Eakin McCaffery Cox SolicitorsNews
Is your warranty against defects up to date?
From the 1st January 2012 all warranties against defects must comply with the requirements of
Regulation 90 of the Competition and Consumer Regulations 2010 (CCR).
Together, the CCR and the Competition and Consumer Act 2011 (Cth) replace the legislation
known today as the Trade Practices Act 1974 (Cth).
These new laws continue to be administered by the Australian Competition and Consumer
Commission.
To read the entire document, please click on the link below:
Warranty Update Article - December 2011.pdf
Michael Stafford performs services in both commercial and corporate areas. As to commercial services, Michael drafts a wide variety of commercial agreements including business and share sales, shareholder, joint venture, franchise and licence agreements, trust deeds and many more.. In corporate, Michael gets involved in such areas as fundraising (including preparing prospectuses), IPO's and ASX listing, rights issues, takeovers and capital reconstructions and other matters within the purview of the Corporations Act.
Direct 9265 3075
PA Jeanette Wood
Direct 9265 3095
Email: stafford@eakin.com.au
Personal Property Securities Reform Overview
With over 195 existing Acts and Regulations and over 70 registers throughout Australia currently dealing with the grant and registration of security over personal property, the introduction of the PPS Act is intended to harmonise the laws throughout Australia and provide one online database to register and search for security interests in personal property. Whilst real property (i.e. land) is excluded from the operation of the PPS Act, the PPS Act will need to be understood by project financiers in the property industry as it does have some application.
To read the entire document, please click on the link below:
Personal Property Securities Reform Overview
Michael Stafford performs services in both commercial and corporate areas. As to commercial services, Michael drafts a wide variety of commercial agreements including business and share sales, shareholder, joint venture, franchise and licence agreements, trust deeds and many more.. In corporate, Michael gets involved in such areas as fundraising (including preparing prospectuses), IPO's and ASX listing, rights issues, takeovers and capital reconstructions and other matters within the purview of the Corporations Act.
Direct 9265 3075
PA Jeanette Wood
Direct 9265 3095
Email: stafford@eakin.com.au
Government Funding Agreements – Practical Problems
Copy of text of a paper delivered by Gregory Ross at Government Solicitors Conference 31 August 20011.
To download, please click on a link below:
Swings & Roundabouts Text from Swings & Roundabouts
Recent Corporation Act Changes
The Corporations Amendment (Improving Accountability on Director and Executive Remuneration) Act 2011 is designed to give shareholders more power over the remuneration of directors and executives and to increase directors’ accountability. The changes will focus attention on a company’s practices for remuneration, voting and board composition, so there will be interesting times ahead for company directors.
The Act gives effect to the Federal Government’s response to the Productivity Commission’s post-global financial crisis report on executive remuneration. The Act amends the Corporations Act by:
- introducing the “two strikes” rule – if there is more than a 25 per cent vote against the remuneration report, in two consecutive years, shareholders must be given an opportunity to vote on whether to spill the board and elect a new one;
- preventing boards from declaring “no vacancies” where the board has less than the maximum number of directors permitted under the company’s constitution;
- restricting key management personnel and their related parties from voting on any resolutions relating to remuneration, other than under a directed proxy;
- requiring the chair to vote on all proxies held on a poll and, if other proxy holders do not vote on a resolution, providing for proxies to default to the chair, so that shareholders have greater comfort that their votes will be cast;
- affecting the manner in which remuneration consultants are appointed and report to the company to ensure their recommendations are free from undue influence; and
- making some helpful changes to the content of the remuneration report.
Michael Stafford performs services in both commercial and corporate areas. As to commercial services, Michael drafts a wide variety of commercial agreements including business and share sales, shareholder, joint venture, franchise and licence agreements, trust deeds and many more.. In corporate, Michael gets involved in such areas as fundraising (including preparing prospectuses), IPO's and ASX listing, rights issues, takeovers and capital reconstructions and other matters within the purview of the Corporations Act.
Direct 9265 3075
PA Jeanette Wood
Direct 9265 3095
Email: stafford@eakin.com.au
Employment Law Bulletin June 2011
Employment_Law_Bulletin_June_2011.pdf
Eakin McCaffery Cox Joins the Great Illawarra walk!
http://www.greatillawarrawalk.com/index.php/donate/eakin_mccaffery_cox_solicitors
“Material Breach” -- Lucas Stuart Pty Ltd v Hemmes Hermitage Pty Ltd
In November 2010 the NSW Court of Appeal has issued a decision bearing upon the meaning of “material breach” in a contract.
Lawyers have long been bedevilled with the use of a generic reference to “material breach” in contracts. Many have considered that references to “material breach” do not bring real certainty to many contractual situations.
Commonly a lawyer will seek to pursue the concept of a more precise definition of “termination event” or the like but in many contracts more generic references to “material breach” have continued to appear.
In its decision in Lucas Stuart Pty Ltd v Hemmes Hermitage Pty Ltd [2010] NSWCA 283 [http://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/283.html] the NSW Court of Appeal (CoA) delivered a decision bearing upon this issue.
In the case the Court of Appeal found that failure to perform one of the relevant contract’s main obligations under the contract did not necessarily mean it was a “material non-compliance” allowing resort to enforcement provisions but that it was necessary to look at whether the failure amounted to being “material” to compliance under the contract as a whole.
In paragraph 25 of the decision, MacFarlan JA said “The clause in my opinion requires a determination of whether the applicant has failed materially to comply with its obligations under the Contract, with those obligations being looked at as a whole.”
Whist the case involved a construction contract, the same policy should apply to any contract situation in which there are detailed or technical compliance issues.
The case should be borne in mind in the drafting of the contracts, such as any involving highly detailed technical issues of performance [such as IT, construction, medical service provision and the like], and not simply rely on generally vague termination rights for “material breach”.
A contract should be precise in defining what default triggers termination or enforcement rights and which does not, so as to lessen risk of dispute as to the validity of purported termination for noncompliance with a particular contractual obligation, which may be held not to be material, when the particular contract obligations are “being looked at as a whole”, with possible consequential liability in damages for wrongful termination.