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Unfair Contract Terms under the Australian Consumer Law and ASIC Act

UPDATE

We provide below an update to the applicability of the Unfair Contract terms national regime, further to our Mondaq Article issued on 23 May 2023 below:

New changes to and penalties for Unfair Contract Terms under the Australian Consumer Law (ACL)

https://www.mondaq.com/australia/corporatecommercial-law/1319814/new-changes-to-and-penalties-for-unfair-contract-terms-under-the-australian-consumer-law

Monetary Penalties

Following the introduction of monetary penalties, and the inclusion of small business contracts, effective from 9 November 2023, the Courts have made several interesting findings with respect to the unfair contract terms regime as governed by the ACL and the ASIC Act. [...]  READ MORE →

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Reverse Mortgages – An Alternative to Downsizing?

A reverse mortgage involves a secured loan which gives the lender an interest in the unencumbered value of your home (being the market value of your property, less any debt secured against that property), commonly known as the “equity” in your home. Accessing funds through this type of loan is used by some retirees as an alternative to downsizing.

How it works

Put simply, under a reverse mortgage loan a lender agrees to advance money to you in consideration for an interest in the equity of your property, proportionate to the loan amount. [...]  READ MORE →

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Unregulated business loans – Considerations for lenders

Small and medium-sized enterprises (SME) account for the vast majority of businesses operating in Australia and yet obtaining business finance from the country’s top bank lenders can be a challenging and time-consuming exercise for them. Unsurprisingly, there seems to be a growing preference amongst businesses in recent years towards non-traditional lending options due to less stringent requirements, giving rise to an increase in private lenders operating in the space.

Private loans to corporate entities are generally subject to fewer regulations, which makes the application and approval process quicker and easier. [...]  READ MORE →

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Protecting Assets and Preserving Wealth through Discretionary Trusts

What is a Trust?

A Trust is formed when a person or entity (the Trustee) holds assets for the benefit of another person or class of persons or entities (the Beneficiaries). Strict legal and fiduciary obligations are imposed upon the Trustee in order to protect the Beneficiaries’ interest in the trust assets. Under these obligations, a Trustee must act:

  1. in good faith, honestly and not profit from the Trust (as Trustee);
  2. with due care, skill and diligence and avoid conflicts of interest;
  3. in the best interests of the Beneficiaries;
  4. to preserve the Trust property;
  5. in person and not delegate their duty to another person; and
  6. transparently and account and provide information to the Beneficiaries, upon request.

The Trustee’s failure to comply with its fiduciary obligations can result in the Beneficiaries commencing legal proceedings against the Trustee in respect of such breach. [...]  READ MORE →

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The Importance of Due Diligence in the Acquisition of a Business

By Zeeshaan Nordien, Principal at Matthews Folbigg Lawyers in our Commercial Law Group

Due diligence is an integral step in the acquisition of any business, whether the transaction is an asset purchase or a share purchase.  If done correctly, due diligence helps mitigate the various commercial, financial and legal risks that a purchaser may otherwise be exposed to when acquiring a business.  Due diligence is the process undertaken by the purchaser of a business to perform an assessment of risks and compliance to ensure that the target business is, amongst other things, profitable, compliant with its legal, including contractual, tax and other obligations and operating with appropriate licenses and approvals. [...]  READ MORE →

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What is the best business structure for you?

No matter what stage your business is in or the type of business you operate, it is critical to have the right business structure in place for many reasons, including to safeguard your personal and business assets, minimise risk and tax implications and optimise returns.  Each business structure has its own benefits and risks as well as criteria and regulatory requirements, which should be considered before adopting a business structure that is ideal for your business and personal needs.

