NEW SOUTH WALES
TECHNICAL AND FURTHER EDUCATION COMMISSION
________________
Commercial law
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NSW Module Number: 19194J
Implementation Date:
01-Jan-2006
National Module Code:
BUSINESS ARTS AND INFO TECH
ACCOUNTING FINANCE PROGRAM AREA
Commercial law - 19194J
A. Module information
1. MODULE DETAILS:
1.1 Module Name:
Commercial law
1.2 Nominal Student Hours:
72 hours
1.3 Module Codes:
NSW Module Number:
National Module Code:
19194J
1.4 Field of Education Code: 080101
Accounting
1.5 Copyright Information:
This material is State of NSW Department of Education and Training (TAFE
Educational Services, Curriculum Resourcing Operations) copyright.
A
-
licence is required to:
use this material for training delivery
reproduce in part or whole
incorporate a significant part of the material into a derivative such as an
Enhancement, Contextualisation, Supplementary or Compilation
- on-sell or license, in part or whole to a third party.
1.6 Licensing and Franchise Arrangements:
Licensing and franchising arrangements should be negotiated with the NSW
Department of Education and Training, Curriculum Resourcing and Operations Unit,
Phone: (02) 9244 5361.
2. MODULE PURPOSE
This module will enable the learner to develop a basic knowledge of commercial
law principles, contract law and consumer protection law applicable within the
business environment.
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
2
Commercial law - 19194J
A. Module information
On successful completion of this Commercial Law module, participants will be
able to:
1
Briefly outline the development of our legal system and the laws and the
courts/tribunals that operate in the business environment
2
Outline the main features of negligence and defamation and identify
commercial applications of negligence to business operations.
3.
Identify the different types of commercial entities that may be available
for the operation of a business and the use of trade marks and copyright
to protect business interests and assets
4.
Identify cheques and the relationship between the customer and financial
institution and the reporting of financial transactions under current
legislation.
5.
Identify a contract and describe the formation, operation and termination
of contracts as they affect business activities including the use of
e-commerce. Explain the main features of a contract of employment and
identify the main statutes both at state and federal levels that apply
directly and indirectly to employment agreements (overview only)
6.
Explain the concept of property and distinguish between real and personal
property Briefly describe the main features of ownership of land and
identify a lease,licence and mortgage
7.
Outline the main methods and procedures for recovery of debts and provide an
overview of the use of bankruptcy as a legal remedy in insolvency
8.
Outline the Commonwealth and State statutory provisions and principles
relevant to consumer protection and the relevant bodies involved.
9.
Explain the elements of a contract of insurance and broadly explain the
legal principles associated with general and contingent insurance and the
bodies involved in the insurance industry.
3. PREREQUISITES
Nil
4. RELATIONSHIP TO COMPETENCY STANDARDS:
This module provides underpinning legal knowledge and skills for the competency
FNSACCT404A.
5. CONTENT:
1.
2.
3.
4.
5.
6.
7.
Origins of Law
Introduction to Torts
Legal aspects of business
Cheques
Contract law
Real and Personal Property
Debt recovery and bankruptcy
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
3
Commercial law - 19194J
A. Module information
8. Consumer Protection Laws
9 .Insurance
6. ASSESSMENT STRATEGY
Teacher judgment and holistic assessment is emphasised in this module. The focus
is the clustering and integration of areas of knowledge, skills and application
against the module purpose, rather than on a 'checklist' or atomistic approach.
Informal (formative) assessment is an integral and vital part of teaching
strategy which provides feedback to learners. This is an on-going process of
monitoring learner progress. It could take different forms such as peer
assessment; self assessment; and/or teacher assessment of levels of performance
throughout the development of pertinent knowledge, skills and application BUT
DOES NOT contribute to learner's final results.
Formal (summative) assessment is an ongoing measure of the learner's achievement
against the module purpose and its learning outcomes, and should not occupy more
than 10% of the module hours or a maximum of 15% for mainly practical modules.
It can take the form of a final exam, a series of tests or can be on-going.
Summative assessment determines the learner's results and is the basis of
reporting on learner achievement.
The Commonwealth Disability Discrimination Act (1992) makes it unlawful to treat
people with a disability less fairly than people without a disability. In the
context of this module, the principle of Reasonable Accommodation (Adjustment)
is applied to ensure that participants with a disability have equitable access
to all aspects of the learning situation. For assessment, this means that
artificial barriers to their demonstrating competence are removed.
Examples of reasonable accommodation(adjustment) in assessment include:
- substitution of an oral assessment task for a written one
- provision of extra time
- use of an interpreter
- use of adaptive technology.
The focus of the adjusted assessment should be on enabling the participants to
demonstrate that they have achieved the module purpose, rather than on the
method used.
Multiple choice, short answer problem questions, class tests and/or assignments.
7. LEARNING OUTCOME DETAILS
7.1 Learning Outcome 1:
HISTORICAL BACKGROUND TO OUR LEGAL SYSTEM
Describe the development of our legal systems. Explain the main types of laws
and how they are made. Identify the functions and powers of various state and
federal courts and tribunals and how courts interpret and enforce laws.
