Can you Mislead or Deceive Someone if You Have Honestly Relied on Your Lawyers Advice? A Case Study on ASIC v Retail Employees Superannuation Pty Ltd
The Federal Court of Australia’s judgment in ASIC v Retail Employees Superannuation Pty Ltd highlights that if a corporation honestly relies on advice from their lawyers that may provide reasonable grounds to defend the making of a representation that concerns the present state of affairs.
The Federal Court found that representations made by Retail Employees Superannuation Pty Ltd (REST) regarding their rules and practice were opinions expressed as to the law based on reasonable grounds due to reliance on advice received from their lawyers and other trusted sources. Therefore, the representations made could not amount to misleading or deceptive conduct.
Why it is important to have disclaimers: a lesson learned from Mallonland Pty Ltd v Advanta Seeds Pty Ltd
The Importance of Clear and Formal Documentation by Companies: Lessons from Aurora Australasia Pty Ltd v Hunt Prosperity Pty Ltd
‘Subject to’: why these words can be a trap when contracting if you are not clear about what you intend.
The specific wording of a contract is crucial to its interpretation and may be beneficial or a trap to parties. Many parties fail to understand the implications that the well-known phrase ‘subject to contract’ will have on their agreements. Masters v Cameron (1954) 91 CLR 353 is the leading Australian case which examines the consequences of certain wording on parties to a contract, and whether such wording leads to an enforceable and binding contract.
Sladen Snippet - Consultation process Franchising code of conduct review
Winding up process and considerations for creditors following an unsatisfied statutory demand
The most common basis upon which creditors make an application to wind up a company and appoint liquidators is upon the non-compliance with a Creditor’s Statutory Demand. If the debtor company ignores the Creditor’s Statutory Demand and no payment or compromise is reached then the company is presumed insolvent, paving the way to wind up the company.
This article contains an explanation of the steps required when lodging an application for winding up in these circumstances, as well as some helpful tips to navigate the process effectively.
Bankruptcy: Determining which debts survive or can be recovered from a bankrupt
If you have been declared bankrupt, or are looking to recover debt from an individual or company that has been declared bankrupt, you may be wondering what happens to debts following a declaration of bankruptcy.
This article sets out what debts are and are not recoverable from a bankrupt person, including specific debts which survive bankruptcy and remain recoverable by creditors even after the bankruptcy ends.
Franchising Update: Peak Physique found liable for representations which induced purchase of franchise
On 1 August 2024, the Magistrates Court of Queensland found Peak Physique Franchisor Group Pty Ltd (Peak Physique) engaged in misleading and deceptive conduct and was in breach of section 18 Australian Consumer Law through its conduct which induced the purchase of one of their premises through representations of ongoing support to the franchisee and the profitability of the franchise purchased.
Collective bargaining for franchisees: how to negotiate better terms together without raising competition concerns
ACCC Enforcement and Compliance Priorities for 2024-25: What this means for franchises
ACCC Report on Unfair Contract Terms, Case Update and Franchising Review Report Summary Findings and Recommendation
A Burger with the Lot – ‘Big Jack’ is not deceptively similar to ‘Big Mac’
Is a VSBC certificate valid if there has been no retail lease mediation?
A recent Supreme Court decision has made it clear that there is nothing in the Retail Leases Act that restricts the issue of a certificate by the VSBC until after a mediation has been conducted and the absence of a mediation does not invalidate a certificate. The VSBC can form a view that a mediation is unlikely to resolve a dispute based on the refusal of one party to participate in a proposed mediation and issue a valid certificate so that an aggrieved party can commence proceedings in VCAT.
Advanced Holdings – Full Federal Court reiterates to read the trust deed!
The Full Federal Court decision in Advanced Holdings Pty Limited as Trustee for The Demian Trust v FCT [2021] FCAFC 135 highlights important principles of trust deed interpretation and the limitations of statutory provisions concerning the evidentiary force of company records.
It also serves as a “sobering bookkeeping reminder” to directors of small companies and corporate trustees to keep good records, and as always, read the trust deed!
The introduction of Domestic Building Dispute Resolution Victoria
Sladen Snippet - Overarching obligations and the Court’s discretion to award costs
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.
Sladen Snippet - Lawyer's immunity from suit
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.
The pitfalls of negotiation via email
In the case of Stellard Pty Ltd & Anor v North Queensland Fuel Pty Ltd [2015], 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.
“Treasurer for Sale” case provides example of the operation of Australia’s defamation laws
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.