Use of a competitor’s confidential information

Many businesses try to increase market share by employing a competitor’s member of staff who may bring with them relationships and information acquired over the years.  Employees owe fiduciary duties to their employers meaning, among other things, that an employee cannot make a personal gain by using confidential information acquired in the course of their employment.  If an employee makes a personal gain by using their employer’s confidential information, the employer may be entitled to an account of profits, meaning the employee must pay the employer the amount of profit made as a result of the breach. [Read more…]

Unfair preferences and unperfected security interests

Take the scenario where your company has supplied a customer with goods on credit.  The standard terms and conditions of supply grant your company security over the goods supplied until they are paid for.  In order for that security to be perfected, the interest granted needed to be registered on the Personal Property Security Register (PPSR).  If for example, the interest was not registered or if it was, it was invalid for technical reasons then your company may be at risk. [Read more…]

Is your patent being infringed?

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…]

Patents and the thresholds for registration

A patent provides exclusive rights during its term to exploit the patented invention.  In Australia the Patents Act 1990 (Cth) (Patents Act) protects intellectual effort by granting exclusive rights, during the term of the patent, to exploit an invention and to authorise other persons to exploit it.  The owner is entitled to defend the patent against infringement from third parties in the patent area – which in the case of Australia is the Commonwealth of Australia – during the term of the patent. [Read more…]

Introduction to patent revocation

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…]

What’s an unfair preference claim?

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…]

What kind of documents can a liquidator get access to and from whom?

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’

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…]

Implications of non-compliance with the Building and Construction Commission Act (QLD) 1991

At common law there is no requirement for an enforceable contract to be in writing or for it to be accepted in the same way.  It is not uncommon for a contract to be wholly oral, or even partly written and partly oral.  Similarly, acceptance or entry into a contract (be it written, oral, or partly written and partly oral) does not have to be in writing but can be by conduct which evidences acceptance of the contractual offer made.

A simple example is a request for a quote to supply “widgets”, the supplier says they can supply the widgets but requires a 10% deposit and the buyer pays the deposit.  The buyer may not have spoken words to the effect that the quoted price has been accepted, but the conduct in paying the deposit evidences acceptance.  [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…]

Dundas Lawyers
Street Address Suite 12, Level 9, 320 Adelaide Street Brisbane QLD 4001

Tel: 07 3221 0013

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