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Retention of Title clauses: the effect of the new PPSA Legislation

March 5, 2012

Under the new Personal Property Securities Act 2009 (Cth) (“the Act”) a security interest is an interest in personal property and in substance secures payment of a debt or other obligation.   A security interest incorporates the previous forms of security such as mortgages and charges over assets; however, it also incorporates transactions such as:

  • traditional retention of title (“ROT”) clauses in contracts (where a purchaser has possession of the property but does not acquire title from the seller until the full purchase price is paid); and
  • financing or operational leases of personal property for a term exceeding twelve months (or 90 days in the case of a motor vehicle, boat or aircraft).

Under the Act, suppliers and lessor’s who utilised ROT clauses will become secured parties with a security interest in the property supplied.  In order to protect themselves, suppliers and lessor will need to register their security interest in the property supplied or leased.

Provided the security interest is registered,  suppliers and lessor utilising ROT clauses will receive a purchase money security interest which entitles them to take priority over all other, including earlier, security interests in the collateral where the requirements of the Act have been complied with.

The Act also provides protection against a trustee in bankruptcy or a liquidator as the property subject to the security interest will not be available to a trustee in bankruptcy or a liquidator.

It is important to note that the Act does not require a registration to be made in respect of all supplies or leases to the same buyer or lessee.   A single registration may cover subsequent security interests in property that is supplied under later agreements. 

Given the above, it is highly recommend that all businesses review not only their client arrangements but also their business ...

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Filed Under: Corporate & Commercial

Directors update

August 25, 2011

The recent Federal Court decision of Australian Securities and Investments Commission v Healey [2011] FCA 717 (“Centro”) shows the significant obligations that directors need to take into account when approving financial statements of their company. In this instance, the directors approved financial reports for Centro Property Group and Centro Retail Group which failed to disclose that the cumulative liabilities of both companies were $3.75 billion.

Justice Middleton held that certain directors and former officers of Centro had:

  1. Breached their duties to act with due care and diligence under sections 180(1) and 601FD(3) of the Corporations Act 2001 (Cth)(“the Act”); and
  2. Failed to take all reasonable steps to comply with, or secure compliance with the financial reporting obligations contained in Part 2M.3 of the Act, pursuant to section 344(2) of the Act.

In making this decision, his Honour clarified that directors have a responsibility to read, understand and focus on the contents of the financial reports they are required to approve or adopt. It is not sufficient for a director to be briefed by a party with knowledge of the contents of the financial report.

Further, the responsibility of the director extends to require that the director ensures that the financial statements are consistent with the director’s knowledge of the company’s financial position, which requires the director to examine in detail the report and be continually apprised of the company’s financial circumstances. ...

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Filed Under: Corporate & Commercial

Shareholders’ Agreements: a sound investment

July 12, 2011

A shareholders’ agreement is a contract that regulates the rights and obligations of members of a company.  A shareholders’ agreement is not a mandatory document required under the Corporations Act2001 (Cth) (“the Act”), however, it provides an important mechanism for regulating aspects of a company not catered for in either the company’s constitution or the replaceable rules of the Act.  It further assists in the overall running of the business by providing certainty with respect to the obligations/expectations/rights of the members of the company.

Shareholder agreements generally cover the following matters (among others):

  1. exit strategies for members (i.e. agreements to sell shares on particular occurrences, i.e. death);
  2. the financing policy of the company;
  3. determining who is to manage the day-to-day business of the company;
  4. the requirements and conditions of any shareholder loans;
  5. the dividend distribution policy of the company;
  6. restraints of trade with respect to the members and their related key persons;
  7. a shareholder’s rights to appoint/remove directors; and
  8. any pre-emptive rights a member has to acquire shares in the event of another member selling their shares.

A further advantage of a shareholder agreement is to reduce the risk of potential disputes between members.  Shareholder disputes can be costly and only reduce business value.  Where a dispute does arise however, it is most important that a clearly defined procedure is contained in the shareholders' agreement setting out  how the dispute will be handled, so as to minimise disruption to the business.

To discuss whether a shareholders’ agreement would be beneficial for your organisation, please contact Matthew Rouse on 07 3648 9900. ...

