Times are changing
On 28 June 2023, Eakin McCaffery Cox personnel Kerry Sidaway, Partner, Caroline Parker, Special Counsel, and Paul Gavazzi, Consultant, participated in a Lawyers Associated Worldwide Emerging Leaders Webinar with other lawyers from various South East Asian and North American countries. Paul presented on “Managing law firms in difficult times – an Australian Perspective” slides available here
Assisted Dying Laws – NSW – Update
The following is an AI generated summary of NSW Health’s Outline of the operation of Voluntary Assisted Dying legislation for NSW which is to commence operation in late 2023. Full text of that can be accessed at https://www.health.nsw.gov.au/voluntary-assisted-dying/Pages/Voluntary-assisted-dying-overview.aspx . Further updates and information will be provided as issues crystalize. Voluntary assisted dying? Voluntary assisted dying refers to a process where an eligible individual can request medical assistance to end their own life. This option is available to individuals who are in the late stages of an advanced disease, illness, or medical condition and are experiencing unbearable pain and suffering. If
Landmark combustible cladding judgment
Landmark combustible cladding judgment Eakin McCaffery Cox has successfully obtained a judgment from the NSW Court of Appeal in favour of an Owners Corporation against a builder and developer for the cost of replacing combustible cladding on a 28 storey apartment building in Parramatta. This judgment has set an important precedent with respect to the serious issue of combustible cladding, and will also impact other areas of defect litigation. Most of the façade of the Parramatta building, completed in 2017, included Vitrabond FR aluminium composite panels (ACPs) containing between 35% and 41% polyethylene. Following the New South Wales Government’s 2018
YOU CAN RUN BUT YOU CANNOT HIDE
Westpac Banking Corporation: Application of Zheng [2023] NSWSC 147 The Supreme Court of NSW has ordered payment to be made in favour of a creditor, despite failure to locate the debtor. Accordingly, debts held in Australia cannot be avoided by leaving the jurisdiction or making yourself difficult to locate. On 27 February 2023, Robb J held in Westpac Banking Corporation: Application of Zheng [2023] NSWSC 147 that funds paid into Court following the sale of one of the debtor’s assets be released to Mr Zheng (the Applicant) in part satisfaction of a default judgment obtained by the Applicant in a
Polly Talking Too Much – Decision Quashed
Polly Talking Too Much – Decision Quashed You often hear people commenting and complaining about politicians talking too much. The recent Federal Court decision of Asset Energy Pty Ltd v Commonwealth Minister for Resources [2023] FCA 86 proves the point. Asset Energy held an interest in Petroleum Exploration Permit NSW/PEP – 11 (the Permit) and had made application for a variation and suspension of certain conditions under the Permit (the Application). Whether to grant the application was political, as the area affected by the Permit was primarily to do with an area off the coast of Sydney and its environs
Breaches of freezing order and payment of substantial dividends relevant to whether stay of enforcement ordered
In January this year we reported on the decision of Stevenson J in Fitz Jersey Pty Limited v. Atlas Construction Group Pty Limited (in liquidation) & Ors [2021] NSWSC 1692 in which the Court held that: an amount received by Atlas pursuant to an adjudication determination under the Building and Construction Industry Security of Payment Act 1999 (NSW) was required to be recognised in Atlas’ accounts as revenue, with a corresponding liability recorded as “deferred revenue”; the actions of Atlas’ directors in declaring and paying dividends using the amount of the adjudication determination constituted an alienation of property with the
Director Identification Numbers (‘DIN’) – Registration required by 30 November 2022
New legislation[1] requires all directors of a body corporate registered under the Corporations Act and Corporations (Aboriginal and Torres Strait Islander) Act to register for a Director Identification Number (‘DIN’). The DIN is a unique identifier, issued to the Director upon verification of their identity. A DIN applies for life. The legislation is intended to lessen corporate phoenix activity – the process of continuing business activity of a company that has been liquidated to avoid its debts. The DIN scheme increases accountability by making directors traceable. Compulsory DINs may be especially beneficial to creditors. A DIN will contain details of
Carer or Lover? Who can make a family provision claim?
