t ma final
Post on 15-Jul-2015
570 Views
Preview:
TRANSCRIPT
B262F (1200) Tutorial Group 3
10419851 JIM Chng Yin
10463573 CHUNG Man Hei
10432340 IP Ming Chun
10427193 CHAN Yip Sing
10462607 Tuen Mo Joanne
Question A How to proceed with Kitty’s claim?
Find a lawyer
Bring the case to the court (turns to be an action or a suit)
Hence, Kitty = Plaintiff and Arthur = defendant
The civil case:
Should prove the case on a balance of probabilities
Question A How to prove?
Civil law > The tort of negligence > Arthur’s civil wrong
prove Arthur has a fault (breach of his duty to drive carefully)
Compensation items
pain & suffering
medical expense
the lost legs
The earnings lost because of the disability
Question A Get compensation
if the evidence which establishes that the plaintiff ’s claim is more probable than the defendant
the civil court may order the defendant to pay damages to Kitty as compensation for the injuries.
(b) Analyze whether Lily and Joe have been in breach of any duties of a director
•Director bear TWO duties1. Duty of skills and cares
2. Fiduciary duty
• Lily: Breach the Fiduciary duty Director must avoid taking corporate opportunities in
violation of their duty of loyalty Case: Regal (Hastings) Ltd v Gulliver
• Joe: Does not breach of any duties of a director Case: Re City Equitable Firm Insurance
(c) With regard to the legal action of Nico Hotel for recovering the
balance from Mr Sato, analyze the chance of success by the hotel and explain in detail the legal principles that you base on for analysis.
Mr Sato’s specific purpose
That has been frustrated by the Hong Kong Government
The contract is furstrated
Similar case: Krnell v Henry {1903} 2 K.B.740.
the Court of Appeal of England held that the contract for hiring of a room for watching the coronation procession of King Edward VII (the procession was later cancelled) was frustrated because the whole underlying objective had been destroyed
sections 16-18 of the Law Amendment and Reform (Consolidation) Ordinance --money paid before the frustrating event is recoverable;
--money payable before the frustrating event ceases to be payable;
--the court may allow a party to recover a just sum for expenses incurred before the frustrating event in performing the contract, provided that a sum has been paid or is payable under the contract at the time of the frustrating event; and
--a party who has received a valuable benefit under the contract before the frustrating event can be ordered to pay to the other party whatever the court thinks just, not
Conclsion the money paid by Mr Sato to Nico Hotel can be
recoverable
emaining balance to Nico Hotel should be cease to payable
Since Mr Sato has received a valuable benefit under contract before the frustrating event
Nico Hotel can recover a just sum for expense incurred before the frustrating event.
(D)SituationExpand the business to Japanese sushi
Invited Mr. Sato to join the business
Planned to set up a separate organization for the new business
Mr. Sato does not want to incur any personal liabilityregarding to the new business
Differences Between Limited Company and Partnership Legal Personality
Legal Liability
Setting Up
Assets
Management Rights
Auditing
Share Transfer
Successor
Level of Freedom
Legal PersonalityLimited Company
Legal entity itself
Separate legal entities with its members
Partnership
No legal personality
Partners are legally inseparable from their partnership
Legal LiabilityLimited Company
Members bear limited liability towards the company’s debts
Members are not agents for the company
Partnership
Partners bear unlimited liability towards their partnership’s debts
Partners are agents for their partnership
Setting UpLimited Company
Relatively complicated to set up
Can buy a “shelf company” instead
Must appoint a company
secretary
Obey Companies Ordinance
Partnership
Simply to set up
Must A business registration
certificate from the Inland Revenue Department
Obey Partnership Ordinance
AuditingLimited Company
Must have its accounts reviewed by auditors
Partnership
No specific requirement
SuccessorLimited Company
Death or bankruptcy of company’s members will not affect its operation
Partnership
Death or bankruptcy of partners will dissolve the partnership
Level of FreedomLimited Company
Governed by Companies Ordinance
Contains numerous provision, less freedom
Partnership
Governed by Partnership Ordinance
More freedom
(E)Definition of Consumer Sale A sale to a person buying for his own use and
consumption and not in the course of business
The Company
Ordered the goods as an element to make the bakery and resell it to the customer
NOT a Consumer
The supplier
Seller
Both of them are in the course of business
Sales of Goods Ordinance (SOGO) Section 15
There is an implied condition that the goods sold must correspond with their description.
Application
Sales in the course of business
Private seller
Special Requirement The company requirement
70% cereal grains
30% other seeds
Brown in color
Actual outcome
71% cereal
29% other seeds
Beige in color
Similar Cases Beale v Taylor (1967) case
The car did not correspond with the description
Arcos Ltd. v Ronaasen and Son (1933) case
The buyer is entitled to reject the goods for breach of s15
The company is entitled to reject the goods.
Sales of Goods Ordinance (SOGO) Section 16(2)
There is an implied condition that the goods supplied under the contract are of merchantable quality
Fit for the purpose
Of such standard of appearance and finish
Free from defects
Safe
durable
Merchantable Quality Slightly different of the good
Is it possible to make the bread
Relevant case
Oracle Enterprises Ltd. v The Gosho Co., Ltd.
Goods are capable of use for the purpose
It is merchantable quality
The company cannot reject the goods.
The Control of Exemption Clause Ordinance (CECO) Section 11 (3)
If neither of the contracting party deals as a consumer, then liability for breach of these conditions can be excluded or restricted if the relevant term is reasonable
The supplier can include an exemption clause to prohibit the rejection of goods into the contract but the terms MUST be reasonable
top related