Suggested duration: 6.0 hours
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
4
Commercial law - 19194J
A. Module information
Assessment Criteria:
1.1 Briefly explain the various types of laws that existed in England prior to
the arrival of the First Fleet in 1788 including
Common law and equity
Statute laws
Civil and criminal law
1.2 Briefly outline the introduction and development of laws in NSW and
throughout Australia from settlement in 1788 to the present time with
particular reference to 3 important dates
1788 Doctrine of Reception
1901 Federation of Australia
1986 Australia Acts
1.3 Describe the powers of the Commonwealth and State Parliaments to make laws
with particular reference to
Exclusive powers
S51 and S109 of the Commonwealth Constitution
Residual powers
1.4 Briefly explain the manner in which Statute laws are made
1.5 List the courts at state and federal level and describe their main roles
with particular reference to the type of matter, geographic limits and
monetary restrictions for each court.
1.5 Explain the role of the courts in the interpretation and enforcement of
statute laws and the use of precedent in the judicial system with particular
reference to
Acts Interpretation Act 1901(Cth)
Interpretation Act 1987(NSW)
Ratio decidendi
Obiter dicta
1.6 Identify the meaning of legal terms such as:
plaintiff
defendant
appellant
respondent
burden and standard of proof
1.7 Briefly explain the use of Alternate Dispute Resolution and identify several
State and Federal specialised tribunals that provide alternatives to going to
court such as the Administrative Appeals Tribunal and the Consumer Trader and
Tenancy Tribunal.
Resources:
The learner will require access to one of the texts containing reference to the
following cases. This list is not exhaustive and is given to assist in the
learning of the relevant legal principles. For assessment purposes learners will
need to have detailed knowledge of the cases marked with a star.
*Mabo v Queensland (No 2) (1992) 175 CLR 1
Walker v New South Wales (1995) 69 ALJR 111
*Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994)
The Wik Peoples v State of Queensland (1996) 187 CLR 1
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
69 ALJR 395
Date Printed: 6/03/2016
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Commercial law - 19194J
A. Module information
Fejo v Northern Territory 9 DG 11/97 (February 27,1998)
Mary Yarmirr v Northern Territory [1998] FCA 771 (July 6, 1998)
Ningarmara v Northern Territory [2002] HCA 28
Commonwealth of Australia Constitution Act 1900 (UK)
Australia Acts 1985 & 1986
Acts Interpretation Act 1901 (Cth)
Interpretation Act 1987 (NSW)
Native Title Act 1993 (Cth)
Native Title Amendment Act 1997
Trade Practices Act 1974 (Cth)
7.2 Learning Outcome 2:
INTRODUCTION TO TORTS
Identify and briefly explain the main factors that must be established to prove
the torts of defamation and negligence. Describe several situations where the
law has commonly recognised negligence and briefly outline the way in which the
Civil Liability Act NSW has affected negligence.
Suggested duration: 3.0 hours
Assessment Criteria:
2.1 List and briefly describe the four essential elements required for a
successful claim in negligence and briefly explain the defences available at
common law.
2.2 Identify and briefly explain special liability situations including
Negligent Misinformation/ Misstatements
Occupiers Liability
Professional Undertakings/work
Vicarious liability
2.3 Outline the main consequences of the Civil Liability Act 2002 NSW (and any
amending legislation)
2.4 Briefly explain defamation as a means to protect reputation (an overview
only)
Resources:
The learner will require access to one of the texts containing reference to the
following cases. This list is not exhaustive and is given as guide to assist in
the learning of the relevant legal principles. For assessment purposes learners
will need to have detailed knowledge of the cases marked with a star.
**Donoghue v Stevenson (1932) AC 562; (1932) All ER 1
Overseas Tankship (UK) v Morts Dock Engineering (1961) 1 All ER 204
Hackshaw v Shaw (1984) 155 CLR 614
Australia Safeway Stores v Zaluzna (1986) 162 CLR 479
Hoyts Pty Limited v Burns (2003) 77ALJR 1934
Hedley Byrne & Co Ltd v Heller & Partners (1963) 2 All ER 575
MLC v Evatt (1968) 122 CLR 556 and (1970) 122 CLR 628
**Shaddock & Associates v Parramatta City Council (1981) 150 CLR 225
Esanda Finance Corporataion Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
Bryan v Maloney (1995) 69 ALJR 375
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
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Commercial law - 19194J
A. Module information
Caltex Oil (Australia) Pty Ltd v The Dredge Willemstad (1976) 136 CLR 529
Hawkins v Clayton (1988) 166 CLR 539
Sutherland Shire Council v Heyman (1987) 157 CLR 424
Hill v Vanerp (1997) 188 CLR 159
Harris v Northern Sandblasting Pty Ltd (1995) Aust Torts Rep 81-365
Perre v Apand Pty Ltd (1999)73 ALJR 1190
McCraken v Melbourne Storm Rugby League Football Club & 0rs [2005]NSWSC 107
22 February 2005
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004]HCA 16 (April 1, 2004)
Versace v Monte [2002]FCA 190
Trade Practices Act 1974 (Cth)
Civil Liability Act NSW
7.3 Learning Outcome 3:
LEGAL ASPECTS OF BUSINESS
Identify and describe the different types of commercial entities under which a
business may be formed and operated and the use of business names, trade marks
and copyright to market and protect goods and services
Suggested duration: 6.0 hours
Assessment Criteria:
3.1 Compare the essential characteristics of the following business
organisations/structures and list their respective advantages/disadvantages:
sole trader
agencies
partnerships
franchises (overview of the Franchising Council and Codes of Conduct)
limited liability companies
trusts
3.2 Briefly identify when and how a business name is registered and
the legal restrictions imposed on the use of a business name.
3.3 Briefly explain the use of domain names
3.4 Explain the legal importance of using trademarks and copyright in the
protection and marketing of a business.
