hold that the certificate of title in the office. However after Cool has received the cheque, he did not repayment the amount to Sleazy. Now according to the facts of the case, Cool is bound to repayment of the debt amount to Sleazy. According to the property, law the certificate of title only applicable for the owner who holds the possession of the property. Therefore, in this case Cool has taken a loan amount, which must transfer to the dept payer. However, according to the agreement, Cool has right to use the Cooling period where he will get chance to negotiate the amount and pay the debt. Sleazy has transferred the loan amount to Cool in the exchange of title of the property but it not transfer the ownership of the property to Sleazy. The loan has been transferred in exchange of the Certificate of Title which defines Cool is the actual owner of the property and he holds the rights to use the Certificate of Title.

In this matter, Sleazy can take legal action against Cool for not payments of debt amount. He can send legal notice to Cool for repayment of the debt amount but he has no rights to sell the property until and unless the ownership of the property has transferred to Sleazy. According to the terms of the property law, the ownership of the property only exchanged if the actual owner transfer the rights o another person. Here, according to the fact of case the cooling-off period will help Cool to repayment of the debt amount.

According to the fact of the case, it has concluded that Sleazy has no right to sell the property of Cool until and unless the rights of the property have transfer.

Transfer of Property Title

According to the duty of the Conveyancer, they are requiring to act according to their professional conduct towards their client to provide advises.

According to the fact, the client want to purchase a small business called Coffee Connection where he will sell plants and equipment, stock in hand and goodwill. For starting a business, it is necessary to set up for business strategies where the structure of the business helps to get a proper transaction. First, it is necessary to buy a property for start a valid business where the agreement will for, between the purchaser and vendor.

The startup business must follow according to the code of conducts where the business will be profitable for the owner. According to the law of Australia, it is necessary to follow the Corporation Act 2001(Cth) for starting a business. According to the resilient economy and well-developed infrastructure, Australia is one of the best country which always offer for the best opportunities in for successfully running a business. A proprietor and private company are bound to follow the Corporation act where it helps to provide the rights on shares and liabilities of the member of the company. The dealing with the liabilities of the company and their invitation to offer helps to presents issue of shares, which are the common rights of the shareholders in a company. The directors of the company also hold the rights to towards the company and issuing the bonus for the shareholders according to the investment for the company. According to the regulation of Australia, a company is bound to follow the regulation of the Australian Securities and Investments Commission (ASIC) fir running the business operators. For the private company it must regulates the corporate body according to the state and territory in Australia.

As the incorporated company is a proprietary company then it must follow the regulation of the Corporation Act 2001.  Under the terms of the corporation act, a company must co-operate with the issue of bonus shares. When a company formed, it becomes a corporation, which sets a completely separate legal entity under some specific legislation. The Corporation act helps to incorporate with the company, the body of the corporate and certain unincorporated bodies, which are completely exempted from public authorities.

A company may corporate with partnership business where according to the Partnership Act 1892(NSW). Under this act, a company can corporate with more than two partners. There are no limits to enter partners under this act for the formation of a company with the terms of the partnership. As per the facts of the case, those w formed company has no partners. It operated with sole proprietor.

Cooling-off Period

For the formation of a company, the trusts can able to carry the bushiness. Therefore, the owner of the business can have a trust that will help to operate the business along with the directors of the company. The trusty is the body of the corporation who helps holds the legal title of the business and carries the trading activities with the assets of the corporation on behalf of the beneficiaries. The trusty can operate the business individually or through a corporation with the pursuit of lawful aim.

According to the Corporation Act, a company must register the business for corporate in Australia.  Fir setting the limited liability company, it must follow the regulation of the ASIC. They must operate the business with a registered office in Australia. After the registration of the business office, it must consist with a business name and conduct with IP mark of Trade Mark check.

For the business check it must consists with a nine digit Australian Company Number (ACN) where the company will quoted the publication, cheques, invoices and other related official documents in the company.  Along with the CAN number, another Australian Registered Business Number (ARBN) also included after they are registered with ASIC. 