Australia is experiencing an ‘ageing’ population trend. The proportion of people over 65 is increasing. As we age, we need more assistance with our day to day tasks and often times, family members are not available (or sometimes not willing) to provide care. Carers are often brought in to fill that gap but in NSW, that may lead to a family provision claim under the Succession Act 2006 (NSW) (Act) by that carer against the estate of the deceased. Recent decision Summary The NSW Supreme Court of Appeal (CoA) in Sun v Chapman [2022] NSWCA 132 recently awarded a caregiver $550,000 from
Assisted Dying in NSW
After lengthy debate, NSW now has the Voluntary Assisted Dying Act 2022 (VADA). VADA will allow “eligible people” to choose to access assisted dying. Between now and then, there is something of an implementation period. During that period, amongst other things, NSW Health is working up implementation policies to address the many relevant issues, including that a Medical Practitioner can decline to participate. The implementation policies include information for Health Practitioners as well as members of the public. Details of those implementation methodologies will be on the NSW Health website from time to time The most important thing to note
Exposure Draft TPB Information Sheet TPB(I) D50/2022 Code of Professional Conduct – Confidentiality of client information
The Australian Tax Practitioners Board (TPB) is planning some refinements to the confidentiality provisions of the Tax Practitioner Code of Practice. I attach link in case you are interested Exposure Draft https://www.tpb.gov.au/exposure-draft-tpbi-d502022-code-professional-conduct-confidentiality-client-information This is at the same time as the Australian Tax Office is proceeding with its plan to issue a protocol on legal professional privilege in tax related matters. The two may well, in part, overlap. Submissions on the TPB exposure draft are open until early September. The above was prepared for and is intended to provide a broad general overview of issues only. 2.8.22. It is not intended, and must
What are “Addbacks’’ in Property Cases and how does the Court deal with them?
In a Full Court decision of the Federal Circuit and Family Court of Australia, Candle & Falkner [2021] FedCFamC1A 102, three Judges deciding an appeal provide a useful restatement of the principles regulating addbacks in property settlement cases. The Full Court decision provides a caution to parties and legal representatives in relation to “how” and “when” arguments for addbacks are agitated during the course of a case. The decision also emphasises the need for a primary judge to provide adequate reasons in support of the final orders made at the conclusion of the trial. The case involved a marriage of
COVID19-Ongoing Support
Attending our offices Please do not attend our office if you are suffering from any symptons. Please observe safe personal distance. Aware and Prepare – Ongoing Support to You & Your Business We are living in strange and challenging times. In this time of COVID19, both personally and business-wise, we need to think outside the box. Like everyone, all at Eakin McCaffery Cox have to deal with COVID19 and its impact on a day-to-day basis. Abiding by medical advice and government directives on a day-to-day basis that precautions are important for us all. Protection of people is the first priority.
Sentry Bugle Blast
EMC ACTS ON SALE OF SHARES IN SUCCESFUL MULTI DOLLAR MILLION MEDICAL SUPPLY COMPANY The commercial team at Eakin McCaffery Cox has recently completed the successful sale for a client of their shareholding in a Sentry Medical Pty Ltd , a major supplier in medical consumables industry to the publically listed EBOS Group Ltd. The value of the transaction exceeded $50m with earn outs to follow. Fuller detail of the transaction, recently announced on the NZX and ASX, can be found at https://www.nzx.com/announcements/378370 Special Counsel George Halikiotis and Partner Kerry Sidaway headed the team at EMC. The transaction, which had international
Protecting Brand / Trademark / Logo
Registration of YOUR TRADEMARK/LOGO as a trademark is a very good means of protecting your business. If you ever have a need to enforce your rights or defend your right to use YOUR TRADEMARK/LOGO, having YOUR TRADEMARK/LOGO registered as a trademark is a great help because it gives statutory enforcement rights, rather than have to rely on clumsy and more expensive common law and other methods. See link to read full article
Franchising Code of Conduct – Proposed Changes
The Franchising Code of Conduct is proposed to be amended by the Competition and Consumer (Industry Codes— Franchising) Amendment (Fairness in Franchising) Regulations 2020 (the “Proposed Regulation”). It has been issued as an ‘exposure draft’, in respect of which public submissions can be made until December 4 2020. The key areas of reform include: Disclosure; Ineffective restraint of trade clauses; Termination; and Dispute resolution. Disclosure The disclosure requirements under the Proposed Regulation are now to include a copy of a facts sheet[1]; a copy of the code; and information as to ADR.[2] In addition, information as to any rebate and
