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Federal Legislation and Personal Property Law

1. Federal Legislation

Federal legislation does not become law unless it has successfully passed a series of steps. Outline the stages through which a proposed bill must pass before it is enacted into law. (Outline how laws are enacted and their underlying policy aims)

 

2. Murray Osborne designs handbags and attaches his distinctive mark to all of them.

He has registered this as a trademark in NSW. He notices that wallets are being sold at the market with the same mark, but they are not his designs. He can see that they are clearly of an inferior quality and is concerned that this will reflect poorly upon his handbags.

What rights does Murray have with respect to his trademark? In your answer explain what remedies are available to him and how he should proceed.

(Outline legal aspects of personal property law: intellectual property law, patents, copyrights, trademarks, personal property securities law)


3. Common Law and Property Laws 

Daniel, a property developer, is selling a house to Peter, who is 25 years old and intellectually impaired. Houses of an equivalent size and quality in the area generally go for about half the price that Daniel has negotiated with Peter.

Peter has paid the deposit and waived the cooling off period under the contract. Peter’s cousin, Jeremy, learns of the deal and is very concerned. Jeremy is Peter’s legal guardian. What can he do legally to help Peter?

(Explain how those laws may be interpreted by existing common law and equitable rules and applied to property laws).


4. A couple who own their own residential property as joint tenants run into marital trouble and separate. The husband immediately changes his will so that, rather than everything passing to his estranged wife on his death, it now goes to his brother and sister in equal shares. He is killed in a traffic accident before any settlement is reached on the house.

Explain who is entitled to the husband’s share of the house and why.

Explain who would be entitled to his share if the couple had owned the house as tenants in common and why.

Ignore any family law issues.

(Explain the operation of the Australian legal systems and processes relevant to property law including: basic principles, current statute, common law and equitable principles; roles and responsibilities of key organisations; constitutional considerations; separation of powers; basic principles of the law of torts, particularly relating to negligence and negligent misstatement, courts and regulatory bodies)


5. Harry and Sally

Harry and Sally make an offer to buy a house in NSW. The agent tells them they should exchange immediately because George, who is parking his car outside, is also interested. Harry tells Sally that they should go ahead, even if they don’t have their finance approved because they can easily withdraw from the contract. They immediately exchange contracts. George is angry about this and tells the agent he was prepared to offer $20,000 more than Harry and Sally. The vendor hears about George’s counter offer and instructs the agent to cancel the contract with Harry and Sally. Outline the respective legal rights all of the parties.

(Outline legal aspects of real property law: the Torrens system, native title, leases – commercial and residential, mortgages and securities, easements, restrictive covenants, co-ownership, strata and community title.


6. Donna has leased a home unit to live in for the past two years. The lease expired two weeks ago and the real estate agent has just advised her that the rent will go up by 5% at the end of this month.

Refer to the Standard form Residential tenancy agreement to advise whether the landlord can do this.

(Outline legal aspects of real property law: the Torrens system, native title, leases – commercial and residential, mortgages and securities, easements, restrictive covenants, co-ownership, strata and community title)

Donna is not happy about her rental increase and decides to leave the property. She packs up her goods and goes. In doing this she takes with her a pot-bellied stove that she had installed. This leaves behind a hole in the ceiling. She took an air conditioner that the landlord had installed, and this leaves behind a hole in the wall. The flat is also dirty and the carpet is ruined. She also leaves behind a number of pieces of items that she doesn’t want anymore including a broken lounge and fridge and an old mattress.

Refer to the Standard form Residential tenancy agreement to determine what action it is appropriate for the landlord to take.

(Outline legal aspects of real property law: the Torrens system, native title, leases – commercial and residential, mortgages and securities, easements, restrictive covenants, co-ownership, strata and community title)


Answer

Introduction 

Property law is an essential part of the legislation that deals with issues that are related to property rights. In this regard, Australian property rights are evaluated in this current assignment based on different scenarios. However, in order to understand the property rights and their applications, it is obvious to identify the characteristics of the property. Due to this, different property issues are enlightened through the current assignment whereby both real, as well as tangible properties, are highlighted. Nonetheless, in order to grab property right, there are several legal parameters, which need to be satisfied. Hence, clarification regarding the legislatures is drawn through this analysis of scenarios.

