On 9 June 2019, amendments to Schedule 2 of the Competition and Consumer Amendment (Australian Consumer Law Review) Regulations 2018 (Cth) (Amendments) came into effect. The Amendments require suppliers of goods and services to use a mandatory wording if they provide a “warranty against defects”. Mandatory wording of such warranties were previously required only for the supply of goods. However, these changes extend the prescribed warranties to situations where there is a supply of services or a supply of both goods and services. [Read more…]
Why you should not engage an unlicensed building contractor
June 26, 2019 by
In Queensland, building work is governed by the Queensland Building and Construction Commission Act 1991 (Act). Under Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Regulation), subject to some qualifications (i.e. design work, plumbing, gas fitting etc), work is not building work (as that term is defined in Schedule 2 to the Act) if it is valued at less than $3,300.00. Pursuant to section 42(1) of the Act, a person can only carry out or undertake to carry out building work if the person holds a contractor’s licence for the appropriate class under the QBCC Act and the Regulation. Building work performed by an unlicensed person is unlawful building work and has significant implications for a person who engages someone who is unlicensed to perform building work. [Read more…]
The running account defence to an unfair preference claim
June 23, 2019 by
You continued to supply a customer goods on credit, notwithstanding that despite payments being made, the customer’s overall level of indebtedness remained basically the same. The customer is then placed into liquidation. You are owed thousands of dollars. Then, to make matters worse, you receive a letter from a liquidator demanding under threat of legal action that you pay to him the money you received on the basis the payments received was an Unfair Preference. [Read more…]
Implications of performing unlicensed building work
June 19, 2019 by
Unlawful building work performed by an unlicensed person has significant implications for the person who performs the unlicensed building work. In Queensland, building work is governed by the Queensland Building and Construction Commission Act 1991 (Act). Under Schedule 1 of the Queensland Building and Construction Commission Regulation 2018 (Regulation), subject to some qualifications (i.e. design work, plumbing, gas fitting etc), work is not building work (as that term is defined in Schedule 2 to the Act) if it is valued at less than $3,300.00. Pursuant to section 42(1) of the Act, a person can only carry out or undertake to carry out building work if the person holds a contractor’s licence for the appropriate class under the QBCC Act and the Regulation. [Read more…]
Unfair preferences and the set-off defence
June 18, 2019 by
Under section 588FA of the Corporations Act 2001 (Cth) (Act) an unfair preference is defined as a transaction, such as payment of an outstanding debt, between a company and an 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 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. One of the rarer defences is the Set-Off to an unfair preference claim. [Read more…]
Defects and completion of construction contract stages
June 14, 2019 by
Standard residential construction contracts entitle a builder upon completion of a nominated stage defined in the contract to submit a payment claim. If the stage payment claim is not paid, the builder has various options available, such as suspension of the building work, referral to mediation and ultimately, termination of the contract. Before terminating a contract in reliance upon non-payment of a stage payment claim, it is imperative the stage relied upon has in fact been completed. Termination of a contract midway through its performance has, for both parties, significant legal and financial implications which can quickly overshadow any initial dispute between them. [Read more…]
Contractual terms can be misleading – Jetstar under fire
June 10, 2019 by
Businesses often make broad sweeping statements, in their agreements and particularly in the terms and conditions of sale presented on their websites purporting to exclude consumer’s rights to warranties, guarantees or remedies. In reality, such declarations can amount to a breach of the Australian Consumer Law (ACL) which recently occurred in relation to Jetstar. [Read more…]
Unfair preferences – the Doctrine of Ultimate Effect
April 4, 2019 by
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
March 27, 2019 by
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
March 25, 2019 by
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…]
B.Bus.,MBA.,LL.B.
