News & Alerts

Ratchet clauses and market rent reviews in retail shop leases do not mix.

Is your business compliant? One of the key focus areas for the ACCC this year is to ensure that businesses comply with the Australian Consumer Law.

The Personal Property Securities Act 2009 (Cth) (PPSA) has been in force now for just over one year. Has case law helped us in understanding the practical effects of PPSA? While Australian case law is sparse, we are able to extract some pointers.

Changes to privacy laws in Australia will come into force from 12 March 2014. The Privacy Amendment (Enhancing Privacy Protection) Act 2012 (Cth) (the “Act”) amends the current Privacy Act 1988 and will aim to increase privacy protection by providing greater access to personal information to individuals and strengthening obligations on entities collecting personal information.

The unfair contract terms came into effect on 1 July 2010 as part of the ACL in the Competition and Consumer Act (Cth) 2010.

Only two cases have been reported in Australia since the law on unfair contract terms came into effect on 1 July 2010 as part of the Australian Consumer Law (“ACL”) in the Competition and Consumer Act (Cth) 2010. Each case provides further clarity on when a term in a consumer contract will be unfair. In summary, an unfair term in a consumer contract will be void and may potentially render the entire contract void. Have you reviewed your business’ consumer contracts to ensure that there are no terms that could in any way be deemed to be unfair?

Since the ACCC identified consumer guarantees as an area of national policy priority in 2012, they have so far commenced enforcement actions against numerous businesses and have issued financial penalties up to a sum of $203,500 for breaches of the consumer guarantees. This is only the start of the ACCC’s campaign in this area. Is your business at risk or is your business compliant?

Following recent concerns of companies over mounting pressure to monitor their social media pages, the case of the Just Jeans Facebook hoax further stresses the need to keep a watchful eye on those accounts …

From 15 April 2013, important changes to the Australian Trade Marks Opposition procedures will come into effect as a result of the Intellectual Property Laws Amendment (Raising the Bar) Act 2012.

On 19 December 2012, the Australian Tax Office issued a new GST ruling – GSTR 2012/5 – by which it seems to have changed its view on how you determine whether premises are residential or otherwise, for the purposes of GST. How will this new ruling affect you?

Not many people know that where a member has granted an Enduring Power of Attorney, then the SMSF can comply with the legislative requirement by the attorney becoming the trustee or director in the place of the member. Read more tips …

Under current discrimination legislation, employers are generally held vicariously liable for the unauthorised acts of their employees. What actions can you, as an employer, take to ensure you have done everything possible to avoid liability in the workplace?

Employers seeking to employ overseas nationals to work for them in Australia should check their prospective employees’ visa work rights as this can save employers thousands in avoiding non-compliance prosecutions under the new Migrant Amendment Bill 2012.

In a recent case involving Qantas, a Federal judge held that safety concerns raised by union members were groundless and constituted instead a cloaked attempt at industrial action. The case highlights the issues of work health safety, IR and bargaining and the need for employers to be well informed.

Following the grounding of its fleet in 2011 as a result of industrial dispute, Qantas referred the case to the FWA for arbitration. The company’s action confirmed that complaints by unions were matters of management prerogative, not part of a legitimate agenda for enterprise negotiation. What are the lessons employers can learn from this case?

The Personal Property Securities Act 2009 (Cth) (PPSA came into effect 30 January 2012 but is still a confusing piece of legislation for many, including councils. PPSA affects any person or entity taking a security interest over personal property.

The team at Coleman Greig is proud to have been recognised as the Best Law Firm in Australia (revenue less than $50 million) in the 2013 BRW Client Choice Awards!

The court can make an order for the payment of a judgment by instalments, payable in such amounts and at such times as specified. If an order is made, it will stay enforcement of a judgment.

A well-known stock brokering firm recently fell foul of the Court for using the confidential information of a competitor to try and "lure away" their high-performing employees.... and ended up paying almost $200,000 in damages.

Many businesses face a constant struggle with cash-flow and unfortunately this can often result from either their own poor debt recovery strategies, or a lack of procedures to ensure cash does not slip through business fingers. Learn how to turn this around and minimise loss while maximising cash flow....

