CPA final Exam 2021 sem 2 PDF

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final exam answers for CPA 2021 in semester 2...

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Question 1: a) i) Section 10.22 of the UCPR sets out that personal service may be affected of a document on a corporation by: personally, serving the document on a principal officer of the corporation or by serving the document on the corporation in any way service of such a document may, by law, be served on the corporation. Further, the corporations act s109x identifies that; a document may be served on a company by either leaving it at or posting it to the company’s registered office, delivering a copy of the document to the director who resides in Australia, or leaving it or posting it a liquidator of the company or finally the administrator of the company. With regard to what steps need to pursued in order to serve Solarium as an incorporated company, once the statement of claim is made, it must be served on Solarium by Francisco’s lawyers by ways mentioned in 109x of the Corporations act. ii) In general, proceedings must be brought in or against the persons own name in a partnership as it is not a legal entity and cannot be sue or be sued. In NSW where a business name has been properly registered under the Business names act 1962 (NSW), it is possible to ascertain the names of the parties who have carried out the business at the time in question and bring proceedings against them under 10.9 of the UCPR. Should the firm not be registered, section 10.9 of the UCPR can be used as it allows proceeding to commence against a defendant who is operating under an unregistered business name. Service is engaged by leaving a copy with the person engaged in the business. In the following scenario the necessary steps that should be taken in order to serve the partnership “Solarium” would be to serve the documents one of the partners. b) A cause of action may be joint or alternative, if this is the case, the defendants may be joined in the same proceeding. UCPR 6.19 (2) indicates that there must be a shared question of law or fact and the claim must arise out of the same transaction or sequence of transactions. In this case it is unclear what the cause of Francisco’s skin cancer was, but it is evident that both Solarium and Tan Supplies PTY LTD contributing to this. Qantas Airways V AF Little covered a similar matter, where a plaintiff had sued a architect and an engineer because of a defective building. The court in this case allowed the plaintiff to add the builder. In Re Great Eastern Cleaning Services PTY LTD, the commission was joined as a person whose presence was necessary to adjust all of the issues. With reference to this case, it becomes apparent that in order to adjust for all the issues present the mentioned issue, Tan Supplies PTY LTD must be joined into these proceedings. UCPR 6.24 allows the court to add a part to the proceedings if it is essential to resolve all issues in a dispute, and rule 6.26 goes on to state that the court may order a person to be joined as a party if it is of the belief that the joinder of this party is necessary to the settlement of all issues in dispute. Courts however are generally reluctant to add to permit a defendant to add another defendant as seen in cases such Walker v Commonwealth Trading Bank of Australia and NAB V Bond Brewing Holdings LTD. This being the case, whilst courts may at times be reluctant to add defendants to proceedings, given the precedent mentioned, mainly Great Eastern Cleaning services, the likelihood of whether Solarium will be able to add Tan Supplies PTY LTD is high.

c) Assuming that the statement of claim was validly served on solarium, then under 16.3 of the UCPR the plaintiff may enter a default judgement. In order to determine if solarium in in default, rule 16.2 of the UCPR must be observed. 16.2 1 (a) provides that a defendant is in default if they (the defendant) fail to file a defense within the time limited by rule 14.3 or a time set out by the court. Solarium has failed for this very reason therefore it is justified to state that the Solarium is considered in default. As prescribed in 16.3 of the UCPR, if the defendant is in default, the plaintiff may apply for judgement to be given under this part or may carry out proceedings. Unless otherwise ordered, the application for judgement to be given under this part must be accompanied by the affidavit of service and an affidavit in support of the application. Francisco’s lawyers should therefore make an application to the court for judgement and include in it the affidavit of service and an affidavit in support of the application. In order to set aside a default judgement 36.15 of the UCPR indicates that a defendant has the right to set aside a default judgement which has been irregularly/improperly obtained. However, it can also be the case that a properly obtained default judgement may be set aside by the court. The elements addressed when attempting to set aside a default judgement include providing a satisfactory explanation for Solarium’s failure to appear, establish no unreasonable delay in making the application, per the rule in NAB v Singh and solarium must demonstrate a prima facie defense on merits as indicated in Mearns v Willoughby community preschool. To determine whether or not the default judgement may be set aside, the additional information that solarium will be required to provide that has not already been mentioned include an explanation for why they failed to appear, they must establish no unreasonable delay in making the application, and they must demonstrate a defense. d) If a concern arises that the potential for the destruction evidence is high, the appropriate step would be to file Anton Pillar Order. Filing this order allows the applicant to enter the defendant’s premises in order to seize documents and relevant evidence to prevent their destruction. However, to be granted an Anton pillar order, the applicant must have a strong prima facie case, if they fail to show this, the court will be reluctant to grant the order. The applicant will be required to show that the order is necessary and required to prevent the abuse of the court’s process, if this can be shown, the court may at its discretion grant the order. As indicated in in Anton Piller v Manufacturing process, the applicant must show the prospective loss or damage caused if the order is not granted will be significant. UCPR 25.20 also provides this, but it is stressed that in order to be granted the order the prima facie case must be strong. The evidence provided in the email identified is enough to show that the respondent plans to destroy evidence therefore creating valid ground for the order to be made. In the event the evidence is destroyed, British tobacco showed that if it can be shown, the defense will be struck out and the respondent could be charged with the contempt of court. e) Before the court can determine the appropriate method of execution, a judgement creditor may wish to gather information on the judgement debtor. Within the UCPR and the CPA, there is a regime set out where a person my obtain further information about the affairs of a debtor. The UCPR sets a 2-step procedure which are found in in UCPR 38.1 and s108 of the CPA. The examination notice is served by the creditor on the debtor which requires material answers to questions and the provision

