Unfair preferences – the Doctrine of Ultimate Effect

Under section 588FA of the Corporations Act 2001 (Cth), an unfair preference is defined as a transaction, such as payment of an outstanding debt, between a company and a unsecured creditor which results in that unsecured creditor receiving more than it would have received if it had to prove in the winding up of the debtor company.  It is unfair because the payment the debt results in the net value of the assets of the debtor company being reduced, to the detriment of the body of unsecured creditors as a whole. [Read more…]

Workplace Bullying by a Body Corporate

Section 789FA of the Fair Work Act 2009 (the FWA) enables a worker who has been bullied at work to apply to the Fair Work Commission (FWC) for an order to stop the bullying.  For the purposes of the FWA, reasonable management action taken in a reasonable way will not constitute workplace bullying.

A body corporate rarely directly employs workers.  Usually, an onsite care-taking service contractor is engaged (typically a company) to perform on-site duties such as grounds maintenance and the like, those duties normally being discharged by the company’s directors or employees engaged by the company. [Read more…]

Security for legal costs in cross-claims for patent invalidity

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…]

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…]

Dundas Lawyers
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Tel: 07 3221 0013

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