ASIC v Macdonald – have the lessons been forgotten?

The case of Australian Securities and Investments Commission v Macdonald (No 11) [2009] NSWSC 287 (ASIC v Macdonald) decided in the New South Wales Supreme Court, highlights the importance of strict adherence to the requirements of the Corporations Act 2001 (Cth) (Act) when preparing minutes of Directors’ meetings (Board Meetings) for them to be relied upon as evidence in a proceeding. [Read more…]

The Meaning of Personal Information

In the recent case of The Privacy Commissioner v Telstra Corporation Limited [2017] FCAFA 4, the question was raised as to whether the words “personal information” had any bearing on what information an individual could request from an organisation under the Privacy Act 1988 (Cth) (Act). [Read more…]

The Crowd-sourced Funding Bill 2016

On 28 March 2017 the Corporations Amendment (Crowd-sourced Funding) Bill 2016 (Cth) (2016 Bill) received Royal Assent.  Commencing 28 September 2017, the 2016 Bill will amend the Corporations Act 2001 (Cth) (Corps Act) and the Australian Securities and Investment Commission Act 2001 (Cth) (ASIC Act) to introduce a regulatory framework for Crowd Sourced Funding (CSF), also known as Crowdsourcing or Crowdfunding for unlisted public companies.  The 2016 Bill builds upon the CSF framework introduced by the Corporations Amendment (Crowd-sourced Funding) Bill 2015 (Cth) (2015 Bill). [Read more…]

Proposed amendments to the Copyright Act 1968 (Cth)

On 29 March 2017, the Copyright Amendment (Disability Access and Other Measures) Bill 2017 (Bill) was introduced to the Senate.  The Bill proposes to amend the Copyright Act 1968 (Cth) (Act) to allow for new situations where the use of copyright material will not result in an infringement of copyright, and to change the standard terms of copyright duration.  The Bill’s Explanatory Memorandum sets out that these amendments aim to: [Read more…]

Shadow directors and de facto directors

The definition of “director” in section 9 of the Corporations Act 2001 (Cth) (Act), goes beyond directors validly appointed, and includes de facto directors and shadow directors.  This article explores the level of involvement in the affairs of a company that a person must have to be deemed a de facto director or a shadow director. [Read more…]

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…]

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