Notice requirements under a commercial lease

Commercial leases often contain an option for a further term and normally have strict notice requirements about how to exercise the option.  What could go wrong if a lessee fails to comply with the option notice requirements? [Read more…]

De-encryption Bill currently before Joint Committee

The much awaited Telecommunications and other Legislation Amendment (Assistance And Access) De-encryption Bill 2018 (De-encryption Bill) has been referred to the Parliamentary Joint Committee on Intelligence and Security (Joint Committee).  The Joint Committee has allowed three (3) weeks for submissions.  It is a very short time-frame for submissions considering the controversial nature of the Bill.  Submissions close on 12 October 2018 and a hearing will then be held by the Joint Committee one (1) week later.  The De-encryption De-encryption Bill (if passed) amends the Telecommunications Act 1997(Cth) (and various other acts) and has the stated aim of “establishing frameworks for voluntary and mandatory industry assistance to law enforcement and intelligence agencies in relation to encryption technologies via the issuance of technical assistance requests, technical assistance notices and technical capability notices….” [Read more…]

Restraint of trade clauses in commercial contracts

A restraint of trade occurs where one party (Covenantor) agrees with another party (Covenantee) to restrict their liberty in the future to carry on trade with other persons who are not parties to the contract see: Petrofina (Gt Britain) Ltd v Martin [1966] Ch 146 at 180.

Restraints of trade clauses are prima facie void, however, the presumption can be rebutted if the restraint is justified because it is reasonable in the circumstances.    Note that there is a significant divide between restraints in commercial contracts and those in employment contract with the latter being widely accepted as only being enforceable for a far shorter period of time. [Read more…]

The legal relationship of agency

The importance of establishing whether a legal relationship of agency exists, and if so, to what extent, can be critical when ascertaining whether a person had authority to enter into an agreement on behalf of another person or entity.  The precise legal nature of the relationship may be important to the parties if either are attempting to enforce their rights under an agreement between them. [Read more…]

De-encryption laws to make tech giants cooperate with law enforcement

Updated 4 October 2018 – see De-encryption De-encryption Bill currently before Joint Committee

According to the ABC website, in the next few weeks Cyber Security Minister Angus Taylor is poised to present new legislation which once passed will require technology companies and multinationals to assist law enforcement to access encrypted data of “suspected criminals and terrorists”.  Currently, the bill is not yet before parliament but should appear on its website once officially announced.

In February, the government has indicated its plans to tackle criminal use of encryption with the Honourable Peter Dutton MP stating in an address to the National Press Club:

“Law enforcement access to encrypted communications should be on the same basis as telephone and other intercepts,
in which companies provide vital and willing assistance in response to court orders.”
[Read more…]

Shareholders’ right to information

One of the tell tale signs of a shareholders’ dispute occurs when those with the access to information restrict access to it for others.  It’s very common for us to see this.  There are several reasons why a shareholder may require company information, primarily where a minority or oppressed shareholder loses control and is removed as a director.  There may be reasonable suspicions that the company is financially unstable or the conduct is oppressive to its shareholders.  These scenarios mean that a shareholder is not being provided with the full information on whether they are being oppressed.  On its face the aggrieved shareholder may think that little can be done.  This is not the case as the Corporations Act 2001 (Cth) (Act) provides for various mechanism for minority shareholders to obtain relevant information from the company.   [Read more…]

What is an Incorporated Joint Venture?

An incorporated joint venture, also commonly referred to as a corporate joint venture, an equity joint venture or a joint venture company (Incorporated Joint Venture) is a type of joint venture where the participants (Joint Venturers) arrange for the incorporation of a separate legal entity to pursue an agreed business objective.  The Incorporated Joint Venture may acquire assets of the Joint Venturers in exchange for the issuance of securities. [Read more…]

Value shifting in commercial transactions

It seems that everywhere you turn when structuring commercial transactions or when raising capital in Australia, tax issues need to be considered.  “Value shifting” is one such issue. [Read more…]

Can a third party be made to account for a breach of director’s duties?

It is an unfortunate reality that some directors of companies of all sizes engage in conduct that breaches their legal responsibilities.  In circumstances where a Court finds that the conduct of the director breached the standard of care that they owed, the Court has the power to award damages.  What happens, however, where a third party has received a benefit (knowingly or unknowingly) as a result of the director’s breach – can that third party be held accountable? [Read more…]

Tag along rights in shareholders’ agreements

“Tag along rights” are rights that are commonly included in shareholders’ agreements. As the name suggests, tag along rights effectively empower minority shareholders to “tag along” with a majority shareholders’ (Seller) sale of shares to a third party (Third Party).  [Read more…]

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