This article reviews a recent trend in retirement village contracts that could have a significant financial impact on the family of residents leaving a village, or passing away. Don't get caught by the fine print!

The first adverse action case to travel all the way up the appeal hierarchy highlights the need for managers to be cautious when making a decision that adversely affects an employees, and be aware of the matters that will need to be proved if the decision is challenged

An update of the Paid Parental Leave scheme means that fathers and partners can apply to the Family Assistance Office to be paid the minimum wage for two out of the three weeks of leave they are entitled to.... IF they meet the same eligibility criteria that a mother needs to meet for paid parental leave.

The recent 'harmonisation' of Work Health and Safety legislation was introduced amid predictions that it couldn't work and that State Governments would 'fiddle' with it to suit their own systems. So how has the harmonisation gone and is it changing life as we know it?

The Principals and staff of Coleman Greig Lawyers are excited to advise that the firm has been named a finalist in two categories of the BRW Client Choice Awards.

One of the few means available to Australian couples to deal with their assets on separation, other than in accordance with the financial provisions of the Family Law Act, is to enter into a Binding Financial Agreement (‘BFA’). But are these documents worth the paper they’re laser-printed on?

With more than half of all parenting cases heard before the family law courts now involving allegations of domestic violence, changes to the Family Law Act that came into force in June 2012 have been welcomed as a significant step forward.

The Courts have recently looked at issues surrounding the enforceability of guarantees, and in particular, whether a signature is necessary or the guarantor intends to be bound in their personal capacity. The findings in regard to these issues could surprise you!

Thank you to our many clients who contributed to Coleman Greig's CSR activities in 2012. We are delighted with the outcome of our programs and would like to share the results with you.

It is no secret that more and more people are using their SMSF to invest in property and also to borrow through their SMSF to fund the acquisition. So what are the benefits to you?

With a myriad of additional costs and potential taxes, you need to consider a number of fiscal issues before accepting an offer by a prospective purchaser - the figure may not actually be enough!

Find out why an employee was terminated and later reinstated after making offensive comments about his managers on Facebook. Does your workplace have adequate social media policies in place for employees - and are these communicated appropriately?

IP Australia has increased a number of the official fees associated with trade mark applications and registrations

If you think your company’s Facebook or Twitter page is just a way for your followers, or those that “like” you to communicate, you’d be wrong! This article highlights the importance of monitoring all content that appears - even user comments.

Coleman Greig Lawyers recently announced the appointment of its new Board of Directors, including non-executive director Peter Jollie AM.

Don't get caught by the fine print. The Dad & Dave case highlights the importance of providing clear and early instructions to your lawyer regarding lease renewals.... whether you are a Landlord or a Tenant!

In a high-profile case that was splashed across the media, the Family Court recently ordered the Australian mother of four Italian-born girls (aged between 9 and 15) to return the children to Italy, where she has a shared care arrangement of the children with their Italian father.

As the world becomes ‘smaller’, people are becoming more mobile in general, and many families are moving internationally either for work or personal reasons.

Coleman Greig’s Accredited Specialist in Family Law, Mark MacDiarmid, recently became an accredited Family Dispute Resolution Practitioner (FDRP) and will now be offering legal practitioners and their clients access to a specialised family law mediation and dispute resolution service.

Some members of the legal profession hold concerns that due to the upcoming retirement of His Honour Justice Collier, and that the Registry may be closed altogether.

The Australian Government has made a number of reforms to the Temporary Business Entry and Employer Nominated Permanent Residence Schemes, which commenced on 1 July 2012.

As a franchisor it is one thing to ensure that the information you provide in your Disclosure Document is accurate; but it's another to ensure that what you and your staff say in an effort to attract prospective franchisees does not in any way induce a prospective franchisee to enter into a franchise agreement especially when there are no reasonable grounds for saying what is said.

A small rush of decisions in cases involving employee pranks have come out in the last month or so that highlight potential employer liability. All of these cases involved particularly silly acts, however, you can’t be too careful!

Under new national business names registration legislation, ASIC is now responsible for registering, renewing and administering business names for all Australian businesses. Find out how to access ASIC's new on-line service and what you can use it for ....

