Insights
Commercial leases under strain as emergency protections roll back
State and territory Governments throughout Australia responded to the economic downturn wrought by the COVID-19 pandemic by allowing temporary relief to commercial tenants from their rental and trading obligations last year. Yet as the country and the economy begin to recover, this measure is slated to end abruptly. Commercial property holders looking to regain the ability to draw rental income from their investments...
Security of Payment in Construction
Over the last decade, security of payment legislation has been introduced in all Australian jurisdictions as follows: NSW: The Building and Construction Industry Security of Payment Act 1999 VIC: The Building and Construction Industry Security of Payment Act 2002 WA: The Construction Contracts Act 2004 NT: Construction Contracts (Security of Payments) Act 2004 SA: The Building and Construction Industry Security of Payment...
Balancing the risks of new technology: The intersection of technology, risk management, operations and governance
Adopting new technology has risks. Not adopting new technology has risks. How are you balancing them? Leading governance professionals around the world are grappling with how to balance these questions. New perspectives are revealed inside a new LexisNexis whitepaper, ‘ How technology is rewriting the risk management landscape, and how to govern the new opportunities and risks presented ’. Read the whitepaper During...
Clean energy and emissions reduction investments in 2021-22 Budget
The Morrison Government has pledged nearly $1.8 billion in energy and emissions reductions in recent weeks, an investment that is expected to form a plank in the upcoming May Budget. The announcements were made in the lead up to the virtual Leaders’ Climate Summit, convened by US President Joe Biden, and held on 22-23 April. On his first day in office, US President Biden re-established the US’ commitment to the Paris...
Context Switching: The Bane of Lawyers
Today’s lawyer must contend with a wide variety of distractions. Context switching, in particular, is mentioned time and time again as one of the most hated time sappers. Carrying out legal work on computers and other internet connected devices brings valuable efficiencies for law firms, not least fast client communication and effortless access to relevant legal intelligence. However, the seemingly never-ending stream...
Electronic signing, virtual meetings, and continuous disclosure: the current state of play and progress on permanent reform
Australian companies can continue to enjoy the current flexibility in using technology to sign documents and hold meetings, as the existing temporary relief measures remain in effect until 31 March 2022. Additionally, significant permanent reforms to continuous disclosure became effective on 14 August 2021, enabling companies to balance appropriate disclosure to the market against ensuring they can confidently release...
The Family Court merger: What’s happening?
Legislation effective 1 September will substantially change the courts that administer family law. Broadly speaking, the substantive law will not change, although there will be changes of practice and procedure. The legislation Two Acts are involved, the Federal Circuit and Family Court of Australia Act 2021 (the ‘main Act’) and the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional...
Buried Treasure: The Opportunity of Data and Legal Analytics
The foundations on which law firms and organisations have operated successfully across the globe for many years are shifting at a fast pace. Clients are facing business changes and transformation like never before – and the legal market needs to not only keep up, but also lead the way, to assist clients and maximise business and productivity opportunities. Some of the questions facing the industry include - “Where do...
How corporate transactions will become easier by law, pending reform
Business as usual disruptions aside, the COVID-19 pandemic has thrown significant challenges in the face of Australian companies and their capacity for compliant corporate transactions and daily practices. Rolling lockdowns, stay-at-home orders, and social distancing measures make it difficult to execute documents that require ‘wet ink’ signatures, or to hold AGMs and other binding meetings in person. Last year, the Morrison...
Don’t fly into a storm: how to protect clients from themselves in the data space
Introduction Many entities operating online acquire large quantities of data through various means, whether it be through payment details, subscriptions or online surveys. A lot of this data is acquired by entities online. This article discusses a recent determination made by the Office of the Australian Information Commissioner (OAIC) against Flight Centre 1 which demonstrated the costs of human error against the...
The good, the bad and the ugly: businesses dealing with reviews
Take away tips Defamatory review posts that cause economic loss can generate substantial damages awards, which in circumstances of aggravation can exceed otherwise applicable statutory limits Establishing that visits to a business’s website fell off steeply after a defamatory posting shows a causal link between a defamatory post and subsequent economic loss. The Australian Competition and Consumer Commission ...
COVID-19 public health orders did not frustrate hotel business sale, despite financial hangover
The NSW Supreme Court has held that the sale of a hotel business was not frustrated by COVID-19 public health orders restricting its ability to trade. Parties concerned about maintaining flexibility to exit a transaction should consider more specific options, such as a carefully-drafted material adverse change clause. Background In January 2020, Dyco Hotels Pty Ltd (Dyco) and Quarryman Hotel Operations Pty Ltd contracted...
