This time last year, the protections against unfair contract terms were extended under the Australian Consumer Law (ACL) to include standard form contracts involving small businesses.
A ‘standard form contract’ is generally a pre-prepared contract which offers the same or similar terms to all consumers, and is often utilised by larger businesses to improve efficiency. ...
The Supreme Court of Queensland has reaffirmed the law that a debtor only has 21 days to file and serve an application to set aside a creditor's statutory demand, regardless of whether the Christmas/New Year period that falls within the 21 days. ...
Image Via news.com.au
Janine Allis, founder of Boost Juice and Retail Zoo, delivered a punch to two gym owners and Shark Tank hopefuls this week. The guys were pitching a food product to the Sharks, and the packaging revealed it was ‘engineered to accelerate muscle growth and increase energy levels’. ...
Businesses must take care to ensure that standard form contracts, such as terms and conditions or terms of trade, are not considered ‘unfair’ pursuant to the Australian Consumer Law (ACL). ...
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If you’re a prospective tenant or landlord entering into a leasing transaction then it’s likely that you will be asked to sign a number of different documents. It’s important to understand the differences between each document and how they interact in order to determine which is appropriate for your situation. ...
1. Put it in Writing.
We can’t say this enough. Put every deal in writing.
Why is this ‘effortless’? Think of the alternative. If everyone made sure their agreements (and any variations) were clear and in writing, our litigation team would be out of business.
Call us cynical, but handshake deals are a thing of the past. With constant access to technology like smart phones, there’s no reason not to make sure there’s a record of the deal that has been struck.
2. Know Your Vulnerabilities
Rouse Lawyers offers a no-obligation 360o Legal Review. You’ll sit down with a senior member of our team over coffee, and they’ll take you and your business through our exposure detection process to make sure you are on top of everything (or at least aware of where you need to tighten things up!).
Our 360o Legal Review is designed to give you at least one ‘aha moment.’
What we know from experience is that you’ll walk away with added peace of mind.
3. Source Free Resources Online
There are a number of fantastic online resources that often go untapped.
Here are just a few...
For employment: https://www.fairwork.gov.au/ and https://www.fwc.gov.au/
For intellectual property: http://www.ipaustralia.gov.au/
For cases, legislation and articles: www.austlii.edu.au
And of course, our web site: www.rouselawyers.com.au
If you’re interested in our 360o Legal Review, get in touch with us to arrange a date on 07 3648 9900 or via email admin@rouselawyers.com.au. ...
A High Court challenge starting today in Canberra will determine whether bank customers should be reimbursed hundreds of millions of dollars in credit card late-payment fees.
Thousands of ANZ customers are part of a class action hoping to convince the High Court the fees are illegal.
At the crux of the challenge is the disparity between late fees charged by the bank, and the actual loss suffered when a customer pays a credit card late.
Customers say the late fees they were charged by the bank (up to $35) bear no relationship to the actual cost to the bank, which they say is about 50 cents.
The class action attack on the fees is that they are:
1. penalties at common law or equity; or
2. the result of unconscionable conduct by ANZ within the meaning of the Australian Securities and Investments Commission Act 2001 (Cth) or the Fair Trading Act 1999 (Vic); or
3. unjust under the National Consumer Creditor Protection Act 2009 (Cth); or
4. unfair contract terms.
Initially, the Federal Court ruled in favour of the customers, finding the late payment fees unlawful as they were extravagant, exorbitant and unconscionable. However, that judgment was overturned by a full bench of the Federal Court, which took into account a broader scope of items that could be considered costs to the bank. This has prompted the High Court action.
This case is one of several class actions against the big banks, including CBA, Westpac, NAB, Citibank, St George and Bank West – these cases are now waiting on the outcome of the High Court appeal.
If the High Court appeal succeeds, anyone forced to pay a late fee could benefit from the Court’s decision. ...
1. A Creditors’ Statutory Demand can be used by a creditor owed at least $2,000 by a company.
2. The debt must be due and payable – a common mistake is to issue a statutory demand for a debt (or part of a debt) which is not yet due. For example, the demand might include a number of outstanding invoices, but the most recent invoice issued to the debtor is not yet payable.
3. There must be no “genuine dispute” about the debt. If the parties are in dispute about the amount or existence of the debt, it may not be appropriate to issue a Creditors’ Statutory Demand.
4. The threshold to establish a “genuine dispute” can be easy to meet – often all that is required is “plausible contention requiring investigation”.
5. A mistake in a Creditors’ Statutory Demand, such as an incorrect address or misstatement of an amount, may be sufficient grounds to set aside the demand – care should be taken to ensure all information in the demand is correct.
6. The debtor has 21 days from the date of service, without exception, to either pay the debt or apply to the Court to set the demand aside.
7. Failure to pay the debt or set aside a Creditors’ Statutory Demand will result in the debtor company being presumed insolvent, and the creditor (or any 3rd party for that matter) may apply to wind the debtor company up due to insolvency.
8. To set aside a Creditors’ Statutory Demand, the debtor must satisfy the Court that a genuine dispute exists, the debtor has an offsetting claim, or there is a defect in the demand or some other good reason to set it aside.
9. Once the 21 days expires and the debtor company is presumed insolvent, the creditor must act upon the demand or it will expire and a new Creditors’ Statutory Demand must be issued.
10. NEVER ignore a Creditors’ Statutory Demand – if you receive a Creditors’ Statutory Demand you must act quickly; 21 days can be an extremely short time to settle a debt or prepare a Court application to apply to ...
Where a creditor is owed at least $2,000 by a company, the Corporations Act 2001 (Cth) contains a powerful mechanism to recover that debt: a Creditor’s Statutory Demand (statutory demand).
The Debt
A statutory demand is essentially a notice to a debtor company that it is required to pay the debt(s) set out in the statutory demand within 21 days of service, or a presumption of insolvency will arise. This presumption allows the creditor (or anyone else for that matter) to take immediate steps to wind-up the debtor company.
To issue a valid statutory demand, the Corporations Act requires:
The Action
Once a statutory demand has been served on the company, the debtor must either apply to the Court within 21 days of service (without exception) to set it aside or pay the debt.
If the debtor applies to the Court to set the statutory demand aside, the debtor has to satisfy the Court that:
All that is required for a “genuine dispute” is that the debtor has a “plausible contention requiring investigation”, but it cannot be “fanciful” or “far-fetched”. The dispute must truly exist in fact and the grounds for the dispute must be real and not hypothetical or misconceived.
If the debtor company ignores the ...
