Business+Law

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austrian buys brush case. sale of good @http://cisgw3.law.pace.edu/cases/941027a3.html

Liquided damages and penalty clauses

The US business law questions ebook http://ebookinga.com/pdf/sample-exam-questions-business-law. Ebook downlad

Australia contract law questions Company Constitution Template

Australia business law questions

ACCA F4 business law past paper

10/09 2014 Apple live iphone6 @http://bbs.wenxuecity.com/tv/743578.html 转移财产给子女的高端方式 Trust

Difference between civil law and criminal law

@The Commonwealth Parliament

Page 129 Warner Bros v Nelson [1937] 1 KB 209

ANZ sample questions for business law

Contract law question

//**Warner Bros v Nelson**// [1937] 1 KB 209

By contract, the defendant actress Bette Davis, agreed to act exclusively for Warner Bros for two years. The contract stipulated not only that could she not act for another but also she could take no employment of any kind. Bette Davis then moved to England and in breach of contract entered an agreement to act for another. Warner Bros sought an injunction to prevent her from doing so.

Held:

An injunction was granted but only in so far as it prevented Bette Davis from acting or performing for another. The term relating to no employment of any kind was severed and did not form part of the injunction.

Page 103 In the case of **Les Affreteurs Reunis v Walford (1919)** an implied trust was the justification used to enable the courts to allow a claim notwithstanding the rules of privity. The shipowners, the appellants, entered into a contract to charter a ship to a company. Under the contract the shipowners agreed to pay a sum of money to Walford who were the brokers and who had negotiated the charter. There was no contract between the shipowners and Walford’s. The French government requisitioned the ship for wartime duties and the shipowners refused to pay the broker’s fee to Walford so they sued the shipowners and won. The word 'device' is probably appropriate here as the House of Lords, in this case, used the principle of a trust. The House upheld this device where the terms agreed included a promise by a shipowner to the charterer of the ship that they would pay the commission. The use of this device is doubtful today because of the development of stricter requirements for establishing a trust so it is arguable that this exception is limited.

Nettini v Gye 1876 QBD 183 UK page 105 @http://www.e-lawresources.co.uk/Bettini-v-Gye.php

**[Tort – negligence – breach - limits of res ipsa loquitur ]**
 * **Mahon v Osborne [1939] CA** || Page 174 ||

http://sixthformlaw.info/02_cases/mod3a/aqa/_cases_tort_2breach.htm#Mahon%20v%20Osborne%20[1939]%20CA A patient died shortly after an abdominal operation and post-mortem examination found a swab in his body.

**Held**: Negligence had been established. // [ipsa loquitur|Res] [ipsa loquitur|ipsa loquitur] // applied only to things within common experience, and that was not the case with complex surgical procedures. **//Bettini v Gye// (1876) QBD 183**

Bettini agreed by contract to perform as an opera singer for a three month period. He became ill and missed 6 days of rehearsals. The employer sacked him and replaced him with another opera singer.

Held:

Bettini was in breach of warranty and therefore the employer was not entitled to end the contract. Missing the rehearsals did not go to the root of the contract.

TCase study. Book page 106 @http://www.e-lawresources.co.uk/Thompson-v-London,-Midland-and-Scotland-Railway-Co.php

<span style="background-color: rgba(255,255,255,0);">**//Thompson v London, Midland and Scotland Railway Co// [1930] 1 KB 41** Court of Appeal

<span style="background-color: rgba(255,255,255,0);">The claimant was injured whilst stepping off a train. The railway company displayed prominent notices on the platforms excluding liability personal injury and damage to property due to negligence. The tickets also stated they were subject to terms and conditions displayed on the platform. The claimant was illiterate and could not read the signs. She argued that the exclusion clause was not incorporated into the contract as the railway company had not brought the clause to her attention at the time the contract was made.

<span style="background-color: rgba(255,255,255,0);">Held:

<span style="background-color: rgba(255,255,255,0);">The clause was incorporated. There is only a requirement to take reasonable steps to bring the clause to the attention of a reasonable person. There was no duty to ensure that every traveller was aware of the clause. The claimant was therefore unsuccessful in her claim for damages.

<span style="background-color: rgba(255,255,255,0);">**//Olley v Marlborough Court// [1949] 1 KB 532. Page 107**

<span style="background-color: rgba(255,255,255,0);">The claimant booked into a hotel. The contract was made at the reception desk where there was no mention of an exclusion clause. In the hotel room on the back of the door a notice sought to exclude liability of the hotel proprietors for any lost, stolen or damaged property. The claimant had her fur coat stolen.

<span style="background-color: rgba(255,255,255,0);">Held:

<span style="background-color: rgba(255,255,255,0);">The notice was ineffective. The contract had already been made by the time the claimant had seen the notice. It did not therefore form part of the contract.

<span style="background-color: rgba(255,255,255,0);">**//Thornton v Shoe Lane Parking// [1971] 2 WLR 585 Court of Appeal. Page 107**

<span style="background-color: rgba(255,255,255,0);">The claimant was injured in a car park partly due to the defendant's negligence. The claimant was given a ticket on entering the car park after putting money into a machine. The ticket stated the contract of parking was subject to terms and conditions which were displayed on the inside of the car park. One of the terms excluded liability for personal injuries arising through negligence. The question for the court was whether the term was incorporated into the contract ie had the defendant brought it to the attention of the claimant before or at the time the contract was made. This question depended upon where the offer and acceptance took place in relation to the machine.

<span style="background-color: rgba(255,255,255,0);">Held:

<span style="background-color: rgba(255,255,255,0);">The machine itself constituted the offer. The acceptance was by putting the money into the machine. The ticket was dispensed after the acceptance took place and therefore the clause was not incorporated into the contract.

<span style="background-color: rgba(255,255,255,0);">**//Hollier v Rambler Motors// [1972] 2 WLR 401** Court of Appeal. Page 108.

