Buy Now Pay Later: the shape of the new regulatory regime
Treasury has released the much anticipated draft legislation for the regulation of Buy Now Pay Later (BNPL) products and confirmed that BNPL providers should prepare to obtain a new or modified Australian Credit Licence and work through the impact of being regulated as credit providers on their businesses. Anti-avoidance protections promise to ensure there is […]
ReadmoreHutchinson Builders v ACCC: Full Court finds termination of subcontract did not contravene “boycotting” laws; clears Hutchies of wrongdoing
Hutchinson Builders (Hutchies) is Australia’s largest privately owned construction company. Throughout its 110+ year history it has delivered countless significant projects across Australia. One such project, which was the subject of the Full Court’s decision in J Hutchinson Pty Ltd v ACCC, was a construction project located in South Brisbane known as the “Southpoint Project”. […]
ReadmoreNew South Wales Supreme Court rejects bid to advance small business restructuring
In a proceeding brought by Mr Curran, in his capacity as the trustee for June Ellen Investment Trust (Plaintiff), to wind up Fitzgerald Housing Limited (formerly known as Kay Fitzgerald Housing Charity Limited) (Defendant), the New South Wales Supreme Court considered whether it was necessary to adjourn the winding up proceeding to allow the Defendant […]
ReadmoreCall in the experts: Bankrupt’s attempts to sell charged assets through CommSec rejected by the Federal Court in favour of liquidator appointment
Bankruptcy litigation can stem well beyond the primary bankruptcy proceedings. Continued litigation may be born out of disputes between bankrupts, bankruptcy trustees and other interested parties in respect of methods of asset liquidation. Consequently, the Court will often appoint a qualified person such as a liquidator to ensure bankrupt estate assets obtain their value when […]
ReadmoreOrmos v Ormos – Oral agreements and when to “trust” your family
In 2017, a de facto couple were seeking to purchase a family home and enlisted the help of the defendant (the first plaintiff’s father), to purchase the property with loaned monies in his name, due to his higher borrowing capacity. In exchange, the plaintiffs paid the defendant’s personal debts and were assured that all proper-acquisition […]
ReadmoreFalse and Misleading Statements – Potential to attract criminal and civil penalties
On 19 January 2024, in Walker v Members Equity Pty Ltd (formerly Members Equity Bank Ltd) (ME) [2024] FCA 15, the Court imposed sentences against ME for false and misleading representations and failing to provide written notices. In the first criminal prosecution of its kind, ME was fined $820,000. The Court recognised a requirement to […]
ReadmoreIs the presence of a renter a barrier to execution of a court warrant?
Since around April 2011, the Sheriff’s Office of Victoria has taken the view that they would not execute a court warrant of possession against a person in occupation of land if they were under a residential rental agreement within the meaning of the Residential Tenancies Act 1997 (Vic) (RTA) and the mortgagee must instead comply […]
ReadmoreA new Banking Code of Practice is on the horizon
Background The Australian Banking Association’s (ABA) Banking Code of Practice (the Code) contains a set of contractually enforceable industry standards that customers and small businesses can expect subscribing banks to uphold. The Code has been in place in various forms since 1993, including a range of protections that are intended to complement and set higher […]
ReadmoreUnfair contract terms and your franchise agreement
As of 9 November 2023, changes to the unfair contract terms (UCT) regime have come into effect. Franchisors should be aware that unfair terms under the previous regime are void, while unfair terms under the new regime will be unlawful and significant penalties may apply (for companies, up to $50 million or even more). Unfair […]
ReadmoreThe deadline to update the Franchise Disclosure Register is 14 November 2023
Following the amendments to the Franchising Code of Conduct in 2021, the Franchise Disclosure Register (FDR) was established in November 2022. The FDR is administered by the Department of the Treasury and is accessible to the public, allowing prospective franchisees to access information about franchise opportunities. Purpose of the FDR The FDR aims to provide […]
ReadmoreDefamation – what is required to establish ‘serious harm’?
The Federal Court of Australia recently handed down a decision in Selkirk v Hocking (No 2)[1] shedding light on the serious harm element of the cause of action for defamation. Background In November 2019, Ms Selkirk was convicted of multiple counts of dishonestly obtaining financial advantage by deception by using falsified receipts to return goods […]
ReadmoreUnmasking errors – the TGA’s post-market face mask review
The Therapeutic Goods Administration (TGA) has recently had to make amends after releasing information about surgical face masks sponsored by M House Pty Ltd (M House) without authority under the Therapeutic Goods Act 1989 (Cth) (Act). The Australian Register of Therapeutic Goods (ARTG) saw a rapid rise of medical device inclusions in the wake of […]
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