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Our Publications

Charging clauses over director’s property in supply contracts – are they effective?

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Quick overview Supply contracts that include director’s guarantees often contain “fine print” charging clauses that charge any land which the director owns as security for the director’s guarantee obligations. This allows the supplier to lodge a caveat over land owned by the director. Generally speaking, these clauses are legally effective. Guarantee and charging clauses in (Read More…)

Are your “Top Executives” on written employment agreements?

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Last week we sent a Newsletter to clubs reminding secretaries and directors that they can be personally liable for a penalty of up to $11,000.00 if the club itself contravenes an “offence provision” of the Accountability Code. In response we have had a number of questions about the Accountability Code including a club’s obligations in (Read More…)

If an employee causes the Club to breach the Code are you personally liable?

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There is an old riddle: “If a tree falls in the woods and no one hears it, does it make a noise?” A newer more relevant riddle is perhaps: “if an employee causes a club to breach an offence provision of the Registered Clubs Accountability Code and the club’s secretary and the board are unaware (Read More…)

To produce or not to produce?

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Privacy issues may arise when an individual or organisation is issued with a notice to produce specified books under section 77A of the Bankruptcy Act 1966 (Cth). Failure to properly comply with section 77A notice can attract a prison sentence of up to twelve months. Care should be taken to ensure that personal information which (Read More…)

How to avoid third party funding issues delaying your commercial construction project

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A builder has been selected, the Construction Contract has been negotiated and signed and all the relevant consents required to complete the construction project have been obtained.   Both you and the builders are ready to commence work to meet your deadline. The only problem –  the funding that you require to undertake your work from (Read More…)

What are the odds of a problem with increasing your gaming revenue?

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It is January already and Christmas now seems a distant memory. Last year was a particularly busy one for Pigott Stinson with a number of clubs developing land into retirement villages, childcares and even breweries. A key motivator for many of the projects we worked on was a desire by clubs not to be solely (Read More…)

Club managers more likely to face personal liability under three strikes regime

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Key Points The 3 strikes regime has changed. For a club to receive a strike the CEO personally must be charged with the prescribed offence. Licensing Police are now more likely to charge CEOs personally. CEOs should review the Club’s policies and procedures. CEOs should seek urgent legal advice if they or the Club receive (Read More…)

Legal update: casual employees

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There have recently been two important changes to the law regarding casual employees: casual conversion – the right for certain casual employees to request that their casual employment be converted to permanent employment; and “deemed” permanency – a return to the traditional view of the Courts that a casual employee will be “deemed” permanent in certain (Read More…)

Plugging the leak – dealing with data breaches

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Summary The “Notifiable Data Breaches” scheme requires a range of businesses to notify individuals and the Office of the Australian Information Commissioner when certain data breaches occur. Fines for failing to comply with the NDB Scheme are up to $2.1 million. Businesses can minimise their potential liability by implementing a Data Breach Response Plan, ensuring (Read More…)

Adjudications under the Security of Payment scheme – good faith or bad faith?

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A recent decision of the NSW Court of Appeal has once again highlighted the difficulties faced by parties seeking to overturn determinations made by adjudicators under the Building and Construction Industry Security of Payment Act 1999 (NSW) (“the Security of Payment Act”)  by way of judicial review. This follows the decision of the High Court of (Read More…)

Thinking of (one day) selling your commercial property?

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If you own commercial property in New South Wales and are thinking about selling, there are various legal matters that you must properly address to make sure that the transaction is not delayed or derailed. A potential purchaser of a commercial property will usually do some form of due diligence. At a bare minimum this (Read More…)

Is your club prepared for a data breach?

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With Facebook, Cambridge Analytica and the Australian Government’s My Health Record dominating headlines throughout 2018, one could be forgiven for thinking that issues of data security are reserved exclusively for Government and multi-national organisations. However, recent amendments to the Privacy Act 1988 (Act) have placed a range of new obligations on entities bound by the (Read More…)

Reaching the threshold

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This article appeared in the August 2018 issue of Club Life. In most cases, clubs who are purchasing gaming machine entitlements will also need to apply for a gaming machine threshold increase. Relevantly, the recent amendments to the Gaming Machines Act have resulted in significant changes to the requirements for applying for and obtaining gaming machine (Read More…)

Food for thought

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This article appeared in the July 2018 issue of Club Life. The appointment of a contract caterer is a very important matter for any club.  The Board of Directors and management need to decide what it wants from the appointment.  For example, how will the contract caterer fit in with other club activities such as (Read More…)

A Club’s Constitution

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This article appeared in the June 2018 issue of Club Life. I have written previously about the importance of boards and management regularly reviewing their club’s constitution, to ensure that it is up to date with current legal requirements, and also to ensure that it reflects good corporate practice. As many clubs hold their Annual (Read More…)

Avoiding the risk of personal liability as a Club director

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This article appeared in the May 2018 issue of Club Life. Last issue we wrote about a case, Mansfield v Townend [2017] NSWDC 370, in which a liquidator commenced proceedings against a club director for approximately $190,000 worth of debt incurred whilst the Club was trading insolvent. In that instance, the director was extremely fortunate. (Read More…)

Can a “social” director be personally liable for insolvent trading?