<span style="background-color: rgba(255,255,255,0);">The claimant had used the services of the defendant garage on 3-4 occasions over a five year period. Each time he had been asked to sign a document excluding liability for any damage. On this occasion the contract was made over the phone and no reference to the exclusion clause was made. The garage damaged the car during the repair work and sought to invoke the exclusion clause through previous dealings.

<span style="background-color: rgba(255,255,255,0);">Held:

<span style="background-color: rgba(255,255,255,0);">There was not a sufficient number of or regularity of transactions to amount to a previous course of dealings capable of incorporating the exclusion clause. It was not reasonable to expect the claimant to remember the clause from one transaction to the next. Consequently the garage was liable to pay for the damage.

Alderslade v Hendon Laundry [1945] 1 KB 189 (CA). Page 109. @http://homepage.ntlworld.com/colin.wallis/chris/uni/cnlaw231l07.pdf Laundered handkerchiefs - liability up to 20 times the cost of the laundering in respect of lost / damaged articles. Lost some handkerchiefs. Value of handkerchiefs exceeded 20 times the cost of the laundering. Limitation clause. Court of Appeal - on the facts, successful limitation of liability - specific enough - could only apply to negligence - exceptional approach!

Condition Vs Warranty in a Contract

The importance of the distinction between a condition and a warranty

is that the breach of a “condition” normally entitles the innocent party to terminate the Contract and claim damages; while the breach of a “warranty” normally entitles the innocent party to only claim damages.


 * <span style="background-color: rgba(255,255,255,0);">//Hochster v De la Tour// (1853) 2 E & B 678. Page 119 **


 * <span style="background-color: rgba(255,255,255,0);">@http://www.e-lawresources.co.uk/Hochster-v-De-la-Tour.php **

<span style="background-color: rgba(255,255,255,0);">The claimant agreed to be a courier for the defendant for 3 months starting on 1st June 1852. On the 11th May the defendant wrote to the claimant stating he no longer wanted his services and refused to pay compensation. The claimant obtained a service contract elsewhere but this was not to start until 4th July. The claimant brought an action on 22nd May for breach of contract. The defendant argued that there was no breach of contract on 22nd May as the contract was not due to start until 1st of June.

<span style="background-color: rgba(255,255,255,0);">@http://ke.baidu.com/view/6e47fab9856a561252d36fb5.html预期违约

<span style="background-color: rgba(255,255,255,0);">预期违约包括明示和默示两种形态. 明示的预期违约是指在合同履行期限届至之前，一方当事人无正当理由而明确肯定地向另一方当事人表示他将不履行合同. 默示的预期违约是指在履行期限届至之前，一方当事人有确凿的证据证明另一方当事人在履行期限届至时，将不履行或不能履行合同，而另一方又不愿意提供必要的担保. 英美法认为：预期违约在性质上不同于实际违约，但在发生了预期违约之后，允许受害人享有 解除合同 权和损害赔偿的诉权. 如此，预期违约在实际效果上与实际违约基本相同. 但是，其与实际违约仍然存在如下差异：（1）预期违约行为表现为未来将不履行义务，而不像实际违约那样表现为现实的违反义务；（2）预期违约侵害的是期待的 债权 而非现实的债权；（3）预期违约在救济方式上不同于实际违约. 当出现了预期违约的情形后，由于合同尚未到履行期，所以 债权人 为了争取对方继续履行合同，可以不顾已经出现的预期违约情形，而等待合同履行期限届至后，要求对方继续履行，如对方仍然不履行，则预期违约已转化为实际违约，从而债权人可以采取实际违约的救济方式.

http://china.findlaw.cn/hetongfa/lilunyanjiu/1229_2.html

<span style="background-color: rgba(255,255,255,0);">一些判例对anticipatory breach的命名提出了质疑. 在英国判例Bradley v.H.Newsom，Sons Co.（注：[1919]A.C.16 at 53.）中法官说，（期前违约行为）是对有约束力的约定的一个现实的违反，而非对于将来应为的行为可以预见的违反. 另一个英国判例The Mihalis Angelos（注：[1971]1 Q.B.164 at 196.）中，法官丹宁勋爵也说，“anticipatory breach”这个词是误导性的. 诉因并非将来的违约，而是拒绝履行表示本身.

<span style="background-color: rgba(255,255,255,0);">期前违约是最好的一种翻译. “预期违约”拘泥于anticipatory在字典上的主要意思，显然不可取. “先期违约”要好些，但是仍非最佳选择. 既然anticipatory breach在英美法上已经非常简单地定义为“履行期到来之前发生的违约”，那么“期前违约”似乎更加可取. “期前”的含义一目了然，符合语言习惯，很难发生误解.

<span style="background-color: rgba(255,255,255,0);">Repudiation有很多种含义. 有的时候，它指的是一方宣称合同不存在的表示（例如，合同没有成立）. 有的时候，它指的是终止合同（terminate a contract）的通知. 判例中常常说试图终止合同是“repudiate a contract”. 在这个意义上，需要区分合法的repudiation和违法的repudiation.前者带来合同债务消灭的效果，而后者则否. 还有的时候，repudiation被用来指所有会带来合同终止权效果的违约. 在这个意义上，违反基本合同条款（breach of condition）、违反中性条款（intermediate term）（注：在英国法之下将合同条款区分为condition，warranty和intermediate term，但是美国与此不同. ）并带来严重后果的情形、（到期后）拒绝履行债务以及期前违约都可以叫做“repudiatory breaches of contract”. （注：See J.W.Carter，Breach of Contract，2nd ed.，Sydney：The Law Book Company Ltd.，1992，Sections 702-705.）

<span style="background-color: rgba(255,255,255,0);">**//The Mihalis Angelos// [1970] 3 WLR 601. Page 120** @http://www.e-lawresources.co.uk/The-Mihalis-Angelos.php

<span style="background-color: rgba(255,255,255,0);">The owners of the ship, The Mihalis Angelos, chartered the ship to the defendant to use for the carriage of some cargo. A clause in the agreement stated the ship was expected ready to load on 1st July. In fact the owners had no grounds for believing the ship would be ready to load on that date as it was in Hong Kong at the time and would not be ready until at least the 14th of July and in fact it was not ready at that date. The defendant cancelled the contract on 17th of July. The cargo that they expected to be carrying had not arrived due to the bombing of a railway in Vietnam. The ship owners brought an action against the defendants for anticipatory breach. The defendants argued that the claimant was in breach of condition of the contract by not be ready to load on the specified date.

