Legal Articles

Directions to rectify defective domestic building work

Under the Queensland Building and Construction Commission Act 1991 (Act) the Queensland Building and Construction Commission (QBCC) is empowered to issue to a builder a notice to rectify defective domestic building work.  If a notice is issued to a builder to rectify defective domestic building work, that event is listed on the builder’s licence history.  If the builder fails to comply with the notice, the QBCC may take disciplinary action against the builder and the home owner may be able to make a claim upon the QBCC Home Warranty Insurance scheme. [Read more…]

Top 11 legal tips when selling a technology business

Selling a technology business can be an exciting time for shareholders and directors who have worked hard towards an exit.  Because of this, it’s important for the exit to be as smooth as possible.   Below we set out our top 11 tips for selling a technology business which, if followed, will ensure greater protection for sellers and reduce their risk. [Read more…]

s115A Copyright Act – infringement outside Australia

Section 115A of the Copyright Act 1968 (Cth) came into effect on 27 June 2015 and was amended on 11 December 2018 pursuant to the Copyright Amendment (Online Infringement) Act 2018 (no. 157, 2018) (Online Infringement Act).  The effect of the amendments as described in the Explanatory Memorandum to the Bill were to amend the threshold test from ‘primary purpose’ to ‘primary effect’, add a rebuttable presumption that an alleged ‘online location’ is located outside Australia, to extend the scope to online search engines (Deindexing Orders) and allow the Court to make “more responsive” orders in terms of injunctive relief. [Read more…]

Can meta tags constitute trade mark infringement?

Search engines use a variety of algorithms and methods to determine the relevancy and ranking of websites on the search results page, based on keywords.  Importantly, search engines can refer to a websites ‘meta tags’ to find relevant words to match with search results.  As a result, meta tags have become increasingly important for businesses and their online presence.  However, the case of Accor Australia & New Zealand Hospitality Pty Ltd v Liv Pty Ltd [2015] FCA 554 (Accor Case) highlights the difficulties of meta tags with respect to trade mark infringement. [Read more…]

QBCC Home Warranty Insurance claim exclusions

Part 5 of the Queensland Building and Construction Commission Act 1991 (Act) establishes a statutory insurance scheme, the purpose of which is in certain situations to provide basic assistance to consumers of residential construction work for loss associated with work that is defective or incomplete. [Read more…]

Interpreting release clauses in settlement agreements

Using a settlement agreement to extinguish a legal claim is common practice among most lawyers involved in litigation. These agreements have the benefit of providing certainty to parties and avoiding the costs and risks associated with litigation.  However, the decision in IBM Australia Ltd v State of Queensland [2015] QSC 342 (IBM v Queensland) is a reminder that lawyers need to exercise caution when drafting settlement agreements, and in particular compromise terms such as release clauses. [Read more…]

QBCC Home Warranty Insurance Claims – part 3

Part 5 of the Queensland Building and Construction Commission Act 1991 (Act) establishes a statutory insurance scheme, the purpose of which is in certain situations to provide basic assistance to consumers of residential construction work for loss associated with work that is defective or incomplete.

As part of the building process, the builder pays a premium to the Queensland Building and Construction Commission (QBCC) to insure the residential construction work, the amount of the premium being included as part of the contract price and paid to the QBCC before the residential construction work commences.  However, many consumers of residential construction work are uncertain about the exclusions under the QBCC Home Warranty Insurance scheme. [Read more…]

Division 7A ITTA 1936 (Cth) – compliance & consequences

Division 7 (sections 102V to 109ZE) of the Income Tax Assessment Act 1936 (Cth) (Tax Act) contains specific requirements for advances of moneys and loans between private companies and its shareholders or associates.  Section 109B of the Act describes three (3) classes of payments which will be deemed to be dividends: [Read more…]

What is a section 293 direction?

There are several reasons why a shareholder may require financial information, primarily they are denied access to the ‘accounts’ so as to make informed decision about the company.  The Corporations Act 2001 (Cth) (Act) provides various mechanisms for shareholders to obtain financial and accounting information about a company, to allow them to access full and complete information about the financial circumstances of the company that they hold shares in.  One such mechanism is referred to as a section 293 shareholder direction, which compels companies to provide requested financial reports as defined by section 293. [Read more…]

Director misappropriating funds found to be oppressive

Shareholder oppression usually occurs when a majority shareholder(s) misuses their power to oppress the minority shareholder(s).   The test for “oppression” is an objective one and is contained in Section 232 of the Corporations Act 2001 (Cth) (Act).   For instance, where a director is found to have breached their fiduciary duty because they have misappropriated funds or assets this can be considered as being oppressive conduct.  This was the case in Martin v Australian Squash Club Pty Ltd (1996) 14 ACLC 452 (Martin) when an executive director misappropriated and misused company funds and assets and was held to have breached his fiduciary duties. [Read more…]

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