Primary business structures in Australia
The main issue is what are the two structures that would be the most suitable to Isabel and her requirements.
A primary business structure in the nation of Australia can be said to be the company business structure. A company can be said to be owned by the shareholders and run by the directors. A company is considered as a different legal entity from its members. A company structure is actually registered or incorporated in accordance to the Corporations Act (Cth) of 2001. The primary features include the following: Firstly, in a company business structure, the members have a limited liability. Their assets cannot be touched in case of any payment of debts or loans to creditors. However, the directors can be made legally liable for any illegal action. Secondly, in a specific company structure, the expenses in relation to the formation and administration can be said to be high. Thirdly, the reporting requirements in a company structure is complex and multifaceted. Fourthly, in a company structure, it shall be possible to raise capital through the issue of the shares. Such issue of shares enables in the accumulation of a huge sum of capital. Fifthly, annual tax returns must be lodged in a company structure, and in such regard, the ‘Tax File Number’ or TFN is mandatory. It should be noted that in a company structure, it should be registered for GST, if the annual GST turnover amounts to 75000 dollars or more (Business.gov.au 2022).
Another specific business structure in the nation of Australia, which has become very popular in the recent times, can be said to be the structure of Limited Liability Partnership. This version has been created in order to give effect to the good features of the partnership structure after excluding the unlimited liability feature of the partnership structure. Instead, a limited liability feature is incorporated in to LLP (like that of the company structure). A ‘limited liability partnership’ can be regarded as version of the business partnership where every owner has restricted personal liability in connection to the financial obligations and compulsions of the concerned business. This is dissimilar to general partnerships, in which every partner has the responsibility in connection to the unlimited liability of the business regarding the financial responsibilities (Lawpath.com.au 2022). Similar to the partnership structure, LLPs are easy to form and manage by the partners. Capital could be raised in LLP through the introduction of new partners by a resolution. In the Australian nation, every state has different statutes relating to LLP. For instance, in the state of Queensland. the statute is Partnership (Limited Liability) Act of 1988 (Qld.gov.au 2022).
In the given scenario, Isabel wishes to start her cosmetics business named ‘Eye Lux’. She also wishes to include her two friends named Vince and Pat in the above said business.
In the case of Isabel, it should be recommended that the most adequate business structure would be ‘Limited Liability Partnership’, even better than the company structure (after taking into consideration the distinct requisites of Isabel). There are certain reasons for such recommendation. In a company structure, the expenses in relation to the formation and administration would be high, and the reporting requirements would be complex and multifaceted. Hence, such should be evaded by Isabel and start LLP, where formation expenses are less in comparison to a company, and reporting requirements are not complicated. Isabel shall be able to terminate the LLP structure very easily without any formalities. The LLP structure shall enable Isabel to raise the capital by incorporating new partners in the business. In the LLP structure, Isabel shall be able to protect herself from any kind of bad decision by the management because her liability shall be limited to her assets and capital injection in the business. It should be noted that in a company structure, the ‘Tax File Number’ or TFN is mandatory. The business has to be registered for GST, if the annual GST turnover amounts to 75000 dollars or more. All such tax requirements and compulsions could be evaded by Isabel in the case of LLP. In the LLP structure, as a partner in the business, Isabel shall be able to control the regular activities of the business, in the absence of any kind of interference.
Limited Liability Partnership as a suitable business structure
Conclusion
In conclusion, the most adequate business structures for Isabel would be LLP and company structure, out of which, the LLP structure should be recommended her (considering her specific requisites).
The issue is what are two most suitable kinds of Intellectual Property (IP) in case of Isabel.
In the nation of Australia, a person shall be able to protect his or her substance, device, procedure or method, through the utilization of a standard patent. The Patents Act of 1990 can be said to be the primary legislation of the Australian nation in relation to patents.
In Australia, any trade mark could be any number, letter, phrase, word, image, logo, movement, sound, scent or shape. A trade mark registration shall be possible to renew every ten years. The Trades Mark Act of 1995 can be said to be the main legislation of Australia regarding trademarks.
It could be said that Isabel shall be able to protect her procedure or formula through the utilization of a standard patent in accordance to the Patents Act of 1990. It should also be noted that Isabel shall be able to create a trade mark in relation to the name of her company ‘Eye Lux’ in accordance to the Trades Mark Act of 1995. Isabel shall be able to renew her trade mark registration every ten years.
Conclusion
To conclude, the two most suitable kinds of Intellectual Property (IP) in case of Isabel would be Patent and Trade Mark.