<span style="background-color: rgba(255,255,255,0);">Held:

<span style="background-color: rgba(255,255,255,0);">The expected ready to load clause was a condition despite the fact it had caused no loss to the defendant. The classification as a condition was said to be because of the need for commercial certainty in shipping contracts.

<span style="background-color: rgba(255,255,255,0);">Repudiatory breach @http://m.blogchina.com/blog/view/uname/lawyer0617/bid/961933

<span style="background-color: rgba(255,255,255,0);">1、因业主违约终止：合同第25.2款规定：在业主违约的2种情况下，即（1）业主超过90天未能支付大于或等于一百万美元（USD10.00000，00）的**//无争议的款项//**，或者（2）业主有毁约性违约行为（repudiatory breach）的情况下, 承包商向业主发出通知后14天内，业主仍未支付或采取补救措施，则承包商可以再次发出通知，如再次通知后60天内业主仍未支付或采取补救措施，则承包商应第三次发出通知，并于该通知之日起终止合同.

<span style="background-color: rgba(255,255,255,0);">此时承包商应立即停止工作，终止分包合同，撤离现场设备和人员，向业主移交现场和分包商、移交图纸资料等. 业主应支付已完成工作的金额，经业主批准终止分包合同或采购订单发生的终止和索赔费用，承包商退场发生的合理费用，因终止发生的其他合理的直接费用. **//承包商应提供合理的书面证据以支持以上费用. 以上所有工作和金额均以业主批准为准. （//****//Subject to APPROVAL//****//）//**

[]
 * <span style="background-color: rgba(255,255,255,0);">Pilkington v Wood (1953). Page 125 **

<span style="background-color: rgba(255,255,255,0);">The plaintiff bought a house in Hampshire and his solicitor, in breach of contract, negligently failed to notice that the house had a defective title. The solicitor was held liable for the amount by which the house's value had been lessened by the title not being good. The plaintiff shortly afterwards took up work in Lancashire and suffered added loss as the house was hard to resell. However, the solicitor was not liable for the latter loss as he could not anticipate that the plaintiff would shortly move.

<span style="background-color: rgba(255,255,255,0);">Read more: [|Cases on Damages | Contract Law Study Area | Law Teacher] [|http://www.lawteacher.net/contract-law/cases/remedies-cases-1.php#ixzz39yeNMjQ5]

<span style="background-color: rgba(255,255,255,0);">Follow us: @lawteachernet on Twitter | LawTeacherNet on Facebook

<span style="background-color: rgba(255,255,255,0);">//Pilkington v Wood// [1953] Ch 770 page 125 <span style="background-color: rgba(255,255,255,0);">@http://www.e-lawresources.co.uk/cases/Pilkington-v-Wood.php

<span style="background-color: rgba(255,255,255,0);">The claimant purchased a house which turned out to have a defective title. Shortly after the purchase he, obtained employment elsewhere and needed to relocate. He had difficulty in selling the house due to the defect in title He brought an action against his solicitor for his negligence in failing to notice the defect.

<span style="background-color: rgba(255,255,255,0);">Held:

<span style="background-color: rgba(255,255,255,0);">The solicitor was liable for the difference in value between what it was worth without the defect and what it was worth with the defect. However, he was not liable for the added loss caused by the need to move as it was not in the reasonable contemplation of the parties that he would move so soon after sale.

<span style="background-color: rgba(255,255,255,0);">On the issue of mitigation:

<span style="background-color: rgba(255,255,255,0);">The claimant was entitled to sue the vendor, although the court held there was no duty to sue the vendor in order to mitigate their loss arising from the defendant’s negligence.

<span style="background-color: rgba(255,255,255,0);">外语学习 > 翻译基础知识 > 法律翻译 - 损害赔偿的种类详细»

=<span style="background-color: rgba(255,255,255,0);">Waltons Stores (Interstate) Ltd v Maher. Page 128 =

<span style="background-color: rgba(255,255,255,0);">Quick summary
<span style="background-color: rgba(255,255,255,0); text-align: start;">Facts

<span style="background-color: rgba(255,255,255,0); text-align: start;">Waltons negotiated with Maher for the lease of property owned by Maher. The parties understood Maher would demolish an existing building and erect a new one which Waltons would occupy. Agreement was reached on terms and rent. Waltons' solicitors sent a draft lease to Maher's solicitors in October and some changes were discussed. A revised lease was then sent to Waltons by Maher. In November Maher informed Waltons that demolition had commenced and it was therefore important to conclude the lase quickly. Later that month Waltons started to have reservations about the lease and instructed its solicitors to 'go slow'. In January Maher commenced building. Later that month, when approximately 40% of building work was completed, Waltons informed Maher it did not wish to proceed. Maher brought action to enforce the agreement. <span style="background-color: rgba(255,255,255,0); text-align: start;">

**<span style="background-color: rgba(255,255,255,0);">Brennan J **
<span style="background-color: rgba(255,255,255,0); text-align: start;">Equitable estoppel arises where: > <span style="background-color: rgba(255,255,255,0); text-align: start;">(a) P assumed a particular legal relationship existed between the parties (or expected that it would); > <span style="background-color: rgba(255,255,255,0); text-align: start;">(b) D has induced that assumption in P; > <span style="background-color: rgba(255,255,255,0); text-align: start;">(c) P acts (or abstains from acting) in reliance on the assumption; > <span style="background-color: rgba(255,255,255,0); text-align: start;">(d) D knew or intended him to so act; > <span style="background-color: rgba(255,255,255,0); text-align: start;">(e) P’s action/inaction will case him/her detriment if the assumption is not fulfilled > <span style="background-color: rgba(255,255,255,0); text-align: start;">(f) D has failed to act to avoid that detriment (eg, by fulfilling expectation) <span style="background-color: rgba(255,255,255,0); text-align: start;">His Honour also made clear that the remedy for promissory estoppel should go no further than what is necessary to prevent the unconscionable conduct – in this respect, the object of the equity is not to compel D to fulfil the expectation/ assumption, but to avoid the detriment that P will suffer if the expectation is not fulfilled <span style="background-color: rgba(255,255,255,0); text-align: start;">[Deane and Gaudron also dismissed the appeal]

damage is paid to P.