For those Accounting students who are not progressing to the Advanced Diploma
levels learning outcome 3 provides some information about limited liability
companies.
For students in banking, insurance and some other finance/business courses an
understanding of the legal implications of the types of business entities is of
practical importance/relevance in the workplace.
Resources:
The learner will require access to one of the texts containing reference to the
following statutes. This list is not exhaustive and is given as a guide to
assist in the learning of the relevant legal principles. For assessment purposes
learners will need to have detailed knowledge of the statutes marked with a
star.
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
7
Commercial law - 19194J
A. Module information
Polkinghorne v Holland (1934) 8 ALJ 140
*National Commercial Banking Corporation v Batty (1986) 160 CLR 251
Smith v Anderson (1880) 15 CH D 247
*Panorama Developments v Fidelis Furnishing Fabrics (1971) 3 WLR 440
Toll (FGCT) Ltd v Alphapharm Pty Ltd [2004] HCA 52
Hewson v Sydney Stock Exchange (1967) 87 WN 422
Salomon v Salomon & Co Ltd [1897] AC 22
*Lee v Lees Air Farming Ltd [1961]AC 12
ASIC v Plymin Elliott & Harrison [2003] VSC 230 (June 30th 2003)
ASIC v Adler & Ors [2002] NSWCA 395
Partnership Act 1892 (NSW)
Secret Commissions Act 1905(Cth)
Crimes Act 1900 (NSW)
Corporations Act 2001
Business Names Act 1962 (NSW)
Trade Practices Act 1974(Cth)
Trade Marks Act 1995
Copyright Act 1968
7.4 Learning Outcome 4:
CHEQUES
Identify the main features of a cheque and the legal significance of various
"crossings' on a cheque. Describe the relationship between the customer and
financial institution. Explain the main requirements for reporting various cash
transactions and identification for new accounts
Suggested duration: 2.0 hours
Assessment Criteria:
4.1 identify the laws relating to cheques
4.2 Describe the main features of a cheque and the different types of cheques
(bearer/order/account payee only/bank cheque)
4.3 Explain the legal results of "crossing" a cheque
4.4 List and briefly explain the duties/rights between the financial institution
and customer
4.5 Briefly explain the reporting requirements under the Financial Transactions
Reports Act 1988 and the main role of AUSTRAC
Resources;
The learner will require access to one of the texts containing reference to the
following cases. This list is not exhaustive and is provided to assist in the
learning of the relevant legal issues/principles.
Greenwood v Martins Bank [1933] AC 51
Commonwealth Trading Bank v Sydney Wide Stores Pty Ltd (1981) 148 CLR 304
National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
8
Commercial law - 19194J
A. Module information
National Australia Bank v Nemur Varity Pty Ltd [2002]VSCA 18
Citibank Limited v Ueckermann [2002]NSWCA 357
Simonovski v Bendigo Bank Ltd [2003] VSC 91
Cheques and Payment Orders Act 1998(Cth) as amended
Financial Services Reform Act 2001(Cth)
Code of Banking Practice (Australian Bankers Association)
Electronic Transactions Act (Cth)
EFT Code of Conduct
Financial Transactions Reports Act 1988(Cth)
7.5 Learning Outcome 5:
CONTRACT LAW
Identify the common law principles involved in contract law and outline the
manner in which contracts are formed and performed. Explain how contracts may
come to an end and the various remedies available when a contract has been
breached.Identify various Commonwealth and state statutes that apply to
contracts and describe the ways in which such laws have modified or supplemented
the common law. Describe the relationship between employers and employees and
identify and explain the duties of both. Identify and briefly detail the various
statute laws that have a direct or indirect effect on employment agreements
Suggested duration: 24.0 hours
Assessment Criteria:
5.1 Define a contract and distinguish it from an agreement
5.2 Explain how contracts are classified with particular reference to formal and
simple contracts
5.3 List and describe the essential common law elements to create a contract
including:Intention to create a contract
Agreement (offer and acceptance)
Consideration and or formality
Capacity
Consent
Legality
5.4 Briefly outline the use of E-Commerce and the impact of the Electronic
Transactions Act 1999 on making contracts electronically
5.5 Identify and describe the application of statute laws to contractual
relations with particular reference to:Contracts Review Act NSW 1980
Minors (Property and Contracts) Act
Restraint of Trade Act 1976 (NSW)
Frustrated Contracts Act 1978 (NSW)
Trade Practices Act 1974 (Cth) (briefly)**
Sale of Goods Act 1923 (NSW) (briefly)**
Industrial Relations Act 1996 (NSW) (briefly)
(**The Sale of Goods Act and Trade Practices are covered in more detail in
the Consumer Protection learning outcome 9)
5.6 Briefly identify the contents of a contract with particular reference to:-
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
9
Commercial law - 19194J
A. Module information
The requirement for writing (briefly)
The parol evidence rule (briefly)
Privity of contracts (briefly)
Conditions and warranties
Terms implied into contracts by common law and statute laws (Sale of Goods
Act & Trade Practices Act)(briefly)**
Exclusion / limitation clauses (overview)
(** The Sale of Goods Act and Trade Practices Act are covered in more detail in
the Consumer Protection learning outcome 9)
5.7 Identify and briefly explain the ways in which a contract may be legally
discharged
5.8 List and briefly describe the main remedies in common law and equity for
breach of a contract with particular reference to:rescission/repudiation
damages
specific performance
injunction
restitution
rectification
promissory estoppel
limitation periods to commence legal action (Limitation Act 1969 NSW)
5.9 Explain the main features of an employment contract and distinguish between
a contract of service and a contract for services
5.10 Describe the main common law duties and rights of both an employer and
employee.