At Coleman Greig we regularly receive enquiries and questions regarding trade marks. Unfortunately there appears to be a number of common misconceptions out there regarding trade marks and now might be a good time to address them!

Coleman Greig Lawyers in conjunction with The Hills Shire Council has been committed to raising funds for St. Gabriel’s School since 1997 through our annual Charity Golf Day.

With the start of the new financial year, there are a number of employment law related issues to bear in mind, and get in order if need be, to be well and truly prepared for 2012-13.

The Principals of Coleman Greig are pleased to advise that effective 1 July 2012, the firm will acquire the Parramatta-based property and commercial practice of White & Halbert.

An innovative new practice announced by the Chief Justice of the Supreme Court aims to reduce costs and speed up the litigation process.

The new Practice Note applying to the Equity Division of the Supreme Court now prevents parties “fishing in an enormous pool of documents to see if some minnow, or, for that matter, pike, may be attracted

For many couples and families experiencing separation and divorce, disputes can be resolved far more quickly and cost-effectively by using methods such as mediation and dispute resolution.

For some years we have been recommending to clients that they consider the use of Testamentary Discretionary Trusts when making or reviewing their Wills.

The Personal Property Securities Act (PPSA) and the Register (PPSR) it established, kicked off on 30 January 2012. Under the PPSA, data held on certain registers that had previously recorded security interests in personal property- such as the ASIC register of charges - had to be “migrated” across to the new, national PPS Register.

The introduction on 1 February 2012 of a new category of written contracts for ‘small jobs’ worth between $1001 and $5000 will assist in providing administrative relief to many small businesses undertaking residential building work .

If you haven’t heard of SOPA by now, listen up. The United States has plans to introduce a new Act called SOPA (Stop Online Piracy Act) in an attempt to combat the infringement of copyrighted material that could have serious implications worldwide.

A lot actually hangs on the answer to this question: it is not only about possible liability for employment entitlements. Even if the person is a contractor, you may still bear liability for on costs (such as workers compensation, superannuation and pay roll tax)....

By now, all employers should have in place email and internet policies which deal with acceptable and unacceptable conduct. A social media policy can be an extension of these existing policies, just make sure you have one – as seen in this recent case involving Linfox!

A recent case heard by the Supreme Court of NSW confirmed the rights of parties involved in a dispute to challenge the authenticity of emails – particularly when the email/s in question are being relied upon to build a case by one side.

Many businesses register their trademarks and then tick that task off the ‘to do’ list and forget about it. However, a recent Court decision illustrates the potential dangers of not using your registered marks enough, or using them incorrectly.

The ACCC has warned of a renewed focus on the franchise industry and an increase in the number of random audits they will be conducting. As a franchisor, what does this mean for your business?

Sometimes, Coleman Greig clients who have been served with a Subpoena, but have no direct involvement in the proceedings, call and question their rights and obligations under the legal system. Do you understand your obligations?

Termination of leases can be a complex minefield from both a practical and legal perspective. As a landlord, you need to understand both how to legally terminate a lease, and when to terminate!

Many creditors have experienced the difficulties involved in obtaining payment from debtors through the Court system. Surely it should be a simple matter of collection once the court makes a judgement for the debt owed to you? Maybe not.

Since the introduction of the National Consumer Credit Protection Act, we have found many businesses that rent out equipment or issue hire agreements to individuals are actually unaware of their obligations and lack compliance. Unfortunately, these businesses find out about their obligations when it’s too late!

Don’t risk monetary penalties - recent cases have highlighted the importance of compliance with relevant Privacy Legislation within your business and ensuring your staff members are aware of their obligations.

The national Business Names Register will commence on 28 May 2012. How will it affect your business?

All too often, the skills and values that created wealth in the first place don’t flow through to subsequent generations. So how can you help your children to become better stewards of the family legacy? Coleman Greig Principal Paul Lucas provides valuable insight....

Relationship breakdowns that involve children are often the most emotionally fraught and difficult.Questions concerning the ongoing care and financial support of the children are common – find out where you stand and how you can minimise the risk of future conflict over financial matters.

The outcome of this case, in which an employee accused their employer of discrimination, could have been far more satisfactory (and a lot cheaper) for the employer had they taken some simple steps to follow up on an original complaint!

