Category: Corporate & Commercial

In recent months, we have observed that commercial waste management companies are increasingly using standard form contracts containing unfair terms. Notably, these unfair terms (specifically in waste management agreements) were declared to be unfair in the case of ACCC v JJ Richards [2017] FCA 1224.

Shareholder disputes affect companies of all sizes across all industries in Australia and are far more common than you might think. The transport and logistics industry is certainly not immune.

Rigby Cooke Lawyers is delighted to share that we have been recognised among the best law firms in Melbourne for five areas of law in the second edition of Best Law Firms™ – Australia.

In late 2024, the Privacy and Other Legislation Amendment Act 2024 (Cth) introduced a new statutory tort for serious invasion of privacy. This development marks a significant evolution in the Australian privacy law legal landscape, providing individuals with a clear and actionable right to seek redress for serious breaches of their privacy. It reflects growing public concern over personal information misuse and affirms the importance and value placed on privacy protection.

In this article, we explain the elements of the new tort of the serious invasion of privacy, the defences available for defendants and the damages available to complainants.

Contracts are the foundation upon which legal rights, obligations and expectations are built. The essential function of a contract is to create a binding legal relationship between contracting parties. In theory, they are designed to clearly define the mutual understanding and commitments made by the contracting parties. However, in practice, this clarity is not always reflected in the final contract terms. This can lead to unnecessary disputes, often resulting in protracted and costly litigation.

Rigby Cooke Lawyers is delighted to share that six of our esteemed partners have been recognised across eight areas of law in the 2026 edition of The Best Lawyers in Australia™.

The last 12 months has seen an escalation in debt collection activities instigated by the Australian Taxation Office (ATO) with respect to businesses, resulting in a subsequent increase in the rate of insolvencies. Where the ATO is unable to recover a tax debt directly from a company due to liquidity issues, it can seek to recover those debts personally from directors, via the director penalty regime.

Rigby Cooke Lawyers’ Tamara Cardan, Special Counsel in our Corporate & Commercial and Tax teams has been appointed as a committee member of the Property Council of Australia’s Tax and Economic Trends committee in Victoria.

We are delighted to introduce Brighid Virtue, Associate in our Corporate & Commercial group.

Rigby Cooke Lawyers advised Stannards, a leading accounting and business advisory firm, on its partnership with Pemba Capital Partners (Pemba), a prominent investor in high-growth, entrepreneurial businesses.

As a transport and logistics operator, while you cannot exclude all liability, you can limit your liability.

Trying to exclude all liability is extremely high-risk, if not impossible.

The Unfair Contract Terms (UCT) regime has been updated to broaden its application and impose penalties for breach and has been in effect since 9 November 2023.

In a significant development for Australia’s administrative review landscape, the Australian Government has unveiled plans to launch the Administrative Review Tribunal (ART) on 14 October, 2024.

This newly established federal body will replace the existing Administrative Appeals Tribunal (AAT), thereby implementing the Labor Government’s election promise to address what were seen as biased political appointments within the AAT.

Rigby Cooke Lawyers is delighted to announce the promotion of eight lawyers across five practice areas.

We are pleased to share the news that five of our practice areas, including Corporate & Commercial, Customs & Trade, Planning & Environment, Property and Wills, Trusts & Estates, have been recognised by Best Lawyers in their inaugural edition of Best Law Firms™ – Australia.

Case note: Karpik v Carnival plc [2023] HCA 39

In the recent class action case, Karpik v Carnival plc [2023] HCA 39 (Ruby Princess Case), the High Court of Australia has confirmed that where at least one party to a standard contract for goods or services is acting within, or carrying out business in, Australia the unfair contract term (UCT) laws will apply to that contract.

We are pleased to announce that five of our esteemed partners have been recognised in the 17th edition of The Best Lawyers in Australia™.

Businesses using standard form contracts — including trading terms and conditions, online click-through agreements and independent contractor agreements that are not routinely negotiated — are at risk of breaching strengthened unfair contract term (UCT) laws under the Australian Consumer Law (ACL) which came into force on 9 November 2023.