<span class="s9" style="background-color: rgba(255,255,255,0);"> Page 129. That case was considered in <span style="background-color: rgba(255,255,255,0);"> [|Whitwood Chemical Co. v. Hardman.] <span class="s9" style="background-color: rgba(255,255,255,0);">[FN10] There the manager of a manufacturing company agreed to give during a specified time "the whole of his time to the company's business." The agreement was positive in form, but it involved a negative stipulation not to give any of his time to anyone else. Kekewich J. granted an injunction, and the matter went to the Court of Appeal, and the Court of Appeal held (reversing the decision of Kekewich J.) that in the absence of any negative stipulation in that behalf, the company was not entitled to an injunction to restrain the manager from giving, during the term, part of his time to a rival company. The matter was gone into by Lindley L.J. at considerable length. He said [FN11]: <span class="s9" style="background-color: rgba(255,255,255,0);">"The first point to observe is, that there is no negative covenant at all, in terms, contained in the agreement on which the plaintiffs are suing - that is to say, the parties have not expressly stipulated that the defendant shall not do any particular thing. The agreement is wholly an affirmative agreement, and the substantial part of it is that the defendant has agreed to give 'the whole of his time' to the plaintiff company. That is important in this respect, that it enables us to see more clearly than we otherwise might what the parties had in their contemplation. If there had been a negative clause in this agreement, such as there was in Lumley v. Wagner, and in some of the other cases, we should have been relieved from the difficulty of speculating what they had been thinking about. We should have seen that they had their attention drawn to certain specific points, and that they had come to an agreement upon those specific points. In this case, we are left more or less in the dark about that, because, as I have said, there is nothing that shows that anything definite was in the minds of these parties beyond this, that the defendant was to give the whole of his time to the plaintiff's business. Now every agreement to do a particular thing in one sense involves a negative. It involves the negative of doing that which is inconsistent with the thing you are to do. If I agree with a man to be at a certain place at a certain time, I impliedly agree that I will not be anywhere else at the same time, and so on ad infinitum; but it does not at all follow that, because a person has agreed to do a particular thing, he is, therefore, to be restrained from doing everything else which is inconsistent with it. The Court has never gone that length, and I do not suppose that it ever will. We are dealing here with a contract of a particular class. It is a contract involving the performance of a personal service, and, as a rule, the Court does not decree specific performance of such contracts. That is a general rule. There has been engrafted upon that rule an exception, which is explained more or less definitely in Lumley v. Wagner [FN13]- that is to say, where a person has engaged not to serve any other master, or not to perform at any other place, the Court can lay hold of that, and restrain him from so doing."

<span style="background-color: rgba(255,255,255,0);">第四十一条. Page 148. http://www.shlawyer.org/Article/Class05/Sclass01/Article_815.htm


 * **<span style="background-color: rgba(255,255,255,0);">联合国国际货物销售合同公约(CISG)(中英文版) ** ||

<span style="background-color: rgba(255,255,255,0);">　　卖方所交付的货物，必须是第三方不能提出任何权利或要求的货物，除非买方同意在这种权利或要求的条件下，收取货物. 但是，如果这种权利或要求是以工业产权或其它知识产权为基础的，卖方的义务应依照第四十二条的规定.

<span style="background-color: rgba(255,255,255,0);">　　第四十二条

<span style="background-color: rgba(255,255,255,0);">（１）卖方所交付的货物，必须是第三方不能根据工业产权或其它知识产权主张任何权利或要求的货物，但以卖方在订立合同时已知道或不可能不知道的权利或要求为限，而且这种权利或要求根据以下国家的法律规定是以工业产权或其它知识产权为基础的：

<span style="background-color: rgba(255,255,255,0);">（ａ）如果双方当事人在订立合同时预期货物将在某一国境内转售或做其它使用，则根据货物将在其境内转售或做其它使用的国家的法律；或者（ｂ）在任何其它情况下，根据买方营业地所在国家的法律.

<span style="background-color: rgba(255,255,255,0);">（２）卖方在上一款中的义务不适用于以下情况：

<span style="background-color: rgba(255,255,255,0);">（ａ）买方在订立合同时已知道或不可能不知道此项权利或要求；或者

<span style="background-color: rgba(255,255,255,0);">（ｂ）此项权利或要求的发生，是由于卖方要遵照买方所提供的技术图样、图案、程式或其它规格.

<span style="background-color: rgba(255,255,255,0);">page 156

<span style="background-color: rgba(255,255,255,0); font-family: arial,helvetica,sans-serif;">FOB 船上交货 “船上交货（……指定装运港）”是当货物在指定的装运港越过船舷，卖方即完成交货. 这意味着买方必须从该点起承当货物灭失或损坏的一切风险. FOB术语要求卖方办理货物出口清关手续. code format="recommend-text mb-10"

code <span style="background-color: rgba(255,255,255,0); font-family: arial,helvetica,sans-serif;">CFR 成本加运费 “成本加运费（……指定目的港）”，是指在装运港货物越过船舷卖方即完成交货，卖方必须支付将货物运至指定的目的港所需的运费和费用. 但交货后货物灭失或损坏的风险，以及由于各种事件造成的任何额外费用，即由卖方转移到买方.

