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Introduction
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This study highlights laws of contracts such as the contract deal can be constructed in a very personal context or on a very smaller scale. In this regard, the no written contract is very much more convenient. The study also shows the law system of Australia on the other hand, when the contract or a deal is between two very close people. In addition to that, both trustable relationships and different sectors of case law legislation are important. As per the study the court system, contract disputes, and others are also illustrated. In addition, this study also shows the case study and the analysis of the situation.
Part 1
2.1 The Australian Legal System
The Australian legal system follows the common legal law to organize its governmental system properly. Moreover, it can be noted that Australia as well as its all states along with the territories which include "New South Wales" uses the "common law legal system" that is; majorly derived from the judicial decisions of the respective nation. In addition to the above-mentioned point, the concerned nation follows only "one common law" (Barker, 2022). The inheritance of English law is not applicable within Australia or at any level of the state. Additionally, it is to be noted that the inheritance of English laws deals with the convention of transferring titles, properties, rights as well as obligations.
The federal system of Australia deals with the federation of "six states" with the territories of two self-governing, presence of their parliaments, constitutions, laws as well as governments. The federal laws in Australia include "The age Discrimination Act 2004", "The racial Discrimination Act 1975", and “Australian Human Rights Commission Act 1986”. The major role of the legislature in Australia is to represent its people, legislate, make the executive government as well as approve the request of the government related to money (Giannacopoulos, 2020). The role of judiciary in Australia has the power to elucidate the laws and to provide an appropriate judgment on individual cases. The role of the executive is to formulate the different policies of the Australian government along with the implementation of the policies (Neumark et al. 2019).
2.2 Sources of Law
The legislation of Australia deals with the bills which are examined by the parliament and the approval of the bill of the parliament is provided by the governor-general of the respective nation. Additionally, it can be stated that the approved bills by the "governor-general" become the new law for the concerned nation (Christoff & Eckersley, 2021). On the other hand, it can be stated that the laws of the nation are mentioned: "collectively as legislation". In Australia, the Statute law is created by the parliament to deal with the various types of issues that are prevailing within the nation. On the other hand, it can be stated that for the development of a new law or changes in the law the bill is passed to the parliament (Morton, Hebart & Whittaker, 2020).
All the decisions regarding the changes to the bills are discussed within the parliament and it becomes law if it is passed by the senate as well as the House of Representatives. Contrary to this, the delegated legislation in Australia is not developed by the "Act of parliament" directly instead of this it is made under the jurisdiction of the "Act of parliament" (Duncan et al. 2020). The “common law system” within Australia deals with the legal system that is taken over from the UK. Some existing common laws within the respective nation are false imprisonment, contempt, and conspiracy to defraud. The “doctrine of precedent” is built by the superior court that is needed to be followed in different similar cases by the court as well as by the other courts.
2.3 Case law vs. Legislation
Case law is very significant within the respective nation to deal with critical matters. Additionally, it can be stated that appropriate case laws of the concerned nation assist to make appropriate decisions on various critical matters (Gutman, 2019). On the other hand, it can be claimed that the case laws are majorly developed by the judges of the respective nation in courts. The research of the case laws incorporates reading legal judgments to solve the different types of issues that are raised within the respective nation. The primary source of the laws is the legislation and appropriate decisions are made to make the appropriate laws for the people. Therefore, with the appropriate consent of the governor-general, the laws are passed. Statute laws are also known as legislation that is majorly made by the parliament of Australia (Oksanen et al. 2019). Additionally, statutory law is developed by the "government bodies" and the common laws are made by the decisions of the judges.
2.4 Court Hierarchies
In Australia, there is the presence of three levels of courts; the lowest court is the magistrate court, which focuses on minor civil disputes along with minor criminal cases. On the other hand, the drastic court deals with serious civil cases such as armed robbery, involving fraud, as well as rape (Piperoglou, 2020). Moreover, the upper court of Australia is the Supreme Court and it is the “highest state court” since it deals with serious criminal cases such as serious drug offenses as well as manslaughter. The Supreme Court has two major divisions that are the court of appeal as well as trial division.
2.5 Tribunals – NCAT
The law that builds governments, as well as NCAT and its operations, is the "Civil and Administrative Tribunal Act 2013". On the other hand, the NACT gives a quick, simple as well as effective procedure to resolve the reviewing and disputes in the action of the administration (Reece, 2021). Moreover, the administrative action incorporates the process as well as services to support the "self-representation" by the parties. The NACT of Australia is an "independent body" that assists to resolve issues as well as disputes in enforceable orders. Additionally, there is a presence of 13 members in COAT which are federal tribunals in respect to solving the issues (Martin, 2021).
