Law Banking – Article Critique

In the article A-list couple sued over luxury bayside units[1], the key problem addressed by the article is whether the couples Malcolm Day and Bree Maddox are guilty over deals that their private companies having alleged bought two luxury Mandurah apartments from property developer Mirvac, who insisted that a contract was made between the company and spouses. The spouses however  refused to honour the contract by invoking an absence of valid agreement.

It was the spouses who are alleged to have caused the problem or the focus of the investigation because of their refusal to settle the alleged contract of sales that spouses or their companies have entered into with the complainant. The legislation mentioned is the Strata Titles Act, which according to the defendants, provides the right of purchasers of be notified of any variation in the thing purchase and allow the purchase to cancel the agreement[2] but which Mirvac failed to do.

 The prosecution proposed by the complainant and its seeming source was an alleged contract to buy and pay for the apartments, which are alleged to be violated by the spouses. The success of the prosecution therefore lies on whether the complaint or the defence would be sustained by the court or not.

The Australian law will deal with this issue, if the issue is of international origin, by properly applying the principles of international law if such was  evident in the nature of the contract entered into.[3] It appears however that the issue is not of international origin. Nevertheless, the Australian law may still apply in the instant case as basis for any interpretation of the contract or agreement of the parties if the same could be sustained using the arguments as sustained by the parties.

There are no statements made in the article as to present of any specific solutions are recommendations made within the articles as to how the law could be changed.  Generally, the matter of determining whether a law should be changed would be observed after the court has applied the law on the issue of at hand, it appears that there is no resolution of the court yet on the issue that would give a hint as to the deficiency of the law that needs to be changed.

In the second article, FMG may face third-party claims if it loses case[4], the key problem addressed by article is to know whether a Fortescue Metal Group could be held liable for third party claims.   The alleged cause of the problem or focus of the investigation is the alleged failure of Fortesque to update three Chinese state-owned firms about the market in relation to alleged requirement of agreements that parties entered into as found by the Australian Securities and Investment Commission.[5]

 Although there appears to no legislation mentioned, there appears to be alleged failure to make a required disclosure and that such lack of disclosure if so required would amount to act of negligence or fraud, which could be a basis for a cause of action that is actionable by the courts.   There is the prosecution of a possible third party claim if the court will decide against the miner in the case. The implied basis of course if there was failure of make the proper disclosure if such was actually required under present business practices in the Australia which may possibly covered by some administrative law  or law of commerce.

The Australian law may possibly deal by properly applying some applicable principles of international law[6] with this issue as the case or issue appears to have some international dimension because the affected parties include three Chinese state-owned firms.[7]  There was however no mention about having entered into definitive agreements and expressed application of any foreign law on the matter. Thus, even in case of non-application of the foreign law, the constitution of Australia which is part of the law of Australia may at any case be  invoked by Fortesque as matter of strengthening its defence that deals were in fact “framework agreements” only.

There are no statements made in the article as to present of any specific solutions are recommendations made within the articles as to how the law could be changed.  In determining whether there is basis to change a law as matter of putting solution, there must be first declaration by the highest court of Australia that the law violates is supreme law or its constitution and hence the law making body can start making a new one that would particularly address an issue of this kind. The relevance of the Australians constitution would be useful in resolving where there could “an abuse of process”[8] as argued by the defendant Fortesque in the present case.

Bibliography

The West Australian. A-list couple sued over luxury bayside units. April 19, 2009.  available at http://www.thewest.com.au/default.aspx?MenuId=77&ContentID=136783#, (Accessed May 17,2009)

The West Australian. FMG may face third-party claims if it loses case.  May 4, 2009, available at http://www.thewest.com.au/default.aspx?MenuId=159&ContentID=139763, (Accessed May 17,2009)

Devetak, R. Burke, A and George, J.. An Introduction to International Relations: Australian Perspectives, Cambridge University Press, 2007

[1] The West Australian. A-list couple sued over luxury bayside units. April 19, 2009.  available at

http://www.thewest.com.au/default.aspx?MenuId=77&ContentID=136783#, (Accessed May 17,2009) [2] Ibid [3] Devetak, R. Burke, A and George, J.. An Introduction to International Relations: Australian Perspectives, Cambridge University Press, 2007 [4] The West Australian. FMG may face third-party claims if it loses case

4th May 2009, 15:30 WST.  May 4, 2009, available at http://www.thewest.com.au/default.aspx?MenuId=159&ContentID=139763 (Accessed May 17,2009)

[5] Ibid [6] Devetak, R. Burke, A and George, J.. An Introduction to International Relations: Australian Perspectives, Cambridge University Press, 2007 [7] Ibid [8] Ibid