Do My Terms of Trade Mean I Need a Credit Licence
Legislative requirements on whether an organisation or business is to be classed as a “credit provider” needing to have a licence under the Consumer Credit Code are complex. If an organisation or a small business operator supplies “credit”[1] in the course of the sale of goods or services and the repayments are deferred for at least 7 days,[2] then that organisation or a small business operator is classed as a “credit provider” under the National Credit Code (the “Code”). If one is classed as a “credit provider”, the next question is whether there is a need to obtain a credit
Surcharge Land Tax NSW
The 2016 NSW Budget introduced a surcharge on Land tax to be paid by foreign persons owning land in NSW. See below links for the full article: https://www.eakin.com.au/surcharge-land-tax-nsw/ Surcharge Land Tax Nsw
Relief Against Forfeiture Refused for Pre-covid19 Default
In the recent case of MIR Holdings Pty Ltd & Anor v Marina Square Retail Pty Ltd [2020] NSWSC 1418 the Supreme Court refused an interlocutory application for relief against forfeiture by two retail lessees whose leases were terminated during the COVID pandemic period for arrears that arose prior to the pandemic period. See link to the full article:
Defeating Trademark Infringers
Despite the myriad of measures taken brand owners to defeat infringers, infringers are still willing to take the risk. Lawyers from around the region have shared some recent failed attempts with us. In Australia, Bauer Consumer Media v. Evergreen Television, is particularly notable in this era of increased international trade, says Christina Cavallaro, special counsel at Eakin McCaffery Cox in Sydney. “This case was a dispute between two television programme production companies in relation to the application to register the trademark Discover Downunder. Evergreen had applied for registration of the trademark in the class for production of television programmes. Upon
Eakin Mccaffery Cox Managing Partner, Mark Doble Shows His Softer Side With a Very Cute Workplace Visitor.
Eakin McCaffery Cox Managing Partner, Mark Doble shows his softer side with a very cute workplace visitor. https://www.linkedin.com/feed/update/urn:li:activity:6702463211024748544
Nelson Arias-alvarez Joins Eakin Mccaffery Cox
Eakin McCaffery Cox welcomes Nelson Arias-Alvarez as a Special Counsel in our Litigation dept. Nelson is an experienced construction & projects lawyer practicing at both the front-end and back-end of the project life cycle. Nelson has acted for a broad range of stakeholders in the construction industry and specialises in acting for principal contractors and subcontractors engaged in small to large scale residential building projects as well as small to medium scale commercial, industrial and infrastructure projects across New South Wales. https://www.linkedin.com/feed/update/urn:li:activity:6702103854898647040
Wanting to leave Australia? When and Why You Can!
Hiding amongst all the material on internal Australian COVID19 restrictions, there is also a prohibition on Australian citizens and permanent residents leaving the country. However, there is some flexibility under the relevant health direction – Biosecurity (Human Biosecurity Emergency) (Human Coronavirus with Pandemic Potential) (Overseas Travel Ban Emergency Requirements) Determination 2020 However, there is some flexibility under the Determination to apply for exemption to facilitate overseas travel. Fuller detail is available from https://covid19.homeaffairs.gov.au/leaving-australia but summarised as follows: – Travelling as part of the response to the mid-19 outbreak, including the provision of aid; Travel essential for the conduct of critical
Eakin Mccaffery Cox Welcomes Tom Wallace
Eakin McCaffery Cox welcomes Tom Wallace as a solicitor in our Litigation Team. With a background in commercial litigation, Tom brings experience having acted for clients in debt recovery, corporate insolvency and bankruptcy proceedings. Tom appears regularly in various State and Federal Courts and maintains professional relationships with insolvency practitioners, small business owners and members of the Bar. Clients value Tom’s technical ability, problem solving skills and his practical approach to litigation. We look forward to working with him as part of our firm. https://www.linkedin.com/feed/update/urn:li:activity:6697273818605584384
Director Identification Numbers (‘din’) – Sounding With Creditors – Will It Kill the Phoenix? Summary
New legislation, which is expected to commence within the next two years, will require all directors of a body corporate registered under the Corporations Act and Corporations (Aboriginal and Torres Strait Islander) Act to register for a Director Identification Number (‘DIN’). https://www.eakin.com.au/director-identification-numbers https://www.linkedin.com/feed/update/urn:li:activity:6683173716190490624
Procurement (Enforceable Procurement Provisions) Direction 2019 – Nsw – “clayton’s” Protection for Sme’s?