1. Law enactment process 

Bills are not enacted immediately after their preparation and several stages are proposed for the bill to become a law. Thus, following part of the assignment has offered an insight into the bills whereby laws are enacted by projecting the aims and objectives. In order to become a valid law identification of steps is mandatory and consent is required from both the houses of the Australian parliament[1]. Nevertheless, it is obvious to gather unanimity of Governor-General of Australian parliament before the law enactment. Hence, a draft is prepared, at first, for the bill to become a law and thereby consecutive stages are followed.

During the introduction of the bill, several formalities are maintained inside Australian parliament where different proposals are elicited related to the bill. Similarly, speeches are conducted both in favor of the bill and against the bill. Hence, voting is occurred based on the views gathered through the process and thereby after debating on it bill becomes policy or law[1]. The primary task for transforming bill into a law is giving notice to the House. However, a specific format is considered for giving notice whereby Clerk of Parliament is notified regarding the bill proposition. 

Besides this, for presenting a bill inside the House of Australian parliament the bill needs to contain a short title followed by a long title. The titles are given to identify the bill in further discussion. Meanwhile, it needs to demonstrate that the tax bills and money bills are not supposed to provide previous notice before the enactment[2]. On the other hand, after the notice is provided to the Clerk of Australian Parliament the Clerk becomes responsible to announce it in front of the members of parliament. However, the bill needs to be presented inside parliament by the minister who has invented it. This bill can be presented during the government business dealings inside parliament.

The debate is another essential requirement for a bill to become a law in the Australian parliament. During the debate, both favorable parts and opposing factors are evaluated by the members of parliament[3]. After accomplishment of debate, following members cast their votes for related bill. Due to this reason, voting is considered an important part of bill approval whereby support of House members can be obtained. Hence, details regarding consideration of bill are evaluated through the next step where clauses are identified. Thereafter third reading of bill is considered as the final stage when Clerk reads long title and bill is passed thereby.

2. Advice for Murray 

According to the case scenario, it can be observed that Murray Osborne has created a distinct mark for his bags as trademark. Trademark is considered as a tool that protects intellectual properties of business for every business owner. In this regard, trademark is considered as an effective legal tool whereby security of the business product can be elevated[1]. The key feature of trademark is restricting products unfair utilization by other companies. Henceforth, trademark of an organization cannot be used by another firm without having consent of the firm. Thus, following feature of trademark can become a shield for protecting the business of Murray.

Additionally, patent is considered an essential tool for the business progress using others product. Patent offers a right to business parties whereby others product can be sold by the parties. However, before the product selling it is mandatory to grab consent for manufacturing company. In this following case, no information is delivered to Murray before selling his products and using same trademark inferior quality products are sold out. Thus, using Personal Property Securities Act 2009 as an effective law Murray can conduct investigation against these wrongdoers[2]. Likewise, following case scenario has offered an intense knowledge regarding breach of business protection that can help in penalizing the authorities those have encouraged this practice.

In a similar vein, copyrights protection is considered another important obligation for a registered business. As per the copyrights protection section of Australian intellectual property rights, creation of new product must ensure that the product is not imitation of any other registered product[1]. As observed through the case, Murray has seen inside market same wallet that is manufactured by him. However, no earlier consent is grabbed from Murray by the authority that has imitated the products of Murray. Due to this reason, reputation of Murray’s business was impacted by affected. Similarly, by conducting investigation and filing case against this anonymous people Murray can grab a beneficial package as penalty.

 As per the observation of Australian Intellectual Property Rights, there are numerous legislations related to IP in Australia. Hence, to gather knowledge regarding the requirements of the case Murray can assess Patents Act 1990 whereby intense information regarding patent provisions can be gathered by him. Nevertheless, Trade Marks Act 1995 is observed as another important legal aspect whereby justice can be availed by Murray. Moreover, a clear description regarding copyrights provision can be observed by Murray through the evaluation of Copyright Act 1968 as an essential legal tool[2]. In this regard, following provisions can be considered as remedies for the case of Murray.

3. Advice for Jeremy 

Following case can be observed as a fraudulent issue where Daniel has availed undue advantage from Peter by charging double to Peter for a similar house. As per the case, evaluation Peter is an intellectually impaired person and Daniel has grabbed this factor as an opportunity.

Moreover, due to an inability of understanding, Peter has not observed the requirement of cooling off period during payment. However, being a legal guardian Jeremy has observed the gap and thereby using the common laws of Australia justice can be obtained for Peter. Likewise, using provisions of AHRC Jeremy can attract justice for Peter.