<span style="background-color: rgba(255,255,255,0);">**//Donoghue v Stevenson// [1932] AC 562** House of Lords. Page 171. Duty of care

<span style="background-color: rgba(255,255,255,0);">Mrs Donoghue went to a cafe with a friend. The friend brought her a bottle of ginger beer and an ice cream. The ginger beer came in an opaque bottle so that the contents could not be seen. Mrs Donoghue poured half the contents of the bottle over her ice cream and also drank some from the bottle. After eating part of the ice cream, she then poured the remaining contents of the bottle over the ice cream and a decomposed snail emerged from the bottle. Mrs Donoghue suffered personal injury as a result. She commenced a claim against the manufacturer of the ginger beer.

<span style="background-color: rgba(255,255,255,0);">Held:

<span style="background-color: rgba(255,255,255,0);">Her claim was successful. This case established the modern law of negligence and established the neighbour test.

<span style="background-color: rgba(255,255,255,0);">Company directors acts as agents of the CompanY. Page 217

<span style="background-color: rgba(255,255,255,0);">difference between. ACN and ABN. Page 235 ACN

<span style="background-color: rgba(255,255,255,0);">An **ACN** (Australian Company Number) is issued by the **ASIC** (Australian Securities and Investments Commission) to all new companies registered in Australia to facilitate the monitoring of those companies and also to give them a unique identity code within the structure of the Corporations Law of Australia. Only a company can be issued with an **ACN**.

<span style="background-color: rgba(255,255,255,0);">An **ABN** (Australian Business Number) is a unique number issued by the **ATO** (Australian Taxation Office) to all entities that are in business. If an entity is trading as a business, no matter how large or small, they must apply to the **ATO** to acquire an ABN and must show that **ABN** on any invoices they issue. The **ATO** will then automatically issue a unique eleven digit number.

<span style="background-color: rgba(255,255,255,0);">It is not necessary for an entity that has an ABN to be registered for GST if their annual turnover or income does not exceed $75,000.00. Confusion often arises between the two numbers due to the fact that the **ATO** will use the **ACN** as the basis for a company's **ABN**. A company's **ABN** will always consist of their **ACN** with a two-digit pre-fix. As mentioned, if you want further clarification, call our Senior Partner, John Corias, on 02 9211 5000.

<span style="background-color: rgba(255,255,255,0);">Hadley v Baxendale

=<span style="background-color: rgba(255,255,255,0);">Hadley v Baxendale =

<span style="background-color: rgba(255,255,255,0);">The rule in Hadley v Baxendale
<span style="background-color: rgba(255,255,255,0); text-align: start;">The test of remoteness in contract law is contemplation. Damages are available for loss which: <span style="background-color: rgba(255,255,255,0); text-align: start;">These are referred to as the two limbs of //Hadley v Baxendale//.
 * <span style="background-color: rgba(255,255,255,0); text-align: start;">naturally arises from the breach according the usual course of things; or
 * <span style="background-color: rgba(255,255,255,0); text-align: start;">is within the reasonable contemplation of the parties at the time of contracting as the probable result of a breach (this may be, for example, because special circumstances have been communicated at the time of contracting and therefore can be said to be within their reasonable contemplation)

**<span style="background-color: rgba(255,255,255,0);">Facts **
<span style="background-color: rgba(255,255,255,0); text-align: start;">The plaintiffs were millers and mealmen (dealers in grain) and operated City Steam-Mills in Gloucester. They worked the mills with a steam-engine. The crank shaft of the engine was broken, preventing the steam engine from working, and contracted with W Joyce & Co in Greenwich to have a new crank made. Before they could make the new crank, W Joyce & Co required the broken shaft to be sent to them, to ensure the new shaft was made to the appropriate dimensions. <span style="background-color: rgba(255,255,255,0); text-align: start;">Enter the defendants. The defendants were carriers operating under the name Pickford & Co. The plaintiffs engaged the defendants to deliver the broken shaft to W Joyce & Co. The defendants did not deliver the crank shaft in the time specified (2 days after receiving it from the plaintiffs), but instead delivered it 7 days after they received it from the plaintiffs. <span style="background-color: rgba(255,255,255,0); text-align: start;">The delay prevented the plaintiffs working their steam-mills for the five days comprising the delay, which in turn prevented them meeting supply of customers from their own mills, depriving them of the profits they would otherwise have received. <span style="background-color: rgba(255,255,255,0); text-align: start;">Trial judge (Crompton J) <span style="background-color: rgba(255,255,255,0); text-align: start;">Noted that the delivery of the shaft to Greenwich was delayed by neglect of the defendants with the result that the working of their mill was delayed resulting in lost profits. The defendants claimed that this loss was too remote. The trial judge left it for the jury, who returned a verdict of 25 pound.

<span style="background-color: rgba(255,255,255,0);">Salmon v Salmon Page 368 question. 8 (C) http://t.answers.com/answers/#!/entry/the-rule-in-salomon-v-salomon-co-ltd-1897,4fb0fcc1ecb7a0e66f8b4bb6/11 A company and it's members are separate legal person

Quasi-partner page 216 and page384 @http://www.answerbag.com/q_view/2096585 <span class="answerbag_vibrant" style="background-color: rgba(255,255,255,0); vertical-align: baseline;">A quasi partnership is a type of business strategy that joins two or more entities. It resembles a partnership but is actually not a partnership.

Function
The term "quasi" means almost, making a quasi partnership "almost" a partnership. A quasi partnership obligates one entity to another, without any contract agreement to partnership between them.

Example
An example of a quasi partnership is when a person owns and manages a real estate property along with another person, but the two individuals are not in partnership with one another. However, the two individuals are bound to one another to account for any expenses related to the shared property.

Identification
In some cases, members of a quasi partnership are identified as shareholders. Some small companies are legally regarded as quasi partnerships, because they include a limited number of individuals within a company operating as minority shareholders to the company.