5.11 List and briefly explain the main Commonwealth and State statutes that
apply directly and indirectly to the employment relationship with particular
reference to:Workers Compensation
Health and Safety
Long Service Leave / Holidays
Discrimination (in its various forms)
Unfair Dismissal
Resources:
The learner will require access to one of the texts containing reference to the
following cases. This list is not exhaustive and is given to assist in the
learning of the relevant legal principles. For assessment purposes learners will
need to have detailed knowledge of the cases marked with a star.
Contract cases:
Cohen v Cohen [1929] HCA 15 919290 42 CLR 91
*Wakeling v Ripley (1951) 51 SR (NSW)183
*Pharmaceutical Society of Great Britain v Boots Cash Chemists (1953) 1 QB 401
*Carlill v Carbolic Smoke Ball Co (1893) 1 QB 256
R v Clarke (1927) 40 CLR 227
Sullivan v Sullivan [2005] NSWSC 10
McRae v Commonwealth Disposals Commission (1950) 84 CLR 337
Petelin v Cullen (1975) 132 CLR 355
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
10
Commercial law - 19194J
A. Module information
Shaddock v Parramatta City Council (1981) 55 ALJR 713
*Commercial Bank of Australia v Amadio (1983) 151 CLR 447
Australian Competition and Consumer Commission v Lux Pty Ltd [2004]
Codelfa Constructions Pty Ltd v State Rail Authority (1982) 56 ALJR
Schroeder Music Publishing Co Ltd v McAuley (1974) 1 WLR 1308
Nordenfelt v Maxim - Nordenfelt Guns Co Ltd (1893) AC 535
Hadley v Baxendale 156 ER 145
*Victoria Laundry Ltd v Newman Industries Ltd (1949) 2 KB 528
*Baltic Shipping Co Ltd v Dillon (1993) 79 ALJR 228
Pavey & Mathews Pty Ltd v Paul (1987) 162 CLR 221
Arnotts Ltd v Burke 1998 41 IPR 172
Merritt v Merritt [1970] 2 All ER 760
Rose and Frank Co v Crompton Ltd (1923) 2 KB 361
PT Ltd v Maradona(1992) 25 NSWLR 643
Chappel v Nestles (1960) AC 87
Central London Property Trust v High Trees House Ltd (1947) KB 130
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387
Lewis v Avery 1 QB 198
Phillips v Brooks (1919) 2 KB 243
Esso Petroleum Co Ltd v Mardon (1976) QB 801
West v AGC Advances Pty Ltd (1986) 5 NSWLR 610
Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163
Interfoto Picture Library Ltd v Stiletto Visual Programmes [1988] 2
Trident General Insurance Ltd v McNiece Bros Pty Ltd (1988) 165 CLR
Sydney County Council v West (1965) 114 CLR 481
Garcia v National Australia Bank (1998) HCA 48
FCA 926
459
WLR 615
130
Employment cases
Zuijis v Wirth Bros Pty Ltd (1955) 93 CLR 561
*Hollis v Vabu Pty Ltd [2001] HCA 44
Hill v Water Resources Commission [1985] EOC 92, 127
Ottoman Bank Ltd v Chakarian [1930] AC 277
Australian Telecommunications Commission v Hart (1982) 65 FLR 41
Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (NSW)
Sale of Goods Act 1923 (NSW)
Contracts Review Act 1980 (NSW)
Frustrated Contracts Act 1978 (NSW)
Minors (Property and Contracts) Act 1970 (NSW)
Restraint of Trade Act 1976 (NSW)
Industrial Relations Act 1996 (NSW)
Workplace Relations Act 1996 (Cth)
Limitations Act 1969 (NSW)
Workers Compensation Act 1987(NSW)
Workplace Injury Management Act
Long Service Leave Act 1955(NSW)
Annual Holiday Act 1944 (NSW)
Occupational Health & Safety Act 2000(NSW)
Anti-Discrimination Act 1977(NSW)
Racial Discrimination Act 1975(Cth)
Sex Discrimination Act 1984(Cth)
Sex Discrimination Amendment Act 1995(Cth)
Disability Discrimination Act 1992(Cth)
Affirmative Action (Equal Opportunity for Women) Act 1986(Cth)
Age Discrimination Act 2004(Cth)
Human Rights & Equal Opportunity Commission Act 1986
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
11
Commercial law - 19194J
A. Module information
7.6 Learning Outcome 6:
REAL & PERSONAL PROPERTY
Demonstrate an understanding of the concept of real and personal
property,contractual rights affecting real property such as licences,leases and
the legal nature of mortgages.
Suggested Duration: 6 hours
Assessment Criteria
6.1 Distinguish between real and personal property, explaining nature of
possession and ownership.
6.2 Briefly describe the nature of a fixture.
6.3 Overview of estates in land including leases (distinguishing licences as
contractual rights),tenancies in land(ie joint tenants and tenancy in common)
6.4 Briefly describe the nature of title ie Torrens and Old Systems Title and
how it is registered
6.5 Briefly explain the nature of a mortgage- including the rights of the
mortgagor and the remedies available to a mortgagee
Resources:
The learner will require access to one of the texts containing
reference to the following cases. This list is not exhaustive
and is given to assist in the learning of the relevant legal
principles. Learners are not required to demonstrate a
detailed knowledge of the cases for assessment purposes.