This NSW provision hangs off the state “version” of the legislation the Commonwealth required New South Wales to enter into pursuant to the Trans-Pacific Partnership Agreement as incorporated into the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (TPP-11)) with the USA and others. It is to do with, amongst other things, giving tenderers some recourse in the event of inappropriate procurement activity by NSW Government agencies. It is very differently based to that the Commonwealth introduced. Granted it was drawn before COVID 19 changed things, but it seem, now, a bit odd to me to have provisions so intent on
Retail and Other Commercial Leases (COVID-19) Regulations 2020
On 24 April 2020 the NSW government introduced the Retail and Other Commercial Leases (COVID-19) Regulation 2020 [NSW]1 adopting the Mandatory Code of Conduct (Code) for Retail, Commercial & Industrial Leases. The object of the Regulations are to: (a) prohibit and regulate the exercise of certain rights of lessors relating to the enforcement of certain leases during the COVID-19 pandemic period, and (b) require in response to the COVID-19 pandemic, that lessors and lessees renegotiate the rent and other terms of leases in good faith having regard to the leasing principles set out in the Code, before any legal enforcement
COVID Emergency Measures Act
Novel Way to Amend Other ActsCOVID-19 Legislation Amendment (Emergency Measures) Act 2020 The above was introduced to and passed by the NSW Parliament 24 March 2020. Its passing is not surprising. The legislation will implement sundry COVID19 emergency measures to deal with a number of legal situations created by COVID 19. The Act only identifies 20 NSW Acts of Parliament to be refined or suspended. They are:- Child Protection (Working with Children) Act 2012 Children (Detention Centres) Act 1987 Civil and Administrative Tribunal Act 2013 Constitution Act 1902 Crimes (Administration of Sentences) Act 1999 Crimes (Domestic and Personal Violence) Act
JobKeeper changes
Extension of the JobKeeper payment The Government is extending the JobKeeper Payment by a further six months to March 2021. Support will be targeted to businesses and not-for-profits that continue to be significantly impacted by the Coronavirus. The payment rate will be reduced and a lower payment rate will be introduced for those who work fewer hours. Other eligibility rules remain unchanged. Please click on the link below to view article. JobKeeper Changes It should be noted however, that this is a statement of policy and like the initial JobKeeper initiative it will remain necessary for the
Business Issues
Issues For Business In Difficult Times A list of issues to think about. Not necessarily apt for all situations, but a base to work from. If you run a business confronting hard issues and, after reading this, have any questions, please feel free to contact us. What is changed in my business? Does the business lease premises or Goods? Compulsory closure? Social distancing issues? Logistics and supply line issues? Check the lease terms Look for provisions about “force majeure”, “frustration” and unforeseen circumstances impact of Retail Tenancies legislation. Do I have business insurance Business Financing Does it include business continuity?
Frustration of Contracts
Force Majeure and Frustration of Contracts due to COVID-19 BACKGROUND The outbreak of COVID-19 has had a significant effect on a number of commercial contracts. In a number of cases, restrictions on gatherings of people and travel have made performance of the contracts difficult, if not impossible. This has raised the issue of whether the contracts have been the subject of our force majeure event or have been frustrated. FORCE MAJEURE Many contracts contain what are commonly known as Force Majeure clauses. The Force majeure clauses commonly provide that performance of a contract might be postponed or cancelled if there
Issues to Think About if Starting a Business
A list of issues to think about. Not necessarily apt for all situations, but a good base which a few people have now used to ground their thinking. If you are interested in starting up a business and, after reading this, have any questions, please feel free to contact us. https://www.linkedin.com/feed/update/urn:li:activity:6637479952121978880 Read Issues to Think About if Starting a Business
Eakin Mccaffery Cox in Affiliation With Australiance Is Holding a Seminar Evening on Issues for Small Business
On 20 February 2020 Eakin McCaffery Cox in affiliation with Australiance is holding a seminar evening on issues for Small Business. Partners Gregory Ross and Stephen Boatswain will be talking on Protection of Intellectual Property for Small Business and Workplace Issues for Start ups. https://www.linkedin.com/feed/update/urn:li:activity:6629882276324970496
Eakin Mccaffery Cox Welcomes Dr Stephen Pallavicini
Eakin McCaffery Cox welcomes Dr Stephen Pallavicini as a partner in our Property Team. With many years’ experience in Sydney commercial law firms and as Senior Legal Counsel Commercial Property Stockland and Lead Lawyer / Senior Property Lawyer Woolworths Group, Stephen has a breadth and depth of knowledge in the commercial property field which is matched by few. His practice includes not only transactional and advice work. He has also resettled leasing and property base documents for both Stockland and Woolworths Group. In 2016 he was named by Doyles as one of Australia’s best in-house property and real estate lawyers.