Features
One area or feature of a quasi partnership is the quasi contract. The quasi contract is an agreement that solidifies an obligation in the absence of a legal agreement. A quasi contract exists to govern the obligations between two entities and to hold both parties accountable, particularly if a concrete written agreement is lacking.

History
Throughout national and global history, quasi partnerships have made their mark in relationships between nations and military, government and healthcare organizations, institutions and banks. Such partnerships have essentially governed the way in which nations communicate with nations and how world organizations manage diplomacy. =<span style="background-color: rgba(255,255,255,0); text-align: start;">如何在澳洲注册公司 page237 = @http://finance.sina.com.cn/roll/20100316/13247574043.shtml

=<span style="background-color: rgba(255,255,255,0); text-align: start;">如何在澳洲注册公司 = <span style="background-color: rgba(255,255,255,0);"> [|http://www.sina.com.cn] 2010年03月16日 13:24 商务部网站 <span style="background-color: rgba(255,255,255,0);">　　一、在澳大利亚注册公司，有着以下许多得天独厚的优势 <span style="background-color: rgba(255,255,255,0);">　　1. 无需注册资金. 在澳洲注册公司，无需提供资金，可直接进行注册； <span style="background-color: rgba(255,255,255,0);">　　2. 注册手续简单，时间短，效率高； <span style="background-color: rgba(255,255,255,0);">　　3. 税务机关可免费上门咨询服务、贸易局提供全方位免费信息； <span style="background-color: rgba(255,255,255,0);">　　4. 在澳大利亚设立的办事处很大部分费用包括工资、广告费、办公室租金、机票等可在收入中得到税收减免； <span style="background-color: rgba(255,255,255,0);">　　5. 申请澳大利亚商务签证，方便经商旅游. <span style="background-color: rgba(255,255,255,0);">　　二、澳大利亚公司注册与管理机构 <span style="background-color: rgba(255,255,255,0);">　　注册澳大利亚公司必须要向澳大利亚证券投资委员会（Australian Security & Investment Commission，简称ASIC）进行申请. 申请成功后，注册公司会自动获得一个澳大利亚公司号Australian Company Number，简称ACN.获得ACN后还要继续向澳洲税务局申请澳大利亚商业号码Australian Business Number，简称ABN，以及申请消费税GST申报后才算完成公司注册的全部程序. <span style="background-color: rgba(255,255,255,0);">　　三、注册澳大利亚公司号ACN所需资料 <span style="background-color: rgba(255,255,255,0);">　　1. 拟注册澳大利亚公司的名称三个（英文），其中两个为备选； <span style="background-color: rgba(255,255,255,0);">　　2. 公司在澳洲的注册地址，联系电话，传真以及邮箱，如果该地址属于租用，则需要提供租赁者的姓名，确认租赁者同意将该地址作为公司注册地址； <span style="background-color: rgba(255,255,255,0);">　　3. 公司注册负责人Director的个人资料（出生年月、出生地、现住地址，联系方式包括联系电话及电子邮箱）； <span style="background-color: rgba(255,255,255,0);">　　4. 公司拟在澳大利亚的业务性质，经营方向； <span style="background-color: rgba(255,255,255,0);">　　5. 澳大利亚公司（如非一人公司的话）的董事或股东的个人资料：出生年月、出生地、现住地址，联系方式包括联系电话及电子邮箱； <span style="background-color: rgba(255,255,255,0);">　　6. 澳大利亚公司的秘书Secretary的个人资料（出生年月、出生地、现住地址，联系方式包括联系电话及电子邮箱）； <span style="background-color: rgba(255,255,255,0);">　　7. 澳大利亚公司的董事或股东的股份详细分配情况，默认股份数量为100股，股价按照每股1澳币设置. <span style="background-color: rgba(255,255,255,0);">　　四、注册澳大利亚商业号码ABN，消费税GST申报所需材料 <span style="background-color: rgba(255,255,255,0);">　　1. 公司的澳大利亚公司号CAN； <span style="background-color: rgba(255,255,255,0);">　　2. 公司负责人Director和秘书Secretary的个人税号Tax File Number； <span style="background-color: rgba(255,255,255,0);">　　3. 公司注册负责人Director和秘书Secretary的个人资料（出生年月、出生地、现住地址，联系方式包括联系电话及电子邮箱）； <span style="background-color: rgba(255,255,255,0);">　　4. 公司拟在澳大利亚的业务性质，经营方向； <span style="background-color: rgba(255,255,255,0);">　　5. 公司在澳洲的注册地址，联系电话，传真以及邮箱； <span style="background-color: rgba(255,255,255,0);">　　6. 选择申报GST的方式：每月申报、每季度申报或者年度申报. <span style="background-color: rgba(255,255,255,0);">　　三、注册澳大利亚公司号ACN和澳大利亚商业号码ABN需要的时间 <span style="background-color: rgba(255,255,255,0);">　　1. 注册澳大利亚公司号CAN——28个工作日（普通）或者60分钟（加急，收取额外加急费用） <span style="background-color: rgba(255,255,255,0);">　　2. 澳大利亚商业号码ABN——30个工作日 <span style="background-color: rgba(255,255,255,0);">　　四、澳大利亚证券投资委员会ASIC联系方式：http://www.asic.gov.au/ <span style="background-color: rgba(255,255,255,0);">　　澳大利亚商业注册机构Australian Business Register联系方式: http://www.abr.gov.au/ <span style="background-color: rgba(255,255,255,0);">　　澳大利亚税务局联系方式: http://www.ato.gov.au/

<span style="background-color: rgba(255,255,255,0);">__Shirlaw v Southern Foundries (1926) Ltd and Federated Foundries Ltd Page 260__ <span style="background-color: rgba(255,255,255,0);">__@http://basilnet.awardspace.com/Legal%20Files/3rd%20year%20stuff/employment/implied%20cases.doc__

