Maroochydore Lawyer Tag

One of the problems with our modern legal and business system is that it is exploited by those who know how to exploit it.  Yet, for others who genuinely need the protection, that these systems were designed to provide, the red tap and excessive cost, makes help impossible to obtain.

We see this commonly in disputes relating to unpaid debts and money owed due to breach of contract.  A person who owes money, may well know that it is often not worthwhile for a creditor to pursue payment.  This is because the legal cost of chasing payment is too great.  A debtor who believes that a creditor will not chase payment is unfortunately less likely to pay.

I have included some links at the end of this article that may assist anyone who is owed money.

Fortunately since December 2009 QCAT (Queensland Civil and Administrative Tribunal) has

Riba Business LawyersThe government has introduced new legislation called the Personal Property Securities Act (“PPSA”) which is likely to come into effect on 30 January 2012.  It will dramatically alter the way we deal with personal property and the way in which security over personal property can be protected.

“Personal property” is any property except land, fixtures to land and some statutory licences. For example machinery and equipment, inventory, motor vehicles, shares, book debts, receivables, stock, crops, trademarks and patents are all forms of personal property.  Your family home will not be personal property under the PPSA.

The PPSA will regulate any “security interest” in personal property.  The scope of what can constitute a security interest under the PPSA is wide and will include a number of interests which the current law does not recognise as security interests.  If you do not protect your existing or future rights in personal property you risk losing your security interest in that property. By way of example, you could lose:

  • priority over secured property to another creditor; or
  • title to your property if it is left in the possession of someone else (eg. if they sell it or if they go into liquidation, voluntary administration or bankruptcy).

Section 51 AE of the Competition and Consumer Act (previously the Trade Practices Act) provides for industry codes such as the Franchising Code.

A breach of the Code constitutes a breach of the Competition and Consumer Act. Section 51 AD of the Competition and Consumer Act provides that "a corporation must not, in trade or commerce, contravene an applicable industry code" In a case known as Ketchell's case the court was asked to look at the consequences of a failure to breach the code. The facts of the case put simply are that the franchisor brought an action to recover money that the franchisee said was owning under the franchise agreement.

Lots of people have great ideas but, do not have the time, the focus or the money, to implement or advance those ideas.  In these times, which many business people see as, uncertain times, people are not prepared to take a risk, even if the potential reward is handsome.

There are however ways of reducing the cost and risk associated with the development of  an idea, project or business, while at the same time obtaining access to a bank of  ideas, knowledge and resources, at no upfront cost.  Yes, less cost and a better chance of success!  It is possible!

The Australian Consumer Law has replaced various State and Territory laws from 1 January 2011.  This means that business and consumers throughout Australia are now governed by the same consumer laws.

The ACL is found in Schedule 2 of the Competition and Consumer Act 2010 (Cth) The Trade Practices Act 1974 (Cth) has been repealed and many of its provisions now appear in the Competition and Consumer Act. Some parts of the Competition and Consumer Act mirror the wording of the Trade Practices Act, however there have been significant changes to the provisions of the Trade Practices Act. The numbering of the Act has changed therefore Businesses that use documents that refer to the Trade Practices Act and its various provisions should amend those documents so that they now refer to the correct provision of the Competition and Consumer Act.

Unless you have seen first hand, the way that legal proceedings can be built or destroyed, by a written note relating to a matter in issue, then you cannot appreciate how much lawyers and the court system love bits of paper.  Written notes on  bits of paper can literally determine the outcome of legal proceedings.

The absence of written notes can cause lawyers on both sides of an argument to work for days preparing affidavit material, each trying to recount, with limited success what was said.  In many cases the factual debate is often won by the person with the best supporting paper.

"That contract's not worth the paper its written on".  I understand that this is how people may feel, when they have  taken the time to make a contract, yet a dispute arises anyway.  Nevertheless this statement is rarely true, where a contract is properly drafted.

The point of a contract is to provide the parties to the contract, with a starting point, in case there is a  disagreement.  It is not the case that a White Knight will ride in, to put things right, when the terms of the contract are broken.  If the agreement is properly drafted there will be a good number of matters on which it is more difficult to have an argument.  Yet there will remain scope for an argument and it is up to you to enforce your rights.  You will see below there are things that you can do to make a dispute less likely.

If you are borrowing in the name of a company your bank will always require the directors and sometimes others to personally guarantee the obligations of your company. If the bank requires a guarantee from someone who is not a director or from someone that they suspect gets no benefit from the loan then they may insist that the guarantors get legal advice.  This is done by insisting that a lawyer give a certificate confirming that the lawyer has provided legal advice. Lawyers are not keen to give this advice for a number of reasons: 1. Lexon is the company that provides insurance to all Queensland lawyers.  Lexon sees the issuing of these certificates as risky. 2. Many of the clauses in the bank guarantees are inherently unfair.

The Competition and Consumer Act makes "unfair" contract terms void. If a clause is void it cannot be enforced.

Business people should review their standard form contracts regularly to ensure that they are fair. Consumers should be aware that they may not be bound by the terms of any contract that they have entered into if those terms are not fair. In order for the act to make an unfair contract term void, the contract must be a consumer contract and the contract must be  in standard form. A consumer contract is a contract for the supply, to an individual of goods or services or land for  reasons of personal, household or domestic use or consumption. It is hard to be sure what a standard form contract is. It is likely however that any contract which is based on a document prepared in advance of any negotiations, that is little changed as a result of negotiations or the considerations of the particular circumstances are likely to be standard form contracts.

Many people wrongly believe that if an agreement is not put in writing they are not required to honour the agreement. This is incorrect (except for some exceptions, one of which is noted below).  A verbal agreement may be enforced by either party to the agreement regardless of whether that agreement is in writing.  So be careful what you agree!

The difficulty you may have guessed is, proving what was agreed.  Indeed we see many agreements, even written agreements that are very unclear. There is sometimes so little detail or, so little care taken, that it is difficult to know what the parties are intending.