Publications

Publications

ICON – Trading Names, Trade Marks and Reputation Risk

“Please be advised the matter surrounding the Opal Tower Homebush was not built by our company. The building was built by a company with a similar trading name. Note the two companies have nothing to do with each other.” This statement appears on the landing page of the website of a Sydney based construction company

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Verbal Contracts – Worth the Paper They are Written On?

Can a verbal promise from a good friend be a binding contract? It depends: “… not every promise, however sincerely made, is legally enforceable”: per Campbell J in the recent Supreme Court of NSW case of Winter v Nemet. This case considered such an issue over a three day hearing and then on appeal. Substantial

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Electronic Conveyancing – The Property World is Morphing

Like most other professions and industries throughout Australia and the world, digital transformation is the norm. Property transactions in Australia are not exempt and are converting (at an accelerating rate) to electronic conveyancing.   What is Electronic Conveyancing? Electronic conveyancing is where the sale of property, including exchange and settlement, is completed on an electronic

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Not so EZY: Employer’s accountants liable for client’s Fair Work Act contraventions

The Full Federal Court (FFC) in EZY Accounting 123 Pty Ltd v Fair Work Ombudsman [2018] FCAFC 134 has upheld a Federal Circuit Court (FCC) decision to fine an accounting firm who performed the payroll and audit function for its client.  The employer client admitted contravening the Fair Work Act 2009 (Cth) (Act) and the

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Appointing a Receiver over an insolvent trustee company’s assets – some practical observations.

We recently acted for a liquidator of an insolvent SME trustee company. The trust deed automatically disqualified the company from being the trustee on its liquidation. Unsurprisingly, no third party stepped up to be appointed the new trustee of an insolvent trust, via the trust deed appointment provisions. Acting cautiously under the current law, for

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Non-disclosure agreements: Are they worth a razoo?

It’s been hard not to have missed the recent controversy over whether Donald Trump can enforce a Non-Disclosure Agreement (NDA) against his alleged former adult entertainment friend – Stephanie Clifford, aka Peggy Peterson, aka Stormy Daniels. Stormy acknowledges that she signed an NDA and that she received a six figure payment under it, but says

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Privacy Laws – compliant? Who? Me?

Do you collect or process “personal information”? If you operate a business that collects “any information relating to an identified or identifiable natural person”, then you are required to comply with privacy laws. In Australia, that means the Privacy Act (1988) (Cth) and the 13 National Privacy Principles, mandated by the Privacy Act. If you

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Good things don’t always come in 3’s: Supreme Court of NSW Decision in Huang & Anor v Ceylan

It is, unfortunately, not an uncommon practice to see home units (and houses for that matter) advertised as having 3 bedrooms, when they were originally approved and constructed as 2 bedroom dwellings.  This practice leaves purchasers especially vulnerable if they have not done their due diligence. In the recent case of Huang & Anor v

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Co-ownership Agreements Tinder for Property – It’s a Match!

Owning your own home in Australia has long been the Great Australian Dream, however it is becoming a distant dream for many Australians. With wage growth close to the inflation rate, and the price of properties booming over recent years, many people can no longer afford to buy property on their own. Start-up “Kohab” launched

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Strata Building Bonds and Inspection Scheme: Will it work, the Experts are Skeptical!

The Strata Building Bond and Inspections Scheme (Scheme) commenced on 1 January 2018 and applies where a developer and builder enter into a contract from 1 January 2018. The stated purpose of the Scheme is to provide a mechanism to resolve building issues quickly and cost effectively and to increase consumer protection for owners in

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Is my contract truly ambiguous?

Is my contract truly ambiguous? Contractual interpretation principles surrounding ambiguity clarified in Cherry v Steele-Park [2017] NSWCA 295 The New South Wales Court of Appeal has recently provided a useful exploration of the authorities in relation to contractual interpretation in the decision of Cherry v Steele-Park [2017] NSWCA 295.  There is a divergence of opinion

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Adjudicators’ Determinations under the Building and Construction Industry Security of Payments Act 1999 (NSW): High Court Decision in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd

The High Court has recently held that an adjudicator’s determination pursuant to payment claims and schedules served in accordance with the Building and Construction Industry Security of Payments Act 1999 (NSW) (Act) may not be appealed on an error of law that is not related to a jurisdictional error. The effect of this decision is

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When does my development consent expire? What is “physical commencement” and why is it important?

“A development consent is a valuable asset. It is a statutory permission that authorises the carrying out of development on land, mostly for economic gain… It adds value to the land. Hence the prospect of a consent lapsing is apt to engender dismay in the holder of the consent.” CJ Preston in para 1 Kinder

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Statutory Demands: What to do about post-judgment interest

A Creditor’s Statutory Demand (CSD) is a formal document which if in the proper form, and is served correctly, requires the company served to either: pay the amount demanded (which must be over $2,000) within 21 calendar days– otherwise the company will be deemed insolvent and could eventually be wound up and a liquidator appointed; or

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Arbitration Clauses: Positives and Pitfalls

We often see commercial agreements with a dispute resolution clause that requires the parties to attend mediation to resolve a dispute and, in the event that mediation fails, directs that the dispute proceed to arbitration – as opposed to Court.   Every agreement should be considered on its merits in deciding whether to include an

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Merry Christmas: There’s a Creditor’s Statutory Demand under your Christmas Tree!

It’s that time of year as businesses prepare to close for a week or two during the Christmas/New Year period.  That shut down period is dangerous for businesses because of a time-critical mechanism within the Corporations Act 2001 (Cth) called a creditor’s statutory demand (CSD).  It is important therefore: to make sure that your registered

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Appealing to the Land & Environment Court

By the time someone reaches the point where they want to appeal to the Land & Environment Court (“L&E Court”), they have usually reached an impasse in the progress of their development application (“DA”).  The setback could be: a refusal; an unviable development consent, possibly because of adverse conditions; or, continued requests for more detailed

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Council hasn’t approved my DA

What next?… For seasoned developers wondering what do if, or when, an impasse is reached with the local council in the assessment of their development application (“DA”), this is unlikely to be a new experience or question.  They are usually well aware of their options.  Often, due to time constraints, some developers take the view

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Thinking about helping your children buy a property? Read this…

   “One consequence of declining housing affordability is that young adults very often need and sometimes receive assistance from parents… The occasion for providing the assistance may be that the young couple is in or about to start a relationship”: Sackville AJA, Chaudhary v Chaudhary. This recent NSW Court of Appeal case involved a parent’s

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Expert Evidence – Admissibility remains a challenge for experts and lawyers  

In the recent case of Rolleston v Insurance Australia Ltd, the NSW Court of Appeal upheld the lower Court’s rejection of a valuer’s opinion on the value of a Mosman residential property. Whilst not making new law, the case provides a useful reminder on the quite stringent requirements for experts’ reports, including the need for

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