Breach of Covenant That Was Present †Free Samples for Students

In the present case, the facts given in this question revealed the presence of the issue if puters Pty Ltd can successfully sue Systems Pty Ltd for the breach of covenant that was present in the employment contract of Chu with puters Pty Ltd. This issue has arisen as a result of the fact that after his retirement, a pany, Systems Pty Ltd was incorporated by Chu's wife. This pany has been taking on Business Law from the clients of puters Pty Ltd. in NSW while restrictive covenant present in the employment contract of Chu provides that he cannot join any business that petes with the pany for 2 years in NSW. Therefore, it needs to be seen in this case if puters Pty Ltd can take action against Systems Pty Ltd for the breach of this covenant. 1. It appears that in the present case, as soon as Chu took retirement from the pany, he had decided to start a business that was going to pete with puters Pty Ltd. However, in order to fulfill this objective, a pany under the name of Systems Pty Ltd had been formed by Chu's wife. She is the sole director of the pany and also holds all the issues the capital in the pany. This pany is taking the business of puters in New South Wales. The legal principle was provided in Salomon v Salomon according to which it was affirmed that after it's incorporated, generally panies considered as a separate legal entity that is distinct from its shareholders. In this way, the principle of separate legal identity of the corporation has been followed in Anglo Australian panies’ law for more than 100 years. Therefore, when a pany acts, it acts on its own and not simply as alias for the persons controlling the pany (Clarke and Clarke, 2016). In the same way, the shareholders of the corporations cannot be held labor regarding the debts of the corporation beyond the initial capital investment. Similarly, they do not have any proprietary interest in the assets of the pany. In Jones v Lipman (1962), the defendant had entered into a contract for selling his land. However, later on he changed his mind. Therefore, the defendant found the pany and he was the owner/director of this pany. The land was transferred to this corporation and the defendant declined to perform the transaction. As a result, the relief was sought by the plaintiff. In this case, the court stated that the remedy of specific performance can be granted against the contracting vendor, because it was in his authority to force the other person to convey the property in question. Therefore, specific performance was ordered against the director and the pany. The court held that the pany cannot escape or divest itself from the knowledge that has been gained by it through the director. The court stated that the pany was a creature of the controlling director or a device or a mask that the director holds before his face for the purpose of avoiding recognition by equity. However, there are certain circumstances where the court may arrive at the conclusion that the corporate veil needs to be pierced in a particular case. Therefore, while basic principle provides that under the corporation’s law, a pany is treated by the law as having its own separate legal identity. And as a result, it is considered to be distinct from its members. But as time passed by, the courts have e up with several exceptions to the application of this general rule. As a result, now under some circumstances, it is available to the court to set aside the fact that the pany enjoys a separate personality and concludes that the members of the pany can be held responsible for its actions. When such a decision is made by the court, it is said that the court had decided to lift the corporate veil (Khoury and   Yamouni, 2010). The facts of Gilford Motor pany Ltd v Horne (1933) are somewhat similar to the problem given in the present case. In this case, Mr. Horne was working as the managing director of the Gilford Motor pany. After he left the pany, he decided to incorporated his own pany. Therefore, after the entire production of his pany, he started to solicit the clients of Gilford Motor Co. on the other hand, there was a non petition covenant present in his employment contract. Therefore, the issue was if the actions of Mr. Horne's pany can be considered as a breach of the non petition covenant present in his employment contract. However, the court decided that this amounted to the breach of covenant and granting an injunction against Mr. Horne and his pany. In support of its decision, the court stated that the pany incorporated by Horne was merely a cloak that had been used by Horne for the purpose of breaching the non petition covenant. A somewhat similar decision has also been given by the court in J ones v Lipman (1962). Therefore in Gilford Motor Co v Horne, the defendant was the ex-MD of the plaintiff. However, there was a restrictive covenant present in his employment contract. In view of this clause present in the employment contract, he was refrained from joining a business in petition with his former employer. Therefore in order to avoid this covenant, the defendant formed a pany and he tried to transact his business through this pany. Therefore, at the first instance, the court held that this pany has been formed for the purpose of allowing the business to be carried on under the control of the defendant but without injuring the liability for the breach of the covenant. That was present in his employment contract. In this way, the court noted, the reality that this pany was being used by the defendant as a channel through which he was performing his business in breach of the covenant. In such a case, it can be said that the pany has been formed only as a cloak or sham due to the reason that in reality the business was being carried on by Chu. Due to the reason that the restrictive covenant prevented Chu from peting with the business of puters Pty Ltd. whether as principal or, while acting as an agent for another party, it was not relevant if the business belonged to him or the belonged to his wife, provided that the business was being carried on by Chu. The only significance of the interposition of the corporation was to maintain the pretense that the business was being continued by other person. Therefore, in such a case it can be said that there is no doubt on the basis of the present facts that the pany formed by Chu's wife was created for the purpose of acting as a channel through which Chu was going to carry on his business that will pete with the business of puter Pty Ltd. Although under the corporations law , it has been provided that a pany has to be considered as a separate legal entity that is distinct from those who manage the affairs of the pany, but in the present case, it can be said that it was one of the reasons behind the creation of the pany by Chu's wife was the fear that Chu may be held responsible for the breach of the covenant and with the help of the formation of this pany, he may be able to avoid liability if he acted through the pany. On these grounds, it can be said that this pany has been formed merely as a device or a stratagem for the purpose of acting as a mask to effectively carry on the business of Chu. In the present case also, puters Pty Ltd is required to establish in the court that the new pany, Systems Pty Ltd had been formed only with a view to evade the application of the restrictive covenant present in the employment contract of Chu according to which he cannot pete with puters Pty Ltd for a period of two years in New South Wales. Hence the court may decide that the corporate veil should be lifted in this case and the restrictive covenant in the employment contract of Chu needs to be enforced against the pany created by Chu’s wife, Systems Pty Ltd. At the same time, as puters had created a subsidiary pany and the benefit of the restrictive covenant can also be provided to this pany. C Kidd, (1985) ‘Partial Performance o Lump Sum Contracts: Proposals for Reform’, 59 Australian Law Journal 96   Daniel Khoury, Yvonne Yamouni, 2010, Understanding Contract Law, 8 th Edition, LexisNexis Butterworths Jane Swanston, (1981) ‘Discharge of Contracts for Breach’, 13(1) Melbourne University Law Review 69 M Dockray, (2001) ‘Cutter v Powell: A Trip Outside the Text’, 117Law Quarterly Review664; P Clarke, J. Clarke, 2016, Contract Law, mentaries, Cases and Perspectives, 3 rd Edition, Oxford University Press  