J & H Just (Holdings) v Bank of NSW (1971) 125 CLR 546
Armory v Delamirie (1722) 93 ER 665
Ranger v Griffen (1967) 87 WN 531
Bernstein v Skyviews & General Ltd (1978) 1 QB 479
Australian Provincial Assurance Co Ltd v Coroneo (1938) 30 SR (NSW) 701
National Commercial Bank v Solonowski (1984)NSWConvR 55-194
7.7 Learning Outcome 7:
DEBT RECOVERY & BANKRUPTCY
Explain the debt recovery process in NSW and its application to principles of
Federal bankruptcy law. Outline the steps to bankruptcy, the process of estate
administration & alternatives to the bankruptcy process
Suggested Duration: 6 hours
Assessment Criteria:
7.1 List the steps for recovering a debt in NSW, briefly explaining the
application of the varying methods to be used. The application of bankruptcy
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
12
Commercial law - 19194J
A. Module information
procedures as the final step in the debt recovery process should be used as a
transition into principles of bankruptcy law in Australia.
7.2 Definition of the bankruptcy concept, with a broad overview of the various
advantages and disadvantages from the perspectives of both creditors and
debtors.
7.3 Define the roles of the Agencies concerned in the Bankruptcy process with
emphasis upon ITSA & the Federal Court. The role of the Federal Magistrates
Court should also be identified
7.4 Outline broadly the steps to be taken to obtain bankruptcy, differentiating
between debtors & creditors petitions.
7.5 Describe the role of the Trustee from the commencement of the Bankruptcy,
especially the purpose & effect of the Doctrine of Relation Back & the
distribution of assets to creditors.
7.6 Explain the statutory order of payment of debts & discharge of the bankrupt.
7.7 Describe the alternatives to bankruptcy under the Bankruptcy Act, 1966.
Resources:
The learner will require access to one of the texts containing reference to the
following cases and statutes. This list is not exhaustive and is given as a
guide to assist in the learning of the relevant legal principles. For assessment
purposes learners will need to have detailed knowledge of the cases marked with
a star.
*Barton v Deputy Commissioner of Taxation (1974) 131 CLR 370
Re Barnes;Ex Parte Stapleton (1961) 19 ABR 126
*Ashton v Prentice [1999] CA 671(May 21 1999)
Boles v Official Trustee in Bankruptcy (2001) 183 ALR 239
Queensland Bacon v Rees (1965) 115 CLR 266
Airservices Australia v Ferrier (1996)70 ALJR 655
Re Pahoff, ex parte Ogilvie (1961) 20 ABC 17
Bankruptcy Act 1966 (Cth)
Bankruptcy Legislation Amendment Act 2002
7.8 Learning Outcome 8:
CONSUMER PROTECTION LAWS (STATE
AND COMMONWEALTH)
Describe the operation of statutes relating to state and Federal Consumer Law in
Australia and the various ways the law protects consumers (and others) in
relation to goods and services
Suggested Duration 12 hours
Assessment Criteria:
8.1 Describe the nature of consumer protection in Australia, distinguishing
between Federal and State statutes
8.2 Outline the operation of the Sale of Goods Act, 1923, NSW with particular
reference to
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
13
Commercial law - 19194J
A. Module information
·
·
·
·
·
·
Nature of different types of goods under the Act;
Difference between contracts for sale of goods & work /services;
Transfer of possession in goods
Nemo Dat Rule & exceptions;
Implied Conditions & warranties;
Remedies of Buyer & Seller.
8.3 Briefly describe the operation & administration of Fair Trading Act, 1987
NSW (including Office of Fair Trading) and the Consumer Trader & Tenancy
Tribunal
8.4 Briefly describe the aims and administration of the Trade Practices Act,
1974, including an overview of the operations of the Australian Competition &
Consumer Commission and role of Federal Court and Australian Competition
Tribunal.
8.5 Distinguish between the purposes and operation of Parts 1V and V of the
Trade Practices Act.
8.6 List and briefly describe the prohibited practices in Part IV of the Trade
Practices Act, with the main emphasis on "price fixing", "exclusive dealing" and
"resale price maintenance"
8.7 Define who is a "consumer" under the Act.
8.8 List and describe the "Unfair Practices"in Part V of the Act, the Implied
Conditions and Warranties available to consumers, GST provisions and Part VA,
Defective products.
8.9 Describe the remedies available for breaches of both Part 1V and Part V of
the Trade Practices Act.
Resources:
The learner will require access to one of the texts containing reference to the
following cases and statutes. This list is not exhaustive and is given to assist
in the learning of the relevant legal principles. For assessment purposes
learners will need to have detailed knowledge of the cases or statutes marked
with a star.
