The legal obligation for Australian businesses to provide refunds

In Australia, the main piece of legislation governing the supply of goods and services is the Competition and Consumer Act 2010 (Cth) (CCA), which incorporates the Australian Consumer Law (ACL) in Schedule 2.  These obligations apply in addition to the terms and conditions by which a business trades.  The CCA regulates the interaction between businesses and consumers and also between businesses.  How the CCA applies to any particular transaction will depend on whether goods or services are supplied to a consumer.[1]  The effect of a transaction being classed as a consumer transaction is that the consumer guarantee provisions in the CCA will apply. [Read more…]

Groundless threats of copyright infringement

It is often argued that intellectual property rights create an imbalance of power that is open to abuse by rights holders.  In an effort to counter this, section 202(1) of the Copyright Act 1968 (Cth) (Act) provides remedies for groundless threats of legal proceedings for copyright infringement.  This article will discuss the elements that define a threat as “groundless” and the remedies available when such a threat is made. [Read more…]

Are legal expenses tax deductible for a start-up?

From 1 July 2015, a newly incorporated company, trust or partnership can immediately deduct a range of professional expenses associated with starting a new business, such as professional, legal and accounting advice.  This change was introduced by the Tax Laws Amendment (Small Business Measures No. 3) Act 2015 (Cth) which amended the Income Tax Assessment Act 1997 (Cth) (ITAA97) and received Royal Assent on 26 August 2015. [Read more…]

Software licences held to be “goods” under ACL

Software licences have been held to be “goods” under the Australian Consumer Law (ACL) by the Federal Court of Australia in Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196.  The case also clarified the position of “choice of law” clauses and highlighted the difficulties of contracting out of ACL consumer guarantees. [Read more…]

Are software developers liable for defects in their software?

The question of whether software developers are (or ought to be) legally liable for bugs, errors, security vulnerabilities, or other defects in the software which they develop, and the extent to which they are (or ought to be) liable for the loss flowing from those defects, is not a new one and has been the subject of significant legal and academic debate since at least the 1980s.  This article considers the liability of software developers in negligence and under the Australian Consumer Law (ACL), and also discusses whether insurance is available to offset these risks for the developer. [Read more…]

ACCC guidance for platform operators

With the advent of sharing economy platforms such as Uber and Airbnb no longer the exclusive realm of millennials, the Australian Competition and Consumer Commission (ACCC) has published a guide for Platform Operators in the Sharing Economy (Guide) to advise of their obligations in complying with Australian competition and consumer protection laws.

The Guide is aimed at operators who run online platforms that facilitate the connection of suppliers of goods and services with consumers who need short-term use of those goods or services. [Read more…]

Legal issues for data loss

It’s horrible for any organisation to contemplate the possibility of data loss.   Organisations collect and create a variety of data that includes personal, confidential and proprietary information (Intellectual Property).  In many instances, loss of this data can be terminal for the organisation.  Losses can be economic and reputational and can be thought of coming from two (2) distinct sources, external or internal.

[Read more…]

Data Breach Bill 2016 – considerations for data security

In recent times, high profile data breaches such as the 2015 Ashley Madison scandal, which saw the names of up to 900,000 Australian users published online, have shown the type of detriment that can be caused when personal information is compromised by a data breach.  Even icons of the Australian retail sector such as Kmart and David Jones have had customer data lost to hackers in 2015.  One year prior, Optus reported three (3) separate data breaches, with the security of the personal information of over 300,000 of its customers being compromised.  These are just a few instances which highlight the magnitude of the issue in Australia. [Read more…]

“Approved by ASIC” – a $20,000 problem…

Whilst the financial services sector seems to have embraced the innovation economy, a recent case shows just how important it is for Australian Financial Services Licence, (AFS) holders to take care when advertising their products.

A recent case brought by the Australian Securities and Investments Commission, (ASIC) is a reminder that when advertising investment schemes precise language needs to be used.

[Read more…]

Contracting with Minors – is it even possible?

In the innovation economy it is becoming more prevalent for individuals aged less than eighteen (18) years (Minors) to seek to build enterprises.  From time to time we are asked to consider whether a client can contract with a Minor.

The law in Australia[1] and Queensland[2] states that a Minor is someone who has yet to reach the age of majority, (being eighteen (18) years).  In Australia, at common law and in statute, the general rule is that a contract with a Minor is void except in limited circumstances.[3]

[Read more…]

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Tel: 07 3221 0013

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