Protection of Intellectual Property for Small Businesses
Eakin McCaffery Cox partner Gregory Ross is, in collaboration with Advisers Digest presenting a Webinar on 12 February 2020 “Protection of Intellectual Property for Small Businesses”. Full detail can be found at https://lnkd.in/fs-pNhw https://www.linkedin.com/posts/eakin-mccaffery-cox_join-our-live-webinarwith-guest-presenter-activity-6629870203134148608-yaqJ/
Protection of Intellectual Property for Small Business
North Shore Wednesday Group 19 June 2019Greg Ross Partner What is the pudding here for? Guest Post: Is Christmas pudding – pudding? What is “Intellectual Property”? Type of property right that covers intangible creations of the human intellect, as opposed to things like land or goods String of different laws and rules mostly limited territorially in effect makes overseas protection expensive – WIPO Best initially explained by some examples to be touched upon today: Copyright Trademark Patent Registered Design Trade Secrets Confidentiality obligations What “Intellectual Property” Laws don’t do An “idea” is not protectable “at law” as intellectual property Protecting
Amb Crackdown on Doctors Providing Alternative Medicine
Eakin McCaffery Cox Partner Greg Ross discusses the Australian Medical Board’s apparent crackdown on doctors providing Alternative Medicine and Therapies. Introduction The Australian Medical Board (AMB) is considering options for “clearer regulation of medical practitioners who provide complementary and unconventional medicine and emerging treatments”, and has issued a Consultation Paper on its proposals and called for submissions. AMB proposals have potential to restrict and prohibit some currently available medical treatments and methodologies, particularly in the area of proactive and preventive care. Submissions can be made until 30 June 2019. The discussion paper and draft proposals are available for download at
The Notifiable Data Breaches Scheme – Cyber Insurance
Cyber insurance for notifiable data breaches scheme by Greg Ross. Read The Notifiable Data Breaches Scheme – Cyber Insurance
Facilitating Sustainable Procurement Business Cases in Australia
A brief guide on sustainable procurement business cases by Greg Ross.
Public Works and Procurement Amendment (Enforcement) Act 1918 – Reform or Clayton’s Reform of Government Procurement?
Greg Ross provides his views on the amendment of Commonwealth government procurements
Anti-slavery Laws and Your Business
A short outline on NSW and Commonwealth of Australia Anti-Slavery legislation by Greg Ross.
Infringers: Profanity War – Trademark Infringement
Asia IP Magazine Gregory Ross and Christina Cavallaro provide their views on the implications of a significant trademark infringement case in Australia.
Retail Leasing Reforms
The Retail Leases Amendment (Review) Bill 2017 was passed by NSW Parliament on 21 February 2017, amending the Retail Leases Act 1994 (NSW) (“the Act”) and came into effect on 1 July 2017.
Changes to the Retail Leases Act 1994 (NSW)
On 1 March 2017 the Retail Leases Amendment (Review) Act 2017 No 2 (NSW) (“amending legislation”) received Royal Assent. These significant amendments to the Retail Leases Act 1994 (NSW) (“Act”) will commence on 1 July 2017. The amending legislation will introduce key reforms which will impact both lessors and lessees of retail premises in New South Wales. According to the NSW Parliament, the purpose of the amending legislation is to increase transparency and certainty of leases, to introduce or improve fair protections for businesses, and to increase operational efficiency by simplifying certain processes. Key changes Some key changes include the
Jamie Oliver Snags Back Restaurant Franchise
Lawyers Weekly Read Jamie Oliver Snags Back Restaurant Franchise
Voidable Transactions and the Race Against Time
Australian Restructuring Insolvency & Turnaround Association (ARITA) Journal Co-authored by Christina Cavallaro, Senior Associate at Eakin McCaffery Cox Lawyers and Nicholas Simpson, Sydney barrister. This article discusses the recent Court of Appeal decision of Sydney Recycling Park Pty Ltd v Cardinal Group Pty Ltd (in liquidation) [2016] NSWCA 329 and explores the issue of bringing additional voidable transaction claims after the limitation period under the Corporations Act has expired.
