In May 2015, the Victorian Auditor-General’s Office produced a report which was titled ‘Victoria’s Consumer Protection Framework for Building Construction’. The report was highly critical of the level of protection given to consumers in the domestic building space.
The Civil Procedure Act 2010 (Act) provides the Court with a relatively broad power to make orders in respect of a person that has breached any overarching obligation in the Act. In particular, section 29 of the Act gives the Court the discretion to sanction parties and/or lawyers by making costs orders against them. Yara Australia Pty Ltd v Oswal (Yara) is one of the most publicised cases to examine the scope of the Court’s discretion under section 29 of the Act.
Australia has for a long time been one of the only common law countries to enshrine a lawyer’s immunity from suit. The common law principle provides lawyers with an immunity from any claim made against them for negligence arising out of their conduct of a Court case and/or work undertaken outside of Court that results in a decision affecting the conduct of the case in Court.
In the case of Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd , the Queensland Supreme Court recently held that negotiations via a chain of emails resulted in a binding contract, despite the email communication stating that the terms of agreement were subject to a signed contract. The judgment serves as a warning to those involved in the negotiation of a contract via email correspondence.
The recent case of Hockey v Fairfax Media Publications Pty Ltd provides an interesting example of the application of Australia’s defamation laws to social media publications and matters of public interest.
Treasurer, Joe Hockey brought a defamation claim against three newspaper publishers in regards to articles published on 5 May 2014 in the Sydney Morning Herald, The Age, The Canberra Times and online platforms controlled by those newspapers. The articles detailed the operations of a club, the North Sydney Forum and its connection to the Liberal Party. The articles said that through the North Sydney Forum, Mr Hockey was providing "privileged access" to a select group in return for donations to the Liberal Party without full disclosure to the election funding authorities. The words "Treasurer for Sale" or "Treasurer Hockey for Sale" were prominent in the articles. Although critical of the fundraising activities, the articles included some balancing comments and stated that the fundraising activities were legal.
The unfair contract provisions under the Australian Consumer Law (ACL) provide that terms in “standard form” contracts that are “unfair” under the legislation can be declared void. The provisions apply to contracts for the supply of goods or services or a sale or grant of an interest in land for personal, domestic or household use or consumption. There are similar provisions in the Australian Securities and Investments Commission Act 2001 applying to the sale of financial products and services.
When served with a statutory demand a company has 21 days to pay the debt, negotiate an outcome or apply to have the statutory demand set aside. Upon the expiration of 21 days the company is deemed insolvent and an application can be made to wind it up.
Following this expiration date, the company cannot make an application to set aside the statutory demand, even if it has grounds to do so. Instead, it has to oppose the winding up application if it is to avoid being wound up. The most common ground for setting aside a statutory demand is that the debt is in dispute.
Schools collect and receive personal and sensitive information on a daily basis. What are the legal requirements for managing and using this data?
Much of the personal and sensitive information collected by schools is, of course, essential to their day-to-day running.
This information can relate to students, parents and guardians, job applicants, staff members, volunteers and contractors, and others who come into contact with the school.
Following significant changes to the Privacy Act 1988 (Act), which took effect from 12 March 2014, schools need to consider how they use and manage such information, so as to avoid significant penalties.
On 23 April 2015, the Supreme Court ordered a party who lodged a caveat without proper grounds to pay the other party’s costs on an indemnity basis. The defendant lodged a caveat on the title of a property claiming an interest pursuant to a purchaser’s contract.
The plaintiff landowner stated that he did not enter into any contract with the defendant and moreover had never met the defendant or had any dealings with the defendant. The Court ordered that the defendant pay the plaintiff’s costs on an indemnity basis because the Court inferred that the defendant, at no time, had any valid basis upon which he could claim a caveat over the property.
The President of the Victorian Civil Administrative Tribunal (VCAT) issued an advisory opinion on 1 May 2015, responding to the Victorian Small Business Commissioner’s request as to whether a landlord of commercial premises can pass on the costs of Essential Safety Measures (ESM) and certain repair and maintenance obligations for retail premises to tenants. Measures prescribed by building law for safety and fire protection are covered by the ESM.
Directors are required to act in the best interests of the company, and to fulfil this duty they must avoid conflicts between their own interests and the interests of the company. As a recent case illustrates, a failure to avoid perceived conflicts can lead to disputes with shareholders.
In the case of Hart Security Australia Pty Ltd v Boucousis & Ors, Hart Security Australia Pty Ltd’s (HSA) majority shareholders, the Hart Group, alleged that HSA’s sole director, Christian Boucousis breached his duty to avoid conflicts of interest.
Sladen Legal is delighted to announce the appointments of Leneen Forde and Louise Houlihan (formerly partners of Cornwall Stodart Lawyers) as principals of the firm.
Louise is joined by senior associate, Jane O’Brien, and associate, Joanna Shields (also formerly of Cornwall Stodart Lawyers) and together they will strengthen Sladen Legal’s existing Employment, Industrial Relations and Occupational Health and Safety team.
Leneen has joined the existing litigation group and new recruit, Lawyer, Andrew Blyth, forming Sladen Legal’s new Commercial Disputes team.
People are generally aware of the risk of personal liability as a director. For example, directors can find themselves personally liable for debts to employees, for tax debts and penalties owed to the Australian Tax Office or for breaches of The Corporations Act 2001 ("the Act").
However, the Act itself provides little guidance or limitation in defining who is a director. A director may be anyone who acts in a position of a director, or someone who gives instructions or expresses wishes and the directors of the company are accustomed to act in accordance with those instructions or wishes. The result is that a trusted company advisor can, unwittingly, become liable as if they were a formally-appointed director.
Discretionary trusts are commonly understood to be efficient structures for asset protection and tax minimisation, and are widely used in modern-day business. What isn’t so well understood are the obligations of trustees in administering trusts, particularly with regard to providing reasons for their decisions to beneficiaries.
On 27 October 2014 the Coroner’s Court of Victoria delivered its finding into the inquest on the death of Kyle Vassil. The deceased was a 12 year old student who, on day one of a school camp, drowned in a dam a few meters from shore. Kyle was a competent swimmer who was swimming with other class members in the presence of supervising teachers and young camp leaders when he drowned. The circumstances surrounding the death were tragic and no doubt traumatic for all persons involved. The purpose of the Coronial investigation was to ascertain, if possible, the cause of death and the circumstances in which the death occurred.
Many small to medium sized businesses face disputes between shareholders, who can often be family members. These shareholder disputes can be very expensive to resolve and typically take the form of “oppression” claims commenced in the Supreme Court of Victoria, under the provisions of s 233 of the Corporations Act 2001 (Cth). Although individual disputes differ, they all have in common allegations that the affairs of a company have been conducted in an oppressive manner.
The Supreme Court of Western Australia recently found a director personally liable for misleading and deceptive conduct by reason of the director signing a Letter of Offer on behalf of the company, which contained certain representations. While the case dealt with provisions of the Fair Trading Act 1987 (WA), both the Fair Trading Act 1999 (Vic) and the Australian Consumer Law have equivalent provisions.