Notice requirements under a commercial lease

Commercial leases often contain an option for a further term and normally have strict notice requirements about how to exercise the option.  What could go wrong if a lessee fails to comply with the option notice requirements? [Read more…]

The legal relationship of agency

The importance of establishing whether a legal relationship of agency exists, and if so, to what extent, can be critical when ascertaining whether a person had authority to enter into an agreement on behalf of another person or entity.  The precise legal nature of the relationship may be important to the parties if either are attempting to enforce their rights under an agreement between them. [Read more…]

Quantification of losses for breach of contract

A breach of contract can broadly be described as the failure to comply with any term of an agreement; some examples include a refusal to perform, incomplete performance, delay or unlawful termination.  Once it has been determined that a breach of contract has in fact occurred, the next question is how to determine the resulting loss and whether it can be recovered from the responsible party.  Whilst there is no hard and fast rule when attempting to quantify losses, there are certain principles which form part of the process of  assessing damages caused by a breach of contract.

[Read more…]

Legal issues of making financial forecasts in business

When a business is seeking to raise capital or advertise as being for sale financial forecasts are often made in a way so as to appeal to the target audience – investors or potential buyers.  In some cases however, the forecasts made do not translate into reality giving rise to potential legal consequences.  As forecasts are indicators often relied used by investors to make decisions on whether or not to invest, statements that are incorrect may amount to misleading and deceptive conduct under the Australian Consumer Law (ACL) (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)) and have potentially serious legal consequences. [Read more…]

De-encryption laws to make tech giants cooperate with law enforcement

Updated 4 October 2018 – see De-encryption De-encryption Bill currently before Joint Committee

According to the ABC website, in the next few weeks Cyber Security Minister Angus Taylor is poised to present new legislation which once passed will require technology companies and multinationals to assist law enforcement to access encrypted data of “suspected criminals and terrorists”.  Currently, the bill is not yet before parliament but should appear on its website once officially announced.

In February, the government has indicated its plans to tackle criminal use of encryption with the Honourable Peter Dutton MP stating in an address to the National Press Club:

“Law enforcement access to encrypted communications should be on the same basis as telephone and other intercepts,
in which companies provide vital and willing assistance in response to court orders.”
[Read more…]

Ipso facto clauses lose effectiveness post 1 July 2018

Standard form termination clauses such as “ipso facto clauses” (Ipso Facto Clauses) will need to be drafted with greater care in commercial contracts entered into after 1 July 2018.  The Treasury Laws Amendment (2017 Enterprise Incentives No 2) Act 2017 (Amending Act) was passed amending the effectiveness of Ipso Facto Clauses that are “self-executing provisions” (Self-executing Provisions).

This legislation also enacted the “safe harbour provisions” (Safe Harbour Provisions), which generally attempts to provide directors with some protection against liability for insolvent trading in certain situations if they are attempting to restructure the business.

[Read more…]

Do beneficiaries have a right to the trust deed?

In Queensland, the statutory rights and obligations of Trustees are contained in the Trusts Act 1973 (Qld)(Trust Act).  The role of the Trustee is fiduciary in nature and as such, there is a duty to act in accordance with both the terms of the deed of trust (Trust Deed) and the common law and statutory duties.  However, the Trust Act does not contain an express provision for a Trustee of a trust to provide a Trust Deed to beneficiaries. As a result, common law provides beneficiaries the right to make such requests to the Trustee.  This article will discuss the common law right of beneficiaries to access a Trust Deed upon request to the Trustee. [Read more…]

Counterclaiming in legal proceedings in Queensland

It is not uncommon for parties to a dispute to each believe that an action lies against the other arising from the same facts.  Where this occurs, and one party (Plaintiff) has commenced proceedings against the other party (Defendant) in Queensland, the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) allows the Defendant to commence their own proceeding against the Plaintiff within the original proceeding, rather than requiring the Defendant to commence a separate legal action.  This is known as a counterclaim.   In this article we consider the nature of a counterclaim and the rules and circumstances that govern its use in proceedings in Queensland Courts. [Read more…]

What is a term sheet?

A term sheet (Term Sheet) is a document that sets out the basic terms and conditions on which parties intend to enter into a commercial agreement.  Term Sheets are generally not intended to create legal relations between the parties but rather to form the basis of further discussions, which may be exclusive for a period of time and on a strictly confidential basis.  Once parties reach consensus on the commercial terms of a Term Sheet, a legally binding contract is then drawn up.

 

[Read more…]

Top 7 common mistakes in commercial contracts

When negotiating the terms of commercial contracts there are many pitfalls even for those of us with significant experience in these matters.  For this reason, we’ve put together what we consider to be the ‘Top 7 common mistakes” we see in commercial contracts. [Read more…]

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