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COVID19 – IP Australia provides relief by way of extensions

We are in an unprecedented times; however, steps are being taken by the Government departments, such as IP Australia, to provide relief to their customers and relieve some of the burden and/or financial strain on applicants.

IP Australia, as of 22 April 2020, will be providing relief to applicants by granting free extensions of time, in respect of most applications and processes.

The extensions of time will provide up to an additional 3 months on any deadline required and the fee for such applications will be waived by IP Australia. IP Australia are even in the process of providing refunds to those who have been impacted by COVID-19 and have lodged extension applications without the fee waiver.

If you would like to discuss how the relief provided by IP Australia may be able to assist you, or if you require assistance with any intellectual property matter, or would like assistance with lodging an application for an extension of time, please contact our Intellectual Property team, Simone Brew and Hayley Hitch.
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COVID-19 and Corporate Insolvency: What does an increase in corporate insolvency mean to creditors?

By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.

In these difficult times, recent legislative amendments provide assistance for debtors, but risk for creditors. Going forward, it will be important for creditors to carefully monitor their credit policies. Creditors are likely see more spikes in default rates over the next months while government restrictions and businesses’ staff isolation plans remain in place. Where a debtor is placed into external administration, they should be aware of their rights (and duties) during the insolvency process.

Creditors should take note of the changes to the bankruptcy and insolvency regimes designed to protect debtors during the coronavirus period. The changes will limit options to creditors in respect of certain enforcement action. They include:

  1. An increase in the threshold for issuing statutory demands from $2,000 to $20,000;
  2. An increase in the threshold for issuing bankruptcy notices from $5,000 to $20,000;
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COVID-19: Will my hearing go ahead? – Part 2

By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.

We are continuing our series on whether a global pandemic will allow (or force) an adjournment of pending court proceedings.

In Kahil v R [2020] NSWCCA 56 Senior Counsel for the accused sought leave to withdraw from appearing for a co-accused on the 7th day of an estimated 3 week criminal trial. This was because he was aged 69, had a “compromised immune system” and was concerned about his exposure to one of the co-accused (his client) who he described as “fluey”. Counsel had tried to be tested for the COVID-19 coronavirus over the weekend and had been refused because “he did not qualify for a test”.

Essentially, this application also meant that the hearing would need to be aborted and the jury discharged.

The District Court judge refused an adjournment, summarising Senior Counsel’s position as: “at best, that you think that you could have been in contact with someone who has not been diagnosed with COVID-19, that perhaps you may have been in contact with it, and you are concerned.”
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COVID-19: Will my hearing go ahead? – (Part 1)

By Andrew Hack, Solicitor, and Stephen Mullette, Principal, of Matthews Folbigg Lawyers, in our Insolvency, Restructuring and Debt Recovery Group.

Due to COVID-19, not only are people encouraged to stay at home and avoid going out in public unnecessarily, you could be committing a crime if you do. But what if you have a court case on foot?

Telephone and audio visual links are now frequently being used to run lists and even hearings, where others are being adjourned or vacated. However the use of technology to run court matters is different depending on the court, the type of matter and even the circumstances of each individual case. In a series of blogs we look at examples of various court applications which give us an idea of how the courts are handling issues arising from COVID-19:

In JKC Australia LNG Pty Ltd -V- CH2M Hill Companies Ltd [2020] WASCA 38 an application to adjourn an appeal hearing based upon “issues said to arise from the COVID-19 pandemic” was refused. The Court of Appeal did not accept submissions that the respondents’ senior counsel “would be at a significant disadvantage if he could not see and ‘read’ the court throughout the appeal hearing” – which was a reference to “the benefit of non-verbal communications”. Effectively this appears to be a submission that Senior Counsel would not be able to ‘read the room’. The WA Court of Appeal would not have a bar of it (pun intended), concluding “it is not the case that an appeal hearing by telephone is manifestly inadequate or that an appeal hearing by video‑link is inadequate.”
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COVID-19, self-isolation, and witnessing documents

By Chloe Howard of Matthews Folbigg Lawyers, a lawyer in our Insolvency, Restructuring and Debt Recovery Group

Whilst there have been leaps and bounds in recent years when it comes to the merging of law and technology, properly executing legal documents has escaped this evolution. Even though NSW and some other states have an Electronic Transactions Act, this does not assist with present difficulties imposed with executing Deeds and other formal documents during self-isolation.  Whilst Zoom, Skype and FaceTime can make it seem like you are in the same room as someone else, ultimately the law is clear – this technology cannot replicate the requirements needed for the valid witnessing of formal documents. These requirements include that a witness must be physically present when the document is signed.

But what if you are locked down in self-isolation?

Until the COVID-19 pandemic, this had not really been a pressing issue. But with the Australian Government advocating for more people to work from home and for people generally to self-isolate, what happens to the requirements for witnesses to be physically present to witness a document being signed?
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Not opening your emails? That is not an excuse to avoid valid service!

By Chloe Howard of Matthews Folbigg Lawyers, a lawyer in our Insolvency, Restructuring and Debt Recovery Group

A recent Supreme Court matter has determined that service of an application to set aside a statutory demand was validly served in time, even though the solicitor in question did not open the email serving the application until the expiration date for service had passed.

In March 2019, the plaintiff’s solicitor and the defendant’s solicitor commenced communicating in an attempt to facilitate a resolution of the dispute between their respective clients. The communications predominantly took place by email.

On 11 September 2019, the defendant issued on the plaintiff a statutory demand. The statutory demand was served on the plaintiff initially by email from the defendant’s solicitor.

On 27 September 2019, the defendant’s solicitor sent an email to the plaintiff’s solicitor enclosing a letter which advised that they held instructions to accept any application to set aside the statutory demand.
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Subpoena or Notice to Produce – how to get the documents you need!

By Hayley Hitch, an Associate of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

Have you ever wondered about the difference between a subpoena and a notice to produce? These can be confusing and sometimes cause delays in proceedings or result in significant additional legal costs.

Both a subpoena and a notice to produce are court forms used once proceedings have been commenced, to obtain documentation from a specific individual or entity. A subpoena can also be issued to require a witness to attend Court and give evidence at a hearing.

In simple terms, a subpoena is issued by the Court to request documents from someone who is not a party to the proceedings. On the other hand, a notice to produce is issued by a party to the proceedings to request documents from another party.

Subpoena

Most courts have rules about how to obtain a subpoena. Under the Uniform Civil Procedure Rules 2005 (NSW) (“the Rules”) for instance, the Court will issue a subpoena if requested by a party. However, if that party is not represented by a solicitor, leave of the court is required (Rule 7.3).
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Securing Property Interests on the PPSR is now mainstream

By Jeffrey Brown, a Principal of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

 

The latest statistics published by the Australian Financial Security Authority (AFSA) confirms what I am seeing in the business world – that registering on the Personal Property Securities Register (PPSR) has become an accepted part of trading and credit in Australia.

In the March quarter of 2019 there were 462,578 new registrations created on the PPSR.  That brought the total number of registrations on the PPSR to 10,004,438.  Interestingly, there were over 2 million searches conducted on the PPSR during the March quarter, which represented a sharp increase in searches.  Searches conducted by serial number were by far the most common type of search, accounting for over 1.2 million searches.

I predict that this number will only increase as businesses and consumers come to understand how to use the PPSR more effectively.  Many of my clients have been unaware of the types of interests that they can register on the PPS.  For example, landlords can register their interest in a security bond on the PPSR, and if they do so they can enforce that security to the extent that they are owed money at the conclusion of a commercial lease.  This is despite the PPSR not being directly concerned with “real property” (in other words, land).
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