We are delighted to share the news that Rigby Cooke Lawyers’ Julia Cameron, Partner – Corporate & Commercial, and Lindy Muto, Head of Legal Operations, were successful in the Lawyers Weekly Women in Law Awards 2023 held last Thursday at the Palladium at Crown, Melbourne.

The Unfair Contract Terms (UCT) regime is being updated to broaden its application and impose penalties for breach.

We are delighted to share the news that Rigby Cooke Lawyers’ Julia Cameron, Partner in our Corporate & Commercial group, and Lindy Muto, Head of Legal Operations, have been named as finalists in the Lawyers Weekly Women in Law Awards 2023.

A version of this article was first published by AMTIL in August 2023.

The Personal Property Security Act 2009 (PPSA) came into effect in 2012 and created a uniform regime for parties to register security interests. It replaced over seventy pieces of individual legislation around Australia and aimed to give certainty with respect to the priority of security interests where a grantor enters external administration.

On 23 May 2023, the Victorian Government delivered the State Budget.

Detailed below is a summary of the significant tax measures and a consideration of the announced measures in greater detail.

The Unfair Contract Terms regime (UCT) is intended to prevent businesses with a stronger bargaining position from relying on unfair terms in standard form contracts with consumers and/or small businesses.

Rigby Cooke Lawyers is pleased to announce that six of our esteemed partners across six practice areas have been recognised in the 16th edition of The Best Lawyers in Australia™.

During settlement discussions, it is commonplace for offers and counteroffers to be made between rival parties. While settlement offers are usually reduced to writing in a letter or formal Offer of Compromise, they are often communicated verbally or via email. These seemingly ‘less formal’ modes of communication can create a situation where one party asserts that a legally enforceable settlement agreement has been made, while the other says it has not.

Case note: Airmaster Corporation Pty Ltd v Mohtadi [2022] VSC 822

Rigby Cooke Lawyers’ Corporate & Commercial group advised hotel investor and developer, Mazen Tabet and the Tabet Group, in the successful acquisition of the Lyall Hotel and Spa in South Yarra.

There is now less than 12 months to review your business’s standard-form contracts for unfair contract terms (UCTs) to avoid contravention of the Australian Consumer Law in Schedule 2 of the Competition and Consumer Act 2010.

On 25 October 2022, Federal Treasurer Jim Chalmers handed down the Budget of the newly elected Government for 2022-23.

The Federal Court’s recent landmark decision in ASIC v RI Advice Group Pty Ltd [2022] FCA 496¹ raises the bar for companies and directors on the importance of adequate cybersecurity protection after it imposed costly remedial orders on a financial services provider for failing to maintain adequate cybersecurity risk management systems.

• Prospective directors must obtain a director ID number before appointment.
• Existing directors must obtain their director ID numbers by 30 November 2022.

The Federal Government’s ‘Enterprise Tax Plan’ has seen a gradual reduction in the corporate tax rate applying to small and medium-sized companies over recent years. The reduced corporate rates were previously 27.5% from the 2017-18 to 2019-20 income years, and 26% in the 2020-21 income year.

Rigby Cooke Lawyers is delighted to announce the promotions of Angela Foudoulis and Séamus Ryan to Special Counsel, effective 1 July 2022.

On 29 March 2022, the Treasurer handed down the Federal Budget for 2022-23.

Have you ever read something and thought, “I’m not sure what that means” or ‘is that really correct”? Welcome to our series of quickfire interviews that attempt to unravel those interesting words and phrases.

In this edition, we speak to Corporate & Commercial Partner and Intellectual Property practice lead Ian Rosenfeld, who talks to us about the word he finds interesting, sign.

• Temporary measures to allow for virtual meetings, electronic signing and distribution of corporate documents by corporations have been permanently enacted.
• Additional changes have been introduced to modernise and update the Corporations Act 2001 (Corporations Act).

Under changes to the Treasury Laws Amendment (Registries Modernisation and Other Measures) Act 2020 (Cth) introduced in June 2021, all directors will be required to verify their identity as part of a new Director Identification Number (director ID) requirement.