When Is a Contract Claim a Bankrupt’s Claim?
Law Society Journal Co-authored by Christina Cavallaro, Senior Associate at Eakin McCaffery Cox Lawyers and Nicholas Simpson, Sydney barrister. The article examines the recent decision of Berryman v Zurich Australia Ltd [2016] WASC 196 which considered whether a benefit payable pursuant to a bankrupt’s disability insurance policy was divisible amongst his or her creditors and, if so, whether the bankrupt could continue court action in his or her own name to recover that benefit.
Contract Penalty / Liquidated Damages Law – ? Resolution ?
The July 2016 decision by High Court of Australia’s (HCA) in Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28 (27 July 2016) (http://www.austlii.edu.au/au/cases/cth/HCA/2016/28.html), will hopefully end the tortuous litigious path of issues relating to whether certain bank fees do or do not amount to unenforceable contractual penalties. In a majority decision, HCA, after a very detailed analysis of the doctrine of penalties and its history, both in equity and at common law, dismissed two appeals by the bank customer to do with:- whether late payment fees charged by the bank on consumer credit card accounts were
Into the Unknown – Insolvency and Intellectual Property
Asia IP Magazine Gregory Ross and Christina Cavallaro address the key problems that arise for intellectual property owners in the event of insolvency.
Battle Strategies: Winning at Patent Litigation
Asia IP Magazine Gregory Ross and Christina Cavallaro explore tactics involved in pursuing patent litigation in this edition of Asia IP Magazine.
A Change of Mark Specification
Asia IP Magazine Christina Cavallaro and Gregory Ross provide their comments on whether amendments to registered trade marks should be permitted to keep up with evolving technology.
Peter Aked Promoted to Equity Partner
It is with great pleasure, Eakin McCaffery Cox announces the promotion of Peter Aked to the role of Equity Partner, effective 1 April 2016. Peter joined the firm, in the role of Associate, in June 2008. Peter was promoted to Salaried Partner in March 2012. Peter practises in the Corporate – Commercial Group and has significant expertise in relation to securities and PPSA and in acting for mortgagees in both transactional and recovery contexts.
Copyright Problems Emerge
Asia IP Magazine Gregory Ross and Christina Cavallaro share their opinion on hot new copyright issues that have emerged in the last 12 months. The article can be accessed here.
Drop the Beat
Asia IP Magazine Gregory Ross and Christina Cavallaro share their opinion on copyright issues in the music industry.
Cantarella Bros Pty Limited v Modena Trading Pty Limited [2014] HCA 48 (3 December 2014)
The 3 December 2014, decision of the High Court of Australia in CANTARELLA BROS PTY LIMITED v MODENA TRADING PTY LIMITED [2014] HCA 48 may raise interesting implications for trademarks involving words borrowed from other languages, particularly where those words relate to issues of quality. In the case, Cantarella, an importer of coffee to Australia from Italy, had trademarks registered in Australia in 2000 using “ORO” and ”CINQUE STELLE “ ( “gold “ and “five star” in English). A competitor, Modena, started using the words. Cantarella sued Modena for breach of trademark. Modena counterclaimed, in effect, seeking an order that
Developer Built ate my Waterloo Apartment in the Search for Profit, Says Stephen Lee
The Daily Telegraph Peter Aked, Partner of Eakin McCaffery Cox, Lawyers has received mention in the Daily Telegraph on 25 September 2014 concerning “Off the Plan Purchases” that do not go according to the “Plan”. Read Developer Built ate my Waterloo Apartment in the Search for Profit, Says Stephen Lee
Relief against forfeiture. Once is enough
In a recent case in the Supreme Court of NSW Justice Young granted relief against forfeiture in favour of a tenant who operated a nightclub in Kings Cross(Elevation (NSW) Pty Ltd v Uniting Church in Australia Property Trust (NSW) – [2014] NSWSC 331). It wasn’t the first time there were difficulties between the landlord and the tenant with the landlord previously re-entering the premises for non-payment of rent in 2013. However, after that re-entry, a new lease agreement between the landlord and the tenant meant that the tenant could occupy the premises again. Problems arose under that new lease with
Battle Cry for ip Courts
Asia IP Magazine Greg Ross shares his perspective on intellectual property Courts with Asia IP magazine (page 31).
