No Comments

Critical Covid Response Items for EVERY Business and Employer

COVID-19

Critical Covid Response Items for EVERY Business and Employer

Business Contracts and Leases

Key questions to ask yourself in an effort to reduce losses being suffered:

  • can I use contractual and leasing force majeure provisions due to events beyond my reasonable control to cancel, suspend or renegotiate my contracts and leases?
  • what happens if I don’t have a force majeure provision?
  • can I use the “frustrated contracts” regime to my advantage?
  • is Covid a “material adverse event” for contractual purposes?
  • what time limits apply to exercise my rights and are there any mandatory procedural requirements I must follow to do so?

As the interaction between contractual wording, legal considerations, and the outcome sought are inherently fact specific, if you would like to discuss your options we invite you to contact a member of our Commercial Law Team on 9635 7966.

Staff

Does your contingency planning take into account these fundamental matters:

No Comments

COVID-19: Critical Matters for Commercial & Retail Tenants and Landlords

New Laws

The NSW Government now has the power to set new rules for retail landlords and tenants, the details of which will be known in coming days.

Although the new laws (currently) only relate to retail leases, nevertheless there are substantial challenges for both commercial and retail tenants and landlords to consider as set out below arising from the COVID-19 situation.

 

What is expected?

For retail tenants and landlords it is expected that the new laws will address such matters as evictions, bank guarantees/bonds, tenant defaults, rent abatements, and mandatory/core trading hours.

Caution must therefore be exercised when purporting to rely upon a lease term as it may be modified or prohibited under the new regime.

 

What about force majeure and rent abatement clauses?

Contractual force majeure provisions (ie, events beyond the reasonable control of a party) and rent abatement clauses will have important significance and need to be carefully considered in terms of the rights, remedies and obligations they create for both landlords and tenants.
Continue reading…

No Comments

Social Media – Be On High Alert As To The Risks!

An important decision was handed down in 2019 by the New South Wales Supreme Court in Voller v Nationwide News Pty Ltd (and others) which is highly relevant to any business which uses social media to promote its activities.

In essence:

  • the matter concerned Dylan Voller, a young man who was featured in an ABC Four Corners story on abuse in youth detention centres
  • subsequent articles written about Voller were posted on the public Facebook pages of media companies News Corporation and Fairfax
  • Facebook users were allowed to post comments under the articles on Facebook, and Voller successfully pleaded that the users’ comments were defamatory
  • the Court held the media companies were the “publishers” of the comments and therefore responsible for any defamatory imputations contained in them even though they were not the authors of the comments
  • the Court held the media companies were liable because they knew, or ought to have known, that defamatory comments were being posted, and they did not remove the comments even though they had the power to moderate their public pages by deleting user comments
  • Continue reading…

No Comments

Excessive Surcharge Laws – Beware!

Does your business charge consumers a surcharge for processing credit and debit card payments?

If so, changes to the Competition and Consumer Act in 2016 mean companies are prohibited from charging customers excessive payment surcharges if:

  • it relates to a payment method covered by the Reserve Bank standard or regulations (this includes EFTPOS, Visa, MasterCard and Amex cards issued by an Australian financial service provider); and
  • the amount of the payment surcharge exceeds the permitted amount in the Reserve Bank standard or regulations (which generally must be no greater than the cost to the business of processing the payment)

2019 saw the first litigation brought by the ACCC under these laws. Previously it had dealt with contraventions by issuing infringement notices.

In the Federal Court case ACCC v CLA Trading Pty Ltd (trading as Europcar):

  • Europcar admitted to breaching the excessive surcharge laws in relation to 63,012 customers
  • although the amount over-charged was $67,215.59 (amounting to slightly more than $1 overcharged per customer), Europcar was ordered to pay a $350,000 penalty to the ACCC in addition to refunding the affected customers
  • Continue reading…

No Comments

Automatic Rollover Clauses – What Are Your Rights?

During 2019 we received many enquiries from small businesses looking to get out of contracts with “automatic rollover” provisions.

