As from 8 June 2019, a mandatory text is required to be included in any written warranty against defects given to a consumer for the supply of services. 
Warranty exclusively for services
To date the requirement has extended to the supply of goods only, however, it is imperative that as from 8 June 2019 any supplier of services who provides a warranty against defects must, in order to comply with the Australian Consumer Law (“ACL”) requirements include the following mandatory text in the terms of its warranty where the warranty is given exclusively for services:-
 
“Our services come with guarantees that cannot be excluded under the Australian Consumer Law. For major failures with the service, you are entitled to:-

cancel your service contract with us; and
a refund for the unused portion, or to compensation for its reduced value.

 You are also entitled to be compensated for any other reasonably foreseeable loss or damage.  If the failure does not amount to a major failure you are entitled to have problems with the service rectified in a reasonable time and, if this is not done, to cancel your contract and obtain a refund for the unused portion of the contract.”
 
Warranty for the supply of goods as well as services
Where the warranty relates to the supply of goods as well as services the following text is required to be included:-
 
“Our goods and services come with guarantees that cannot be excluded under the Australian Consumer Law.  For major failures with the service, you are entitled:-

to cancel your service contract with us; and
to a refund for the unused portion, or to compensation for its reduced value.

 You are also entitled to choose a refund or replacement for major failures with goods.  If a failure with the goods or service does not amount to a major failure, you are entitled to have the failure rectified in a reasonable time.  If this is not done you are entitled to a refund for the goods and to cancel the contract for the service and obtain a refund of any unused portion. You are also entitled to be compensated for any other reasonably foreseeable loss or damage from a failure in the goods or service.”
 
Exceptions
There are exceptions to the requirement to include the mandatory warranty wording where:-

the services are supplied under a contract for, or in relation to, the transportation or storage of goods for the purposes of a business, trade, profession or occupation carried on or engaged in by the person for whom the goods are transported or stored.

Note, however, that if the consignee, or the owner of the goods being stored, is not carrying on or engaged in a business, trade, profession or occupation in relation to the goods, the mandatory text must be included.

where the services supplied are under a contract of insurance; or
where the business involves the supply of a gas, electricity and telecommunication service.

Applications
Clearly, the requirement for the mandatory text to be included only applies where the ACL applies, i.e. where a person acquires goods or services for which:–

the price is $40,000 or less; or
the goods or services are of a kind ordinarily acquired for personal, domestic or household use or consumption; or
the goods comprise a vehicle or trailer for use principally in the transport of goods on public roads.

A person will not acquire goods as a consumer under the ACL if the goods are required for the purpose of resupply or for the purpose of using them up or transforming them in the process of production or manufacture or in the course of repairing or treating other goods or fixtures on land.
The ACL makes provision for both civil and/or criminal penalties to apply where a consumer has been given a warranty against defects that does not comply with the requirements prescribed in the Regulations.
Please do not hesitate to contact us for any further information or clarification of the changes to the ACL that you may require.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Australian Consumer Law Alert appeared first on Bennett and Philp Lawyers.

A Mareva injunction is used to freeze assets in circumstances where there is a risk that an order of the court might be otherwise frustrated by the disposal of those assets.
For example, a party who has been successful in obtaining an order for damages from a court might make an application for such an injunction to prevent the disposal of assets by the unsuccessful party.
In a recent application in the Supreme Court of Queensland, the parents of a daughter whom they believed to have been sexually assaulted by a neighbour (‘the accused’) sought to have an injunction placed over the accused’s sole major asset, his house.
However, the house was owned as tenants in common by the accused and his wife. The accused and his wife separated as a result of these and other allegations made against him.
The parents, in their own right and on behalf of their daughter (the claimants), had issued Notices of Claim against the accused, claiming damages arising from psychiatric injury caused to each of them.  No court proceedings were on foot and no medical evidence was yet available to support the allegations of psychiatric injury to them.
In the resulting judgment (PJM & Ors v AML & Anor [2018] QSC 187), Justice Davis noted various deficiencies in the evidence put before the court in the supporting affidavit material. His Honour found that the actual allegations of sexual assault on the daughter by the accused were vague and, in some instances, involved statements of what others had been told and further involved statements of what the parents’ solicitor had been told. This resulted in double hearsay evidence and was thus non-admissible.
Similarly, the affidavit evidence before the court regarding the injuries suffered by the parents simply comprised their own assertions. There was no medical expert evidence put forward to support any psychiatric injury having been suffered by them.
His Honour found the final deficiency in the affidavit evidence was the global assertion by the parents’ solicitor that their damages would exceed $250,000. There was no admissible evidence before the court to support the assertion.
His Honour determined there was no evidence at all put before the court to prove any risk that the assets of the accused would be unreasonably disposed of.
As a result, Justice Davis declined to make the orders sought by the applicant’s parents and requested written submissions on the issue of costs.
So this matter came before the court again on the issue of costs in PJM & Ors v AML & Anor (No 2) [2018] QSC 204.
In written submissions regarding costs, the accused sought indemnity costs and raised the question of whether those costs ought to be ordered against the parents’ solicitors, personally. Justice Davis had his Associate email the parents’ solicitors advising that any further submissions on that issue ought to be made by a certain date.
Most telling were His Honour’s the reasons why such an order was being considered. Those reasons included that much of the evidence in the parents’ solicitor’s affidavit was in an inadmissible form, it contained multiple typographical, grammatical and substantive errors, suggesting a lack of care in its preparation and the application failed through a lack of proof of the basic elements of the relief sought.
His Honour made the orders sought by the accused and his wife as follows:

