Civil litigation is a costly and technical process which requires careful compliance with the legislative and rules of the respective Court. In contrast it also is akin to a game of chess as each party to the proceedings does now know the others strategy. In Queensland, the predominant legislation which governs how litigation is to be conducted is contained in the Uniform Civil Procedure Rules 1999(Qld)(UCPR). There are of course various practice notes and rules prescribed by the respective Court and case law which needs to be complied with depending on the circumstances and the Court. [Read more…]
Termination for incomplete construction work
September 3, 2019 by
The recent decision in Hopper & Anor v Queensland Building and Construction Commission & Anor (No 2) [2019] 212 illustrates that parties to residential construction contracts need to be very careful when purporting to terminate a residential building work contract because of incomplete works. [Read more…]
Company money is for company purposes
September 3, 2019 by
In order to properly discharge their obligations to a company which they are appointed, directors must be satisfied that they are using company money for ‘proper purposes’. By treating the company interests as their own interests they may be in breach of their fiduciary duties and engaging in conduct that would be oppressive to the rights of shareholders. This article will explore the principles that underpin when it is appropriate for company funds to be used. In short, company money must only be used for company purposes. [Read more…]
Implied contracts formed post term
August 26, 2019 by
It is not uncommon, where good business relationships exist, for the parties to continue to work together after the expiry of a fixed term contract (Expired Contract). This typically occurs where there is a fixed term for the agreement and that termination date comes and passes. While it is great to form such good business relationships, contracts are there for a purpose and there are no guarantees that good business relationships will persist.
So what is the nature of the contractual relationship between the parties in such circumstances?
A bet or a game? The Lottoland case
August 22, 2019 by
On 16 August 2019, the Supreme Court of New South Wales (Supreme Court) ruled in favour of the plaintiff, Lottoland Australia Pty Ltd ACN 602 590 429 (Lottoland), in its action against the Australian Communications and Media Authority (ACMA) for their investigative findings against them stating their online products were in contravention of the relevant legislation: Lottoland Australia Pty Ltd v Australian Communications and Media Authority [2019] NSWSC 1041. [Read more…]
Changes to ACL – suppliers of services to use compulsory wording
August 14, 2019 by
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…]
B.Bus.,MBA.,LL.B.
