CaseLow Turnitin Proportion - Assignment Example

Name: Number: Course Date: You are starting a business which sells mobile phones. What business structure would you choose? Explain in detail why you have made this decision. Before venturing into any business, I first consider a number of factors: they include; naming of the business appropriately, the kind of structure that will be employed in the new business either sole proprietorship, partnership or corporation. A part from such considerations, legal issues, location and taxation has to be placed into consideration. The name of the business that is to be started business will be Easy World Communications. After naming of the business, a second decision is yet to be made (Ryan 234). After comparing all the business structures, I will come up with the one that is appropriate for me. Amongst the different structures are, sole proprietorship, which is owned by one person, is easy to start and operate; this is because it requires little capital to start. In this kind of business structure, the business owner is liable for any liabilities that may arise in the operation of the business. A sole trader is flexible in his business operations as he can switch to another business in case the one he is operating on is not fruitful. The owner has full control over the business. The sole trader cannot be sacked, as he is the only one in judge of each operation in the business (Ruston 72). On the contrary, a sole trader has no back-up to motivate the owner in the business. A person operating a business alone may easily get discouraged hence closing down the business. A person working alone will not have all the required skills that are required in a business. Customers are always looking for those businesses that have well skilled personnel (Palmer et al. 81). Partnership is the second structure of business. Contributions are made amongst those who have come into partnership with an aim of making profit. This type of business structure is controlled under Partnership Act 1892. Their terms of agreement can be either in writing or by word of mouth. In that of writing, details of partners as well as that of the partnership is noted. Financial status of both the partners and partnership are also noted. In addition, duties and responsibilities of each partner are also put into account. The agreement also has details on how the partnership will be treated in case the partners change their area of residence and want to get out of the partnership. When there are conflicts, the agreement deed also provides solid solutions to the dispute. The name that is registered is that of the business other than that of the partners themselves (Palmer et al. 72). Finances, labor, and skills are brought together in order to start the business. In this kind of business structure, all partners share profits and losses as per their shares to the business. Partners can come together without a written contract. Partnership being one of the business structures is formed by members who are familiar with one another; it is also formed through the Business Names Act. Another way that partnership can be formed is when two entrepreneurs come together to gather for debts and share profits that will be realized in the long run. The minimum and maximum number that is allowed to enter into partnership depends with the mission of the business that is to be established. Partnership that is meant for accountancy has a minimum number of two and maximum of 1,000 partners, for legal practitioners has a minimum number of two and maximum number of 400 partners. Other groups include medical practitioners and stockbrokers have minimum of two and maximum of 50 partners. Some business relationships tend to confuse individuals with partnerships. Some of these are co-ownership, joint tenants and joint ventures (Ruston 66). Partnership is subdivided into two: limited and unlimited partnerships. Limited partnership was amended in 1991 through Amendment Act 1991. This type of partnership has no restrictions on the number of partners. There should be at least one partner with unlimited. After contribution of capital, there will be no other contributions required even if the partnership is running short of finances. General partners have the duty to manage the partnership. Above all these, the partnership must be registered (Topham 51). In partnership, capital and skills are brought together to come up with something constructive in the end. Contributions from partners make it easy to start and maintain. Taxation favors a partnership structure because it comprises of many partners unlike sole trader who is responsible for all (Ruston 771). The setbacks of partnership is that the greater the number of partners the higher the conflict. Others include the fact that management is shared, contribution is not uniform; they vary hence difficult when calculating for profits and losses. At some point, joint venture is regarded as partnership. The differences arise because income is not deriving jointly like partnership. Every member that is in the joint venture is responsible for all the operating costs. At the end of business, the product is shared and not the profits as in the partnership. Every individual in the joint venture has a liability and therefore meet every debt that arise in the business (Palmer et al. 62). Company being business structure is defined under corporation Act 2001 (Cth). A company is managed by Australian securities and Investments Commission. Corporation is rated under companies; it is a legal entity that exists on its own. In this respect therefore, a corporation can