Apart from this, property rights are offered an extra layer of security under the common law practices in Australia. In order to elevate security for property owners, Chapter 8 of the legislature has dealt with landowners’ right[1]. Along with this, observing every aspect of the property rights in Australia it can be seen that sellers are liable to pay reasonable compensation. Hence, from this ground of Australian Property rights, Jeremy can secure the legal rights of Peter by taking action against Daniel.

Similar to this, it is obvious to gather in-depth knowledge regarding equitable rules of Australian property rights. Nonetheless, assessment of section 87 of Trade Practices Act in Australia can offer insights into equitable rules of trade practices[2]. The prime focus of equitability rules is creating a similar opportunity for every people. However, the prime barrier, in this case, is the consent of Peter, whereby Daniel has propagated the land selling. In this regard, Daniel may be privileged by showcasing the evidence in favor of him. In such a context, it is mandatory for Jeremy to prove that Peter is incapable of understanding these issues. As for an example, Jeremy can deliver the health reports of Peter whereby knowledge regarding intellectual impairment can be provided.

The following case scenario has stated that the legal guardian of Peter is Jeremy and thereby it can be opined that Jeremy is liable to pay attention to the property selling of Peter. Moreover, Daniel has sold the property to Peter without informing Jeremy and being a legal guardian of Peter there is a strong ground for Jeremy to fight back this situation[1]. In a similar vein, Jeremy can file a case of infringement against Daniel as the entire selling process is completed without notifying Jeremy.  

4. Explanation regarding property share 

            In this following case, the origin of an issue has emerged when material trouble occurred which has resulted in separation. In this regard, husband of following case amended the will to protect property from his wife. In this regard, a new will is prepared by husband where property of the man distributed between his sister and brother[2]. However, due to a traffic accident, the man lost life before the activation of new will. Assessment of this current scenario offers an in-depth knowledge regarding Australian legislatures that are related to the distribution of property. Hence, it is clear that the amendment of will has remained ineffective during the death of man.

            According to given scenario, it is obvious that wife of this man can claim the property initially as they have operated joint tenants. In Australia, the property will can be considered as a decision-making tool for property distribution[3]. Hence, being the successor of husband, wife can claim the property in absence of husband. However, due to separation between wife and her husband, it is not possible for wife to claim it now. Basic principles of the property rights can be considered as knowledge evidence whereby property distribution can be managed.

            Likewise, in order to distribute the property of the dead person, it is obvious gathering insights into the characteristics of property. Since man has amended the will and new will has considered his sister and brother as shareholders of the property, thus primary need is verification of new will. Apart from this, to rectify the issues of will it is evident to employ the current statute, common laws, and equitable principles[1]. Observing different legislations of Australian property rights it can be stated that spouse of the man will not get the house as final separation is observed in this case.

Alongside, amended will of the man is not activated before his demise, which is main reason behind the confusion. Similarly, constitutional considerations and responsibilities can be assessed for the distribution of the property[2]. Additionally, for distributing the property Separation of Powers can be considered as an effective tool in Australia. Thus, using this tool the distribution strategy for property can be designed. Along with this, negligence misstatement can be observed in this case as the person died before clarification of property distribution. Hence, to overcome this situation it is mandatory to gather in-depth knowledge regarding negligence misstatement whereby actual claim can be provided with a safeguard.  

5. Discussion on parties’ legal rights 

In this current case study, it can be observed that Harry and Sally have claimed the property before George. However, George is keen to obtain the property and after the accomplishment of exchange among Harry, Sally and agent, George has declared to provide $20,000 more. Thereafter the vendor of property instructed the agent to cancel the contract with Harry and Sally. However, assessing the following facts it can be observed as a case of contract breach. In order to take any legal step against the vendor, it is must for Harry and Sally to ensure Torrens title[1]. With this certificate, Harry and Sally can show their ownership of property whereby legal barriers can be eliminated.

Additionally, Torrens title offers intense knowledge regarding owner of the property whereby court of Australia can decide the actual owner name. Nonetheless, under the Real Property Act 1886, it can be observed that people can gather in-depth knowledge regarding the property owner through Electronic Conveyancing[2]. Since following property is being sold out previously thus it is mandatory to collect consent of Harry and Sally before canceling the contract. As observed through the case study, Harry and Sally can file a case against the vendor who has initiated cancel of contract without their permission.

Besides this, Native Title Act 1993 has been initiated under property laws in Australia to secure property of people[3]. Hence, application of this legislation can restrict the vendor to while selling this same property to George. Nevertheless, it is mentioned inside the following case that agent of the property has conveyed to Harry and Sally regarding George’s interest about this property. In such a case, Harry and Sally have to observe the obstacles regarding property. Alongside, there is another option of negotiation of property whereby both George along with Harry and Sally can own the property. In order to amend the property for negotiation application of the Subdivision P, can be considered an ideal one.