Robinson v Graves (1935) 1 KB 579
Warders (Import & Export Co) v Norwood (1968) 2 All ER 602
Phillips v Brooks (1919) 2 KB 243
* Grant v Australian Knitting Mills (1933) 50 CLR 387
Pacific Motor Auctions Pty Ltd v Motor Credits (Hire Finance) Pty
Ltd (1965) 112 CLR 192
Folkes v King (1923) 1 KB 282
Aristoc Industries Pty Ltd v RA Wenham Pty Ltd (1965) NSWR 581
Toby Constructions Pty
Accounting Systems 2000 c CCH Australia Ltd (1993) 42 FCR 470
*Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (1988) 79 ALR 83
McDonalds System of Australia Pty Ltd v McWilliams Wines Pty Ltd (1981)ATPR ph
40-247
Hartnell v Sharp Corporation of Australia Pty Ltd (1975) ATPR 40-003
Miller v Fiona's Clothes Horse of Centrepoint Pty Ltd [1989] ATPR 40-963
Dawson v World Travel Headquarters Pty Ltd (1981) ATPR 40-240
Pacific Dunlop Ltd v Hogan (1989) 87 ALR 14
Given v Prior (1979) 24 ALR 442
Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177
TPC v Email (1980) ATPR 40-172
TPC v Legion Cabs (1978) 35 FLR 372
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
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A. Module information
*Universal Music Australia Pty Ltd v ACCC [2003]FCAFC
*Ron Hodgson v Westco Motors (1980) 5 TPC 704
*Glendale Chemicals v ACCC (1998) 90 FCR 40
McCarthy & Ors v ARA (1988) ATPR 40-836
Queensland Wire Industries Pty Ltd v BHP (1989) 63 ALJR 181
News Ltd v Australian Rugby Football League (1996) ATPR 41-521
TPC v Sony (Australia) Pty Ltd (1990) ATPR 41-053
Australian Meat Industry Employees Union v Mudginberri Station Pty
(1986)161 CLR 98
ACCC v Top Snack Foods Pty Ltd 1999 FCA 752
ACCC v Pacific Dunlop Ltd [2001] FCA 740
Ltd
7.9 Learning Outcome 9:
INSURANCE
Identify the different forms of insurance and describe the main features of both
indemnity and contingent insurance. Discuss the circumstances in which a claim
may be legally avoided by the insurer and explain the duties of insurance
agents/brokers
Suggested duration: 3.0 hours
Assessment Criteria:
9.1 Explain the general nature of a contract of insurance
9.2 List and briefly describe the various types of insurance available for
domestic and commercial use (overview only)
9.3 Explain the main features of "indemnity insurance" with particular
reference to
insurable interest
indemnity
subrogation
utmost good faith and discuss the impact of the Insurance Contracts Act 1984 in
these areas.
9.4 Describe the requirements for full and proper disclosure and the legal
effects on a claim in the event of misrepresentations and omissions
9.5 Identify the role of the courts in relation to avoidance of claims under
the Insurance Contracts Act
9.6 Briefly explain the duties/liabilities of insurance brokers/agents and
briefly describe how the Financial Services Reform Act regulates agents and
brokers
Resources:
The learner will require access to one of the texts containing references to the
following cases and statutes. This list is not exhaustive and is given as a
guide to assist in the learning of the relevant legal principles. For assessment
purposes learners will need to have detailed knowledge of the cases marked with
a star.
*Macaura v Northern Assurance Co 919250 AC 619
Lindsay v CIC Insurance Ltd (1989) 16 NSWLR 673
Manufacturers Mutual insurance Ltd v John H Boardman Insurance Brokers (1994)
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
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A. Module information
179 CLR 650
FAI v Australian Hospital Care Pty Ltd [2001] HCA 38 (27 June 2001)
Advance (NSW) Insurance Agencies v Mathews (1989) 166 CLR 606
Insurance Contracts Act 1984(Cth)
Life Insurance Act 1995 (Cth)
Financial Services Reform Act 2001(Cth)
Corporations Act 2001 Chapter 7 Part 7.8 Division 2 (section 985B)
Trade Practices Act 1974
Fair Trading Act
Contracts Review Act 1980
8. DELIVERY
NOTE: The revised AQTF Standards for RTOs will be effective from 1 July 2005.
For the minimum educational requirements please consult the Revised AQTF
Standards 7.3 and 7.4.
NOTE: The revised AQTF Standards for RTOs will be effective from 1 July 2005.
For the minimum educational requirements please consult the Revised AQTF
Standards 7.3 and 7.4.
8.1 ESSENTIAL TEACHER/TRAINER QUALIFICATIONS
-------------------------------------------The RTO must ensure that training is delivered and assessments are conducted by
people who:
- meet the requirements of Australian Quality Training Framework (AQTF) RTO
standards 7.3 and 7.4
- meet specific requirements set out in the relevant Training Package/s for
units of competency in this qualification
- satisfy TAFE NSW requirements
VOCATIONAL QUALIFICATIONS
Teachers/trainers/assessors must be able to demonstrate current vocational
competence. Usually this requires completion of a relevant degree, diploma or
other vocational qualification. The vocational competencies must be at least at
the level of the competencies being delivered and/or assessed.
Note - A person with a qualification in a vocational area that is different from
the course in which the module is delivered may meet the requirements to deliver
the module.
Appropriate vocational qualifications include:
Teacher must have a degree, advanced diploma or equivalent in law and at least
three years relevant post graduate experience.
or equivalent qualification(s) that will provide a teacher/trainer with skills
and knowledge (or units of competence) to deliver and conduct assessment in this
module.
RELEVANT EXPERIENCE
Teachers/trainers must be able to demonstrate a broad perspective and depth of
understanding of the vocational area based on current and relevant experience in
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
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Commercial law - 19194J
A. Module information
the industry or community sector. Usually, this will be a minimum of three years
experience gained no longer than five years previously. It may have been gained
through employment, professional development, industry or community liaison,
return to industry programs, community service or a combination of these and
other relevant methods.
EDUCATIONAL QUALIFICATIONS
As a minimum all TAFE NSW trainers/assessors must meet the qualification
requirements detailed in the AQTF Standards 7.3 and 7.4 or equivalent.
TAFE NSW Requirements
RTOs may require qualifications in addition to those specified in the AQTF, to
enhance the quality of their delivery and assessment practice, eg TAFE NSW may
specify a degree or diploma in educational or vocational areas.