own a property on its own name. On the part of income tax return, it pays for itself as it is a separate entity altogether. Corporation to be formed under two grounds; one is under provincial law, this applies in a situation where the corporation is operational only in one province. Secondly is the federal law whereby a company is planning to start entities boundaries beyond the province. Such business entities include banks; they are only entitled to only a single legislation. Companies are further subdivided into two proprietary that has limited shares but unlimited with share capital. They are either large in size or small. A second type is the Public; it is limited by shares and unlimited by share capital, it has no liability, they can invite the public to invest in their shares. A limited liability company is seen in the shares perspective in that they are limited and is popular company whatsoever. On the other hand, we consider guarantee which is commonly used in the public companies. Lastly is the corporate veil that protects the shareholders, directors and other officers that are linked to the company. Basing on the corporate veil, the veil is incorporated and is also a separate entity from the management. It is a limited liability. The court can take control by providing justice incase the name is not honored. The court can look keenly on the role of directors, shareholders and the identity of the company at large. Unlimited companies have peculiar characteristics as compared to limited companies. It has a condition that it must have share capital; share holders are not sued to pay the unpaid debt. It is a warning that all unlimited companies must have NL as part of his name. There are types of corporations that exist as far as tax is concern. At the end of every financial year, all corporations are taxed. In this regard, accurate information has to be delivered so that correct rates and deductions are taken from the corporation. It is therefore better to know the kind of corporation that is to be started before forwarding the information. A part from business structures, there are regulations that have been stipulated on foreign investors. Agency also serves as one of the business structures. In simple terms, an agency is where a person requests another person through contract to perform a given duty on his behalf. Agency is all about trust From the above explanation, partnership is the best option. This is simply because it has few legal obligations and on the other hand, it is easy to start. Is the business name you chose available? What checks did you make to ensure it was available? Explain in detail the process. The name of the business is available; the use of Business Name details check helps one to actually come up with all the details that are required by the concerned registry bodies. There are laws that have been formulated to control the process (Mccallum and Julia 63). According to the Business Names Act of 2002, it states that a business should not be operated in New South Wales unless the name it is bearing is registered. Before the business is commenced, one should first go through the Business Name details check in order to be able to identify the name and registration number of the business entity. The Business Name detail check does not help one check the availability of a business for registration. The name that is to be given to the Business should be registered before it comes to its operations. After it has been registered, the name and registration number will be issued, date of registration and its status will be known, the nature of business, due date of renewal, business address and its documentaries will be known. As per the Business Name Act, 1. A corporation neither shall be operational nor bears the identity in the public arena. It is only when the name is registered by that corporation as stated in Chapter 17, Section 2 (2) of 1990. 2. Business names act of 1990, Chapter 17 Section 2 (2) states that an individual is not entitled to partnership to operate on business or identify his business to the public under his name unless the name is registered by that individual. 3. Persons who are in partnership and have identified themselves to the public and have not registered the partnership name shall be against Business Name Act of 1994 Chapter 27 Section 72 (2). 4. The exceptions of this act allows persons in a partnership to identify themselves to the public under a composition of names of the partners as stated under chapter 17, Section 2 (4). 5. The Law allows the use of alphabet other than Roman alphabet only if the name is used jointly with the registered name, as stated under Chapter 17, Section 2 (5) of 1990 (Ruston 771). Define the essential characteristics of a company. One of the requirements that are needed in a company is registration. By registering the company, an artificial person would have been created by law. A company is therefore a legal entity and it distinct from its members. Limited liability is a requirement that should be met in the process of registering a company. In this case, partners to the company are forced to meet the bending debts incase the company is not in a position to settle them. The properties of the partners are sold so as to meet the bending debts of the company. The company has the right to either acquire or transfer property by its name since it is a legal entity. Membership of a company is described as perpetual succession in that membership of the company may change from time to time but its continuity is not altered. In situations where the signature of the company is needed, its seal is