Knowing about legal professional privilege (LPP), when it applies and how it can be protected (and lost) is not something that may be on everyone’s radar on a day-to-day basis; by the time it is, it is usually already too late.

This article looks at a recent decision of the Supreme Court of South Australia concerning LPP and how LPP can be held and treated by more than 1 person: PK v The Salesian Society Inc [2025] SASC 208.

The task of assessing whether a claim may have expired due to the application of a statutory limitation period and how to substantiate a loss claimed if there is a viable claim is not always straightforward.

In the decision of R Lawyers v Mr Daily [2025] HCA 41, the High Court of Australia clarified when a limitation period will start running for professional negligence and the evidence needed to substantiate a claim for loss where negligence has been established in a case involving a binding financial agreement.

Justice Croft of the Supreme Court of Victoria removed a liquidator from the winding up of a company determining he failed to act honestly by settling unfair preference claims with the ATO and SRO without disclosing key information in Re Gemwood Projects Pty Ltd (in liq) [2025] VSC 819.  

In the decision of Leon Cycle Pty Ltd v Hi5 Scooters Pty Ltd and Jamal Raad Raad, Her Honour Judge Burchell held that the Licensing Agreement between Leon Cycle and Hi5 Scooters was not a franchising arrangement for the purposes of the Franchising Code of Conduct.

With the implementation of an updated Franchising Code of Conduct and numerous court decisions on the obligations of franchisors and franchisees, 2025 was a big year in franchising.

We’re recapping the big changes and key takeaways from 2025 that franchisees and franchisors in this article.

The interests of a secured party are not unfailing, and appropriate attention should be given to ensuring that they are placed to receive the best outcome from administration. The extent of this susceptibility was highlighted in the recent Federal Court decision of Jones (Admin) v Realtek Semiconductor Corp Nuheara Ltd (Admins Apptd) (No 1) [2025].

Where an arrangement undermines the entitlements of a secured creditor, consideration should be had to the benefits conferred by the arrangement on other creditors broadly, particularly where the alternative is liquidation.

The recent Federal Court decision in ASIC v Darranda Pty Ltd [2024] FCA 1015 highlights that where a franchisor designs the systems, documents or marketing used by franchisees, it may be held liable for regulatory breaches in its network, even without direct dealings with consumers.

#franchising #franchisorliability #ASIC #RegulatoryCompliance

The 28 August 2025 decision of the Court of Appeal of New South Wales in Netdeen Pty Ltd (t/as GJ Gardner Homes) v Lindfield NSW Pty Ltd[i] highlights several important considerations for franchisees and franchisors alike when changing a business structure.

Franchisors should have consideration to the impact that this may have on their existing contractual obligations. Franchisees need to be aware of whether their existing agreements allow for this possibility and consider this prior to entering into a franchise agreement.

The decision also highlights the importance of clear drafting in contracts, even where there has been ostensible agreement between the parties.

The Federal Court decision in Girchow Enterprises v Ultimate Franchising Group [2023] FCA 420 is a reminder that if you make financial claims about future profits or startup costs without a solid basis, you could be liable for misleading and deceptive conduct under the Australian Consumer Law.

The ACCC has issued penalties to Cash Converters and Mobile Travel Agents for breaching the Franchising Code of Conduct by failing to update required information on the Franchise Disclosure Register.

Post the ASIC civil penalty proceedings against RAMS Financial Group over alleged systemic misconduct in its home loan operations a class action by former franchisees is now seeking to intervene in the ASIC matter, citing overlapping factual issues and concerns over reliance on Westpac’s internal findings.  #franchising #disclosure #franchisor_liability

The Schaper report in December 2023 recommended further evaluation of the merits of replacing the Franchising Code of Conduct with a licensing regime. This recommendation arose after a submission to the review by the Australian Competition and Consumer Commission. Without detail of what a licensing regime may look like there is uncertainty about what any licensing regime may require. The recent case of ASIC v RAMS however provides an illustration of the effect a licensing regime may have on a franchisors. Click here to read more.

#franchising #licensing #franchisor_liability

The language used in a contract can significantly impact its enforceability. Reliance on the incorporation of an obligation to act in good faith will not necessarily result in an outcome sought. This was considered in the recent Supreme Court decision in Beecham Motors Pty Ltd v General Motors Holden Australia NSC Pty Ltd, which provides guidance for those with or considering a franchise agreement and the drafters of franchise agreements. #franchise_agreements #good_faith #franchisee_group_action

On 6 March 2025, Associate Justice Barrett handed down his decision in the matter of Duke Ventures Wellington Street Pty Ltd [2025] VSC 75. In this case, the Court clarified when a debtor can rely on an offsetting claim to set aside a statutory demand in a dispute adjudicated under the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOPA).

#insolvency #statuory_demand  #creditors #securityforpayments

The matter of Ford Kinter & Associates Pty Ltd v Reliance Franchise Partners Pty Ltd (in liq) [2025] FCA 139 emphasises the important role that creditors can play in facilitating asset recovery during insolvency proceedings. It further examines the broad discretionary powers the courts have under section 564 of the Corporations Act 2001 (Cth) (the Act), which enables courts to reward creditors who take on the financial risks of litigation to be prioritised when recovering company property or expenses in a winding up due to the risk assumed by them. In doing so, the court considers the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered.

#insolvency #liquidation #creditors #publicinterest

Withholding information whilst negotiating agreements can amount to misleading and deceptive conduct. However, the recent Supreme Court decision in Sec New Line Pty Ltd v Muffin Break Pty Ltd provides important guidance on when silence will become deceptive, specifically in the context of lease and franchising renewals.

The Federal Court decision of ASIC v PayPal Australia Pty Limited [2024] FCA 762 further clarifies the statutory unfair contract terms regime with respect to standard form contracts and provides another example of ASIC successfully taking action to void an unfair contract term.

Businesses using standard form contracts should review their contracts for potentially unfair contract terms considering recent legislative and common law changes.

#unfaircontractterms #unfair #contract #standardform #ASIC

This paper tracks the legislative development of the unfair contract terms regime, recaps the basic elements and exemptions to the regime’s application and then recounts the historic development of the case law in respect of the regime.

This paper provides a basic outline of the key provisions of the Personal Properties Securities Act 2012 (Cth) (PPSA) and a detailed examination of eight cases adding to our understanding of the application of the PPSA to varying factual scenarios.

In certain circumstances creditors can take direct action against directors of companies in liquidation  to recover insolvent trading losses suffered.

The process for doing so is to first try and obtain the liquidator’s consent and if they are not forthcoming, then take the steps required under subsections 588S and 588T of the Act.

In an previous article discussing the ACCC’s enforcement priorities for 2024-25, we noted that the Australian Competition and Consumer Commission (ACCC) has continued to monitor strict compliance with small business codes of conduct, including the Franchising Code of Conduct (Franchising Code).

In particular, the ACCC had pursued UltraTune, for contempt of Court when Ultratune failed to comply with orders made by the court requiring Ultratune to take specific actions. On 28 January 2025, UltraTune’s appeal was dismissed by the Full Federal Court.

UltraTune’s story serves as an important reminder to ensure active monitoring of business’ compliance with all the obligations including those imposed on them by the law or court order and those that they might voluntarily agree to undertake.