Opinion

October 07,2014

0 Comments.

# #

Unfair preference payments

By

Creditors should be very wary when pressing debtors for payment of outstanding invoices in circumstances where the debtor may be insolvent. The Corporations Act 2001 (Cth) and the Bankruptcy Act 1966 (Cth) provide liquidators and trustees in bankruptcy with broad powers to recover “unfair preference” payments by debtors to their creditors in circumstances where: the (Read More…)

August 22,2014

0 Comments.

# # # #

Tree roots damaging club carpark

By

Pigott Stinson recently successfully acted for a Club after local council refused to remove trees on council land the roots of which had caused damage to the Club’s car park and prevented the Club from upgrading the car park. It is well established law that an owner of land can be liable for damage caused (Read More…)

August 20,2014

0 Comments.

# # # #

PPSA statutory review – preliminary report

By

In August 2014 the Federal Government released its preliminary report on the operation of the Personal Property Securities Act (the “PPSA”). This report will be followed in January 2015 with a final report on what changes, if any, should be made to the PPSA. Rationale of PPSA: The basis of the PPSA is that ownership (Read More…)

January 29,2014

0 Comments.

# # # #

Act promptly to protect your IP rights

By

A recent decision by the Full Court of the Federal Court of Australia in Knott Investments Pty Limited v Winnebago Industries Inc. [2013] FCAFC 59 serves as a warning to trade mark owners to enforce their intellectual property rights promptly. It also highlights the dangers in using foreign trade marks that have acquired a reputation in Australia even (Read More…)

June 25,2013

0 Comments.

#

The ACCC takes action on Unfair Contracts

By

Warning bells should be ringing for all businesses which rely on standard form customer contracts in the supply of goods and services.  To the extent that such contracts are one-sided and unfair, the ACCC may have you in its sights. The ACCC has just commenced its first ever proceedings against an internet service provider alleging (Read More…)

June 24,2013

0 Comments.

# # #

Important changes to employment rights from 1 July 2013

By

From 1 July 2013, important changes will occur and it’s critical that all employers understand these changes. 1)         INCREASED MINIMUM WAGE The minimum wage will increase by 2.6%. The weekly minimum wage will rise by $15.80 to $622.20 per week and the minimum hourly rate will increase to $16.37.  The weekly and hourly amounts are (Read More…)

May 13,2013

0 Comments.

# # # #

Early payouts under goods leases remain unaffected by recent case on penalties

By

In the recent case of Andrews v Australia & New Zealand Banking Group Ltd (2012) 290 ALR 59 (“Andrews”), the High Court decided that provisions in a contract deemed penal in nature would be unenforceable not just upon breach, but irrespective of whether or not the contract proceeded to completion. In other words, if a (Read More…)

May 10,2013

0 Comments.

# # #

Liberal workplace relations policy announced: Fair Work Act to be retained.

By

The Liberal party’s much anticipated workplace relations policy was announced on 9 May 2013.  The key points include: 1)    the Fair Work Act will be retained 2)    Changes to the Fair Work Act will be limited in the first term of the Coalition’s government 3)    New laws will be introduced to limit union right of (Read More…)

April 11,2013

0 Comments.

# # #

A lender’s “sign-off” does not mean documents deemed compliant are legally enforceable

By

In the recent case of Commonwealth Bank of Australia v Chamos [2012] NSWSC 1345, the borrower Mr Chamos argued that by virtue of the bank’s sign-off on his apartment development’s underlying pre-sale contracts the bank was implicitly saying that the contracts were enforceable as a matter of law. The NSW Supreme Court said no. Despite (Read More…)

March 24,2013

0 Comments.

# # #

Specific Regulation of Small Business Finance off the agenda

By

At a recent meeting in Parliament House the Minister for Financial Services Bill Shorten announced that the government had decided to withdraw its proposed laws to specifically regulate the provision of credit to small business borrowers. Instead the status quo of industry self-regulation will prevail. The key proposal had been that lenders, goods lessors and finance (Read More…)

March 12,2013

0 Comments.

# # #

Guarantees and secured loans

By

Business borrowers have once again been reminded (if they needed reminding) that, should they go into default under their banking facilities they are entirely at the bank’s mercy. The lender has virtually a free hand in deciding whether it sells the secured property first, or takes the more likely course of suing on a personal (Read More…)

March 08,2013

0 Comments.

# # #

Are you considering providing a guarantee?

By

Anyone considering providing a guarantee should be aware of the potential of being saddled with a liability beyond what they anticipated when signing the guarantee. Guarantees, particularly those required by financial institutions, will often contain an “all moneys” clause. This means that the guarantor is liable to the lender for all moneys which become due (Read More…)

March 01,2013

0 Comments.

# # #

Linked Credit Providers

By

Financiers worried about the breadth of the linked credit provider provisions (in section 278) of the Australian Consumer Law (“ACL”) (formerly section 73 of the Trade Practices Act (“TPA”)) can take some comfort from the recent decision of the Full Federal Court of Australia in Quikfund (Australia) Pty Ltd v Prosperity Group International Pty Limited (Read More…)

February 27,2013

0 Comments.

# # #

Exclusion clauses in commercial contracts

By

The case of LA Rosa v Nudrill [2013 WASCA 18] is a practical reminder that so-called exclusion clauses will not always help a contracting party escape from the consequences of its negligence. Usually an exclusion clause will be expressed in the terms found in the La Rosa case, to the effect that all goods are (Read More…)

January 17,2013

0 Comments.

# # #

Statutory demands and the Civil Dispute Resolution Act

By

The Civil Dispute Resolution Act 2011 (Cth) (CDR Act) obliges parties who commence proceedings in the Federal Court of Australia or the Federal Magistrates Court to file a ‘genuine steps’ statement setting out what steps, if any, each party has taken to resolve the dispute, or explaining why no steps have been taken. The decision (Read More…)

January 17,2013

0 Comments.

# #

Parallel importers beware!

By

Parallel importing occurs when a person in Australia imports ‘genuine goods’ from overseas and sells them in Australia in competition with an authorised distributor in Australia. Often the parallel importer will purchase the goods from an authorised distributor in a foreign country. It is now firmly established that parallel importing in the circumstances described above (Read More…)

October 22,2012

0 Comments.

# # #

James Hardie penalties a reminder of director’s duties

By

6 months after ASIC’s successful High Court appeal the NSW Court of Appeal has imposed penalties against the former company secretary and former non-executive directors and general counsel. ASIC Chairman Greg Medcraft said the matter reinforced the importance of companies providing the market with correct and accurate information. ‘Directors must engage with the most important (Read More…)