Law and Compliance Related with the Restaurant Business in Sydney

Questions: 1. Discuss the law and compliance related with the restaurant business in Sydney. 2. Discuss the issue arises regarding the remedies that may be available to Manny and Bella against Tuscan Ovens Pvt Ltd. Answers: Part A In the present researchers say, the areas of law and compliance related with the restaurant business that the family is running in Sydney have been explored. In this context, the major areas of law that the restaurant business is required to comply with include the registration of the name of the business, the consumer protection legislation, property laws, health and safety laws and regulations and the employment law. Therefore, the family that is running this trend in Sydney wants to name it the Great Catch! But the law of intellectual property provides that the name needs to be registered with the ASIC. According to the law, the parties are required to register the business name or the trading name in case it has been decided by a party that the business will be run as a sole trader or as a partnership. Therefore, under the circumstances, it is required that the business name should be registered with the ASIC. But it needs to be noted that if the business name is similar to the f irst name and surname of its owners or one of the partners, the registration of the business name is not required. In all other cases, the intellectual property law requires that the name should be registered. An example can be given to clear this requirement. For example if John Smith is going to name his business as John Smith Jewelry, there is no need for the registration of this name. But if the name of the business is going to be John's Jewelry, the law requires that such name should be registered (Vickery and Flood 2009). The other laws that may be applicable in this case will be the property law and the taxation law. For example, the restaurant business is required to take care of its GST obligations and PAYG. Similarly, as in this case the business is being done as a sole trader or as a partnership, it is very important that before the business becomes operational, and makes financial commitments, it is important that a written contract should be drafted. Property law is also applicable in the present case. As the restaurant will be running in Sydney in accordance with the Retail Shop Lease Act, 1994, the requirements of this legislation need to be fulfilled. At the same time, before signing the lease, the parties should gain proper understanding of the terms and conditions that have been mentioned in the lease. This will allow the parties to become aware of their obligations related with the lease that they are going to sign. On the other hand, if the parties are going to operate home business, it is possible that the local council may have imposed certain restrictions, for example restrictions on the number of persons that can be allowed to work at such a place. Therefore, the owners of the restaurant should be aware of these legal requirements related with property law. Another field of law and compliance is that of intellectual property. In the present case, the restaurant business should also try to protect its intellectual property. This will provide them with legal entitlement on their intellectual property. For the purpose of protecting this property, trademarks, patents and the designs are used by the businesses. Therefore, these can also be used the restaurant business. For example, it can protect a particular dish that has been invented by it or a new way to prepare a dish. Similarly the businesses should also regularly review and is required, renew the protection provided to their intellectual property. The law of intellectual property provides that the trademarks should be renewed after every 10 years. It is also advisable that experts should be involved in this process because the protection of intellectual property is a complex matter. Another important field is that of consumer protection. The Australian Consumer Law that has been mentioned in the Competition and Consumer Act, 2010 is the national law and has replaced the earlier legislation, the Trade Practices Act, 1974. Now this legislation is applicable throughout Australia and as a result, same rights are available to the consumers in all States and Territories of Australia and similarly, the obligations of businesses related with consumer protection are also the same throughout Australia. The main features of Australian consumer law are that it prohibits unfair trade practices, and it provides the general standard of conduct that is expected from the businesses (Khoury and Yamouni, 2006). The ACL also regulates business to consumer transactions and similarly, it provides statutory guarantees to the consumers that cannot be excluded by the parties to the contract. The ACL also deals with the safety issue of the products and services that are being supplied to the consumers. In view of these significant provisions as well as the penalties and intentions that can be imposed on the businesses, it displays important that a business is aware of its obligations under the ACL (Concrete Constructions (NSW) Pty Ltd v Nelson, 1990). In this case, the parties want to name the restaurant as the Great Catch! This is not the name and the surname of the owner or any of the partners of the business and as a result, this name needs to be registered. Apart from it, the owners of the business should consider all the legal requirements that are applicable in case of establishing the new business. On the other hand, if the owners of the business failed to abide by these legal requirements, it is possible that they may have to pay serious penalties. The present research has clearly shown that there are a number of laws and regulations that are applicable on the restaurant business. The requirement related with business structure is also one such requirement (Hinchy and Mcdermott, 2007). It is very significant that the registration regarding the business structure is up-to-date. For example, there is a requirement according to which the business name has to be renewed whenever it is due to do so. But if the parties have deci ded to run the restaurant business as a company, the Corporations