Opinion

October 08,2014

Is your Catering Agreement a Retail Lease?

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The conventional wisdom at the time suggested that the Retail Leases Act was introduced to correct the perceived imbalance of power between large shopping centre owners and small tenants. However, because of the definitions used in the Act its coverage is perhaps broader than anticipated and  can extend to catering agreements in clubs. This has (Read More…)

October 07,2014

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Unfair preference payments

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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…)

September 25,2014

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Australia’s PPSA causes international ructions

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In February 2014 the ANZ bank appointed receivers to one of its mining services customers, the Forge Group. About $300 million was owed to the ANZ and some asset insurers, substantially in connection with leased equipment which had been financed by the bank and the insurers. The Forge group is now in liquidation. Part of (Read More…)

September 15,2014

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Extension for maximum number of directors on club boards.

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On 22 August 2014 the NSW government published the Registered Clubs Amendment (Limitation of Number of Members) Regulation 2014. Clubs now have an additional 6 months until 1 January 2017 to reduce their board to a maximum of 9 directors. This change is a reminder to review your club’s constitution to ensure it is up (Read More…)

August 22,2014

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Tree roots damaging club carpark

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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

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PPSA statutory review – preliminary report

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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

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Act promptly to protect your IP rights

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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…)

January 22,2014

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Opportunity ends for grandfathering of PPSA security interests

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On 31st January 2014, the 2 year window of opportunity ends for holders of security interests in personal property. If you own goods or things in the possession of others this affects you. Following that date, the completed or ‘perfected’ status of security interests in personal property – things like cars & trucks, inventory, plant (Read More…)

August 22,2013

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Self-Managed Superannuation Funds

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The decision of McDougall J of the NSW Supreme Court in the case of The Estate of Edith Macdougall [2013] NSWSC 990 highlights the importance for a trustee of a self-managed superannuation fund (SMSF) having in place an Enduring Power of Attorney (EPoA). Failure to have an EPoA in favour of the other trustee can (Read More…)

August 05,2013

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The triennial rule or the “we won’t try anything” rule

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Put simply, under the triennial rule there are still annual elections for the board. However, only a third of the board is up for election each year. Those directors that are elected then hold office for 3 years. Under the Registered Clubs Act the Government can force boards to adopt the rule, but have not (Read More…)

June 25,2013

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The ACCC takes action on Unfair Contracts

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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

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Important changes to employment rights from 1 July 2013

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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…)

June 03,2013

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Minimum wage increase

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On 3 May 2013, the Fair Work Commission handed down its annual minimum wage decision and ruled that the minimum wage is to 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 based on (Read More…)

May 13,2013

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

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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

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

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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

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

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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

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Specific Regulation of Small Business Finance off the agenda

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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

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Guarantees and secured loans

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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

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Are you considering providing a guarantee?

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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

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Linked Credit Providers

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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

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Exclusion clauses in commercial contracts

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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…)

February 14,2013

Solar energy supply agreements

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Electrical and building contractors are entering the burgeoning photovoltaic (PV) system supply industry as a result of rising energy costs and favourable government policies including rebates and incentives. A key question for new solar energy players and their customers is how to absorb the relatively high up-front cost of acquiring and installing the PV system. (Read More…)

January 24,2013

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Tough new requirements for swimming pool owners in NSW

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Following calls for a strengthening of pool safety requirements the NSW Government has introduced amendments to the Swimming Pools Act 1992. The Swimming Pools Amendment Act 2012 commenced on 29 October 2012. Some of the changes under the new law are: Pool owners will be required to register their pool on a State-wide online register. (Read More…)

January 17,2013

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Statutory demands and the Civil Dispute Resolution Act

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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

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Parallel importers beware!

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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…)

January 15,2013

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Costs orders and family provisions claims

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The case of Harkness v Harkness (No 2) [2012] NSWSC 35 is a timely reminder that unsuccessful plaintiffs in family provision proceedings will not always be entitled to their costs of the litigation from the estate of the deceased. In that case Associate Justice Hallen stated that: “Parties should not assume that this type of (Read More…)

November 29,2012

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Are your internal policies up to date?

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The Federal Court’s decision in Barker v CBA effects employers and their employment policies. Justice Besanko held, amongst other things, two important points of law: (a)  there is in Australian Law, an implied term of mutual trust and confidence in employment contracts; and (b)  even though an employer’s employment policies may be expressly excluded from (Read More…)

November 29,2012

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The importance of time limits in discrimination claims

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Both employers and employees need to be aware of the importance of time limits set by the Court when considering discrimination claims. In a recent case, TOMAS v TECHNICOLOR PTY LTD & ANOR, Connolly FM refused an application to extend the time in which the applicant could file her application pursuant to section 46PO(2) of (Read More…)

October 22,2012

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James Hardie penalties a reminder of director’s duties

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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…)