For operating with the tax system, the Australian Government has also set the Australian Business Number (ABN), which consists of eleven numbers for maintained under the Australian Taxation Office (ATO).

The Australian Securities Exchange (ASX) offers for the marketing trading in equities, fixed interest securities, derivatives and future interest securities in the business, which is one of the important part in the business.

The principal law relating to employment is the Fair Work Act 2009 (FW Act). The FW Act covers all private sector employees in Australia, with a limited exception in Western Australia.

According to the case study, Dr Bones has a Lease Agreement with the lessor in his recent living address a cluster of 7 retail shops in close proximity to Royal North Shore Hospital. However he receives the urgent notice from the lessor about vacate the premises as the lease expires on 31^st November 2013. Dr Bones has remembered that the lease commenced on 1^st December 2011 and that has made for 3 years with a 1-year option negotiated verbally with the lessor. Now Dr. Bones has recently entered into a negotiation with Dr. Bendit to to sublet part of his rooms and hope that this can proceed so that he can supplement his rent repayment.

Legal Action for Debt Recovery

Lease is a contractual agreement, which formed between two parties and the laser for using any properties like building or vehicles or land. Under various conditions, a lessor has taken by the lessee. The important terms of lease are:

• the lease agreement must include the name of the parties
• the date of the starting of the lease and duration of the date when the lease will be over
• address and other relevant specific objects must be mentioned in the agreement
• the agreement must provide the condition for renewal or non-renewal of the agreement
• the amount of lease which will be provided to lessor by the lessee also mentioned in the agreement
• the agreement must has a specific consideration for the security deposit and the process to return the amount the specific list where the default condition and specific remedies is available for the parties
• The other specific conditions like restrictive use maintenance insurance for loss of the property should mention in the agreement for the termination of the contract clauses also specific in the lease agreement.

For The lease all kind of private property or land any apartment can given as lease by the owner and he grant to use the property for a certain periods. The term of the lease is depends according to the features of grant the lease agreement for the property. It only applicable for a certain of time with legally binding contract.   

According to the Retail Leases Act, it governs Retail Shop Leases and agreements for lease. It applies to basic leases and subleases and the Act makes no distinction between leases and licenses as there is no requirement for a right of exclusive occupation. Under the Section 3 of this act when the lease agreement formed between the lessor and lessee it provides the value of rights for the occupation of the premises for the purpose the shop will be used. The section 6 of this act provides the rights to enter into a retail shop lease.  The section 7 has defines the preliminary issues for the lease agreement. The Zaoud vs Musico & Anor [2000][3] it has found that the lessor’s wrongful withholding of consent to assignment of retail shop lease according to the Retail Leases Act 1994 (NSW).  In another case Goodlink vs. Sing & Ors [1999][4], a lease negotiation has occurred through the application of Retail Leases Act (NSW). The effect of oral lease has found under retail leases legislation in a significant case, which is Aspromonte vs. Zagari [1999][5].

The section 42 of the Retail Leases Act defines the sub lease in the section 42 where this provision allows the lessor to provide sub lease the lessee. As the matter in the negotiation, the act never governs with the fact where lessee has any right to sublet or not. For the absence of the absolute or qualified prohibition on subletting, it provides the premises should be sub let.  Any proposed right to sublet should sort out at the time of the negotiations. If there is no prohibition then sub-letting is permissible. Therefore, according to the case facts, Dr. Bones has right to entered into negotiations with Dr. Bendit, a chiropractor, to sublet part of his rooms.

Reference

Aspromonte vs. Zagari [1999] NSW SA 381

Goodlink vs. Sing & Ors [1999] NSW ADT 71

Gurfinkel vs. Bentley Pty Ltd (1996) 116 CLR 98

Westpac Banking Corporation vs. Cronin (1990) 6 BPR 13, 105

Zaoud vs Musico & Anor [2000] NSW ADT 107