of documents, and the debtor has 28 days to comply with the notice. UCPR 38.2 (1) states that in order to obtain an order for examination, it must be supported by an affidavit and the affidavit must contain certain elements. The examination order as indicate din 38.3 (3) of the UCPR must be served on the debtor at least 14 days before the proposed examination, 38.4 states the examination will take place in court, 38.5 indicates the examination will be conducted under oath, 38.6 warns that failure to comply with the examination order may lead to the issuing of an arrest warrant and finally 38.7 identifies that if a corporation is the subject of an examination order or an examination notice, then the order or notice applies to an officer of the corporation as if he/she was the corporation. As an incorporated company, in order to determine the companies assets you can use title searches to find properties attached to the business, share and shipping register searches and motor record registration searches, as indicated in the PPSR.

Question 2: Pleading is formal written declaration of the plaintiffs claim and the defense of the defendant UCPR 14.6, .8, .9 Phillips v Phillips, Al-medenni mars UK UCPR rules not to be pleaded 4.10 Rules to be pleaded: 14.6, 14.8, 14.9

Question 3: The resolution of civil disputes through the commercial arbitration act can be seen as being more flexible that the litigation system. The process of arb med refers to the combined process of arbitration and mediation, and key difference between this and arbitration or mediation is that the person appointed as the mediator can take on the role of arbitrator should the situation call for it. This process was designed in order to combine the advantages of both mediation and arbitration. Advantages of Arb-med include allowing for a flexible and less adversarial process where parties can resolve their disputes through mutual agreement. This aspect succeeds where if parties are able to come to a mutual agreement, they are able to sign a binding a binding settlement and in the event that no agreement be reached, they can proceed with arbitration, and the result of the arbitration would become binding as it would if the matter proceeded within litigation. This process, like many others, brings with it some disadvantages; the neutral party in the process remains for its entirety, they act as mediator and then if the procedure calls for it, as arbitrator as well. This is seen as a disadvantage because as mediator the party may be told confidential information or any information that may compromise the party’s impartiality once the proceeding shifts to an arbitration. This in turn may jeopardize procedural fairness. There is some similarity in certain aspects of procedure and between traditional processes in the commercial arbitration act. Section 19 of the commercial arbitration act delves into the discovery process and allowing parties to obtain facts and information from other parties to the arbitration in order to support their own case and prepare for hearing, similarly this can be found s54 of the CPA. Compromise is sought in the arbitration process, this is done by obtaining the best possible evidence from a witness and achieving this in a timely and cost-efficient manner. The concept of ‘Hot tubbing’

is another similarity, where evidence is taken from a witness in the presence of other witnesses who are allowed to question the accuracy of each other claims, it should be noted that this concept applies more so to expert witnesses, in the event that the witnesses are lay people, this concept is called conferencing. This is beneficial as when calling an expert witness whose testimony might be too technical the use of hot tubbing is a great way as it speeds up the process. In addition to this, with reliance on witness statements, witness conferencing have proved so efficient that they are now progressively being used and adopted in litigation. Natural justice Section 62 (4) Audi alteram partem Motrix bonds v Kirby Support natural justice: 1c 12 34 36 Confidentiality: 27f disclosure is allowed S27G order for confidential information to be disclosed....