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Contracts Involving Public Authorities

Summary

Case summary re: 123 259 932 Pty Ltd (123) v Cessnock City Council (Council) (No 2) [2021] NSWSC 1329 (Cessnock case).

The decision of the Cessnock case demonstrates that public authorities, such as Councils should take reasonable action to ensure compliance with lease agreements and other related contracts. The case also highlights the importance of having knowledge of the assets held by another party, as expectation damages will not be awarded if there are no assets.

The Facts

In Cessnock Case, 123 sought damages against the Council for the breach of contract and unconscionable conduct. [...]  READ MORE →

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NSW Supreme Court – When are executed lease documents binding

The recent NSW Supreme Court case of Thorn Australia Pty Ltd v Centuria Property Funds Ltd [2021] NSWSC 1271 highlights the necessity for caution and diligence when executing and exchanging deeds, especially in property matters.

The Court was asked to determine whether a prospective lessee who had signed and delivered deeds to a lessor was bound by the deeds. The Court found that although the lessee executed the deeds, provided a bank guarantee, made arrangements regarding access and making further payments, it was held that the lessee did not objectively manifest an intention to be immediately bound by the deeds. [...]  READ MORE →

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GREATER SYDNEY’S 2021 LOCKDOWN: WILL BUSINESSES SINK OR SWIM?

By Anica Cunanan, Solicitor at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Greater Sydney is currently in a lockdown and has remained in the dark with respect to whether, and when businesses would receive some relief.

Last year, the Federal Government introduced the JobKeeper scheme to assist with keeping businesses afloat (including employees within those businesses) through of the payment of wage subsidies subject to certain criteria.

The Morrison and Berejiklian Governments have announced that NSW businesses will finally receive some relief as we enter the fourth week of lockdown in NSW. It is evident that regardless of whether lockdown is in fact extended past 30 July 2021, businesses have already experienced a substantial hit. Should lockdown continue to be extended, we may see plenty of businesses struggling to make it through this lockdown. [...]  READ MORE →

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Breaches of the Council Model Code of Conduct – A Lesson for Councillors

The NSW Civil and Administrative Tribunal has recently heard a matter in which the Office of Local Government was seeking a determination as to whether the mayor of Inner West Council, Mr Darcy Byrne, had engaged in misconduct as defined in s 440F(1) of the Local Government Act 1993, for failing to comply with an applicable requirement of the Inner West Model Code of Conduct.

By way of background, following approval by Inner West Council to amendments being made a development control plan, a councillor at Inner West Council posted on her Facebook page which referred to her unhappiness in the amendments being approved and commenting that the mayor had been the one pushing for the amendments. In response, another councillor commented on the Facebook post, as well as other individuals. [...]  READ MORE →

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Don’t Go Chasing Waterfalls – COVID-19 Safe Harbour is (still) not Safe

The temporary safe harbour protection from director liability for insolvent trading expires on 31 December 2020. However the Government has not corrected a critical timing issue which exists in the COVD-19 safe harbour legislation. This means directors must appoint an external administrator to their company on or before 31 December 2020, if they wish to take advantage of the COVID-19 safe harbour protection from insolvent trading .

The temporary protection is found in section 588GAAA of the Corporations Act 2001 (Cth). There has been some recent debate about whether the words “before any appointment during that period” of an external administrator, mean what they appear to say, namely that any appointment must take place “during that period” of the temporary safe harbour expires. [...]  READ MORE →

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Danger – COVID-19 Safe Harbour STILL Requires Early External Administrator Appointment

The Government has recently extended COVID-19 business protection measures introduced in March, including the temporary safe harbour protection from director liability for insolvent trading. These protections will now expire on 31 December 2020. However the Government has not corrected a critical timing issue which exists in the COVD-19 safe harbour legislation. This means directors must appoint an external administrator to their company on or before 31 December 2020, if they wish to take advantage of the COVID-19 safe harbour protection from insolvent trading. [...]  READ MORE →

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Danger – COVID-19 Safe Harbour Flaw Requires URGENT External Administrator Appointment

A fatal flaw exists in the government’s COVD-19 safe harbour legislation. This means directors must appoint an external administrator to their company on or before 24 September 2020, if they wish to take advantage of the COVID-19 safe harbour protection from insolvent trading.

At the beginning of the global pandemic the Australian Federal Government introduced temporary legislation to protect directors from liability for insolvent trading during the global COVID-19 pandemic. This safe harbour protection from insolvent trading will excuse directors for liabilty in respect of debts incurred in the ‘ordinary course of business’ during the operation of the temporary legislation, presently due to expire at the end of 24 September 2020. [...]  READ MORE →

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Simone Brew appointed Managing Director of Matthews Folbigg Lawyers

1 September 2020

Matthews Folbigg Lawyers is delighted to announce the appointment of our new Managing Director, Simone Brew. Simone is the head of the firm’s Litigation, Planning and Local Government groups.

Matthews Folbigg Lawyers is the premier medium sized firm in Western Sydney, based in Parramatta, with 8 practice groups and over 60 lawyers and legal service professionals. This is the first time in the firm’s 60 year history that the firm has had a female Managing Director. Even more notably the firm is owned 50% by our experienced female lawyers. [...]  READ MORE →

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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. [...]  READ MORE →

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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. [...]  READ MORE →

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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”. [...]  READ MORE →

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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: [...]  READ MORE →