Teachers, trainers and assessors who are involved in on-line delivery and
assessment should be competent on-line facilitators. Should professional
development be required, training can be provided by professional organisations
such as TAFE NSW Professional Development Network (PDN) on-line program.
Teachers, trainers and assessors should have current knowledge and awareness of
access and equity issues relevant to learners needs arising from a variety of
factors including socio-economic status, disability status, ethnic background,
race, family differences, sexual preferences and gender specific differences.
For specific qualifications and other requirements for appointment of full-time
and part-time teaching staff, consult your Staff Services Unit for the relevant
Teacher Designation requirements.
8.2 DELIVERY STRATEGIES
This module may be taught either on or off the job. It is suitable for face to
face delivery in a workplace, classroom or other suitable venue. It is also
suitable for flexible delivery, for example through computer based, self paced
or external delivery systems. Additional resources will be required where any
form of flexible delivery is used.
A range of teaching/learning methods should be used to cater for the different
learning styles, learning interests and needs. This could include lectures,
group discussions, research and presenting reports and case studies. It should
also include short written answers/reports on situations likely to be
encountered in the workplace.
The teacher should ensure the learning is student centred, using the skills and
experience of the students and focused on issues relevant to the workplace.
8.3 OCCUPATIONAL HEALTH AND SAFETY REQUIREMENTS
The NSW OHS Act 2000 and the NSW OHS Regulation 2001 require that any person
delivering this module should take reasonable steps for the control of risks in
the classroom, workshop or workplace.
Teachers should incorporate in their delivery methods an awareness of issues to
do with classroom, workshop or workplace safety and security. This should
provide some of the essential underpinning knowledge required by learners to
develop competencies in this module. Care should be taken to refer to suitable
workplace texts that can be integrated into delivery and assessment strategies.
Strategies to control risks may include:
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
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Commercial law - 19194J
A. Module information
·
·
·
·
Follow OHS guidelines issued by the Institute, College, campus and/or
teaching section
Carry out hazard identification and risk assessment
Formulate a Work Method Statement for all activities
Ensure that equipment operating instructions are readily available for
access
For more information and details of the OHS Act, OHS Regulation, Codes of
Practice, Safety Guidelines and Safety Alerts refer to the Work Cover website,
http://www.workcover.nsw.gov.au.
8.4 OTHER DELIVERY CONSIDERATIONS
8.5 PHYSICAL RESOURCES
8.6 TEXTS AND REFERENCES
Students are required to purchase ONE (1) of the latest editions of the
following texts(listed in alphabetical order)
Barron, M et al Fundamentals of Business Law, McGraw Hill.
Carvan, J et al A Guide to Business Law, latest edition LBC Information
Services.
Gibson et al, Commercial Law, Longman Cheshire.
Gillies, P Business Law, Federation Press
Latimer, P Australian Business Law, CCH
Pendleton, W and Vickery, R; Australian Business Law Principles
and Applications. Prentice Hall Australia; latest edition ISBN 072 48023 55.
Turner, C. Australian Commercial Law, latest edition.
Services.
LBC Information
Vermeesch, R & Lindgren, K Business Law of Australia, Butterworths.
References and other materials:
Australian Commercial Law latest edition
LBC Information Services.
Australian Commercial Law Computorials, A Guide to Business Law
Computorials, Latest edition LBC Information Services.
Latimer: Commercial Law Workbooks latest edition, LBC Information
Services.
Pamphlets are available from a number of Commonwealth and State departments such
as the Department of Business & Consumer Affairs and the Department of
Industrial Relations Employment and Training on aspects of commercial law.
Videos are also available from a number of Departments, Universities and Film
companies. Among those that would be of assistance are:
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
18
Commercial law - 19194J
A. Module information
"Then and Now", Parliamentary Education Office, Canberra
"How Laws are Made", Butterworths, NSW
"Order in the Court", Audio Visual Unit, University of NSW
"Commercial Law", OTEN
AUSTRAC short videos
Short videos on Bankruptcy are also available through ITSA
Visits can be arranged for classes to a local court or by arrangement with the
Supreme Court of NSW
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
19
Commercial law - 19194J
B. TAFE NSW implementation requirements
1. Module(s) replaced by this module:
2.1 TAFE Advanced Standings:
Arrangements
Target Modules
No : 103756
19194J
Commercial law
Start : 01-01-2006
End :
Sponsor:
Business Arts and Info Tech
8395F
Source Modules
Commercial law 1
3. Standard Exemptions:
Nil
4. Recognition of Prior Learning:
Students undertaking this course are entitled to have their prior learning
recognised according to TAFE NSW's Recognition of Prior Learning (RPL) policy.
Students will need to substantiate/demonstrate that they have acquired the
skills, knowledge and behaviours through:
·
·
·
Formal training (conducted by industry or education institutions in
Australia or overseas)
Work experience
Life experience
The main focus of this module is on the achievement of the module purpose and
not how, when or where this achievement took place.
Students will be given the opportunity to apply for RPL if they believe they
have already achieved the module purpose. The criteria for determining if
students will be granted recognition is as follows:
·
·
·
·
That the student has actually achieved the learning outcomes that are being
claimed
The learning outcome is still valid and performable
The learning has reached an accepted standard
The context of the learning is applicable to the area being claimed.
