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LAW8500 Australian Commercial And Corporations Law

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LAW8500 Australian Commercial And Corporations Law

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Course Code: LAW8500
University: University Of Southern Queensland

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Country: Australia

Question 
Instruction to complete assessment tasks:
This assignment involves researching a problem, using critical thinking to reach a resolution after finding relevant information to address the question.
To research a problem you must know where to find the law, and choose what is most relevant to your research challenge. Research is a skill that requires practice. You must think about the parameters of the problem you are researching. You do not have the time to address everything you may find on your research topic. You must do a literature search on the most relevant and important sources of information on your topic. Then you must have a research methodology, which is your mode of inquiry. This is the approach taken to research the problem and address the research question. This explains how you are analyzing data to address your research question. It must demonstrate that this method will answer the question identified.
You have two problem scenariosand you must identify the research question and do a review of the relevant literature on the topic. Then you must explain your research methodology. The research question is within the assessment task, but it needs restating in your answer. You must then succinctly discuss the relevant law. Because of word limitations, part of the assessment rubric involves your ability to state the relevant law succinctly. Blaise Pascal the philosopher mathematician once apologized to someone for writing ‘such a long letter since he did not have time to write a short one.’ In other words, it takes time to be able to develop brevity without losing content depth. Think about this.
 The research methodology is how you address the question in terms of analyzing the relevant information and how you use it to answer the problem. To make it easier I suggest for your research methodology at a minimum, (1) state you will find relevant case law precedents (primary source) and relevant data from academic texts (secondary sources) to address the question. Then I suggest you identify key questions you consider relevant in determining the answer to the research question. This will form the core of your research methodology, but please feel free to add to this to build up your methodology if you think it relevant to do so.
Word count and form – maximum of 1000 words for each question. Format requires cover page with plagiarism declaration, and it is essay style
Assessment Task 1 
Trusts 
The course includes the study of trusts – a complex area of the law. The creation of an express trust (i.e. one intended created and not arising by law or fact) requires ‘three certainties.’ They are;

Certainty of intention
Certainty of subject matter (trust property)
Certainty of object (beneficiary or purpose)

Scenario
Basil declared himself trustee of 5% of the issued share capital of Basil Electrical Co Pty Ltd. There were 1000 shares in the company. There was no further identification of the 50 shares held on trust.
 Assessment tasks
Is there sufficient certainty for creation of a trust? In addressing this question identify theresearch question, explain the relevant law succinctly relating to the research question and then discuss your research methodology, and finally provide an answer to the question. 
Assessment Task 2 
Agency 
A key issue in the law of agency is the authority of the agent. In order to bind the principle by the actions of the agent, the agent must have been acting within some level of authority. The authority of the agent comprises:

Express actual authority
Implied actual authority
Ostensible authority

Youhave a small problem scenario, but this time dealing with agency. The same instructions apply, addressing the research question and methodology. You are simply adapting the requirements to address this new research problem.
Scenario
Tina and Susie formed a company to acquire and develop land. The board of directors comprised Tina and Susie, and a nominee of each. The development of the land was left to Tina who, with the knowledge of the Board of Directors, acted as Managing Director, although she had never been formally appointed to the position. Tina employed a firm of architects to design plans for the land. They issued a bill to the company but this remained unpaid. Later the architects sued the company for payment of their fees for work they have done. 
Assessment tasks
Is the company liable for the architect’s fees?
In addressing this question identify theresearch question, explain the relevant law succinctly relating to the research question and then discuss your research methodology, and finally provide an answer to the question.
Answer: 
Assessment Task 1
In the emerging era of economy, there are various kinds of business structures. Trust is one of them. As the name implies, trust is a type of obligation to work in favour and good faith of others. As similar to other business structures, in trust also there are some parties, which are described and discussed in the below analysis. Along with this there are some basic elements, which are required to create a trust (Australian Government, 2018).
Whenever a trust is created, there must be three parties such as settlor, trustee and beneficiaries. Sometimes trustee and beneficiary can be the same person, but trustee cannot be the sole beneficiary in such case. He/she can hold interest in trust property along with other beneficiaries (Legalvision, 2016)
Majorly there are two types of trust. One is implied and another one is expressed. When due to requirement of law or nature of relationship among parties, a trust come into effect then the same is known as “Implied Trust”. In such type of trust, there is no expression involved for creating a trust (The Quinn Group, 2018); whereas on the other side, when a person either by words or his/her actions expresses their intention to create a trust, such trust is treated as “Expressed Trust” (Justia, 2018). It may be state that express trust, does not arise by law or facts or due to the reason of nature of relationship in between or among parties. In such cases there must be a certainty of intention.
The person who creates or establishes a trust is known as settlor. So in an express trust, settlor must show his/her intention to create such trust. Here, it is important to mention that such intention needs not to be in written, it can be verbal or it can be show by merely expressions. Such certainty of intention is need to be confirm so that it can be assure that settlor wants to put some obligation on trustee in respect of trust property for the benefits of beneficiaries. In order to be valid, a trust needs to fulfil three certainties in total. In conjunction to certainty of intention, there are two more types of certainties which need to be ensuring, then only a trust can be held valid in the eyes of law. These certainties are Certainty of Subject Matter and Certainty of Objects (Findlaw Australia, 2018).
Here, subject matter is property of the trust, whereas objects reflect the motive and purpose for which trust has been created. In certainty of subject matter, this is important to know that what exactly trust property is and up to which extend each beneficiary is held his/her interest in it (CraddockMurrayNeumann Lawyers, 2014a). In a trust, certainty of subject matter has high importance. A trustee cannot properly perform his/her duty until, he/she is updated with the trust property. Trust property must be certain and specific in nature instead general in nature. For instance, if car is a trust property, it must be clear that which car exactly is this. Here it respect of subject matter of trust, this is to mention that this can be anything but must not be illegal element (Cambridge University Press, 2012).
Similarly, Certainty of object is also an important element. It is basic necessity to know that for what reason a trust has established or in whose favour; a trustee need to deliver his/her duty is an important aspect (Pont, 2011). There can be a number of beneficiaries in a single trust, but a trustee must know that which beneficiary has how much interest in trust property. Object defines the roles and responsibilities of trustee. The same also decide entitlement of beneficiaries.
In the given case, a person named Basil has declared himself as trustee in respect of 5% of total issued share capital of Basil Electrical Co Pty Ltd. Total shares of the company were 1000 in numbers, which means 50 shares were the trust property. No other further identification or information is available about the said shares. Now the question is that whatever the enough certainties are there for creation of trust?
As for a valid trust, it is firstly required to present a certainty of intention, in the given case, by declaring himself as trustee of shares; basil has made an intention to create a trust. So, it may state that first certainty has provided.
Further, in the case provided, Basil, being a trustee cannot identify the particular shares. The term shares are very general in nature. Trust property cannot be treated as identified in this case, until unless it is decided that the mentioned shares carries which distinctive number. As quantity is mentioned of share, similarly distinctive number must also be there, as trust property always needs to be specific in nature.
In addition to this the reason or purpose for creation of this trust is not clear. Similarly beneficiaries are also not determined. Basil has only declared himself as trustee but did not declared anything about the fact that for whom he is going to held 5% shares of Basil Electrical Co Pty Ltd as trust property. Certainty of object is one of the most important certainties when it comes to establishment of trust. While creating a trust, Settlor must express the object or reason which he/she is creating the trust.
To conclude the issues asked in the provided case, here it may conclude as that due to declaration of Basil, certainty of intention was there. But he has simply declared himself trustee of 50 shares of Basil Electrical Co Pty Ltd. He did not make any further clarification that about which shares exactly he has declared. So, Certainty of subject matter was missing. Further, Basil has not announced that for what reason he is holding the mentioned shares or in whose favour he is doing this. So, the requirement of Certainty of object has not fulfilled in this case. For a valid trust all the mentioned certainties are need to be fulfilled. So, it may confirm that there were not sufficient certainties for creation of a trust.
Assessment Task 2
It is very general that a single person cannot do everything, so for this reason people started giving some of their authorities to another person by establishing a relation with such other person. Such another person is known as “Agent”, and the person who gives such authority is called “Principal”. The relationship between agent and principal is a very popular term, known as “Agency” (Dundas Lawyers, 2014).  Agency can be of various types according to the way of their foundation and nature thereon. In this discussion, types of agency, their nature and impact are explained.
Agency is a trust based relation in between principal and agent. Principal is liable for the act of agent towards the third party, but up to the level of granted authority. It may understand here that until agent is performing on behalf of the principal under the umbrella of given authority, principal shall be held liable for such agent’s act (Arts law Centre of Australia, 2018). In the law of agency, there are some types of agencies defined.
