Litigation & Disputes

Categories of discovery – Federal Court

On 1 August 2011 the Federal Court of Australia (Federal Court) adopted the Federal Court Rules 2011 (Cth) (Rules) and its revised regime for discovery.  The Federal Court does not require parties to provide disclosure as a matter of course.  Instead, if a party wishes to receive documents from another party (or a third party), they must seek the Court’s permission.  This process in the Federal Court of Australia is known as discovery.  The Rules are to be read in conjunction with the relevant Federal Court practice notes, particularly Central Practice Note: National Court Framework and Case Management (CPN-1) and Intellectual Property Practice Note (IP-1).  In this article, we consider the process of seeking discovery of documents by categories in a matter before the Federal Court. [Read more…]

Shareholders’ agreements & deadlock clauses

One of the most important issues to be addressed by a Shareholders’ Agreement is what happens where the directors or shareholders cannot agree and a deadlock arises.  In cases where voting of Directors of a board is proportional to the shareholding represented by the appointed director, or there can be a deadlock caused by “one vote, one director” care needs to be taken to ensure that control can be exercised by addressing the deadlock issue.  Of course the deadlock can also be between shareholders. [Read more…]

Website blocking orders – what has to be proven?

Section 115A of the Copyright Act 1968 (Cth) came into effect on 27 June 2015 and was amended on 11 December 2018 by the Copyright Amendment (Online Infringement) Act 2018 (no. 157, 2018) (Online Infringement Act).   The amendments were considered in the case of Australasian Performing Right Association Ltd v Telstra Corporation Ltd [2019] FCA 751 (APRA) which was the first case heard after the 2018 amendments where Justice Perram revisited the factors relevant in determining whether to not to make the orders pursuant to the amended section 115A of the Copyright Act 1968 (Cth) (Act). [Read more…]

When to complain about defective domestic building work

The Queensland Building and Construction Commission Act 1991 (Qld) (Act) provides key requirements and time limitations for dealing with or rectifying defective domestic building work.  The recent decision of MacFarlane v Queensland Building and Construction Commission [2019] QCAT 408 (MacFarlane) illustrates the impact of failing to comply with the time frames as they apply to defective building work. [Read more…]

Directions to rectify defective domestic building work

Under the Queensland Building and Construction Commission Act 1991 (Act) the Queensland Building and Construction Commission (QBCC) is empowered to issue to a builder a notice to rectify defective domestic building work.  If a notice is issued to a builder to rectify defective domestic building work, that event is listed on the builder’s licence history.  If the builder fails to comply with the notice, the QBCC may take disciplinary action against the builder and the home owner may be able to make a claim upon the QBCC Home Warranty Insurance scheme. [Read more…]

s115A Copyright Act – infringement outside Australia

Section 115A of the Copyright Act 1968 (Cth) came into effect on 27 June 2015 and was amended on 11 December 2018 pursuant to the Copyright Amendment (Online Infringement) Act 2018 (no. 157, 2018) (Online Infringement Act).  The effect of the amendments as described in the Explanatory Memorandum to the Bill were to amend the threshold test from ‘primary purpose’ to ‘primary effect’, add a rebuttable presumption that an alleged ‘online location’ is located outside Australia, to extend the scope to online search engines (Deindexing Orders) and allow the Court to make “more responsive” orders in terms of injunctive relief. [Read more…]

QBCC Home Warranty Insurance claim exclusions

Part 5 of the Queensland Building and Construction Commission Act 1991 (Act) establishes a statutory insurance scheme, the purpose of which is in certain situations to provide basic assistance to consumers of residential construction work for loss associated with work that is defective or incomplete. [Read more…]

Interpreting release clauses in settlement agreements

Using a settlement agreement to extinguish a legal claim is common practice among most lawyers involved in litigation. These agreements have the benefit of providing certainty to parties and avoiding the costs and risks associated with litigation.  However, the decision in IBM Australia Ltd v State of Queensland [2015] QSC 342 (IBM v Queensland) is a reminder that lawyers need to exercise caution when drafting settlement agreements, and in particular compromise terms such as release clauses. [Read more…]

QBCC Home Warranty Insurance Claims – part 3

Part 5 of the Queensland Building and Construction Commission Act 1991 (Act) establishes a statutory insurance scheme, the purpose of which is in certain situations to provide basic assistance to consumers of residential construction work for loss associated with work that is defective or incomplete.

As part of the building process, the builder pays a premium to the Queensland Building and Construction Commission (QBCC) to insure the residential construction work, the amount of the premium being included as part of the contract price and paid to the QBCC before the residential construction work commences.  However, many consumers of residential construction work are uncertain about the exclusions under the QBCC Home Warranty Insurance scheme. [Read more…]

Negligence claims in domestic building disputes

An earlier article by Dundas Lawyers Gold Coast Pty Ltd looked at the need for domestic building contracts to confirm with the provisions of either section 13 or 14 (as the case may be) of Schedule 1B to the Queensland Building and Construction Commission Act (Qld) 1991 (QBCC Act) in order for a party to be able to enforce the contract.  In summary, if a domestic building contract does not comply with the requirements of the QBCC Act, it is not enforceable.

While non-compliance more commonly creates difficulties for a builder trying to recover money claimed for building work performed, homeowners can also encounter difficulties when confronted with incomplete or defective building work performed under a non-compliant contract, as illustrated in the case of Cerda v Jacob [2020] QCATA 57 (Cerda).   [Read more…]

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