Students may be eligible for Recognition of Prior Learning through one or a
number of the following methods:
·
·
·
·
Testimony from supervisor and colleagues
Portfolio
Job Description
Interview
5. Module Included in the following Courses:
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
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Commercial law - 19194J
B. TAFE NSW implementation requirements
Number
Ver Course Name
Sponsor
8395
9264
9265
9266
9431
19192
19193
19194
32000
1
1
1
1
1
1
1
1
1
Business Arts and Info Tech
Business Arts and Info Tech
Business Arts and Info Tech
Business Arts and Info Tech
Business Arts and Info Tech
Business Arts and Info Tech
Business Arts and Info Tech
Business Arts and Info Tech
Selected Study Program Sponsor
Business (Banking and Finance)
Financial Services (Accounting)
Accounting
Accounting
Banking
Financial Services (Accounting)
Accounting
Accounting
Selected Study
6. Assessment:
Grade Code:
60
* This is a Category B assessment.
* Student Records requires a Co-ordinated Mark.
* The Co-ordinated Mark is derived by combining marks
from continuous class assessment and an examination.
* The examination is centrally set and locally marked.
* Results are reported as DISTINCTION, CREDIT, PASS, FAIL.
GRADE
CO-ORDINATED MARK (%)
DISTINCTION
CREDIT
PASS
>= 83
>= 70
>= 50
All other cases FAIL
(>= means a mark of "more than or equal to")
7. Assessment Events:
In addition to an overall pass in the module, students must pass each assessment
event where there is a "yes" in the "must pass" column.
Number
Name
Outcomes/Timing
Weighting Must Pass
1
2
3
Class Test / S Assignment/S
Class Test/S and or Assignment/S
Final External Examinational
1-4
5-9
1-9
15%
35%
50%
Yes
Assessment Events' Comments:
Event 3:
Relationship to Competency Standards
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
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Commercial law - 19194J
B. TAFE NSW implementation requirements
-----------------------------------Number
-----1
2
Competency element
-----------------FNSACCT404A
E1
FNSACCT404A
E2 & E3
8. Student Assessment Information:
THE MINIMUM REQUIREMENTS for this Commercial Law module is that all students
must achieve the following results:
AT LEAST 47% IN THE FINAL EXTERNAL EXAMINATION
AT LEAST 50% IN THE CO-ORDINATED MARK
The following examination aids have been approved:
-
Bi-lingual Dictionary
OCCUPATIONAL HEALTH AND SAFETY
The NSW OHS Act 2000 and the NSW OHS Regulation 2001 require that both teachers
and students take reasonable steps to control and, as much as possible,
eliminate risks in the classroom, workshop or workplace.
Your teacher will discuss with you the Occupational Health and Safety
requirements and issues relevant to this module.
Your teacher will discuss with you these OHS strategies:
·
·
·
Identify and reporting hazards in the classroom, workshop, or workplace
Devise measures to control or eliminate hazards and risks
Observe correct and acceptable procedures when handling equipment and
material
9. Minimum Essential Resources
9.1 Teacher's Qualifications and/or Experience:
9.2 Human Resources:
Part Time Rate of Pay Schedule: T
9.3 External Studies Details:
9.4 Accomodation Required:
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
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Commercial law - 19194J
B. TAFE NSW implementation requirements
9.5 Plant/Equipment Required:
9.6 Consumables:
9.7 Student Purchases and Expenditure Required:
9.8 Teaching/Learning Resources Required:
9.9 Major Texts & References:
10. Additional Information
Alcohol and Other Drug Use in the Workplace Certificates III & IV
The use of alcohol and other drugs (AOD) in the workplace is an occupational
health and safety (OH&S) issue. AOD use in the workplace is covered by the NSW
Occupational Health and Safety Act 1983. (It is anticipated that this Act will
be superseded in the latter part of 2001, however the Duty of Care provisions
will remain largely unchanged). Under the Act employees have a duty of care to
take reasonable care of the health and safety of others and cooperate with
employers in their efforts to comply with OH&S requirements.
AOD use in the workplace is considered a hazard. A hazard is anything or any
action in the work environment that can lead to someone developing an illness or
becoming injured. The extent to which AOD use presents a hazard will vary for
different industries, occupations and workplaces.
The following content in relation AOD use in the workplace is recommended for
learners with supervisory responsibilities. This content is aligned with Generic
Competency B as identified by the National Occupational Health and Safety
Commission (1998):
·
Basic knowledge of drug groups and their effects on the body
·
Knowledge of the effects of AOD use on health, safety and work performance
·
Identification of the hazards associated with AOD use in the particular
industry or workplace
·
Knowledge of the role of workplace and personal stress in AOD use
·
Identification of learner's own attitudes to the use of alcohol and other
drugs
·
Knowledge of legal position of staff and management in relation to AOD use
in the workplace
·
Monitoring of procedures for reporting AOD use in the workplace
·
Identification of who to approach in the workplace with own AOD problem
·
Knowledge of referrals and resources for workers with AOD problems
·
Provision of information to the work group about the risks of AOD use in
the workplace
·
Participation in group/team problem solving in relation to hazard control
of AOD use
·
Monitoring and recording of workplace incidents related to AOD use
·
Skills in approaching employees under the influence of alcohol and/or other
drugs
·
Skills in managing 'one off incidents' related to AOD use and in managing
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
23
Commercial law - 19194J
B. TAFE NSW implementation requirements
situations of ongoing heavy/problematic use
Implementation Date: 1-Jan-2006
Status:Approved
Business Arts and Info Tech - Accounting Finance (c) 2006 The State of NSW,
Department of Education and Training unless otherwise stated in the Copyright section of the document.
Date Printed: 6/03/2016
24