When a person shows his/her intention to appoint another person as agent, such agency is treated as “Express actual Agency”. In an express authority, there is an agreement executes between principal and agent, but such agreement need not to be in writing, it can be verbal too. In addition to this it may be partially verbal and partially written (Estate Agents Authority, 2018). But in an express authority, intention to create agency relation must be there. So other people would have reason to belief that agent is acting on behalf of principal and the same has required authority from the side of principal. Apart from Express authority, there are two more types of agencies where authorities are not expressed one by principal. These authorities are “Implied Authority” and “Ostensible Authority”.
Implied Actual Authority is an authority which comes into effect due to the nature of acts of agent. Here, it can be understand as that sometimes principal does not express his/her intention to establish agency in words, but agent do some task by which it can assume that the same has authority granted by principal. This agency only become valid when principal does not denied or object such actions of agent by which it can assume that there is an agency relation between them (ACAPMAG, 2016). In addition to this, many of the times principal gives some task to agent but in the due course of performance of such task, agent need to do something else in addition. So, for that additional task, it is deemed to have authorities and such deemed authorities termed as implied agency.
Sometimes, law creates agency relation between the two parties. This mostly happens in business and other forms of trade, where it is expected from a person to have required authority to act on behalf his/her organization due to his/her designation (LexisNexis, 2018). In corporations, where the individual bodies of directors and officers work on behalf of it, law gives them authority to act like an agent on behalf of corporation (CraddockMurrayNeumann Lawyers, 2014b). Similarly, in other forms of business also, law requires some person to have a level of authority to act on behalf of their organization as an agent. In such cases Organizations are bind for deeds of their agent and such authority is known as Ostensible Authority (AZCentral., 2018).
As per the case Devren Pty Ltd v Old Coach Developments Pty Ltd and Ors [2015] QSC 53, No matter, what kind of agency exist in between principal and agent, principal is liable for the acts of agent till the limit of granted authority.
In the given case, Tina was the director of the company. She was acting like a managing director, but has not been appointed on this designation ever. Further, as development of land was her duty and responsibility so she has employed a firm of architects to design plans for the land. Here this is to mention that even being director of company, Tina was acting like managing director, it was an implied authority. As board of directors of the company was aware with this but they never stopped her by doing this, so architects had believed to rely upon her authority. Further, again as in order to develop land, she needed some assistance, so it was necessary to have some more authority. Tina was acting on behalf of company as an agent and although company has not expressly authorized her to employed architecture firm, but for performance of her duty, it was necessary to do this. So, in this situation, she is deemed to be in an implied agency with her company.
The main issue was that the said firm of architects has raised a bill but company has not paid the same. Subsequently, architects sued the company for non-payment of raised bill. Here Tina was working as an agent on behalf of the company. Being a director, she was in an ostensible agency with the company. Further, as it was necessary for Tina to hire firm of architects in the due course of perforce of her duty, so she was also in implied agency with the company as the company did not make any objections for her this deed. In every kind of agency, principal always be responsible for act done by agent towards third party as he/she himself/herself conduct the same.
This issue can be conclude that as Tina was the director of the company and for this reason she was meant to be an agent of company by the virtue of Ostensible authority Architects had reason to believe on her authority. Further, she also had an implied authority due to the nature of her duty. As she was acting like managing director without any objection of company, she had an implied authority. So for this reason, company was liable for acts done by her on behalf of the company in the course of her duty and firm of architects could sue the company as they were entitled to do so.
References 
ACAPMAG. (2016) Actual And Apparent Authority: Don’t Run The Risk [online] Available from: https://acapmag.com.au/home/2016/06/actual-apparent-authority-dont-run-risk/ [Accessed on 26/05/18]
Arts law Centre of Australia. (2018) Agency agreements [online] Available from: https://www.artslaw.com.au/info-sheets/info-sheet/agency-agreements/ [Accessed on 25/05/18]
Australian Government. (2018) Trustees and Beneficiaries [online] Available from: https://www.ato.gov.au/General/Trusts/Trustees-and-beneficiaries/ [Accessed on 24/05/18]
AZCentral. (2018) Who Are the Principal and Agents of a Corporation? [online] Available from: https://yourbusiness.azcentral.com/principal-agents-corporation-7119.html [Accessed on 25/05/18]
Cambridge University Press. (2012) Equity and Trusts in Australia [online] Available from: https://www.cambridge.org/core/books/equity-and-trusts-in-australia/certainty-requirements-in-the-law-of-trusts/4447AFBF360B0751F06FA83913EB38EE [Accessed on 26/05/18]
CraddockMurrayNeumann Lawyers. (2014a) what are the required certainties when creating a trust instrument? Available from: https://www.craddock.com.au/Document/What+are+the+required+certainties+when+creating+a+trust+instrument-3f.aspx [Accessed on 26/05/18]
CraddockMurrayNeumann Lawyers. (2014b) The authority of an agent to enter into contracts on behalf of a corporation [online] Available from: https://yourbusiness.azcentral.com/principal-agents-corporation-7119.html [Accessed on 25/05/18]
Devren Pty Ltd v Old Coach Developments Pty Ltd and Ors [2015] QSC 53
Dundas Lawyers. (2014) Agency agreements – what are they and how are they used? [online] Available from: https://www.dundaslawyers.com.au/agency-agreements-what-are-they-and-how-are-they-used/ [Accessed on 25/05/18]
Estate Agents Authority. (2018) Types of authority [online] Available from: https://www.eaa.org.hk/en-us/Information-Centre/Publications/Agency-Law/-4-Types-of authority [Accessed on 25/05/18]
Findlaw Australia. (2018) Certainty and creating express trusts [online] Available from: https://www.findlaw.com.au/articles/4559/certainty-and-creating-express-trusts.aspx [Accessed on 26/05/18]
Justia. (2018) Trusts [online] Available from: https://www.justia.com/estate-planning/trusts/ [Accessed on 26/05/18]
Legalvision. (2016) Frequently Asked Questions About Trusts [online] Available from: https://legalvision.com.au/frequently-asked-questions-about-trusts/ [Accessed on 24/05/18]
LexisNexis. (2018) Property → Contracts — general principles → Agency [online] Available from: https://lexisweb.lexisnexis.com.au/Practical-Guidance-Topic.aspx?tid=1804 [Accessed on 26/05/18]
Pont, G.E.V. (2011) Equity and Trusts in Australia. Australia: Thomson Reuters (Professional)
The Quinn Group. (2018) Implied Trust [online] Available from: https://www.alltruststructures.com.au/implied-trust/ [Accessed on 26/05/18]

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