The Victorian government has continued the Commercial Tenancy Rent Relief Scheme Regulations 2021 (the Regulations) by enacting new regulations to account for the extended lockdown experienced by commercial tenants in Victoria.

Further to our previous alerts (see here and here), the Victorian Government has now introduced regulations to accompany the legislation governing the Commercial Tenancy Relief Scheme (CTRS).

Further to our recent alert, the Victorian Government has introduced new legislation regarding the Commercial Tenancy Relief Scheme (CTRS).

On 28 July 2021, the Commonwealth and Victorian Governments presented new recovery packages for small businesses. The new support packages will offer $400 million in support to small businesses to be funded equally between the Commonwealth and Victorian Governments.

In a high-profile reminder that claims made in advertising need to be properly substantiated and supported by evidence, the Federal Court has ordered Lorna Jane to pay $5 million in penalties for making false and misleading representations to consumers, and engaging in conduct liable to mislead the public, in connection with its “LJ Shield Activewear”.

To prevent illegal phoenix activity, the Commonwealth Parliament has passed the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 (Cth) (Act) which came into effect on 18 February 2021.

2020 has been a challenging year for many Australians which has seen the Government forced to intervene to provide economic support and legislative provisions in an attempt to provide ongoing assistance to many Australians and businesses.

The Federal Budget 2020 saw a $795.5 million investment in the Government’s Digital Business Plan as part of the JobMaker Plan. It’s objective is to improve productivity, income growth and jobs by supporting the adoption of digital technologies by Australian businesses and to see Australia become a leading digital economy by 2030.

Following the announcement made by Treasurer Tim Pallas on 20 August 2020, the Commercial Landlord Hardship Fund (Fund) has been created in recognition of small, private landlords who may not have the capacity to provide rent reductions to their tenants under the requirements of the Commercial Tenancy Relief Scheme (CTRS).

Since 1 April 2020, in a significant extension to the director penalty regime, company directors are now personally liable for unpaid Goods and Services Tax (GST) (including luxury car tax and wine equalisation tax). The expansion of the regime was introduced as part of the Government’s broader reform of Australia’s corporate insolvency regime.

On 22 June 2020, the Australian Federal Government passed legislation setting out a legal framework for the introduction of a Director Identification Number (DIN) regime for directors.

The Government has announced proposed changes to the foreign investment review framework to take effect 1 January 2021 following the temporary measures imposed in March 2020.

Due to the widespread economic impact of COVID-19 which has caused financial uncertainty for many businesses, contracts for the acquisition of goods or services may be cancelled in order to mitigate against further losses.

The worldwide impact of COVID-19, which has resulted in countries around the world shutting down their borders and international travel being banned, requires companies to operate online whenever possible.

In further recognition of the difficulties faced by companies in meeting strict corporate compliance requirements in a COVID-19 environment, the Treasurer released yesterday a ministerial determination permitting company general meetings to be held virtually and modifying the way companies can execute documents.

• ASIC has recently announced a one month extension for the lodgement of corporate reports
• Extension is available to unlisted entities.

In response to the adverse impact that the COVID-19 pandemic will have on Australian companies’ ability to hold annual general meetings (AGMs), ASIC issued a guidance note – 20-068MR on 20 March 2020 (Guidance):

The COVID-19 pandemic is having an unprecedented impact on the economy. The effects of escalating government counter-measures will change the way we do business for the foreseeable future.

From 1 April 2020, in a significant extension to the director penalty regime, company directors will be personally liable for unpaid GST (including luxury car tax and wine equalisation tax).

There are new signs that the Australian property market is on the rebound. As the property market recovers, so does the credit market and companies will increasingly seek financing for their business. Financing may take many forms: revolving credit loans, loans to finance the acquisition of a target company, or construction loans, to name a few.

Chapter 11 of the Parliamentary Joint Committee on Corporations and Financial Services ‘Fairness in Franchising Report’ – published in March 2019 – covered the termination of franchise agreements.