Sole traders and partnerships [...]  READ MORE →

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PREVENTING DATA BREACHES AND ESTABLISHING RESPONSE PLANS | PRIVACY LAWS

By Geeti Chawla, Principal at Matthews Folbigg in the Commercial Law Group

In recent years, the Privacy Laws in Australia have undergone various amendments in an effort to make them more stringent and responsive to ensure that businesses are taking all necessary steps to protect personal information and to respond adequately in the event of a data breach.  The more recent high-profile data breaches have proved to be a turning point for the latest reform to the Privacy Act 1988 (Cth) (Act) in the form of the Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022 (Amended Act), which came into effect on 13 December 2022. [...]  READ MORE →

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New Changes and Penalties to Unfair Contract Terms under the Australian Consumer Law

By Geeti Chawla, Principal at Matthews Folbigg in the Commercial Law Group

Effective 10 November 2023, certain changes to the unfair contract terms (“UCT”) regime pursuant to Schedule 2 of the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth) (“Amendments”) will come into effect. Following these Amendments, a small business or a consumer entering into or renewing a contract, which falls within the meaning of a ‘standard form contract’ under the Australian Consumer Law (“ACL”), are expected to be afforded better protection against unfair contract terms. The Explanatory Memorandum clarifies that the Amendments have been introduced to reduce the prevalence of unfair contract terms and to prohibit the use of and reliance on unfair contract terms in standard form contracts. [...]  READ MORE →

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Will Disputes

Joint Property and your Will

Most Will Disputes occur from contention over how the Estate was supposed to be divided among the beneficiaries, rather than how the law entitles those to the assets in the Estate.

The primary example being a property purchased in a couple’s names as Joint Tenants. Upon the death of one owner, the law of succession states that the property is automatically passed to the joint owner on title. If the deceased’s Will states that their share of the property is to be passed to their beneficiaries rather than what the law of succession demands, this is how Will Disputes occur. [...]  READ MORE →

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Display or Pay! Franchisors must register by 14 November 2022

Effective July 2021, a number of important changes were introduced to the Franchising Code of Conduct (the Code). These changes were introduced in response to the ‘Fairness in Franchising’ report released in March 2019 by the Parliamentary Joint Committee on Corporations and Financial Services following an inquiry into the operation and effectiveness of the Code. In essence, the changes were brought in to deal with the long scrutinised power imbalance between the franchisor and the franchisee and to establish a greater level of transparency in that relationship pertinent to the franchise business. [...]  READ MORE →

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Mandatory Code of Conduct for Commercial Leasing

NSW Government re-introduces the National Cabinet’s Mandatory Code of Conduct for Commercial Leasing

On 13 August 2021, the NSW Gov­ern­ment announced it will rein­tro­duce the Nation­al Cabinet’s Manda­to­ry Code of Con­duct for Com­mer­cial Leas­ing man­dat­ing rent relief for eligible ten­ants impact­ed by Covid-19.

The Retail and Oth­er Commer­cial Leas­es (Covid-19) Reg­u­la­tion 2021:

  • will be extended until 13 January 2022 (previously due to expire on 20 August 2021)
  • requires the lessor to renegotiate the impacted lease with the lessee in accordance to the principles set out in the National Code of Conduct. The Code of Conduct requires landlords to provide rent relief in proportion with their tenant’s decline in turnover. At least 50 per cent of the rent relief must be in the form a waiver, and the balance a deferral.
  • prevents a land­lord from evict­ing or lock­ing out a ten­ant for cer­tain breach­es unless they have first rene­go­ti­at­ed rent and attempt­ed mediation.

The Reg­u­la­tion will apply to com­mer­cial and retail ten­ants with a turnover of up to $50 million who are impacted lessees, that is, they qualify for the COVID-19 Microbusiness grant, COVID-19 Business Grant or JobSaver Payment. [...]  READ MORE →

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COVID-19 Contracts and Frustration

Contracts and Frustration by COVID-19- Important decision  

Recently, the New South Wales Supreme Court (NSWSC) in Dyco Hotels Pty Ltd v Laundy Hotels (Quarry) Pty Ltddecided that a contract for sale was not frustrated by pandemic trading restrictions.

Lockdown and trading restrictions imposed by the government in response to COVID-19 has inevitably given rise to parties in sale contracts to claim frustration when a business or commercial venture is impacted. In order for a contract to be frustrated, the frustrating event must give rise to a “fundamental commercial difference” between contemplated and actual performance or to a “fundamentally different situation” arising for which the parties made no provision “so much so that it would not be just in the new situation to hold them bound to its terms” (Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at [64]). [...]  READ MORE →