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Unfair Contract Terms in a Business to Business Contract

Posted by on Dec 8, 2017 in Business Sale & Purchase News, Commercial Agreements & Disputes News, Conveyancing News, Leases News, Litigation News, News |

In a recent Federal Court case, Australian Competition and Consumer Commission v J J Richards & Sons Pty Ltd [2017] FCA 1224, the Federal Court found that a number of terms in a standard form contract between a large waste management company and a small business were unfair and therefore void. Under the Australian Consumer Law consumers and small businesses are protected from unfair contract terms imposed on them by standard form contracts. In this case the standard from contract included terms (later found to be void): * binding customers to a further term of the contract unless notice was given 30 days before the end of the term (automatic rollover); * allowing a unilateral increase in prices during the term; * requiring the waste management company to be the exclusive provider of services; * allowing a suspension of service if payment was outstanding for 7 days; and * preventing the customer from terminating the contract if payments were outstanding. The lesson both for businesses wanting customers to sign standard form contracts and for customers presented with a standard form contract by a supplier is to to carefully review the document to ensure that there are no unfair terms which will impact on the...

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New Laws For Ticket Scalping and Gift Cards

Posted by on Dec 8, 2017 in Litigation News, News |

New amendments to the Fair Trading Act 1987  targeting ticket scalping and gift cards will commence in NSW in 2018. The changes include: Ticket Scalping 1. A ticket to an event such as a concert or sporting fixture cannot be re-sold for more than the original price plus a maximum of another 10% for transaction costs. 2. The maximum penalty for contravention will be $22,000 for individuals and $110,000 for corporations. 3. Any advertisement for the re-sale of a ticket cannot specify a sale price more than 110% of the original price. 4. The use of software to enable persons to rapidly buy large numbers of tickets is banned. Gift cards 1. All gift cards must have an expiry date of no less than 3 years. 2. No charges or fees can be imposed by a retailer so as to reduce the redeemable value of the gift card....

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New Scheme for Removing Driver Disqualifications

Posted by on Nov 9, 2017 in Litigation News, News |

Under a new scheme in NSW introduced by the Road Transport Amendment (Driver Licence Disqualification) Act 2017, as from 28 October 2017, eligible drivers who have not committed any driving offence during a certain period of time (“offence free period’) may apply to the Local Court to remove an existing disqualification period imposed on them. Who Can Apply? All drivers are eligible to apply provided they have not been convicted of  a driving offence involving death or grievous bodily harm. Grounds to Apply Provided a driver has been free of driving offences for two years before the application to the Local Court and has served at least two years of his current disqualification period then the Court will consider lifting the disqualification. However, if the driver’s disqualification was as a result of a major offence including exceeding the speed limit by more than 30 km per hour or street racing then the offence free period required will be 4 years. What Will the Court Consider? * The safety of the public.   *The applicant’s overall driving record.  *The applicant’s need to travel and the availability of public transport.  *The applicant’s conduct since the disqualification commenced.  *The applicant’s health, finances and any other relevant circumstances. What if the Application is Successful? If the Local Court decided to lift the disqualification it will order on what date that comes into effect. The driver will need to reapply to Roads and Maritime Services for their licence and will need to successfully complete road safety and knowledge tests.    ...

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Contesting an Unfair Will Free Info Session

Posted by on Nov 3, 2017 in Contesting an Unfair Will News, News, Wills & Deceased Estates News |

Have you been left out of a will? Didn’t get your fair share of an estate? Are you an executor and someone is making a claim against the estate? Then attend a free 1 hour information session on Monday, 4 December 2017 and find out everything you need to know and what to do about it from Tony Laumberg, a solicitor with over 30 years’ litigation experience. Here are the details: Venue: Woollahra Golf Club, O’Sullivan Road, Rose Bay Time: 6.00 pm until 7.00 pm on Monday, 4 December 2017 Parking: Plenty in the car park at the end of the long driveway. Metres away from the entrance. During this information session you will find out who can claim, what they can claim and you will be given recent examples of Court cases and the results. You will receive a free guide on the Family Provision claims process and a free summary of every Family Provision case decided by the Supreme Court of NSW in 2017. Places are limited so please ensure your attendance by registering now with Tony Laumberg by calling 9371 7243 or e-mailing him at...

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Changes to Retail Leases Act

Posted by on Jul 3, 2017 in Business Sale & Purchase News, Commercial Agreements & Disputes News, Conveyancing News, Leases News, Litigation News, News |

The Retail Leases Act 1994 applies to most retail shop leases in NSW. Amending legislation, which commenced on 1 July 2017, introduces significant reforms including the following changes: * The requirement that a retail lease must be for a minimum of 5 years has been removed so that there is now no minimum term. * A lessee will now have a right to compensation where the the lessee terminates the lease inside the first 6 months for a failure by the lessor to give the lessee a Lessor’s Disclosure Statement or if the lessor gives one that is incomplete, false or misleading. * A lessor must return a bank guarantee to a lessee within 2 months of the lessee complying with its obligations under the lease. * A retail lease must be registered within 3 months of the executed lease being returned to lessor by the lessee. * A lessee will not be liable to pay a particular outgoing under the lease unless that outgoing was disclosed in the Lessor’s Disclosure Statement. Also, if the lessor had no reasonable basis for a particular outgoing estimate the lessee is only obliged to pay the amount of the estimate and nothing more. * A Lessor’s Disclosure Statement, which has to be provided by the lessor to the lessee 7 days before the lease is entered into, can now be amended if the parties agree in writing rather than the lessor having to issue a new document and the parties having to wait another 7 days. * The monetary jurisdiction of the NSW Civil and Administrative Tribunal with regard to retail lease disputes is increased from $400,000.00 to $750,000.00. * Penalty notices for failure to comply with the Act can now be issued. The main message is that greater care must now be taken to ensure that a Lessor’s Disclosure Statement is accurate otherwise: (a) a lessee may not only be entitled to terminate the lease in the first 6 months but also substantial compensation including the cost of a fit-out and legal fees; and (b) a lessor may not be able to recover all outgoings in full if those referred to in the lease are not disclosed or the estimates are not reasonably based. Compliance with the Retail Leases Act will also be important to avoid receiving a penalty...

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Change to Foreign Resident Capital Gains Tax Withholding

Posted by on Jun 7, 2017 in Conveyancing News, News |

For those of you considering buying or selling real estate in the near future you may be aware that there is a Foreign Resident Capital Gains Withholding (“FRCGW”) which, in the case of real property being sold for a price of $2m or more, requires the purchaser to withhold 10% of the purchase price from the vendor (whether he or she is a foreign resident or not) and to submit this sum to the Australian Tax Office on account of possible capital gains tax liability UNLESS a clearance certificate  from the ATO is provided to the purchaser by the vendor before settlement. The big news is that as from 1 July 2017 (subject to Commonwealth legislation passing beforehand) the FRCGW will apply to the sale of real estate where the price is $750,000 or more (basically everything in Sydney!) and the withholding amount will be at the rate of...

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