Coveting thy neighbour’s land. Access options
Question: Can I have access to, or through, my neighbour’s land? The short answer is: Yes, if your neighbour agrees. Otherwise, the answer is longer, with legal options available in some circumstances. In NSW, there is legislation that enables Court ordered access to be granted, both temporary and permanent in certain situations. But, the Courts won’t interfere with your neighbour’s property rights lightly and will not go beyond any power available to order access. Keep in mind that your neighbour is, effectively, an innocent party, who is involved simply because they happen to own land next to yours. Any concerns
3D Revolution
Asia IP Magazine Comments from Gregory Ross and Christina Cavallaro on the ups and downs of 3D printing and its effect on copyright, patents and trade marks appear in the May/June 2015 edition of Asia IP magazine.
Pre-DA Meetings, Yes, No, Maybe?
Pre-DA meetings – Yes, No, Maybe? Outcomes of a pre-DA meeting can be mixed so: time it right; be prepared; and, think before you pre-DA. what is a pre-DA meeting? A pre-DA meeting is a meeting with experienced officers from Council who may end up assessing your development application (“DA”). The officers usually give some feedback at the meeting and possibly also later in writing. Council is not bound to follow that advice (which seems at least a bit unfair). Most Councils promote pre-DA meetings for larger developments. One Council’s website states that pre-DA meetings are mandatory for some types
The Amazing Enforce-Men
Asia IP Magazine Christina Cavallaro, Greg Ross and John Cox share their perspectives on intellectual property enforcement on an international level with Asia IP magazine (page 9).
Development Consent Conditions, the good, the bad & the… rest.
Great news! – Your development has been approved! Let’s read through these conditions, I’m sure they will be fine… Unfortunately for some, the joy of an approval can be fleeting. Conditions on a development consent (“a Consent”) can sometimes become another hurdle to overcome just when an applicant thought they were getting to the end of the development application part of the process. In more serious cases a council may impose conditions on a Consent that can significantly undermine the value of the Consent to the point where the proposed development is not viable or worthwhile. For example, conditions may
Engaging Recent Property, Environmental & Planning Law Cases
Thanks for the frogs! – Council’s liability in nuisance to a downstream developer for inadequate action on upstream development & deliberately directing stormwater onto private land Gales Holdings Pty Ltd v Tweed Shire Council [2013] NSWCA 382 Gales Holdings owned a large site of undeveloped land in Kingscliff (“the Site”); the Council did not adequately control stormwater in developments upstream of the Site and also took action to direct stormwater through Council constructed stormwater infrastructure onto the Site; because of the above, there were increases in stormwater flow onto the Site and resultant ponding on the Site; the ponding helped
Managing Procurement in Government Agencies
Gregory Ross Partner Government Law Seminar 19 March 2014 Deciding when to outsource When to outsource and what to outsource is, of course, an internal decision. It is partly a risk management decision. It is partly a resourcing decision. There may well be policy reasons why some types of goods and/or services are not outsourced. For example, at both Commonwealth and New Wales Government levels, certain types of legal advice are, effectively, reserved to the Australian Government Solicitor and NSW Crown Solicitors Office. To use the terminology of New South Wales, “core” legal issues are seen as ones which must
My development consent is about to expire! What can I do?