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Filed Under: Corporate & Commercial

Franchising Update: the case of the Hose Doctor

June 28, 2011

Franchisors ongoing health and safety obligations for franchisees
The Defendant, Parker Hannifin (Australia) Pty Ltd operates ‘The Hose Doctors’ franchise.  Franchisees purchase a Hose Doctor Van which is a customised and stocked van with the Franchisors’ logo.  The rear of the van is a mobile service centre, which stores equipment, including hazardous gases.  In 2008, a franchisee’s van exploded with significant damage caused to neighbouring buildings and vehicles.  The Franchisee was also injured in the explosion.  An investigation by Workcover (NSW) determined that the explosion was the result of an open valve on a tank containing acetylene and also that the vehicle did not comply with Australian Standards in relation to ventilation requirements for transportation of gases.

The Court found as follows:

  1. The van constituted a ‘premises’;
  2. Parker Hannifin had control of the ‘premises’ in the course of their trade or business;
  3. The ‘premises’ were used by  franchisees who are not employees of Parker Hannifin; and
  4. Parker Hannifin had failed to ensure that the ‘premises’ were safe with respect to Health and Safety requirements.

The Court determined that the relationship between the Franchisor and Franchisee was no different to a principal/contractor relationship and that as Parker Hannifin had substantial control over their franchisees (i.e. by the supplying of the equipment to allow the franchises to operate) that they were responsible for ensuring that the Vans met Australian safety standards.  Parker Hannifin were fined $110,000.00.

This case demonstrates the need for Franchisors to have formal and up-to-date workplace health and safety processes in place for their franchisees. Further, these processes need to be consistently monitored and updated for best practice and compliance. ...

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Filed Under: Franchising

How to prevent a claim for Unfair Dismissal by a “redundant” employee: Ulan Coal Mines Limited in focus.

May 24, 2011

In November 2010, the Full Bench of Fair Work Australia (“FWA”) handed down the authoritative decision of Ulan Coal Mines Limited (“Ulan”) v Honeysett and others (“The Honeysett Employees”) which provide the steps an employer needs to take to redeploy a redundant employee (so as to prevent a claim for unfair dismissal under the Fair Work Act2009 (Cth)) (“FWA 2009”).

Under the Unfair Dismissal provisions of the FWA 2009, an employee cannot bring an action for unfair dismissal in the instances of genuine redundancy. A redundancy is not considered to be genuine where:

  1. The employer has not complied with any consultation obligations in a modern award agreement or enterprise agreement that applied to the employment; or
  2. It would have been reasonable (in all the circumstances) for the person to be redeployed within
    1. The employer’s enterprise; or
    2. The enterprise of an associated entity of the employer.

It was accepted between the parties that the employer had complied with point 1, and the appeal turned on the issues of:

  1. Whether the employee could have been redeployed within the employer’s enterprise or associated entity; and
  2. What constituted a reasonable attempt of redeployment under the FWA 2009.

Impact of this decision on Employers

  1. When making an employee redundant, you need to consider whether there is an available position within your company or an associated entity that the employee would be able to fill instead of being made redundant;
  2. If there is a general application process in place, consider giving the employee preference over the general pool.  Please note this may not be enough to avoid unfair dismissal.
  3. In the event that re-training would make an employee suitable for a position, this should be fully ...

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Filed Under: Commercial Litigation, Corporate & Commercial, Employment Law

Unauthorised alterations to leased premises: a costly exercise…

December 21, 2010

A recent High Court decision has made it clear that Lessee’s face potential liability in the event they alter leased premises without the Lessor’s consent.

In 1996, the applicant Tabcorp Holdings Ltd (“Tabcorp”) and the respondent Bowen Investments Pty Ltd (“Bowen”) entered into a ten year lease term with two five year options to renew.  Prior to entering into the lease, Bowen had taken considerable care and expense in the construction of the foyer to the leased premises, with the foyer containing specialised materials (such as San Francisco Green Granite).  In or around June 1997, Tabcorp approached Bowen regarding making alterations to the foyer area.  Bowen responded in turn saying that consent was not given.

Bowen subsequently attended the premises and discovered that the glass and stone partition, timber paneling and stone floor tiles had been removed and what remained of the floor work was in the process of being jack-hammered.  Despite protests on the part of Bowen, Tabcorp completed the alterations to the foyer area around August 1997.  The Lease between Bowen and Tabcorp contained the following lease provision by which the Tenant covenanted:
“Not without the written approval of the Landlord first obtained (which consent shall not be unreasonably withheld or delayed) to make or permit to be made any substantial alteration or addition to the Demised Premises”
The lease also contained covenants that the Tenant will:

  1. Keep the premises in repair;
  2. To yield up the premises on the determination of the lease in good repair; and
  3. To make good any breakage or damage.

These provisions are considered standard lease terms.

The Federal Court originally found in favour of Bowen and awarded damages in the amount of $34,820.00 (which represented the difference in the value of the property with the old foyer and the value with the new foyer.  Bowen appealed this decision.  On ...

