The usual position in relation to security for costs in disputes before the Federal Court of Australia is that a respondent (including a cross-respondent) may make an application for security for its legal costs to insulate itself if it is successful in defending the allegations made by an applicant against it. What is the situation regarding security for costs where a respondent ‘cross-claims’ for revocation of a patent because it alleges that it is invalid and should never have been granted in the first place? [Read more…]
Is your patent being infringed?
February 9, 2019 by
A patent grants the owner (Patentee) exclusive rights to exploit the patented invention (as defined in the Patents Act 1990 (Cth) (Patents Act)) within Australia. If another party uses the patent without the authorisation of the Patentee, they will infringe. In this article we consider the high level issues to consider when attempting to determine whether a patent has been infringed. [Read more…]
Patent revocation for lack of novelty
January 27, 2019 by
One of the often cited requirements for a patent to be granted, is that the invention as claimed must be ‘novel’ in light of the information of the day (referred to as the prior art and the common general knowledge) (section 18(1)(b)(i) of the Patents Act 1990 (Cth)(Patents Act)). Put simply, if its been done before, chances are that it may lack novelty. Therefore, if a patent, when viewed against the prior art and common general knowledge does not disclose an invention that is novel, it cannot be said to contain the required feature of novelty. [Read more…]
Introduction to patent revocation
January 23, 2019 by
In legal proceedings involving the alleged infringement of a patent, it’s common for the respondent to go on the offensive and attempt to convince the Court that the said patent is invalid. If proven, it necessarily follows there can be no infringement. There is no one section of the Patents Act 1990 (Cth) (Patents Act) that specifically deals with invalidity. In effect invalidity is established by proving that the requirements of validity set out in section 18 of the Patents Act are not made out on the patent in question, or that there are other grounds (such as sections 40 and 138) which the patent does not comply with. [Read more…]
Top ways to avoid a building dispute in Queensland
December 19, 2018 by
From a property owner’s point of view, the vision for the project is finally coming to fruition. From a builder’s point of view, another profit-making job is about to commence……
It is not uncommon for the seeds of a building dispute to already have been sown before a shovel even breaks ground. Observing the following simple pieces of advice can go a long way towards avoiding a building dispute in the first place. [Read more…]
What’s an unfair preference claim?
October 12, 2018 by
You have done the work, the client is happy, you’ve invoiced them and are awaiting payment. You have had a long-standing relationship with the client. They contact you and asks, despite your usual credit terms, if they can pay the invoice off over time. It’s not the first time it has made this request, but they have always come good with payment. You agree and the invoice is eventually paid. Three months later you receive a letter from a liquidator demanding (under threat of legal action) that you pay to them the money you received because the payment was an unfair preference (Unfair Preference)! [Read more…]
Notice requirements under a commercial lease
October 9, 2018 by
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…]
Body Corporate Meetings – proxy votes vs voting using a power of attorney?
September 14, 2018 by
If a lot owner of a body corporate is unable to attend a general meeting, it is not unusual for them to in essence “give” their vote by way of proxy to another lot owner. However there are restrictions on the circumstances in which a proxy vote can be exercised. Pursuant to section 103 of the Body Corporate and Community Management Act 1997 (Act) the regulation module applying to the community titles scheme may provide for, among other things, the way a proxy is appointed, how it can be used and the maximum period of appointment.
What kind of documents can a liquidator get access to and from whom?
September 9, 2018 by
Liquidators have various tools available to locate the assets of a company in liquidation and to trace company monies they suspect may been “siphoned away”. These tools include applying to the Court for the officers of the company and related entities to “deliver up” various documents and for those parties to then submit to public examination before the Court in respect of the company’s examinable affairs. The recent Federal Court decision of Cathro, in the matter of Lidcombe Plastering Services Pty Limited (in liq) [2018] FCA 1138 (Cathro) considered the power to compel a related entity to produce documents relevant to the liquidation of a company prior to a public examination. [Read more…]
Safe Harbour granted to proactive Directors of an insolvent company who are not merely ‘living in hope’
August 15, 2018 by
Amendments to the Corporations Act 2001 (Cth) (Corps Act) introducing the safe harbour insolvency provisions come into effect on 1 July 2018. Under section 588G of the Corps Act a director of a company may be personally liable for debts incurred by the company if at the time the debt is incurred there are reasonable grounds to suspect the company is insolvent. The section 588GA safe harbour provisions aim to encourage directors to remain in control of a business in financial difficulty and to take reasonable steps, outside of a formal insolvency process, to restructure and / or allow it to trade out of its difficulties in anticipation that such action will achieve a better outcome for the company than immediately appointing an administrator or liquidator. The provisions encourage directors to closely monitor the financial position of the business, engage early with financial distress and then actively take steps to either restructure the business or, if that is not possible, to move quickly to formal insolvency. [Read more…]
B.Bus.,MBA.,LL.B.
