Articles

One answer was suggested by Charles T. Munger in his address to the Harvard Law School class of 1948, as follows: To a lawyer, everything looks like a problem to be approached in a legal way and with legal tools. Munger calls this, “Man-with-a-hammer-tendency”, from...

Psychological Tendencies in Commercial Negotiations We are hardwired for fast reactions based on intuition and emotion, rather than thought and reason. In ancestral times, this was crucial. Spending time thinking when faced with a vicious predator, could be dangerous....

Franchising Code of Conduct Under Australian Law all Franchisors and Franchisees are required to comply with the Franchising Code of Conduct (FCC). As franchising continues to increase in popularity, it is essential that both Franchisors and Franchisees understand...

The unauthorised disclosure of confidential information or sharing of company secrets constitutes a breach of the employee’s duty of confidentiality and can have important consequences. This was evident in recent proceedings before the Federal Court of Australia -...

Australia is a multicultural country, where the likelihood of an Australian having assets in a jurisdiction outside Australia is strong. Being a dual national or just having assets in more than one jurisdiction raises issues when it comes to estate planning. Case...

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]...

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...

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...

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...

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...

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...

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...

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...

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...

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...

This principle was tested in Crowe Horwath (Aust) Pty Ltd v Loone [2017] VSC 163. The facts In November 2012, Mr Anthony Loone entered an employment contract with national accounting firm, Crowe Horwath (Aust) Pty Ltd (Horwath) and was appointed Managing Principal of...

The Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth) introduced a Notifiable Data Breaches scheme in Australia which commenced on the 22 February 2018. The reforms aim to strengthen Australia’s privacy laws by requiring entities subject to existing...

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...

An important feature of a discretionary trust is its flexibility to distribute income and capital to a range (or class) of beneficiaries for estate planning, asset protection and to optimise the tax treatment of income or capital. In many cases however the trustee or...

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...