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Debt Recovery by Garnishee Notice

When a Court makes a judgment in your favour for the recovery of a debt, there is a mechanism available to recover the judgment debt through a third party. This mechanism is a garnishee order.

What is a Garnishee Order?

A garnishee order is an order of the court which enforces a third party who either owes money to a debtor, or is holding money for a debtor, to make payment to the creditor of any funds held by that third party for the benefit of the debtor.

This order essentially permits a judgment creditor to ‘seize’ monies from the judgment debtor via a third party. [...]  READ MORE →

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AICM releases an industry first report into consumer overdue credit trends and practices

The Australian Institute of Credit Management (“AICM”) released an industry first Overdue Credit Index Report 2023 (“the Report”) which analyses levels of overdue credit across a range of financial products in the Australian market.

The Report presents a measure of overdue credit, called the ‘Overdue Credit Index’, based on aggregate data of reported repayment history for credit accounts across mortgages, credit cards and unsecured personal loans using data provided by Equifax and Illion for the period from 1 July 2019 to 1 August 2022. This index provides transparency around patterns of overdue credit and hardship requests in the Australian market and allows credit managers to express their performance and resourcing relative to a benchmark. [...]  READ MORE →

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Reform to Unfair Contract Terms – What’s New?

Reform to Unfair Contract Terms – What’s New?

Commencing on 9 November 2023, significant reforms were made to the Australian Consumer Law (“ACL”) concerning unfair contract terms (“UCT”) within standard form contracts. These changes will attract substantial penalties under the Competition and Consumer Act 2010, as well as the ASIC Act 2001 for both businesses and individuals. It is therefore vital that you are made aware of the reforms to the ACL and how they may affect you.

In 2010, a term in a standard form contract was deemed to be unfair if it: [...]  READ MORE →

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Significant Changes to NSW Duty and Land Tax in 2024

Key changes to NSW Duty and Land Tax take effect as of 1 February 2024, from the Treasury and Revenue Legislation Amendment Bill which assented on 27 September 2023.The reform introduces substantial amendments aligned with the NSW Government’s 2023-24 Budget. Key changes are set to impact land tax, corporate reconstruction, consolidation transactions and landholder duty, demanding attention and strategic planning from affected individuals, businesses and investors.

Summary of some of the key reforms include: [...]  READ MORE →

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Intellectual Property Employer or Employee…who owns the rights?

Do you have employees that do not understand their obligations regarding work they create during the course of their employment? Are you unsure of what rights as an employer you have to work product?

The primary position is that any work created by an employee is owned by the employer, including any intellectual property rights within the work. There may be ways in which an employer or employee has contracted out of this position or altered ownership of the various rights. There is also the question of moral rights…but that is for another time. It is a common misconception by employees that any work product they create is their own and they are entitled to all rights to such work product upon leaving their employment. Former employees, as a result, can then conduct themselves in a manner which may infringe on rights held by the employer in copyright which subsists in a work they may have created whilst employed. [...]  READ MORE →

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Intellectual Property Rights

Metaverse vs Reality: Intellectual Property Rights

Despite the law often falling behind the fast-paced nature of the digital world, current legislative framework around intellectual property protection has been implemented to provide protection in the metaverse.

The metaverse is a virtual space that mimics reality, allowing access through technologies such as virtual reality, augmented reality and artificial intelligence. In contrast to the internet where browsers are considered an ‘observer’, the metaverse is a place where people can ‘live’ and be a part of a virtual space surrounding them. [...]  READ MORE →

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When is Trade Mark Infringing

There are many circumstances where the use of a logo, image, word, phrase or other form of mark may be infringing on a registered trade mark. However, it can sometimes be difficult to comprehend or identify when infringement occurs where it is not clear if the alleged infringing mark is actually being used as a trade mark.