Whiplash! NSW Court of Appeal overturns specific performance of heads of agreement for sale of smash repair business: AMA Group Limited v ASSK Investments Pty Limited
The NSW Court of Appeal has overturned a Supreme Court decision ordering specific performance of a heads of agreement for a business sale, finding that board approval was a condition precedent that had not been satisfied. The case is a reminder of the importance of clear drafting when entering into preliminary transaction documents. Background AMA Group Limited ( AMA ) is an ASX-listed panel shop and car repair company...
New Environment Protection Laws in Victoria to Protect Public Health and the Environment
Substantial amendments to the environment protection statutory framework in Victoria commence on 1 July 2021. The amendments to the Environment Protection Act 2017 (EP Act 2017) replace the statutory framework of the Environment Protection Act 1970. The new statutory regime represents the largest change to environment protection laws since the introduction of the 1970 Act. Planning and Environment Victoria has been...
Sharing Risk: Why intellectual property insurance is a must for modern business
In July 2019, almost 4 years after the filing of the first infringement suit, a nine-member jury rendered its verdict in favor of Marcus Gray’s claim that Katy Perry, a pop megastar, had improperly copied Gray’s song “Joyful Noise” in her hit “Dark Horse”. The price tag of this legal battle between Marcus Gray and Katy Perry, which also involved their respective teams, by far exceeded the awarded damages and the blight...
Sexual Harassment and Work Health and Safety
Sexual harassment in the workplace has received increased public attention in recent years in the wake of the MeToo movement. The courts have also shown a willingness to award substantial damages in sexual harassment claims, recognising the significant physical and psychological impact of the harassment on the victims. For example, $170,000 was awarded to a paralegal who was subjected to persistent and threatening harassment...
How to protect your IP without making a groundless or unjustified threat
One of the most common and effective means of a party acting to protect its intellectual property (IP) is by sending (or having a lawyer send) a letter of demand, with such letters forming a key part of the day-to-day practice of many IP lawyers. However, these letters, and other communications that put potential infringers on notice of an IP right, run the risk of contravening the unjustified threats (or groundless threats...
To pay or not to pay: The rise of ransomware in 2021
Over the last 18 months, there has been a rise in ransomware attacks, impacting businesses both domestically and globally. Dudley Kneller, Partner at Gadens, defines what is ransomware, outlines what does an attack look like, cites recent examples and concludes with some tips and takeaways on how to reduce risk to your organisation from ransomware attacks.
Buying off the plan? A lesson in contract specificity
The NSW government introduced new disclosure requirements for developers entering into off-the-plan contracts for residential developments from 1 December 2019. A Disclosure Statement is now required to be attached to a contract for sale that includes information such as sunset dates, whether development approval has been obtained and details of any strata scheme, community precinct or neighbourhood scheme the lot may...
Advising directors of companies in financial distress
With a flood of company insolvencies expected in 2021, lawyers will increasingly be asked to provide advice to directors of companies facing difficult decisions about the future of their businesses. We provide a checklist to assist with advising directors of companies in financial distress. Why do company directors need to act urgently? The temporary insolvency protections relating to insolvent trading liability and...
Alerting subscribers from all walks of life
For 30 years, Capital Monitor has alerted subscribers from all walks of life to parliamentary, political, legislative, regulatory and judicial news and information as it happens. When the concept for this service was born in the late 1980’s, and launched as a business in January 1990, photocopiers and faxes were considered new technology. How it all began 1990 - 1994 It was a momentous year for Capital Monitor, but...
A post-COVID economy vision: how will the budget measure up?
With less than a month until Treasurer Josh Frydenberg hands down the Federal Budget, industry bodies have released a flurry of economic reform proposals hoping to help the Government steer Australia towards a quicker post-pandemic recovery. Business advocates such as the Business Council of Australia (BCA), the Australian Industry Group (Ai Group) and Australian Chamber of Commerce and Industry (ACCI) have led the pack...
A Revolution in Dispute Resolution: The impact of COVID-19 on civil litigation in Australia
The COVID-19 pandemic has transformed the administration of justice in Australian courts and tribunals, necessitating a comprehensive overhaul of the protocols, procedures and norms of etiquette on which the courts and the legal profession have relied for decades. These changes have been sudden and challenging, but the profession and the judiciary have adapted quickly and have seized on opportunities to enhance access...
Australian Property Law Bulletin highlights
The NSW government introduced new disclosure requirements for developers entering into off the plan contracts for residential developments from 1 December 2019. A Disclosure Statement is now required to be attached to a contract for sale that includes information such as sunset dates, whether development approval has been obtained and details of any strata scheme, community precinct or neighbourhood scheme the lot may...
Beyond COVID-19: The unresolved epidemic of wage theft and underpayments
Employers are currently focused on crisis-management workplace issues, due to the COVID-19 pandemic. Once this crisis has abated, attention will again be focused on the yet unresolved wage theft epidemic. The article sets out key issues that employers need to consider regarding underpayments. Wage theft — a criminal offence Victoria’s Wage Theft Bill 2020 was given its second reading in the Victorian Legislative Assembly...