Commercial Law Assignment: Understanding Legal Protection Guideline


Task: You will be assessed on the extent to which you have:

  • Answered the set question(s);
  • Been able to identify, set out and discuss relevant legal issues;
  • Justified your position by reference to use of appropriate legal sources, particularly cases and legislation where appropriate;
  • Analysed, argued or discussed as required by the task questions; and
  • Engaged in legal research and made use of relevant secondary legal sources, in particular a number of legal texts, internet sites and academic (peer reviewed) journal articles and books.

In January 2019, Priya gave birth to a baby boy named Aaru. While she was still in hospital recovering from the birth, Priya’s husband Rahul went to a large retail store called Baby’s R Us and asked a sales assistant there what would be the best baby’s cot for a new born baby. The sales assistant, William, suggested either of two cots would be suitable: the “Lullaby Wonder” or the “Sleep Sound”. He suggested that the Lullaby Wonder is quite solid, and so once assembled, it is best to be kept in that state, whereas the Sleep Sound is more portable and can be easily assembled and disassembled, suitable for using in different places.

As Privya and Rahul enjoy travelling in their car, and seeing different parts of Australia, Rahul purchased the Sleep Sound so that it could be taken on their frequent holidays, and would fit easily into their car, a Toyota Corolla. Within two months of Aaru’s birth, the family set out on their first overnight adventure with the Sleep Sound. They stay overnight in an Airbnb. While Aaru sleeps in the Sleep Sound, Priya and Rahul watch television in another room. When Priya later checks on Aaru, she is shocked to see that the Sleep Sound has collapsed, and folded, trapping Aaru inside. Aaru is crying, and they immediately take him to hospital, worried that he may be injured. Priya is also treated at the hospital for shock.

Baby’s R Us bought a large one off shipment of the Sleep Sound from Lars Aaberg, an importer who they have lost touch with. Thus, they remain unsure as to who the manufacturer of this particular cot is.

Please answer both questions:

  1. Advise Priya and Rahul what rights they may have to sue in the tort of negligence. Please refer to case law principles and statutory provisions in your answer.
  2. Advise Privya and Rahul if they can sue under Part 3-5 of the ACL. If so, who would they sue, and on what basis? Please refer to specific statutory provisions of the ACL in your answer.


Issue A: In a trust arrangement, the beneficiary holds the benefit interest while the trustee holds the legal title [1]. A trust enables a legal owner to manage property for the benefit of others who are unable or unwilling to do so. A trust is created when the property's owner designates himself as its trustee or transfers ownership to another party to serve in that capacity for the benefit of one or more beneficiaries or a charitable cause [2]. "An express trust is one that is intentionally created and that the trustee intentionally accepts." [3], this may be either private, developed for the benefit of specific individuals or classes of individuals, or public, benefiting the general public. As I examine and contrast each, I will be concentrating on express trusts and the "three certainties" required to validate a trust. Each assurance will be demonstrated independently, using examples from relevant case law to support or refute the argument that its efficacy has been adversely harmed. Yes, some cases may be detrimental to the efficacy, but the majority of cases support, enrich, and clarify the three certainties. Because each situation is unique, it should be evaluated solely in light of the relevant circumstances.

To successfully establish a trust, duties must be "administratively practicable and capable of being "policed" by the court." A trust is required to have "three certainties" [4]. They were named by Lord Langdale MR in the case Knight v. Knight [5] as certainty of intention, certainty of topic, and certainty of object. The first is the issue of whether the actions or statements made by the putative settlor amounted to a declaration of a trust over his property. The second and third conditions demand that the assets intended to constitute the trust and the beneficiaries who are its "objects" may be identified [6].