A contract shall be considered to have been established when all the elements in relation to a contract are present, which includes the offer, the acceptance, the consideration and the intention. In R v Clarke [1927] HCA 47, it had been mentioned that the presence of an offer and the acceptance of such offer is essential in connection to the formation of an agreement. In Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20, it had been stated that the presence of the element of consideration is mandatory in connection to the establishment of a contract. In Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8, it was specified that in the absence of the element of intention (to form legal relationships), it shall not be possible to establish a contract. Therefore, it can be said that without the above said elements, a contract shall not exist.
The issue is whether there a contract exists and whether David has any right regarding such contract.
In Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1, it was said that an offer would be different from an ‘invitation to treat’, in which a one is invited to make an offer (like any advertisement). However, it was specified that in the above said case that if an advertisement is made with the proper intent to establish a contract, then such advertisement shall be considered as an offer.
Applying Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1, it must be said the advertisement regarding the bookshop was an offer because the specific advertisement was made with the proper intent to establish a contract as they added the specific conditions in connection to the purchase of purchase of the books (like providing discounts and gift cards). Applying R v Clarke [1927] HCA 47, it can be said that David accepted such offer through his conduct when he went to the bookshop to purchase the books.
Recommendation for Isabel
Conclusion
To conclude, a contract exists and David has the right to receive the books at the discount prices.
The issue is whether a contract exists and whether Bob has any right as per such contract.
In Partridge v Crittenden [1968], it had been mentioned that an advertisement shall be regarded as an ‘invitation to treat’ and not an offer.
Applying Partridge v Crittenden [1968], it can be mentioned that the advertisement by Peter shall be regarded as an ‘invitation to treat’ and not an offer. Applying R v Clarke [1927] HCA 47, it can be said that after seeing the advertisement, Bob made the initial offer. After some negotiations, Bob ultimately accepted the counter offer of 1900 dollars (along with lumpsum amount) by Peter. Applying Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20, consideration is present in the case. Applying Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8, intention is also present in case of both Peter and Bob. Hence, a contract has been established amidst the two.
Conclusion
To conclude, a contract exists and Bob shall have the right to receive compensation from Peter for violating the contract.
The issue is whether a contract actually exists and whether Violet has any right in connection to the contract.
In the case of Balfour v Balfour [1919] 2 KB 571, it was said that in common law, normally, domestic agreements are not considered to be legally enforceable because of the presence of a rebuttable presumption that the intent of forming legal relations does not transpire in case of domestic agreements. However, later on, in the case of Merritt v Merritt [1970] EWCA Civ 6, the opinion in Balfour v Balfour was rejected, and it was said that if the necessary intent (to form legal relations) exists, then, any domestic agreement shall be legally enforceable.
Applying Merritt v Merritt [1970] EWCA Civ 6, it can be said that the necessary intent (to form legal relations) was present amidst Violet and her father, and hence, the contract shall be legally enforceable.
Conclusion
To conclude, a contract actually exists and Violet has the right receive the necessary payment.
The issue is whether a contract exists and whether Victor has any right.
In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61, it was said that in case of a violation of contract, the aggrieved party may cancel the contract and obtain compensation from the defaulting party.
Applying R v Clarke [1927] HCA 47, the offer of extra 500 dollars by Lizzie was accepted by Victor. Applying Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61, Lizzie is violating the contract by not paying the additional 500 dollars, due to which Victor may cancel the contract and receive compensation for such violation.
Conclusion
In conclusion, a contract exists and Victor has the right to receive 500 dollars.
References
Australian Woollen Mills Pty Ltd v The Commonwealth [1954] HCA 20.
Balfour v Balfour [1919] 2 KB 571.
Business.gov.au, 2022. Company | business.gov.au. [online] Business.gov.au. Available at: <https://business.gov.au/planning/business-structures-and-types/business-structures/company> [Accessed 25 April 2022].
Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1.
Corporations Act, 2001 (Cth).
Ermogenous v Greek Orthodox Community of SA Inc [2002] HCA 8.
Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61.
Lawpath.com.au, 2022. What Is a Limited Liability Partnership?. [online] Lawpath. Available at: <https://lawpath.com.au/blog/what-is-a-limited-liability-partnership> [Accessed 25 April 2022].
Merritt v Merritt [1970] EWCA Civ 6.
Partnership (Limited Liability) Act, 1988 (Qld).
Partridge v Crittenden [1968].
Patents Act, 1990.
Qld.gov.au, 2022. Limited liability partnership. [online] Qld.gov.au. Available at: <https://www.qld.gov.au/law/laws-regulated-industries-and-accountability/queensland-laws-and-regulations/associations-charities-and-non-for-profits/limited-partnerships/limited-liability-partnership#:~:text=A%20limited%20liability%20partnership%20(LLP,to%20general%20and%20limited%20partners.> [Accessed 25 April 2022].
R v Clarke [1927] HCA 47.
Trades Mark Act, 1995.
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