Managing pre-contractual representations in franchising

The activities of franchisors and franchisees are strongly regulated by Franchising Code of Conduct.  However, the recent decision in Guirguis Pty Ltd & Ors v Michel’s Patisserie System Pty Ltd & Ors [2016] QDC 117 (Guirguis case) serves as a reminder of why franchisors should also take care in managing their pre-contractual representations to potential franchisees. [Read more…]

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 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…]

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…]

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…]

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…]

“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…]

What is a trade secret?

In simple terms, a trade secret is any secret commercial information that provides one business with an advantage over another.  For example, trade secrets have been used by Coco-Cola for decades to ensure that its formula remains secret.

Despite the lack of a settled, legal definition of a “trade secret”, their value is recognised at both law, and in equity.  At law, restraints of trade can be legitimately used in order to prevent the disclosure of trade secrets, or to prevent the use of trade secrets by employees in any subsequent business or employment.  Trade secrets are protected in equity by way of an action for breach of confidence even in the absence of contractual agreements restraining their use.

[Read more…]

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Tel: 07 3221 0013

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