<span class="s3" style="background-color: rgba(255,255,255,0);">__DUTY TO OBEY REASONBLE ORDER__

<span class="s3" style="background-color: rgba(255,255,255,0);">__Case__ <span class="s5" style="background-color: rgba(255,255,255,0);">: ​<span class="s6" style="background-color: rgba(255,255,255,0);">__Shirlaw v Southern Foundries (1926) Ltd and Federated Foundries Ltd__

<span class="s3" style="background-color: rgba(255,255,255,0);">__Facts__ <span class="s5" style="background-color: rgba(255,255,255,0);">: ​<span class="s7" style="background-color: rgba(255,255,255,0);">S made managing director of SF Ltd, for 10 yrs, company had power to appoint one director managing director, managing ​director subject removal, resignation as other directors; “subject to provisions of contract b/w him, company;” FF Ltd ​acquired control of SF Ltd; new​articles gave power to FF Ltd to remove directors; S removed; appointment as managing ​director ipso facto terminated; argued implied term SF Ltd would not remove S from office of director, but could not be read ​into contract

<span class="s3" style="background-color: rgba(255,255,255,0);">__Held__ <span class="s5" style="background-color: rgba(255,255,255,0);">: ​<span class="s7" style="background-color: rgba(255,255,255,0);">Removal of S as director breach of contract, implied term that SF Ltd would not alter articles to remove S as director

[]

howard smith ltd v ampol petroleum ltd. page 371

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">(New South Wales) The court considered the use by directors of their fiduciary power of allotment of shares for a different purpose than that for which it was granted, and so as to dilute the voting power of the majority shareholding of issued shares. Lord Wilberforce: ‘Having ascertained, on a fair view, the nature of this power, and having defined as can best be done in the light of modern conditions the, or some, limits within which it may be exercised, it is then necessary for the court, if a particular exercise of it is challenged, to examine the substantial purpose for which it was exercised, and to reach a conclusion whether that purpose was proper or not. In doing so it will necessarily give credit to the bona fide opinion of the directors, if such is found to exist, and will respect their judgment as to matters of management; having done this, the ultimate conclusion has to be as to the side of a fairly broad line on which the case falls’.

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">Lord Wilberforce said: ‘it is correct to say that where the self-interest of the directors is involved, they will not be permitted to assert that their action was bona fide thought to be, or was, in the interest of the company’ pleas to this effect have invariably been rejected just as trustees who buy trust property are not permitted to assert that they paid a good price.

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">No more, in their Lordships’ view, can this be done by the use of a phrase – such as ‘bona fide in the interest of the company as a whole’ or ‘for some corporate purpose’. Such phrases, if they do anything more than restate the general principle applicable to fiduciary powers, at best serve, negatively, to exclude from the area of validity cases where the directors are acing sectionally, or partially: ie improperly favouring one section of the shareholders against another. Of such cases it has said:

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">The question which arises is sometimes not a question of the interest of the company at all, but a question of what is fair as between different classes of shareholders.’

Gilford motor co ltd v home Page 216

[]

<span style="background-color: rgba(255,255,255,0);">The defendant was the plaintiff’s former managing director. He was bound by a restrictive covenant after he left them. In order to avoid the effect of the covenant, he formed a company and sought to transact his business through it. The trial judge, Farwell J, found that the company had been set up in this way to enable the business to be carried on under his own control but without incurring liability for breach of the covenant. However the reality, in his view, was that the company was being used as ‘the channel through which the defendant Horne was carrying on his business.’ In fact, he dismissed the claim on the ground that the restrictive covenant was void. <span style="background-color: rgba(255,255,255,0);">Held: The ruse was ineffective, and an injunction was issued to prevent Horne and his company from breaching the covenant given.

<span style="background-color: rgba(255,255,255,0);">Page388 The derivative claim @http://www.lawteacher.net/finance-law/essays/the-new-derivative-claim.php

=<span style="background-color: rgba(255,255,255,0);">The new derivative claim =

<span style="background-color: rgba(255,255,255,0);">Introduction
<span style="background-color: rgba(255,255,255,0);">One of the disputable areas in the Companies Act 2006 (‘CA 2006') is the provisions of derivative claim. A derivative claim is a claim brought by individual shareholders seeking relief on behalf of the company against the company's directors. It is believed a successful derivative claim regime should strike the right balance between ensuring effective remedies available to minority shareholders while not allowing troublesome shareholders impeding the carrying on of the proper business of the company. However, it seems the pendulum of the new statutory provision swings in favour of the managerial freedom. Whether it could be served as a tool to ensure directors being held accountable for their breach of duties is questionable. <span style="background-color: rgba(255,255,255,0);">The article is organized as follows. Section II provides an overview of the scope and the procedural framework of the new statutory derivative claim under Part 11 of CA 2006. Section III assesses the new legislation by analysing the fact that it is designed in favour of the management and fails to provide necessary incentives for minority shareholders seeking relief under derivative claim. Section IV draws some conclusions.

<span style="background-color: rgba(255,255,255,0);">Read more: [|The new derivative claim | Law Teacher] [|http://www.lawteacher.net/finance-law/essays/the-new-derivative-claim.php#ixzz3DX3PGQSy] <span style="background-color: rgba(255,255,255,0);">Follow us: @lawteachernet on Twitter | LawTeacherNet on Facebook

@http://wenku.baidu.com/link?url=O7ccmz31wXngn4KYTXRmWe9TIJh0ZW9fymuX-8Rf6ms91m1DzCQVopSmsOjC0w9BgE0OufVP1VM3p81ly-lUp7gakB_rVRidNP6BV00BSrq

floating charge page 312 浮动抵押

Balance of probabilities Page12

<span style="background-color: rgba(255,255,255,0);">本人业余爱好这炒股也有多年的历史了，本着我一惯谦虚的原则，自己成功的经验当然是少于失败的教训了，但是至少我现在明白一点，在股市里挣钱的王道就是通过积小胜为大胜．关键的关键是要相信统计规则，而K线图就是统计规律的基础．既然是统计，就没有十拿九稳的事，正象在民事法庭上判决的原则一样，是基于正反证据概率的大小（Balance of probabilities），也就是说，控方拿出证据来，辩方拿出反证，法官把两个证据放在心里某处的一个天平一称，天平朝哪边儿倒了，谁也就赢了．这个Balance of probabilities和刑事厅审判可不一样，那里证据必须是经得起推敲的（beyond reasonable doubt)．毕竟判人有罪比判人赔钱要慎重得多．

