Commercial Law

My client poached my software developers – what can I do?

Imagine this – it’s taken you almost a decade, you’ve created a successful software development business with many happy long-term clients, a stable team and a great reputation.  More recently you’ve even created a funky new millennial style brand!  One day an employee resigns and the next week another one resigns.   The following week your biggest client breaks their long-term engagement with you and then another one of your team resigns!   You get suspicious, do some investigations and discover the former employees are working in-house for your ex-client!

It is not uncommon for clients (Clients) of professional service businesses (Service Provider) to poach the employees of the Service Provider.  The software development sector is a prime example where this occurs. [Read more…]

Force majeure in a major pandemic

To say the world has been turned upside down is all but literally true in many respects.  Where there is the slightest sneeze of Covid-19, governments have made shut down decisions that that have impacted the ability of businesses to operate and perform their contractual obligations.

A feverous question is whether COVID-19 an event of force majeure and does it relieve the affected party from its obligations?  Below we set out the issues. [Read more…]

Marketplace terms and conditions – legal issues

A marketplace platform is great for doing online business and connecting service providers and customers. Notable marketplaces are Airtasker, eBay and Amazon, however marketplaces can be used by businesses looking to facilitate human connections between people, such as LinkedIn.

Whatever the purpose of the marketplace, platform operators need to have a set of terms and conditions in place which ringfence the platform operator from certain liabilities and seek to ensure that most issues between users are matters between them, and not the platform operator.  Below we outline some of the essential terms that a marketplace terms and conditions should consider. [Read more…]

Dark fibre agreements for telcos

Dark fibre refers to access to ‘unlit’ (unused) telecommunications fibre.  Generally, large telecommunications carriers and government utilities (Supplier) have dark fibre networks laid out that can be available to carriage service providers (CSP’s) to access to scale up their network.  Below we set out key elements of dark fibre and corresponding issues in telecommunications service agreements between CSP’s and their business end users (End User). [Read more…]

Software as a Service agreements revisited

Offering software as a cloud-base software solution is important in this ever-increasing cloudy environment.  In a previous article we discussed the legal considerations for those commercialising a software as a service agreement (SaaS Agreement) as a business model.  Below we revisit SaaS Agreements and set out key issues to consider when going to market. [Read more…]

Director’s identification numbers to become a reality

On 12th June 2020, the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 introduced the requirement for all Australian company directors to have a “Director Identification Number” (DIN).  The DIN will become a single identifier for each director across all of their office holdings with the true identity of each director is verified and is consistent across of ASIC’s corporate records.   The scheme will ultimately applies to Australian body corporates, Aboriginal and Torres Strait Islander corporations, and registered foreign companies. [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…]

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…]

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…]

The new business as usual in 2020!

It’s perhaps an understatement to say that the last few for Australian business has been unprecedented.  How can any business plan adequately consider and cater for a global pandemic and mass business shutdowns?  Extraordinary seems to be the new business as usual (BAU) in 2020! [Read more…]

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