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This article appeared in the March 2018 issue of Club Life. Some clubs struggle to find experienced directors and, in some cases, members have volunteered to “help out” their club by agreeing to be a director without appreciating the full scope of their responsibilities, and potential liability for not carrying out those responsibilities. It certainly (Read More…)

Relocating your gaming room

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This article appeared in the February 2018 issue of Club Life. Clubs undertaking renovations to their premises need to consider the requirements of the Gaming Machines Act if the renovations involve a temporary or permanent relocation of the club’s gaming room. Moving a gaming room will require the club to apply for the approval of (Read More…)

Consistent Inconsistencies

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This article appeared in the December 2017 issue of Club Life. In the age of Google and Wikipedia there is a growing view that information and answers should be easy and instant and we all should be able to do everything ourselves. We are all guilty of it, the other day my dishwasher filled with (Read More…)

When has a director vacated office?

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This article appeared in the November 2017 issue of Club Life. In last month’s column I dealt with the uncertainty which clubs face from time to time in relation to whether a director has vacated his or her office by focusing on directors who fail to attend board meetings. This month I want to talk (Read More…)

When is Estrangement Disentitling Conduct?

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The issue of what amounts to disentitling conduct in the case of an estranged parent and an adult child was recently discussed in Larkin v Leech-Larkin [2017] NSWSC 1418. Wilma Leech-Larkin (“Wilma”) died in February 2015 at the age of 88.  Wilma had four surviving sons from her former marriage to Barnett Larkin.  In March (Read More…)

When has a director vacated office?

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This article appeared in the September 2017 issue of Club Life. A few years ago, we wrote about the uncertainty which clubs face from time to time in relation to whether a director has vacated his or her office.  I was recently asked about this issue and it prompted me to write about it again. (Read More…)

Is a club allowed to advertise its gaming machines to members?

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This article appeared in the August 2017 issue of Club Life. The Club Law article published in August 2015 considered some of the risks for clubs relating to gaming machine advertising. This included a brief consideration of the limited circumstances in which a club may send promotional material containing gaming machine advertising to a member (Read More…)

All About AGMs

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This article appeared in the July 2017 issue of Club Life. With another round of Annual General Meetings (AGMs) coming up in August through to November, I thought it timely to write about some of the questions I often get asked concerning AGMs. When does a club have to hold an AGM? The 90 plus (Read More…)

Club secretaries and the law

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This article appeared in the June 2017 issue of Club Life. In a recent decision, the Independent Liquor and Gaming Authority (ILGA Board) considered some of the important requirements under the Registered Clubs Act in relation to a club secretary. If these requirements are not complied with by a club or its secretary, the ILGA (Read More…)

Managing Bad Debtors

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With whom are you contracting? An essential and sometimes overlooked aspect of commercial relationships with clients or customers is identifying exactly who the client or customer is. A person or a company may register a business name under which the person or company trades. However, a business name is simply a name and not a (Read More…)

Debt recovery and unfair preferences

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What are unfair preferences? An unfair preference is defined in section 588FA of the Corporations Act 2001 (Cth) as a transaction between a company and a creditor which results in the creditor receiving from the company, in respect of an unsecured debt that the company owes to the creditor, more than the creditor would receive (Read More…)

Protecting small business against unfair contracts

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It is estimated that there are 2.1 million small businesses in Australia.  ACCC research estimates that those businesses are offered about 8 “standard form contracts” each year.  For the most part, those contracts are offered to the small businesses on a “take it or leave it” basis. Even if there was an opportunity for a (Read More…)

No Waiver Clauses

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This article appeared in the May 2017 issue of Club Life. I recently wrote about “Entire Agreement” clauses, a common clause found in the types of commercial agreements entered into by clubs. This article considers another common clause in commercial agreements – the “No Waiver” clause. Waiver of Rights No Waiver clauses are relevant when (Read More…)

The humble charge – getting security for debts

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For any business, getting some form of security from debtors is best practice but it can be difficult and is not always practical. However, business owners who extend a large amount of credit as part of their sales process are putting the viability of their businesses at risk if they do so without having some (Read More…)

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