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Impacts for Commercial Leases & Commercial Contracts

COVID-19 – Impacts for Commercial Leases & Commercial Contracts

Commercial Leases

The Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) (the Regulation) commenced on 24 April 2020.  The purpose of this Regulation is to give effect to the National Cabinet Mandatory Code of Conduct for Commercial Leases (the Code) which was announced by the National Cabinet on 7 April 2020.

Key aspects of the Regulation include:

  • the Regulation applies to both retail leases and commercial leases
  • to qualify for relief, the tenant must be an “impacted lessee” – that is, they qualify for the JobKeeper program and have turnover of less than $50 million for the 2018-2019 financial year
  • a landlord cannot take any of the “prescribed actions” against an impacted lessee (such as evicting the tenant, terminating the lease, re-entering the premises, or calling on a security bond or guarantee given by the tenant) due to non-payment of rent or outgoings during the “prescribed period” (ie, 6 months after the commencement date of the Regulation which is 24 April 2020)
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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:

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Officer or Not? – Australian Security Investments Commission v King

By Ellen Ferris, a Solicitor in Matthews Folbigg’s Insolvency, Restructuring and Debt Recovery Group.

This week the High Court in Australian Securities and Investments Commission v King & Anor [2020] HCA 4, decided an appeal from the Supreme Court of Queensland concerning the construction of the word ‘officer’ in section 9 of the Corporations Act 2001 (Cth).

This much anticipated decision has provided clarity as to the construction of the term; a decision which will be well received by ASIC.

The relevant section provides that:

    ‘officer of the corporation means:

         (b) a person:

                (ii) who has the capacity to affect significantly the corporations financial standing’

In essence, the High Court held that an ‘officer’ of a corporation is not limited to those who hold or occupy a named office in the corporation to be captured under the section 9(b)(ii) definition. The relevant test is instead a matter of fact and circumstance which will determine whether a person has the requisite capacity to significantly affect the financial standing of the corporation.
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Warning! Casual Employee Entitled to Annual Leave

In a major decision, the Full Bench of the Federal Court has held that a worker expressly engaged as a casual was entitled to annual leave and other entitlements upon termination.

In our view, in doing so the Court has cast doubt on decades of accepted industrial practices and the decision threatens to undermine casual employment relationships around the country.

The Facts

In WorkPac Pty Ltd v Skene:

  • the employee was employed by a labour-hire company in the mining industry as a dump-truck operator and the employment was governed by the WorkPac Pty Ltd Mining (Coal) Industry Workplace Agreement 2007 (Agreement)
  • although the letter of employment stated he was a casual, he was subject to a continuous 7 day ‘fly-in, fly-out’ pre-set roster arrangement, worked regular and systematic shifts, stayed in accommodation at/near the mine and was expected to attend each shift
  • an ‘all-in flat rate’ of pay was payable for each hour of work although WorkPac did not specify what entitlements this flat rate of pay purported to absorb
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Record Keeping for a SMSF

Record Keeping for SMSF’s

Introduction (SMSF)
Most SMSF trustees are aware that record keeping is important to ensure their fund remains compliant and eligible for tax concessions, but few trustees understand the actual ramifications of what happens when you don’t keep the right records.

Record Keeping Requirements
The ATO website contains a great deal of helpful information for SMSF trustees including the records a fund must keep. See https://www.ato.gov.au/super/self-managed-super-funds/administering-and-reporting/record-keeping-requirements/

For example, copies of annual returns must be retained for at least 5 years but records of changes of trustees and minutes recording investment decisions must be kept for at least 10 years.

Wrong Turns – Real Life Examples

1. Maintaining the Chain of Deeds
A and B set up the AB Super Fund in 1987.  They are the trustees of the fund in their own capacity.

In 1990 and again in 1998 they updated the provisions of their SMSF trust deed.  Their accountant arranges this for them.

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Do you know what PPSR interests affect your business?

Do you know what PPSR interests affect your business?

Selling
Selling your business can be both exciting and stressful at the same time. Once a purchaser is found the parties usually move as quickly as possible to enter into a sale contract and then to completion.

PPSR Considerations
An area often overlooked by a seller is taking the time to consider what security registrations (PPSR Interests) under the Personal Properties Securities Act (PPSA) may exist over the assets being sold including vehicles, stock, plant and equipment.

Standard Sale Condition
If the Contract for Sale of Business 2015 edition is being used:

  • a standard clause requires a seller to provide a release of each security interest that applies to the assets being sold (or such other statements or documents confirming the security interest does not apply to those assets
  • often a seller mistakenly believes that because they have already paid for various assets that they are not subject to any security interest
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Commercial Law – Tips for Small Business

Commercial Law – Some tips for small business owners

Many people operate small businesses and many people are setting them up. From a commercial law perspective here are a few simple but effective tips:

  • It is well known that you should try and separate assets from business risk. That is why many people operate under a company structure. It follows that you should not use the trading company to acquire any assets, that is, other than the business itself. For example, premises should be purchased in another name and, if possible, any valuable assets such as intellectual property or even expensive equipment should be held in another name and licensed to the trading entity.
  • If a husband and wife operate a business under a company structure there is no need for both to be directors (as opposed to shareholders). The role of director carries considerable personal risk and there is no need to expose all the couple’s personal assets to that risk.
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The Importance of Record Keeping

COMMERCIAL LAWYERS UNDERSTAND THE IMPORTANCE OF RECORD KEEPING

As commercial lawyers we understand that in this electronic age it is tempting and we are often encouraged not to print documents. However it is often a good idea to have a printed copy of some records, as well as an electronic copy.

Good record keeping may sound rather Dickensian but here are a few pointers to make things easier for you as the years roll on, people move on or retire and memories fade. Nobody may remember what happened to that beige filing cabinet in the corner outside Jim’s old office and sometimes you will need is not the current document.

Insurance policies

Particularly if you shop around for the best insurance deal from time to time do you have a copy of your policies in one spot? This is very important for workers compensation policies where a claim would be handled by the insurer at the time of the injury and not the insurer at the time of the claim.
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