2.6 Home building disputes and Department of Fair Trading
There is a presence of home-building disputes due to the rules as well as regulations of the respective nation. The most common building disputes are the non-payment of services as well as works that are already delivered (Smyth & Nielsen, 2019). One of the major disputes has been seen in the incomplete home building work due to lack of payment to the workers along with the poor builder workmanship. The Department of fair trading is one of the significant departments of the respective nation since it deals with the aspect of fair trading within the nation. The department of fair trading is significant to protect the trading aspects of the concerned nation. In additionally, the "Fair Trading Act" of Australia includes "The Competition and Consumer Act 2010" to regulate fair trading within the concerned nation.
Part 2
The emergence of a legally enforceable contract
3.1 Contract formation and elements of law
The contract is signed between two people. The agreement is supposed to be in written papers with legal value. In terms of forming a contract, some necessary points must be included such as the presence of an acceptance of both parties regarding the contract (Governatori et al. 2018). There is supposed to be transparency, legal acceptance, and mutual consent between two persons in the contract. Both persons are supposed to agree on each line of the contract and the legal consideration is most important.
In this regard, there are multiple elements in the Australian contract law system such as acceptance with offers that refers to mutual understanding and agreement. In addition to that, the intention behind the formation of the contract is supposed to be legal and secure the assurance of the government (Djurovic & Janssen 2018). The practice is evidence of the responsibility of a citizen. In this regard, consideration is also very essential to ensure the allocated price in the contract to reduce the risk of betraying the price.
3.2 Sufficient certainty of essential terms
There are different terms regarding the contract law of Australia and there are mainly three essential conditions such Offer, acceptance, and certainty of a condition. Offer means the communication or the condition on the bases of which the contract will be generated. On the other hand, the provided offer can be refused by the legal authority due to some emergency such as death, failure of a valid reason, and others (de la Maza Gazmuri & Olivares 2020). On the other hand, acceptance refers to the next step of the formation of a contract and this is an output of mutual understanding. Then the certainty of a condition occurs. In this regard, the uncertainty of a constructed contract is emphasized (Franklin 2021). In this context some of the conditions can occur such as the ambiguity of the contract after a certain time, the incomplete information that was provided in a contract but presently the authentication issues are generating, and others.
3.3 Terms implied
The implied terms refer to the formation of a contract in a particular situation such as dealing with construction, agreement for any courses, or in any pre-assumed situation. There are different important factors in the implied terms such as there must be some reasonable factor behind the formation of the contract (Speakman et al. 2019). The practice of implied terms is mostly generated in a business deal where two persons are involved. It should be transp[erent and direct and also the implied terms ensure minimum contradictions (Averchenkova, Fankhauser & Finnegan 2021). The implied terms are not valuable for tradition, ethics, and region-based actions and thoughts.
3.4 Significance not written contract
In the context of the contract, there is no specific rule of contract that can be on a written or oral basis but the written contract is much more convenient and easy to prove to find the truth. On the other hand in an oral contract it is hard to establish the truth it is very much complicated and it changes its dynamics very rapidly.
In this regard, there are significant characteristics of no written contracts or oral contracts such as the presence of witnesses, and brief observation of actions of the both parties (Ioannidis 2019). In this regard, the major pieces of evidence are the record of the phone call, the emails text message, and the receipts that are provided by one party to another party.
There are some specific circumstances as well where the non written contract is very much needed such as in minimum time duration with a minimum price-based contract.
3.5 Forms of contract
There are different types of contracts that are suitable for different projects such as the ‘Fixed Price Contract’ or ‘FP’, ‘Time and Material Contract’ or ‘T&M’ and “Cost Reimbursable Contract’ or ‘CR’ (Djurovic & Janssen 2018). The ‘FP’ refers to the direct price allotted contract and the ‘T&M’ refers to the regular deal in the context of buying and selling context. On the other hand, the ‘CR’ refers to the extent of the flexibility of the revenue as in the first stage one price amount is fixed but the other one depends on the further earned and profit (Australiancontractlaw, 2022).
In this context, the contract's standard form does not recommend any kind of negotiation and this is a one-time contract that will apply to every future deal to the parties. The standards form is very important and convenient in the employment deal, services terms and conditions, and others.