Distribution and Retailing Essay Example | Topics and Well Written Essays - 2750 words

Distribution and Retailing - Essay Example Brief Overview of the Scenario The paper describes about the managerial issues faced by Katie Collins, the managing director of Fashion Wholesalers in relation to its distribution and retailing functions. Fashion Wholesalers is a clothing manufacturing company which principally targets women operating as the agents of UK with the networking comprising around 30 manufacturing Scandinavian and German clothing producers. It also supplies for approximately 120 small sized retailers. The products that are distributed through Fashion Wholesalers target primarily the housewives within the UK. The distribution activity of the company, i.e. Fashion Wholesalers, can be described on the following grounds. It has been observed that the buyers of Fashion Wholesalers, belonging to the age group of 30 to 60 years usually perform 4 trips for collecting the produced materials from the suppliers in the market. The process of ordering for the company is carried out in every season based on the scheduli ng of delivery of products by the buyers on a monthly basis. The produced products are then distributed to the warehouse located at Peterborough. The process of delivery in Fashion Wholesalers includes showrooms from where the buyers can directly make their purchases in person. Notably, the clothing products are manufactured all-round the year and the samples are distributed in all the seasons, along with the continuation of warehousing and dispatching activities. Contextually, it can be observed that the demands for the products are quite high attracting most of the targeted customers in the niche markets of retailing. It is worth mentioning in this context that most of the targeted customers depend on Fashion Wholesalers for supplying quality products at cheaper rates which has further accelerated the growth rate in the organisation. 1.2. Rise of Conflict in Fashion Wholesalers Channel conflict usually occurs if there are clashes of methods and goals between the members belonging to a channel of distribution. Notably, because the distribution channel of Fashion Wholesale is performed on the basis of multiple dimensions involving multiple layers such as the suppliers, the producers and the end users, which further continues throughout the year, there are high chances for Fashion Wholesalers to witness similar disruptions in their distribution process. Theoretically, distribution channel conflicts can be categorized into horizontal and vertical categories. Where horizontal channel conflicts signify gaps and limited cooperation among members belonging to similar level, the vertical channel conflict indicates dismissal among members belonging to different levels in the channel distribution (Jicheng, n.d). In the currently practiced distribution channel of Fashion Wholesalers, probability of both these conflicts to arise can be observed apparently. Additionally, resource scarcity can be determined as another significant aspect to cause conflicts in the channel of distribution. In the context of Fashion Wholesalers, it can be stated that owing to the complexity of the distribution channel framework, conflicts might occur among the members due to insufficiency of resources for manufacturing clothing products and/or due to their inefficiency to allocate the available resources efficiently so as to serve the retailers all around its target market in a time-efficient and cost-effective way. Moreover, if Fashion Wholesalers attempt to sell a proportion of the produced products by themselves directly

Behavioral Issues in Special Education (self-injurous behavior) Essay

Behavioral Issues in Special Education (self-injurous behavior) - Essay Example Many of these children that are given special education are very disturbed and prone to inflicting harm against themselves. According to Fox, C & Hawton, K, self-injury does not really mean that the person wants to commit suicide but rather, a person who cuts or inflicts intentional harm upon himself or herself is hoping to relieve some of tension or emotional pain1 or just simply to manifest his or her frustrations over something. In the case of children with disabilities, their inability to communicate to others can be very frustrating. In most cases, these children express their frustrations by inflicting self-harm and to get the attention that they need. The failure on the part of the adult present to recognize the silent please of the child with disability can make the situation even worst. The child may continue to inflict upon herself or herself until such time when he or she gets what he or she needs. Schoeder, Mulich and Rojahn classified the Self-injurious behaviour (SIB) into two namely, the social and the non-social act. The social SIB often takes place in the social setting and was directly self-injurious such as head banging, self-biting, self-scratching, gouging, pinching and hair pulling [Weiss, 129-143]. Social SIB can happen frequently and may be associated with other forms of behaviour problems. On the other hand, the Non-Social SIB happens less frequently but may tend to inflict more harm u pon the child. Non-social SIB can be manifested through stuffing orifices, mouthing, sucking, rumination, ingestion of faeces, excessive fluid intake and ingestion of air [Weiss, 129-143]. In extreme instances, the injuries inflicted by the child upon himself or herself are so serious that it requires hospitalisation for a few days. Self-injurious behaviour (SIB) in children with learning disabilities and autism is one