used in place. A common seal bears the name, location of the company and date that the company was incorporated. These features are engraved on it. A limited company can transfer its shares freely unlike a private company. A company is in a position to sue or be sued in its own name. In summary, a company is an artificial name; it thereby has legal obligations just like a natural person. What rules would you use to internally manage the company? Where do these rules come from? After the name has been identified, it will be advisable to come up with rule that will be applicable in company management. There are two alternatives of rule that to be selected from. Company constitution can legally help employers and employees as well as its customers to interact amongst themselves. It will ensure the smooth running of the business. The presence of a company constitution will aid shareholders make productive decisions and on the other hand directors will be sure on when and where to inform shareholders on a given course. Another sort of rules that employed in a company is replaceable rules which is a default alternative. According to this, a set of rules are provided in the corporations Act. The strength of the rules is that they are updated automatically, when the law changes, updates happen automatically. In that respect therefore, legal advice is minimized as far as rules are concerned. What are the duties of officeholders of the company? A person who holds office has a number of diversifies duties to perform on a daily basis. An office holder has a role to play in every business. The kind of duties that are performed by these individuals are dictated by the type and size of the business the they are in, and their roles differ from one business to the other though there are those that are general across. Duties of an office holder is responsible to hire employees when more are needed on the other hand they fire employees they do not meet the requirements. They also place advertisements in case of a vacancy in a given job. They also perform interviews on potential people. They monitor stocks of the business in which they are working for, they communicate with the suppliers so that supplies deliver on time at the time of need (Sjfjell and Beate 772). An office holder processes payrolls for the company, he does this by recording the number of hours that an employee has worked in relation to payment, a times office holder does accounting duties. He deals with incomes and expenditures of the company; during payday, office holder will issue payrolls to respective departments so that they are paid to employees. Another duty that is directed to an office holder is making and answering calls for the company. A part from these, they have a duty of performing other duties that make keep the company going (Palmer et al. 52). Mabo v Queensland (No. 2) (1992) 175 CLR 1 The case deals with immigration law. This is a case of Mabo verses Queensland that was carried out in the High Court of Australia in the year 1982. The defendants were Eddie Mabo, James Rice and David Passi who were representing people from Meriem. The issue was that the Murray Islanders were against the will of Aboriginals and Torres Strait Islanders, which was amended in the Queensland act that tried to establish a system of land grants. The plaintiffs were Ron Castan, Greg Mclntyre. The case was brought about so that the people of Meriem would realize their legal rights as per the action that was taken afterwards; Dauar and Waeir from Torres Strait were glued to the Queensland in 1879. The Meriem people were well known for fishing and cultivation to support their economy. The island had been set that it only belong to either particular group of people or individuals (Ryan 234). Later in 1985, Queensland came up with a new law termed Queensland Coast islands Declaratory Act of 1985; this law opposed the one that was enacted in 1879 in that it declared a freedom of right and interests including any claim. It was in 1988 that the High court that gave a ruling in the Mabo v Queensland (1) declared that it was contradicting the Racial Discrimination Act 1975 (Ryan 234). The plaintiffs’ declaration was that the Meriem people own the Murrays Island. It was their right to be real possessors of the island. They further supported that they be entitled with land ownership so that they will have a long possession. On the contrary, the defendants through the Queensland argued that a settled colony should be made part of the Crowns dominions, in respect, law of England should also be induced in the colony. This will make them be absolute beneficiaries of the island. During the court hearing, five judgments were issued from Justice Brennan, Justice Deane and Justice Gaodron, Justice Toohey, Justice Dawson, and Chief Justice Mason and Justice Mchugh. The findings and facts that were issued by Justice Moynihan gave a lasting decision. He made a ruling that Murray islanders had adapted to the environment. They are to be given full possession with ownership. Justice Dawson gave a judgment on the issue that it was a matter of native title at common law, which was traditionally connecting the land occupation. What was contained in the title and the characteristics of the custom law brought here by connections. The last remedies were from the power of government, which allowed the native title to extinguish hence giving an open manifestation of their exercise. According to the decisions made, it recognized that people from Murray Island had a pre-existing system of law made the court to issue a ruling in favor of them. The freedom of Murray