The construction dispute
4.1 Works comply
The variation of the order of the project and execution was not similar but it was directed previously that the project is going to be difficult for the licensed home builder Mary. As per Mary, the construction will take about six months and that will cost about money of 200,000 dollars. In addition to that Mary mentioned that it was a complicated project as it was in a slop. After the execution of the project, the whole work took eight months and the requirements were not met as the plot was a sloping block. On the other hand, the requirement for Pet was to construct a new shed on the back side of his home which was on slop in Newcastle. In addition to that, he did not have any particular time preference as well. In this context at last the execution was not as what the licensed builder told.
Pet's requirements were not matched with the delivered project at the end. As per Pet, the shed was very low and the entrance door was made very narrowly. He was not happy at all with his poor work on Mary and two months of extra time. In this regard, Pet did not mention any remedy at the time of the contract deal. He only agreed with the price and time limit. As per the study by Yussof & Zaini (2022) the previously mentioned remedies if the project were not met requirements.
4.2 Delay of works
There were multiple changes from Pet to the construction of the shed and according to Mary the addition of the new requirements of Pet and the new changes in the project was the reason for the delay. In addition to that, there were complications as well in the backyard modification of Pet. in this regard Mary did not directly entitle an extension to the client when Pet demands further changes. As per Abotaleb (2018), a licensed builder needs to mention strongly the negative aspects that could hamper her project execution on time.
Mary faced numerous problems regarding the project's construction such as the additional changes as per Pet's recommendation, the problem of the sloping block, and the problems of burying asbestos in the client's backyard. In this regard, in the oral construction deal before the construction was started (Ojiako et al. 2018). Mary did not entitle to an extension of limitation of time if Mary discovers asbestos. Besides that, different issues hamper Mary's project such as the slope and space problem of the plot. According to Posun (2021), in this regard, the different witnesses such as co-workers of Mary can support the case.
The project was two months delayed from Mary’s side due to various difficulties of slop, backyard problems, and additional changes during project construction. In this situation, Pet’s remedy was to cancel Mary’s final invoice payment of 20,000 dollars for the late execution. According to Kurniawan et al.(2021), in this regard, the remedy is not exactly the solution as there was no written contract between them and there was no previous agreement upon these difficulties.
4.3 Payment dispute
Yes, marry can enforce the payment under the previous contract since the contract has already been done with Pat. Additionally, it can be stated that due to the presence of certain laws that are "Home Building Act 1989 (NSW)" under sections 6, 7, as well as 7E Marry, can enforce the payment. On the other hand, it can be stated that due to various types of modifications the cost of building the shed has increased a lot since there were some extra building materials were used in the construction. Additionally, it can be stated that due to the incorporation of the other changes in the plan the price has increased a lot. Contrary to this, it can be stated that there are some other ways through which Mary can claim the payment. Additionally, it can be stated that the "Home Building Act 1989 (NSW)", part 3A is the most beneficial law to claim the payment (Kirton-Darling & Carr, 2019). Moreover, it can be claimed that the respective law provides proper rights to the builders as well as house owners. The major purpose of the respective Act is that it assists to regulate the overall performance of the building work along with the home building disputes.
4.4. Process of dispute resolution
The dispute was notified when the work was delivered to Pat and Marry took 8 weeks to complete the task instead of 6 weeks. The major claim Pat was that the given work was not appropriately done by Marry since the ceiling was very low and the design of the shed is also not appropriate. Due to all these disputes, Pat was not providing the full payment despite doing the work as per Pat’s choice. Due to various changes, the cost of construction of the shed has been raised, and then Pat is not willing to provide proper payment to Marry. The district court has the jurisdiction to resolve as well as hear the dispute. On the other hand, it can be stated that the respective dispute can be resolved by the district court since it deals with the civil cases of the nation. The raised dispute can be resolved by the four stages that are prevention, mediation, litigation as well as arbitration. The dispute can also be resolved by taking the help of the court by following appropriate legal laws.
Conclusion
The study shows the law system and some strict actions in terms of the construction of the contract such as the person with mental disabilities, and the population with minors age are not allowed for a contract generation in Australia. Besides that, in the contract formation actions, there are some flexibility as well such as the authority giving some relaxation to some types of mistakes and the implied terms of the standard sector. In this regard in the contract between both persons one person can have issues with a custom or a tradition and in this context, the implied terms are suited. In addition to that, there are also some essential situations where the deal is in a very personal context or on a very smaller scale than the oral contract is very much more convenient. This study also reflects the case study and solves the queries to enhance the knowledge regarding the law system of Australia.
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