THIS QUESTION IS REALTED TO COMMERCIAL LAW II (Subject)

This assessment involves complex scenarios involving multiple areas of law requiring in depth analysis, problem solving and judgement with reward for the use of properly referenced academic and other independent sources beyond those presented in tutorials

All submissions must address two [2] questions. In-text citations must be in the Harvard AGPS style. A single Harvard AGPS Reference List at the end of the submission should include all relevant references cited in both questions. Provide reference to the actual case law to support your answer.

Part A - Case Study

After Joe's mother died, his father remarried and now has two 'families': Joe and his sibling from his father's first marriage and Joe's half-sister and half-brother from his father's second marriage.

Joe's father is a very successful man whose grandmother left him the family home (in which he and his second wife still live) and a half share in a factory (which he and a cousin inherited as joint tenants). Shortly after leaving university he set up a company to run a manufacturing business from the factory which it leases from him and his cousin and in which it has installed a production line consisting of highly technical and very expensive machinery, some of which is secured to the floor for stability. The company uses a number of processes that Joe's father invented and over which he holds patents and for which it pays him an annual royalty. Joe's father owns all of the shares in the company.

Last year Joe's father invented a better mousetrap and decided to manufacture and market it himself. The functional part of the new invention is the internal mechanism. Because Joe's father had no experience in product presentation, he hired an employee to create a design for an external casing. He told her that he wanted it to make the product more physically attractive to consumers and safer to handle. The casing and the internal mechanism are manufactured and assembled locally by a subcontractor who was recommended to Joe's father by the Chamber of Commerce. He also engaged a technical specialist to write the instruction booklet that accompanies the mousetrap (the trap consists of sophisticated electronic components and setting and clearing it involves a process that requires careful attention to the instructions). The instruction booklet and the mousetrap bear a logo identifying the company. A company employee devised it in her free time. Joe's father was particularly impressed by it when she showed him what she had done, and he hopes that, eventually, the buying public will come to identify that logo with the company and the technically superior products it produces. Only recently, however, the employee said she is resigning to travel overseas, where she hopes to work with a similar design and innovation company.

Joe's father also owns the warehouse which adjoins the factory, which he bought in his own name and which he leases to the company as a storage area for its products. He has just told Joe that he is revising his will and proposes to provide equally for 'both families' by leaving his real property to Joe and his sibling and his personal property to Joe's half-siblings. He also intends to leave a life estate in the family home to his wife 'so she can sell it if she ever needs to go into a nursing home'. He also has written to the company asking them to continue making royalty payments to his wife for the remainder of her life. He tells Joe that this will both provide for his wife and provide equally for all of the children, 'because you will get my share of the factory, the warehouse and, perhaps, the home and the others will get the business and all of the machinery'.

Joe is not sure that this is an entirely accurate statement of the effect of his father's proposed will. Joe knows you have successfully completed Commercial Law I and are currently studying Commercial Law II and love every minute of it. He also knows that you have access to lots of library resources and poses the following questions seeking your assistance.

Required: Each of the following questions requires you to identify the legal rights that may be available to the parties in the scenario given above. Then, apply the legal rights you have identified to deal with each question and justify your arguments by citing relevant legislation and case law as appropriate.

1. What criteria would be used to determine how the expensive machinery located in the factory would be classed and treated?

2. Of the property identified in this scenario, what would be classed as 'real property', and likely pass to Joe and his sibling, and what would be classed as 'personal property', and likely pass to Joe's half-siblings?

3. Joe's father has indicated that he intends to leave a life estate in the family home to his wife. Exactly what does this mean and what are the implications of this for Joe?

4. Which of the aspects in relation to the mousetrap invention, if any, would be connected to the law of 'copyright', 'designs', 'patents', 'trademarks'? 5. What could Joe's father have done differently, in order to protect all of his intellectual property rights in relation to the mousetrap invention?

Part B - Research Task

Businesses within Australia operate within a legal framework based on fundamental common-law principles, including proprietary rights [ownership].

Granville Machinery Pty Ltd ['GMPL'] sells large industrial air compressors and other similar equipment, for use in factories. Each machine sells for $150,000 or more. Machines are delivered and installed in customer premises, often on credit terms with payments due to GMPL at an agreed future date; e.g. 30 days, or 60 days, etc. GMPL includes a term in their sales agreements that title in the machinery does not pass to the customer until GMPL has been paid in full.

Preparation: Research the decision in Maiden Civil (P&E) Pty Ltd v Queensland Excavation Services Pty Ltd & Ors [2013] NSWSC 852 and the Personal Property Securities Act 2009 (Cth). Do not consider any other legislation [e.g. Sale of Goods, ACL, etc.].

Required: Illustrate, by applying the law and providing examples, how GMPL could manage various types of risk when selling machinery as described above.