Articles

Unfair dismissal at the end of a fixed term contract – What?

Fixed-term employment contracts are common in many workplaces. Understandably, most employers consider they would be protected from an unfair dismissal claim once the term ends. However, in Saeid Khayam v Navitas English Pty Ltd t/a Navitas English (‘Navitas’) [2017]...

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The scope of fiduciary duties as a director once you resign

Directors’ fiduciary duties arise in equity, at common law and under statute and do not cease upon a director’s termination. However, the scope and duration of an ongoing duty is not always apparent. Advanced Fuels Technology Pty Ltd v Blythe & Ors [2018] VSC 286...

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Privacy Law and Data Breaches

The Privacy Act 1988 (Cth) and Australian Privacy Principles apply to Australian Government agencies, businesses (including not-for-profit entities) with an annual turnover of $3 million or more, credit reporting bodies, and smaller entities that trade in personal...

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Removing a nominee director

The rules regulating a company are contained within the Corporations Act 2001 (Cth), the constitution that may be adopted to govern the operations of the company and a shareholders agreement. The importance of consistency between all of these documents, and...

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Insolvency and the right to terminate contracts

Reforms to insolvency laws which commenced on 1 July 2018 prevent contracting parties from relying on certain termination clauses in commercial contracts. The ipso facto regime aims to give companies facing financial difficulties an opportunity to trade their way out...

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Franchising Code changes are coming

Franchise agreements are governed by the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 and the Franchising Code of Conduct (the ‘Code’). The Code is regulated by the Australian Competition and Consumer Commission which has the power to...

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Franchisors must act in good faith and reasonable cause

A franchise operates within an existing business structure that gives the franchisor discretion to implement strategies, introduce new products and set prices for the ‘branded’ goods or services. These commercial decisions however must be exercised in ‘good faith and...

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Lessons for Financial Services Licensees

The Federal Court of Australia recently considered the ‘best interests and appropriate advice duties’ required of financial services licensees and providers, which form Part 7.7A of the Corporations Act 2001 (Cth) (the Act). The Australian Securities and Investments...

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The risks in referring to unattached documents in an agreement

It is very common for parties to an agreement to refer, in the agreement itself, to additional documents. These additional documents are not always annexed or attached to the actual agreement. The Federal Court has held that although a particular enterprise agreement...

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Is one director’s signature sufficient in an agreement?

Dealing with company officers Section 129 of the Corporations Act 2001 (Cth) provides that a third party is entitled to assume that the ‘representative’ with whom they are dealing is validly appointed and has authority to act and to perform the duties customarily...

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Diverting business opportunities – when is it ok?

A director’s obligations are determined by statute under the Corporations Act 2001 (Cth) and by his or her fiduciary duties under the general law. Amongst these obligations is a duty to avoid conflicts of interest. It is commonly accepted that a conflict of interest...

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Why you should read online terms and conditions

The inclusion of terms and conditions in online transactions Traditionally, contracts were formed where parties met and exchanged signed documents containing the terms of the agreement. With the spread of e-commerce, many contracts are now paperless and are accepted...

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Traps for so called ‘Sophisticated Investors’

Generally, when companies raise funds by offering shares to the public they must have available to prospective investors certain disclosure documentation prescribed by the Corporations Act 2001 (Cth) (the Act). The type and extent of disclosure depends on the...

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Replacing Appointors of Discretionary Trusts

Discretionary trusts can be an excellent vehicle for the management and distribution of assets and income and also for the transfer and preservation of wealth for the benefit of successive generations. However, as family structures become ever more complex and people...

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Does size matter? David v Goliath

Many small practices label themselves as “boutique” or “specialist” practices. But, not every small practice is a specialist. Specialist firms are consciously structured with a low partner to professional staff ratio and operate within a clearly defined sphere of...

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When can an employee’s knowledge be attributed to the company?

Commonwealth Bank of Australia v Kojic [2016] FCAFC 186 considered whether the conduct of two bank employees could be ‘aggregated’ to bring a finding of unconscionable conduct on the part of the bank under the (previous) Trade Practices Act 1974. The facts Mr and Mrs...

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