Chapter 10. Types of company ORGANISATION NUMBER TYPE @http://www.actcoss.org.au/oik/infosheets/structureandstrategy/compltd.html

<span style="background-color: rgba(255,255,255,0);">What is a Company Limited by Guarantee?
<span style="background-color: rgba(255,255,255,0);">An organisation can incorporate as a company limited by guarantee when there are a number of stakeholders whose interests have to be accounted for and where a profit motive is not the prime objective of the organisation. The regulator for companies limited by guarantee is the Australian Securities and Investment Commission (ASIC).

<span style="background-color: rgba(255,255,255,0);">"Limited by guarantee" means that if the company is wound up, and it is in debt, the liability of members is guaranteed to be a nominal amount (often in the range of $20 - $100). Directors of a company limited by guarantee will be subject to all of the duties and obligations for a commercial company set out in the //Corporations Act 2001//.

<span style="background-color: rgba(255,255,255,0);">A company limited by guarantee has the following key features:
 * <span style="background-color: rgba(255,255,255,0);">it can trade or operate throughout Australia;
 * <span style="background-color: rgba(255,255,255,0);">the liability of members is limited;
 * <span style="background-color: rgba(255,255,255,0);">there is a cost involved in establishing the company; and
 * <span style="background-color: rgba(255,255,255,0);">there are ongoing reporting and administrative requirements.

Types of Australian Business Structures

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">Public Companies
<span style="background-color: rgba(255,255,255,0);">Public companies are permitted by law to raise money from the public by offering their shares for sale, usually listing them on the share market. The people who purchase these shares are called [|shareholders]. You can recognise a public company because it must put the word 'Limited' or the abbreviation 'Ltd' after its name.

<span style="background-color: rgba(255,255,255,0);">Public companies must have a minimum of three [|directors] and at least one [|secretary]. Two of the directors and the secretary are required to be residents of Australia.

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">Proprietary Companies - Limited by Shares
<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">These are usually smaller than a public company and generally are referred to as private companies or shelf companies. There can be between one and fifty [|shareholders], yet raising money by selling shares to the public is not permitted. Being 'Limited by Shares' literally means that the liability is limited to the value of the shares of the company.

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">Small businesses predominately use a private company for their trading as a means to identify and differentiate their brand from their competitors.

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">There is a requirement for a minimum of one director and one shareholder. At least one of the [|directors] must reside in Australia. According to Corporations Act 201 section 204A, a [|secretary] is not required any longer.

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">Proprietary Companies - Limited by Guarantee
<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">A company 'Limited by Guarantee' is often the preferred structure used by sports clubs who are 'non-trading' businesses. The shareholders must 'Guarantee' in writing the amount they are willing to contribute to the company should the company be unable to meet its debts.

<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">Special Purpose Companies - SMSF Trustee
<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">There are times where there is a requirement for a special type of company to be used for a specific purpose. One type of special purpose company is a [|Self Managed Superannuation Fund] Trustee company. For this to be classed as a special purpose company, a provision within the company constitution needs to be included and upon registration of the company, ASIC needs to be notified that the company's sole purpose is to act as the trustee of the [|SMSF].

Company law club Types of company <span style="background-color: rgba(255,255,255,0);">转发此文至微博 <span style="background-color: rgba(255,255,255,0); text-align: start; text-decoration: none;">[|我要评论] ASIC ---limited by gurantee @http://en.m.wikipedia.org/wiki/Private_company_limited_by_guarantee =<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">Private company limited by guarantee =

<span style="background-color: rgba(255,255,255,0);">In [|British] and [|Irish] [|company law], a ** private company limited by guarantee ** is an alternative type of [|corporation] used primarily for [|non-profit organisations] that require [|legal personality]. A company limited by guarantee does not usually have a share [|capital] or [|shareholders], but instead has members who act as guarantors. The guarantors give an undertaking to contribute a nominal amount (typically very small) in the event of the winding up of the company. [|[1]] It is often believed that such a company cannot distribute its [|profits] to its members but (depending on the provisions of the articles) this is not actually true. [|[2]] Converting a limited company to a [|Community Interest Company] (CIC) removes this doubt entirely, as CICs feature an asset lock which prevents the extraction of profits. However, a company limited by guarantee that distributes its profits to members (nor CICs) would not be eligible for charitable status.

=<span style="background-color: rgba(255,255,255,0); vertical-align: baseline;">Debenture = <span style="background-color: rgba(255,255,255,0); display: block; vertical-align: baseline;">For debentures in sport, see [|debenture (sport)]. <span style="background-color: rgba(255,255,255,0);">In [|corporate finance], a ** debenture ** is a medium- to long-term debt [|instrument] used by large companies to borrow money, at a fixed rate of interest. The legal term "debenture" originally referred to a document that either creates a debt or acknowledges it, but in some countries the term is now used interchangeably with ** [|bond] **, ** loan stock ** or ** note **. A debenture is thus like a certificate of loan or a loan bond evidencing the fact that the company is liable to pay a specified amount with interest and although the money raised by the debentures becomes a part of the company's capital structure, it does not become [|share capital]. [|[1]] Senior debentures get paid before subordinate debentures, and there are varying rates of risk and payoff for these categories.

<span style="background-color: #ffffff; color: #252525; display: block; font-family: inherit; font-size: inherit; vertical-align: baseline;"> Debenture holders are usually the company s creditors.