“A development consent is a valuable asset. It is a statutory permission that authorises the carrying out of development on land, mostly for economic gain… It adds value to the land. Hence the prospect of a consent lapsing is apt to engender dismay in the holder of the consent.” CJ Preston in para 1 Kinder Investments Pty Ltd v Sydney City Council [2005]NSWLEC 737 Development consents don’t last forever, but they can… sort of So when does my development consent lapse? Development consents will eventually lapse unless physical commencement of “building, engineering or construction work relating to the building, subdivision
Council hasn’t approved my DA – What should I do
This is probably the most common question asked of planning lawyers and an experience most people would prefer to avoid. The refusal, or “failure”, to give a consent to a development application (“DA”) by consent authorities (usually local councils) can have a very personal impact on applicants who are often not professional developers and are not familiar with the world of councils and developments. For professional developers a refusal, or failure, can have serious financial consequences and the time and cost of further pursuing a development consent can make a once viable project unviable. Applicants applying for a new home
I want to go to the Land & Environment Court
I have heard clients say this before and think no-one should want to go to Court, although the Land & Environment Court (“L&E Court“) is probably a more pleasant court to be in than others. By the time applicants under a DA seek legal advice, they are usually unwilling to wait anymore or try again with their local consent authority (usually their local council). These applicants are not happy with: a refusal; or, a consent with unfair conditions; or, with what seems like continued “moving the goalposts” in trying to obtain a consent to their development application (“DA”). Before L&E
Perfect or Perish Priority-Wise – PPSA Temporary Protection Period Expires Soon
by Peter Aked, Partner, and Kerry Sidaway, Partner 26 November 2013 When the Personal Property Security Act 2009 (Cth.) (“PPSA”) came into force on 30 January 2012 pre-existing ‘securities interests’ over personal property (i.e. excluding land, fixtures and specified statutory interests) which were defined to be a ‘transitional security interest’ were deemed to be temporarily protected for the period to 31 January 2014 pursuant to the PPSA. The benefit of such temporary protection applied notwithstanding that the ‘transitional security interest’ was not registered upon the PPS Register. A ‘transitional security interest’ is in substance an interest in personal property which
Post Contract Management
POST CONTRACT MANAGEMENT: WE HAVE THE CONTRACT, NOW WHAT? Gregory Ross [1] Abstract: Winning a contract, whether by direct negotiation, acceptance of a tender lodged, success in an expression of interest process followed by negotiation or otherwise is only the first step. Ensuring that the contract works operationally on the ground to achieve its intended purpose is commonly overlooked when so much adrenalin has been invested in “winning” the contract. The paper addresses a range of issues which arise in ongoing management of contracts, particularly those involving Government. For contracts involving the public sector, the main focus of this paper,
Can an adviser to a company be a shadow director?
Christina Cavallaro, Associate Mark Doble, Partner 27 August 2013 Overview Is there a risk that an adviser to a company may be deemed to be a shadow director? This paper examines the circumstances in which a person may be found to be a shadow director and provides some practical tips on how advisers can avoid being shadow directors. In particular, this paper will address the following: What is a shadow director? What activity constitutes being a shadow director? Determining factors established in the leading case, Buzzle Operations v Apple How to avoid being a shadow director Consequences Professional indemnity insurance
Procurement? Keeping Procurement Under Control?
Plus ca change, plus c’est la meme chose. When I was invited to write this paper, I remembered an incident to do with NSW Government procurement law which occurred soon after I was appointed Assistant Crown Solicitor for NSW in 1990. I received a phone call from an officer of the State Contracts Control Board (SCCB). The caller started reading through what she said was a Crown Solicitor’s office opinion. As she read, I thought – this all sounds a bit familiar, but I could not re call writing it nor delegating it to be done by someone else at
Different forms of Administration in Corporate Insolvency
BY MARK DOBLE, PARTNER 7 MAY 2013 OVERVIEW In this paper I address the three most common types of administration of insolvent corporations. The three types of administrations with which I intend to deal are: Liquidation; Voluntary administration with a view to executing a deed of company arrangement; and Receiverships. I should point out that in the context of liquidation, or winding up, there are two types. One is voluntary liquidation and the other is official liquidation namely a winding up by way of Court order. Ultimately, little turns on whether a liquidation is entered into voluntarily or imposed by
Seeing fit to achieve balance
Lawyers Weekly Eakin McCaffery Cox Lawyers Partner Cain Sarah writes about how he balances family, sport and work. Seeing fit to achieve balance
Nurse relieved after 5-year battle
The Daily Telegraph Eakin McCaffery Cox Lawyers Partner Jennifer Shaw and Associate Christina Cavallaro acted for a Sydney nurse who successfully defended mortgage repossession proceedings, after a fraudulent mortgage was registered against her property. Read Nurse relieved after 5-year battle
Property mystery solved
The Daily Telegraph Eakin McCaffery Cox Lawyers Managing Partner Tim Eakin helps find missing property owner in the US. Read Property mystery solved
Leases for harbour jetties awash with legal defects
The Sydney Morning Herald Eakin McCaffery Cox Lawyers Managing Partner Tim Eakin highlights the problems with NSW Maritime leases for private jetties. Read Leases for harbour jetties awash with legal defects