On the other hand, easement can be applied to the property whereby a portion of the property can be utilized by the property owner. It has been observed through the assessment of easement that using easement the property can be provided with a guarantee. Furthermore, using Transfer of Land Act 1893 (WA) (TLA), the land can be secured for the parties[4]. In addition, it is mandatory to assess the Restrictive Covenants and Co-ownership of Property in Australia whereby property rights of Harry and Sally can be secured. Nonetheless, ideas regarding strata and community title can assist the property selling with an effective manner.

6. Advice regarding Landlords right 

            In this current case study, it is observed that Donna has leased the property of her Landlord for the past two years that has ended two weeks ago. However, after the accomplishment of the specified tenure real estate agent confirmed an enhancement of 5% rent after the month end. In this regard, it can be considered as a breach of agreement where it has been specified that property rent elevation requires to be notified to the tenant at least 60 days earlier[5]. This legal provision can be observed within Section 42 of the Residential Tenancies Act 2010 where rent increases are specified.

            Apart from this, under the Standard form Residential tenancy agreement it has been specified that after notifying the tenant, regarding rent increase, tenant is liable to pay the elevated rent. Due to this reason, it is obvious for Donna to pay the increased rent after the new agreement takes place. Furthermore, according to The Community Titles Act 1996, it can be observed that for the development of community corporations need to meet each other[6]. Moreover, Community strata offer in-depth knowledge regarding the parcel of the community. Hence, it is mandatory to ensure the property through the community corporations’ assistance.

            Similarly, the division of the land can be observed through the community titles whereby scheme and services are uplifted. Moreover, the Landlord of the property is liable to offer the features to the tenant by observing the challenges for the tenant. Thus, the Landlord needs to specify the rent increase before it is implemented.

7. Necessary actions to be taken by Landlord

According to the case study, Donna is not happy with the increase in the rental price for the dwelling she used to stay. Therefore, she decides to leave the rental house along with the air conditioner installed by the Landlord, the stove, the broken lounge and the old mattress with her. On this ground, some specific actions might be taken on the part of the Landlord. These are as follows: 

The Landlord might reduce or cancel the hike in the rent by another notice later. The notice would take the effect on the day when the original notice was declared.   

The Landlord might try to prove that the rent increased has been done with accordance to the agreement stated in the Section 136 of the Act of Residential Tenancies 2010 or by the Administrative and Civil Tribunal of NSW[7]

Since it has been stated in the case that Donna felt the residence to be improper for staying due to being unkempt and dirty, the hike in the rent might be abated on the part of the Landlord. As per the agreement stated in the Standard form of Residential tenancy, the increased rent ceases in case the property gets partly or wholly inhabitable or destroyed[8]. At the same time, the residence does not remain usable lawfully anymore. In this ground, the residence can be handed over to the appropriate authority on a compulsory basis by the Landlord. 

As per the agreement stated in the Standard form, the Landlord might also reduce the hiked rent down to the previous rate or rent payable.

The landlord needs to make sure that after Donna left the residence, the premise is again back to reasonably clean and fit for reuse that comply with all the safety and health of the residential premise.

As per the statement of Donna, she took away the broken lounge and old mattress along with her, the Landlord needs to pay Donna reasonable cost that would not exceed $1,000 within two weeks of getting the written notice from Donna. 

The Torren system in Australia ensures that the owner of the property is well guarded by the certificate of the physical possession of the property[9]. The system also takes the easement, claims, and mortgages into consideration. In terms of the restrictive covenants, if he or she breaches the local council, the neighbour or the original developer can claim for the damages in the form of devaluation of the property[10]. Therefore, as per the agreement of the residential tenancy, the landlord might give Donna the written notice on the sale of the residential premise to the intending purchaser two weeks before the property gets available. 

Conclusion

This assignment details on the various case study where the several steps that need to be passed by the Federal legislation to finally be enacted in the law after being proposed has been discussed. In the next case study, the remedial strategy that would have to be adopted by Murray in order to protect his trademark on the bags he sells has been stated. In the next case study, there has been provided the detailed discussion on the fact of claiming a property by the brother and sister on the event of a man’s death. Finally, in the last case study, a discussion on the actions that would have to be taken by a Landlord at the time of the release of a tenant as per the agreement of the Residential tenancy in Australia has been stated here.





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