An automatic rollover provision is a clause in a contract which provides that the contract will automatically renew for an additional term unless one of the parties opts out by giving notice to the other party of its intention not to renew. These clauses raise concerns for small businesses as:

  • often the party is not aware of the automatic rollover provision when they sign the contract
  • the further term may be exceedingly long (eg, 3-5 years)
  • the notice period in order to opt out of the renewal may also be exceedingly long (eg, no less than 12 months before the expiry of the current term of the contract)

The good news is that a small business may have a remedy under the Australian Consumer Law’s unfair contract terms provisions if the following conditions are satisfied:
Continue reading…

No Comments

Australian Consumer Law – Record breaking fines

2019 saw a continued trend of record-breaking fines imposed against companies for breaches of the Australian Consumer Law – for example:

  • Cornerstone Investments Pty Ltd (trading as Empower Institute) was fined $26.5 million – then the highest ever aggregate penalty order imposed under the Australian Consumer Law for misleading or deceptive conduct and unconscionable conduct
  • this was topped later in the year by Volkswagen’s record fine of $125 million for false and misleading representations in contravention of the Australian Consumer Law

Both cases involved particularly egregious breaches of the law as:

  • Empower Institute was found to have engaged in unconscionable conduct by using unethical sales tactics (eg, offers of “free laptop computers”) to sign up disadvantaged clients to expensive private education courses – the clients were mostly Indigenous, had poor literacy and numeracy skills, were from disadvantaged remote communities, and the company knew or ought to have known that most of their clients were unlikely to pass the courses but would be saddled with large student debts
  • Continue reading…

No Comments

Corporations Act – Tougher maximum penalties & the ‘why not litigate’ mantra of ASIC

In response to the Banking Royal Commission, Parliament passed amendments to the Corporations Act which came into effect on 13 March 2019.

The effect of these changes is to significantly increase the maximum civil and criminal penalties which apply to breaches of the Corporations Act as follows:

Civil Penalties Criminal Penalties
Person The greater of:

  • $1.05 million; or
  • 3 x the benefit gained/detriment avoided
15 years imprisonment and/or the greater of:

  • $945,000; or
  • 3 x the benefit gained/detriment avoided
Company The greater of:

  • $10.5 million; or
  • 3 x the benefit gained/detriment avoided; or
  • 10% of annual turnover (capped at $525 million)
The greater of:

  • $9.45 million; or
  • 3 x the benefit gained/detriment avoided; or
  • 10% of annual turnover
Note These fines will rise over time whenever the value of a “penalty unit” changes

Other changes and responses include:

  • civil penalties now apply to a wider range of breaches under the Corporations Act
  • a new remedy of relinquishment (also known as “disgorgement of profits”) is available in civil penalty provision proceedings – this remedy is available in addition to pecuniary (criminal) penalties
  • Continue reading…

No Comments

Reminder – The Whistleblower Policy Deadline is 1 Jan 2020

Recap

By way of refresher from our article earlier this year:

  • new whistleblower legislation commenced on 1 July 2019
  • it modified laws relating to corporations, the banking industry and insurance companies in order to:
  • provide significantly stronger protections to whistleblowers who make disclosures about matters such as corporate misconduct (e.g. fraud), criminal activity, or any other conduct that represents a danger to the public or financial system
  • expand the scope of persons who may make protected whistleblower disclosures and the circumstances in which these disclosures may be made
  • permit and protect anonymous disclosures
  • impose substantial civil and criminal penalties on any breaches of whistleblower protections (such as disclosing the whistleblower’s identity and/or causing the whistleblower detriment through victimisation)
  • the protection obligations apply to all disclosures made on or after 1 July 2019 even if the disclosure relates to suspected conduct occurring prior to that date

Mandatory Policy

Critically, the legislation requires that all public companies and large proprietary companies MUST have in place a compliant whistleblower policy by 1 January 2020 with a “large proprietary company” being a proprietary company that satisfies 2 of the following 3 criteria:
Continue reading…