What is an injunction?

An injunction in its simplest form is a Court order directing a person or entity to do a specific thing (Mandatory Injunction) or, more commonly, to not do a specific thing (Prohibitory Injunction).  Whilst an injunction in itself can amount to final relief in a matter, it is generally sought on an interlocutory basis (Interlocutory Injunction) which is where a temporary remedy is sought to maintain the status quo until the larger matter can be heard.  If a temporary order is granted it will generally become permanent if the applicant is successful in the larger claim. [Read more…]

Shareholders’ right to information

One of the tell tale signs of a shareholders’ dispute occurs when those with the access to information restrict access to it for others.  It’s very common for us to see this.  There are several reasons why a shareholder may require company information, primarily where a minority or oppressed shareholder loses control and is removed as a director.  There may be reasonable suspicions that the company is financially unstable or the conduct is oppressive to its shareholders.  These scenarios mean that a shareholder is not being provided with the full information on whether they are being oppressed.  On its face the aggrieved shareholder may think that little can be done.  This is not the case as the Corporations Act 2001 (Cth) (Act) provides for various mechanism for minority shareholders to obtain relevant information from the company.   [Read more…]

Notifiable Data Breach Scheme commences 23 Feb 2018

As of 23 February 2018 a new notifiable data breach scheme (Scheme) will be enacted through legislation amending the Privacy Act 1988 (Cth) (Privacy Act) making it mandatory for certain entities to notify affected individuals about eligible data breaches. [Read more…]

Is your liquidated damages clause really a penalty?

It is common for drafters of liquidated damages clauses in commercial contracts to run a fine line between a genuine pre-estimate of damages and a penalty.  The case of Paciocco v Australia and New Zealand Banking Group Limited [2014] FCA 35 (Paciocco) provides some guidance on when a liquidated damages clause can be enforced. [Read more…]

When is a company an Australian resident for tax purposes?

A critical component for any person operating a business is understanding the laws regarding taxation.  While the general provisions for taxation, such as the company tax rate, are relatively well known, complexities can arise where companies are unsure whether or not they are based within Australia, and are therefore subject to Australian taxation laws.  In this article, we consider what it means to be resident in Australia under the Income Tax Assessment Act 1936 (Cth)(Tax Act). [Read more…]

Can you infringe a trade mark by exporting a product?

A trade mark is a sign used to distinguish goods or services from other similar goods or services, generally to associate that good or service with a brand.  Trade mark signs are a valuable form of intellectual property as they allow consumer to quickly and easily associate products with their favourite brands.  In Australia, the Trade Marks Act 1995 (Cth) (Trade Marks Act) provides protection for the owners of registered trade marks.  In this article, we consider whether a person infringes a trade mark by manufacturing a good to sell overseas rather than in Australia – does the Trade Marks Act protect the Australian trade mark owner? [Read more…]

Loans from Directors – can they be recalled at will?

It’s not uncommon for Directors or family members to loan money to a proprietary limited company which they are on the board of or where they are related to the major shareholders.  In most of these cases the Director is also a representative of the shareholder.  In a lot of cases, there is no express written terms of the loan and where there are multiple directors that represent all equity holders, they have all contributed funds equally.  Subsequently the question often arises as to whether or not the loan is repayable on demand. [Read more…]

Avoiding liability for resale price maintenance

It was held in Australian Competition and Consumer Commission v Mitsubishi Electric Australia Pty Ltd [2013] FCA 1413 (ACCC v Mitsubishi) that resale price maintenance (RPM) refers broadly to conduct of suppliers in attempting to induce distributors or resellers of their goods not to resell them at a price less than that which is prescribed by the supplier.  Section 48 of the Competition and Consumer Act 2010 (Cth) (Act) states that: [Read more…]

Resale price maintenance

Businesses (Suppliers) that sell their goods via distribution networks (Distributors), who in turn sell them to third party consumers need to take care to ensure that they do not engage in conduct amounting to resale price maintenance.  In Australia, this method of ‘resale’ and ‘resale price maintenance’ is subject to the law imposed by the Competition and Consumer Act 2010 (Cth) (Act). [Read more…]

What is a partly-paid share?

It is common to hear people talk about owning shares or equity in a company but what does that actually mean?  Simply put, a share (sometimes referred to as equity in investment settings) is a portion of ownership of a company.  By acquiring shares in a company, the person becomes a member (commonly referred to as a ‘shareholder’) of the company, thereby granting them benefits and rights associated with the class of share that they subscribe for.  These rights can include the right to vote on issues relating to the company and to a distribution of profits (commonly referred to as dividends).  Generally, when people subscribe for shares, they pay the full price of the share upfront, however, it is possible to receive a share without paying the full purchase price – these shares are known as partly-paid shares. [Read more…]

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Tel: 07 3221 0013

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