Pursuant to s 120 of the Trade Marks Act 1995 (Cth) (“the Act”), a person can only infringe a registered trade mark. Therefore, if a person uses a trade mark but has never taken steps to register the trade mark with IP Australia (and obtain registration), they do not receive the protection and exclusive right provided by the Act to make a claim and/or prosecute infringement of their trade mark. [...]  READ MORE →

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Security for Costs Order

Security for Costs: How to not get dragged down by the impecunious Plaintiff

A successful defendant can often be left with a significant legal bill despite a court ordering the plaintiff to pay their costs of the proceeding – winning the battle but losing the war.

Imagine you find yourself as a defendant in proceedings that you never saw coming and  which should ultimately never have happened. The plaintiff’s claims may lack merit and have very low prospects of success, but they commenced proceedings against you anyway in a desperate attempt to recover money that they lost as a consequence of their own actions. After all of the hours of stress, sleepless nights, phone calls, meetings, and thousands of dollars of legal fees, you and your legal team emerge from litigation victorious, with the plaintiff to pay your costs of the proceeding – only to find out, the plaintiff has no money, no assets and is unable to pay your legal fees. [...]  READ MORE →

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AICM Risk Report 2023

Australian Institute of Credit Management – Risk Report 2023

Credit professionals play a crucial role in any business, ensuring that both the risks of
defaulting on contractual obligations are managed, and that payment of goods or services
are received in a timely manner.

The Australian Institute of Credit Management (AICM) is a member body for commercial and
consumer management professionals formed with the goal of helping their members,
partners, government, other related bodies and the business community to succeed in
credit-related matters.

The AICM has released their Risk Report 2023 (Report) which provides a succinct and
useful insight on how recent and future economic conditions are impacting credit
professional’s abilities to manage risk and ensure a business is paid promptly for their
services. The Report draws on survey results collected from AICM members and Certified
Credit Executives. [...]  READ MORE →

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Strata – Electric Vehicle Ready Buildings Grant

The NSW Office of Energy and Climate Change (as part of the Net Zero Plan Stage 1) has introduced a grant with a quota to assist over 125 residential strata apartment buildings in NSW to install electric vehicle (EV) charging infrastructure within their carparks. Applications are now opened.

What this means is that owners corporation apartment residents may be able to charge their electric vehicles at home (within their building) without seeking electric ports elsewhere!

Eligibility Criteria (briefly) [...]  READ MORE →

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Security for Costs: How to not get dragged down by the impecunious Plaintiff

By Eleanor Campbell-Rogers, a Law Clerk of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

‘A successful litigant is entitled to the fruits of their litigation’.

Whilst this might be true, a successful defendant can often be left with a significant legal bill despite a court ordering the plaintiff to pay their costs of the proceeding – winning the battle but losing the war.

Imagine you find yourself as a defendant in proceedings that you never saw coming and which should ultimately never have happened. The plaintiff’s claims may lack merit and have very low prospects of success, but they commenced proceedings against you anyway in a desperate attempt to recover money that they lost as a consequence of their own actions. After all of the hours of stress, sleepless nights, phone calls, meetings, and thousands of dollars of legal fees, you and your legal team emerge from litigation victorious, with the plaintiff to pay your costs of the proceeding – only to find out, the plaintiff has no money, no assets and is unable to pay your legal fees. [...]  READ MORE →

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The Judgment: Is it the end of the Debt Recovery Process?

In DW Fox Tucker Pty Ltd v Morgan [2023] SASCA 11, the Supreme Court of South Australia Court of Appeal allowed an appeal by DW Fox Tucker Pty Ltd (‘the Creditor’) regarding the decision that there was no costs agreement between the Creditor and the director (‘Mr Morgan’) of TS Morgan Developments Pty Ltd (‘the Company’).

Background

The Creditor obtained judgment against Mr Morgan in relation to unpaid legal fees incurred whilst the Creditor was acting for the Company. The Company had gone into voluntary administration in March 2017. However, the judgment was set aside in February 2020. Mr Morgan then sought a declaration that there was no costs agreement between him and the Creditor, and the Court ruled in his favour. However, the Creditor challenged this decision to the Court of Appeal. [...]  READ MORE →