Last month, the Parliamentary Joint Committee on Corporations and Financial Services published its ‘Fairness in Franchising report’ (Report). The terms of reference for the Report were released over 12 months ago and more than 400 submissions were received, mostly from franchisees.

Contracts to provide transport or logistics services are vital to business success, but if not well negotiated, can have serious or even fatal consequences for the transport or logistics provider.

Governments and, increasingly big companies, are using tender processes (including Request for Proposals and Request for Tenders) to award contracts to transport and logistics companies.

Since the launch of Bitcoin in 2009, more and more people have become aware of blockchain technology, and its potential to revolutionise payments systems. However, blockchain has many applications beyond cryptocurrency. ‘Smart contracts’ – computer code which execute the terms of an agreement have the potential to revolutionise commercial transactions.

There has been a significant amendment to the Trade Marks Act 1995 which further entrenches the legality of parallel imports in Australia.

Mandatory data breach reporting requirements commenced on 22 February 2018. Organisations that are bound by the Privacy Act 1988 (Cth) (Privacy Act) need to report certain data breaches to the affected individual(s) and the Australian Information Commissioner.

How to prepare to comply

From 1 July 2018 food businesses must comply with labelling requirements set out by the Australian Government which aim to provide consumers with greater transparency on the origin of their food.

In a recent case involving Telstra, the Full Federal Court has confirmed that personal information must be information about an individual before it will be protected and regulated by the Privacy Act and the Australian Privacy Principles.

Latest news from Rigby Cooke’s tax team. Making sense of the #austax system.

Unfair contract terms provisions to be extended to small businesses on 12 November 2016.

IP Australia fee changes looming – Renew your existing trade mark registration now to save.

IP Australia has announced a change to its fee structure. You can find out more here.

Many of our clients trade with customers on credit. When doing so, there is a risk that customers might be unable to pay.

Prudent business owners will go to great lengths to protect their intellectual property and confidential information from their employees and competitors.

One of the golden rules when entering into an agreement is to ensure that all the terms are recorded in writing and signed by the relevant parties. As the old saying goes, a verbal agreement is as good as the paper it is written on.

Ashley Madison breached a number of its obligations under Australian privacy law in the months leading up to a cyber-attack on its customer database in July 2015, a joint report by the Canadian and Australian privacy commissioners found recently.

We are pleased to have co-hosted our first Victorian Manufacturers breakfast with Klugo.

Many businesses are familiar with engaging a software developer to create a product or application, however the devil is in the detail when it comes to ownership of the end product.

If you are a health service provider, all personal information that you collect about an individual to provide, or in providing a health service to that individual is classified as health information for the purposes of the Privacy Act.

Can Australian businesses send information overseas?

If your business discloses personal information to an overseas recipient, it may be accountable for any actions of the overseas recipient that would breach the APPs. This leaves your business with a significant exposure – your business could be found liable based solely on the actions of the overseas recipient.

Spanline Weatherstrong Building Systems Pty Ltd, a franchisor engaged in designing, manufacturing and selling home extensions (eg patios, roof awnings, covered verandas, and carports) gave permission to one of its franchisees (Marmax Investments Pty Ltd) to conduct business within the territory of another franchisee (RPR Maintenance Pty Ltd).

In structuring 30 June transactions it is often desirable to sign a contract before 30 June, but defer payment of capital gains tax (CGT) or the CGT event until a subsequent income year; particularly where settlement is deferred to a subsequent income year so there are no sale proceeds for the vendor to pay the tax or it is desired to set-off losses in the subsequent income year.

Key points

• Parties to a franchise agreement should always act honestly in exercising powers and performing obligations under the agreement and the Franchising Code of Conduct

On 3 February 2016 the Full Federal Court handed down its decision in Assarapin v. Australian Community Pharmacy Authority. ¹

• A recent court decision highlights the need for companies to review deeds of indemnity given to the company’s directors
• The decision illustrates the importance for officers and employees of having effective and extensive directors and officers insurance from the outset

The European Court of Justice has ruled that a 15-year-old agreement allowing companies to transfer personal information from servers within the European Union to servers in the United States is invalid.