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Filed Under: Corporate & Commercial

Unfair Dismissal under the Small Business Fair Dismissal Code

December 21, 2010

WHAT IS THE SMALL BUSINESS FAIR DISMISSAL CODE
As of 1 January 2010, private sector employees are protected by the new national industrial relations system, the Fair Work Act, while public sector employees are covered by the state industrial relations system.

The Small Business Fair Dismissal Code is a new national workplace system designed to assist small businesses and their employees and works in conjunction with the Fair Work Act 2009.

The new system provides that the minimum employment period is now twelve (12) months (instead of the original six (6)) and that an employee cannot make a claim for unfair dismissal within this twelve (12) month period.

The system also recognises that Small Businesses are unlikely to have expert Human Resources staff and aims to assist employers ensure that any valid dismissals are not considered to be unfair.  This is done via the Dismissal Code Checklist, discussed below.
WHATE CONSTITUTES A SMALL BUSINESS?
Under the Code, a small business is considered to be any business where the employer employs less than fifteen (15) full-time equivalent employees.  Please note that this number can include employees of related entities.
APPLICATION FOR UNFAIR DISMISSAL REMEDY
An employee has fourteen (14) days from the date of the dismissal coming into effect to lodge an application to Fair Work Australia.  Applications are made to Fair Work Australia as part of the new national scheme.  Unfair Dismissal is determined to have occurred when an employee applies to Fair Work Australia and it is determined that:

  • The employee was dismissed; and
  • The dismissal was harsh, unjust or unreasonable; and
  • The dismissal was not the case of genuine redundancy; and
  • In the case of the employer being a small business, where the dismissal was not consistent with the Small Business Fair Dismissal Code.

For small businesses, for an employee to be eligible to make an unfair dismissal remedy ...

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Filed Under: Commercial Litigation, Corporate & Commercial, Employment Law

호주 임대 (리스) | 임대계약서 사인 잘못하면 노동 계약서인데, 사인 전 딱 3분만 체크하실 시간 있으세요?

May 20, 2006

한국에 생계형 자영업자가 참 많죠? 호주도 똑같습니다. 심지어 변호사들도 100명 중 70명 이상이 개인회사를 차려서 일하고 있습니다. 집을 오피스로 전환해서 home business 를 하는 사업가들도 많지만 대부분 샾을 또는 오피스를 임대합니다.
"임대계약서? 그냥 집 렌트하는거랑 똑같지 뭐"는 참 무식하고 잘못 된 생각입니다.

한국에서는 '상가건물 임대차보호법'이 전국에 적용 되지만, 호주는 한국이랑 달리 '상가건물 임대차보호법'이 주마다 다릅니다. 하지만 호주도 세입자를 최대한 보호해야 한다는 취지를 갖고 있습니다.

법이 보호해준다 해도 한계는 있고 이 보호막을 무너뜨리고 약화시키려고 하는 사람들이 바로 건물주들입니다.

노동관계가 일방적일 경우 "악덕 고용주"가 태어나듯이, 임대계약 관계에서도 "악덕 건물주"가 세입자를 5년, 10년 또는 15년 동안 갑질을 하며 괴롭힐수 있습니다.

따라서 임대계약서를 사인하시기 전에, 다음 내용을 꼭 짚고 넘어가야합니다.

1. 권리금포기 조항
2. 건축물 용도 확인 및 업종제한규약
3. 임차료 상승률을 미리 정하는것
4. 유사업종 입점금지 조항
5. 샾 오프닝 기간
6. 등기사항증명서
7. 계약갱신요구권 (옵션)
8. 건물 하자 체크
9. 아웃고잉스 (건물주 관리비용 지원)
10. Development Application 조사

사실 위 10개만 짚고 사인해도 된다면 임대계약 절차가 생각보다 쉽다고 생각할수도 있습니다.

하지만 위 내용 외에도 중요한 내용이 있을수 있고 임대계약서가 건물주마다 포맷이 다르기때문에 하나하나 검토를 해봐야합니다.

임대계약서 업무 도움이 필요하시면 저희 Rouse Lawyers 에 연락 부탁드립니다. ...

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Filed Under: Korean Desk

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17-Page Guide Reveals:

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Written by Matthew Rouse, commercial lawyer and founder of Rouse Lawyers.

17-Page Guide Reveals:

How To Protect Your Business and Your Assets While Allowing Your Business To Thrive

Written by Matthew Rouse, commercial lawyer and founder of Rouse Lawyers.

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