Islanders renewed in that any action only made through legislative or executive action. The court made a promise to make a ruling without altering the custom assumptions of Australian land settling, instead never honored the rules of the conquered colony. This angered the Mabo because of the freedom granted to the real owners of the Island. State in detail the process you went through to find the case listed above. The case of Mabo v Queensland (No 2) (1992) 175 CLR 1 was retrieved from a public library. The case is an old case to be referred to, this means that it is difficult to get from a number of libraries. As it is not enough, I went to the Internet to ensure I get up- to-date information. The Internet libraries also provide all the information that is required in the case (Ryan 234). There are very many cases that have been posted to the Internet library; it is tiresome when searching a given case. When searching the case, much time is consumed before the actual analysis is made. On the side of books, many books have been revised; they therefore work on recent cases. This gave me a rough time in moving from one library to the other in search of the given cases. Mabo v Queensland was the only one that came to my notice in one of the libraries (Keane 632). In search of these cases, finances were one of the challenges that I faced mostly. In some of the libraries, I was asked to pay for some fee before I was allowed to use the facility. When answering the question, authors argued in different ways which tend to confuse me in some way. The paper was quite long and took much of my time in trying to summarize into a reasonable length. Negligence From the case, Debbie is negligible for the crime that occurred. Her friends walked out of the Night club because they knew that they were late, when Debbie was informed on this she was not ready to leave yet she knew that they were late. On the first note, Debbie was negligent in that she should have walked out of the Night club as soon as she was told to because she was aware that they were late. On the second note, Debbie clearly was aware that Matt was drunk yet requested him to take her home (Cheffins, Brian 551). The step that she was supposed to undertake was as follows: Debbie, in the first place, had not informed Matt that she would be late from the Nightclub so that he would avoid drinking; in this respect, she was guilt of negligence. Secondly, the accident was caused by the rains thus Matt in not guilty of negligence. The accident that rendered them injured was not planned in any way by any of the parties. Neither Mark and Joe nor Matt and his two friends knew that such a terrible accident would happen. Debbie suffered damage of her health as she was caught up in the accident. Though the accident affected all the victims equally, Debbie was the most affected psychologically because her friends to get out of the nightclub (Palmer et al 52) had informed her. From these assumptions, Debbie has no defense concerning the accident that occurred causing her physical and psychological damage. They will all loose in the incident at the end. Reason is that they were all drunk. They will recover nothing from it (Anderson, Colin and David Morrison 76). The process that I went through in analyzing the case above included reading through the case very well and ensuring that I understand it, I move on to analyzing the case as required du the examiner. The challenges that I got in the case study was about analyzing the case, it is quite tricky and therefore demands that I take my time well and come up with good solutions to the case (Morse 92). Law of contract In the case, FAL did not honor the contract that was made between them and Ms. Jones to Lease the building. FAL also did not honor the agreement that the had made to one another with Ms. Jones to wait until the whole house is well refurbished. On the side of Ms. Jones, she never honored a promise that she had made to Joseph who was a builder to pay him when he finished renovating the building. Joseph did not make any contract with Ms. Jones and therefore it was not actionable in rule of law. In addition, Joseph made accusations to Ms. Jones, which is actionable in the rule of law (Ruston 81). According to the case, Joseph has the right to be paid the amount of work that he had done, as that was a promise made by Ms. Jones. He was willing to complete the allocated work within the agreed time. Works Cited Anderson, Colin and David Morrison. Company Law. Oxford University Press, 2010. Cheffins, Brian. Company Law: Theory, structure, and operation . London: Claredon Press, 1997. Keane, Ronan. Company Law. Dublin: Butterworth, 2000. Mccallum, lain and Julia Bailey. Company law. Butterworths, 2002. Morse, Geoffrey. Palmer's company law: Annotated guide to the Companies Act. London: Sweet & Maxwell, 2007. Palmer, Sir Francis Beaufort, Alfred Frank Topham and Alfred Robert Llewellin. Company law: a practical handbook for lawyers and business men : with an appendix containing the Companies (Consolidation) Act, 1908, Companies Act, 1913, and other acts and rules. London: Stevens and Sons, 2001. Ruston, William. Company Law, A consise manual of th law and practice Connected with the Organization, Management and Winding up of Companies. Nabu Press, 2010. Ryan, Christopher. Company law. Butterworths, 2002. Sjfjell, Breate and Beate Sjafjell. Towards a sustainable European company law: a normative analysis of the objectives of EU law, with the Takeover Directive as a test case. London: Kluwer Law International, 2009. Topham, Alfred Frank. Principles of company law. Butterworth, 2008. Read More