Commercial Law

Deal fatigue in business transactions

Deal fatigue is very common in commercial transactions in Australia because of the complexity of the law and the sheer volume of documentation that’s often required.  An unfortunate consequence can be that benefit of entering into the deal in the first place can be watered down to the extent that the deal becomes unpalatable.   This article will discuss the symptoms of deal fatigue and offer some tips on avoiding it. [Read more…]

Transfer duty exemption for small business restructures

On 9 October 2020, the Queensland Commissioner of State Revenue (Commissioner) issued Public Ruling DA000.16.1 (Ruling) which outlines new transfer duty exemptions under the Duties Act 2001 (Qld) (Act) available to eligible small businesses undergoing a restructuring.   The Ruling stems from a public announcement made by Queensland Treasurer Cameron Dick on 7 September 2020. [Read more…]

Franchising Code changes closer to fruition

In November 2020, the Australian Government Department of Industry, Science, Energy and Resources (Government) released its hotly anticipated Exposure Draft proposing amendments to the Franchising Code of Conduct (Code).  The proposed amendments seek to implement the commitments the Government made in August 2020 in response to the Parliamentary Joint Committee’s March 2019 Fairness in Franchising Report (Franchising Report).  The Franchising Report identified a range of regulatory matters to be addressed in the franchising sector. [Read more…]

Changes to monetary threshold for consumer contracts

For businesses that provide goods or services to non-consumers, the recent Treasury Laws Amendment (Acquisition as Consumer – Financial Thresholds) Regulations 2020 (Amendment) has the effect of widening the scope of the consumer guarantees regime under the Australian Consumer Law (ACL).  This means that, as of 1 July 2021, contracts that were not previously subject to the consumer guarantee protections (because the value of goods or services was less than $40,000) will be captured under the new regime. [Read more…]

Shareholders’ agreements & deadlock clauses

One of the most important issues to be addressed by a Shareholders’ Agreement is what happens where the directors or shareholders cannot agree and a deadlock arises.  In cases where voting of Directors of a board is proportional to the shareholding represented by the appointed director, or there can be a deadlock caused by “one vote, one director” care needs to be taken to ensure that control can be exercised by addressing the deadlock issue.  Of course the deadlock can also be between shareholders. [Read more…]

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…]

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