In this case, the FWA actively encourages employers to follow-through on their disciplinary actions and supported a termination, in part due to the employee’s “truly breathtaking” bad record.

Can a lease become binding before both parties sign the lease? A recent decision in the Supreme Court of NSW (Wayne Edward John Streat v Fantastic Holdings (2011)) illustrates the fact that a lease can become binding even when only one of the parties has signed the document.

The Home Building Amendment Act 2011 is now in force. It amends the Home Building Act 1989, the Home Building Regulation 2004 and the Civil Liability Act 2002.

Retail shop leases commonly provide for occasions where the rent would be changed to the current market rent for the retail shop premises. Where the parties to the lease do not reach agreement on what the actual amount of that current market rent is to be, they can jointly appoint a specialist retail valuer to make that determination.

The Personal Property Securities Act 2009 (PPSA) is now confirmed to commence on 30 January 2012. Set out below is some clarification of some of the more confusing issues raised with us in recent months

From 1 July 2011 Repair Notices must be provided to consumers prior to accepting goods to repair.

From 1 January 2011 a new system of "consumer guarantees" (including acceptable quality, and fitness for a disclosed purpose), with standard conditions applying nation-wide came into force.

New requirements for warranties against defects will come into effect from 1 January 2012.

The new Competition and Consumer Act 2010 (CCA) came into effect on 1 January this year, replacing the Trade Practices Act.

It is crucial that ALL businesses are prepared for the impact of the new single national system for the registration of security interests in personal property. See our check list to determine to what extent your business will be affected.

As we launch into 2011, paid parental leave is a popular topic of conversation around the office water cooler. From 1 January 2011, Australia’s first national paid parental leave scheme will start. But what does this mean for employers?

Part 6 - Parents sometimes have the idea that they would like one of their children to take over the management of the family business from them.

If there’s no money in trust and no security over property, just what rights do practitioners have in the fruits of their labour when a client changes lawyers mid-way through a case?

When co-tenants are involved in a family dispute and an AVO has been made, Section 79 of the new Act (which will come into effect in late 2010) may allow tenancy arrangements to be changed or even terminated – but under what conditions?

How can you ensure your client is treated fairly in the event of a family breakdown and subsequent financial settlement? This article reviews the way in which financial contributions to a relationship are assessed and how you can help your client with their disclosure obligations.

Part 1 - Succession in family business needs consideration of every part of the business and proper planning for the transition of each component of the business that contributed to its success. The first consideration is: Business Leadership.

Part 2 - The first generation owners of businesses started in business for a variety of different reasons and from a variety of differing circumstances. It is not possible to generalise about the first generation family business owner. There are however, some characteristics that we can regard as typical for these businesses.

part 3 - The first generation family business owner sets the example for others to follow. We all have different capabilities and characteristics of behaviour. Those capabilities result from our genes, the manner in which we have been brought up, our schooling, the people with whom we associate.

Part 4 - Choosing a successor for your business doesn’t always mean choosing someone like you or even someone you like. It entails choosing someone who is not only ready for the job but also has the respect of key team members and other stakeholders and be able to guide the company into a planned future.

Part 5 - The issue of succession planning for family businesses is critical. In fact, research shows that more than 65% of family businesses fail in the hands of the second generation, and another 20% fail when the business passes to the third generation.

Most of your life is spent working to build up assets. Making a Will is the only way to ensure that your assets pass to the people that you choose.

It is trite to say that estate planning and business succession planning should be done during your lifetime but it is surprising how many planning opportunities are simply missed.

Debt Recovery Options limited by Bankruptcy Reform

Don’t want to go to Court? Try “Collaborative Family Law” Starting a relationship in a step-family? Some tips to deal with the transition

Clarity in pricing: Trade Practices Act amendments mean the price has to be right! Planning for the future: Protect your estate Identification of Mortgagors Family Court now deals with De Facto relationships Deposit Instalment Clauses in Contracts for Sale: Do they provide adequate protection?

High Court confirms the Family Court’s broad powers in relation to Trusts De Facto Amendments now in force Amendments to Provisions regarding Binding Financial Agreements