Act, 2001 describes detailed requirements in such a case. Part B In this part of the assignment, the issue arises regarding the remedies that may be available to Manny and Bella against Tuscan Ovens Pvt Ltd. the reason behind this issue is that Manny and Bella were willing to purchase a heavy-duty oven. For this purpose, they visited Tuscan Ovens Pty Ltd and they wanted to purchase an oven that can cook 30 pizzas and similarly, they also wanted that the oven can be operated continuously for 16 hours every day. When they visited the company, they told the manager of the company regarding their requirements. They also told that if the oven cannot fulfill these requirements, they will lose customers, especially during peak hours of their business. The manager listened to the requirements of Manny and Bella and they recommended that they should buy their new Tuscan XX commercial oven. The manager assured Manny and Bella that this oven is suitable for their requirements and he can cook 30 pizzas and can be operated for longer hours. In this way, Manny and Bella relied on this statement made by the manager of the company and purchased the oven for $15,000. However, soon Manny and Bella discovered that only 12 pizzas can be cooked in the oven in an hour and moreover the open was not reliable and it cannot be operated continuously for longer hours daily. Due to these problems, the pizza business owned by Manny and Bella was losing money but Tuscan Ovens was not ready to hear the complaints related with the oven. As a result, the issue arises if Manny and Bella can take legal action against the company and if any remedies are available to them under these circumstances. In this context, the Australian consumer law provides that a part from the common law remedies under the law contract regarding the pre-contractual misrepresentations, the parties may also avail the statutory remedies that are provided by the ACL, which is a part of Competition and Consumer Act, 2010. Before this legislation, the relevant provisions were present in the Trade Practices Act, 1974. But after the introduction of Australian consumer law, it is being used more commonly (Larmer v Power Machinery Pty Ltd., 1977). The reason is that the ACL is applicable in a large number of circumstances and at the same time, the ACL also provides remedies that may be available to a party in case such party has suffered the loss by relying on the misrepresentation that has been made by the other party. The relevant provision in this regard the section 18 which prohibits misleading and deceptive conduct in context of trade and commerce. Section 18 is present in Schedule 2, Competition and Consumer Act. In the past, these provisions were mentioned in section 52, Trade Practices Act. Due to this reason, most of the case law regarding misleading and deceptive conduct still refers to this section (Bank of NSW v The Commonwealth, 1948). But section 18 of the ACL provides in this regard that context of trade and commerce, a person should not be involved in misleading or deceptive conduct or in conduct that may mislead or deceive the other party (OBrien v Smolonogov, 1983). Due to the reason that the act has mentioned the trade and commerce, it is clear that the sales that are private in nature, are not covered by this section but it also needs to mention that the provisions of section making toward nearly all commercial activity. In this way, when it has been established that the provisio ns of section 18 have been breached and the conduct of one party is misleading or deceptive, the law provides a wide range of remedies to the other party which include damages and the avoidance of contract (Tomasic and Bottomely, 1995). In the present case also, it has to be considered if the provisions of section 18 have been breached and if the pre-contractual representation that has been made by the manager of the company can be treated as misleading or deceptive. When Manny and Bella had visited the store of the company, they had clearly told that they wanted and oven that was capable of cooking at least 30 pizzas in one hour otherwise they will suffer the loss because they will be losing customers during the peak hours. In the same way, they also wanted that the oven should be reliable and it can be operated for 16 hours regularly. However after Manny and Bella had purchased the oven, they discovered that only 12 pizzas can be cooked in it in one hour. Moreover it was also found that the oven was unreliable and it cannot be operated for longer hours regularly. However, before purchasing the oven, Manny and Bella had relied on the representation made by the manager of the company regarding its capacity and relia bility. As the transaction was in context of trade and commerce, it can be said that the provisions of section 18 are applicable to this case. In this context, the law provides that the contracts that have been entered into by a party due to the misleading or deceptive conduct of the other party; the main remedy available to such party is the remedy of damages. Although the law also provides that an invention can be granted by the court and it is more significant relief in case of a breach of the provisions of section 18, however, practically such relief is not of much use under these circumstances as the parties have already entered into the contract by relying upon the misleading or deceptive conduct. As a result in this case also, damages can be claimed by Manny and Bella from Tuscan Ovens Pty Ltd as they have suffered a loss due to the fact that oven was not of the required capacity and moreover it was unreliable to which they lost customers. References Khoury and Yamouni, 2006, Understanding Contract Law, 7th ed., Butterworths Lexis Nexis Roger Vickery and MaryAnne Flood 2009, Australian Business Law: Compliance and Practice, Pearson Education Australia Russell Hinchy and Peter Mcdermott, 2007, Fundamental company legislation, edited, Sir Gordon Borrie, QC, LLM Commercial law 6th edition Tomasic and Bottomely, 1995, Corporations Law in Australia, (Australia: The Federation Press) Case Law Bank of NSW v The Commonwealth [(1948) 76 CLR 1 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 Larmer v Power Machinery Pty Ltd (1977) 29 FLR 490 OBrien v Smolonogov (1983) 53 ALR 107.