The applicant’s solicitors, Shine Lawyers, forthwith pay the first respondent’s costs of the application on the indemnity basis, fixed at $37,255.57.
The applicant’s solicitors, Shine Lawyers, pay the second respondent’s costs of the application to be assessed on the indemnity basis, or as agreed, save those costs ordered to be paid on 27 June 2018.

His Honour also noted that it was unnecessary to state “costs of and incidental to the application” as the definition of “costs of the proceeding” in Chapter 17A of the Uniform Civil Procedure Rules 1999 (Qld) is:
“costs of the proceeding mean costs of all issues in the proceeding and includes –

costs ordered to be the costs of the proceeding; and
costs of complying with the necessary steps before starting the proceeding; and
costs incurred before or after the start of the proceeding for successful or unsuccessful negotiations for settlement of the dispute.”

Clearly, this application was made prematurely and without sufficient evidence to satisfy the court to make the orders sought.  In any case, Affidavit material must be carefully considered to ensure that not only all of the evidence required is put before the court but that it is in a form and of a nature which will be considered by the court to be “admissible evidence”.
If the solicitors in the application fail to do so, the court may take a harsh view of the conduct of the solicitors involved, raising the real risk of an indemnity costs order against the solicitors themselves.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Lack of Evidence Sees Solicitor Firm Liable for Application Costs appeared first on Bennett and Philp Lawyers.

So you have decided to start a new business? You have a novel idea or a better way of doing things? What’s next?
Our business advisory director, Nadia Sabaini, has developed a valuable 10-part guide for budding entrepreneurs looking to turn their idea into a reality.
In this guide, Nadia has identified the top 10 actions to consider before embarking on a new business journey.  These considerations are invaluable knowledge for start-ups and can help maneuver your business down the right path with the appropriate awareness for the business environment in which you intend to operate.
 
#8: Don’t forget to sign employee agreements
All businesses should have an employee agreement in place with all employees, from executives to casuals, this includes employees covered by a Modern Award.
Modern Awards only provide for the primary terms of employment and there are other matters that you may want addressed. These may include:

an acknowledgement of key company policies;
agreed procedure for complaints, warning and dismissal;
confidentiality obligations;
restraint of trade obligations;
use and return of company property;

If you are working with a business consultant, they may provide you with a pro-forma employment agreement to use, but consider if you should engage a lawyer to prepare one tailored to your business.
Be careful of the trap of engaging an employee as an independent contractor to avoid employee obligations.  The law will class an independent contractor as an employee in certain circumstances, including where they are not permitted to or generally do not work for others, or have little discretion in the hours they work or how they perform their tasks.
Keep in mind that the fact that you are paying a worker more than the base rate does not imply that they will not be entitled to penalties and other entitlements.  When additional pay is in lieu of entitlements, this must be explained in the employment agreement and is subject always to the requirements of any applicable Modern Award and the Fair Work Act 2009 (Cth), so check before putting any such terms in place.
Visit the Fair Work Ombudsman website for useful information such as minimum terms of employment, calculating wages and leave entitlements.
If you are employing a foreign person, you must verify that they hold the appropriate VISA to work in Australia. If you are providing a sponsorship arrangement, ensure that you have taken independent legal advice on your obligations.
For more information regarding your start-up journey, download the full guide below or contact us today.
 
What’s next? #9: Have Your Lawyer Prepare Your Terms and Conditions
 
Read from the beginning: #1: How to Make a Real Business Plan for Your Start Up
 

This guide is provided by way of general assistance only and for marketing purposes. Please contact us to discuss your personal situation and further information you may need.
 
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post When Does Your Start Up Need an Employee Agreement and What It Should Cover appeared first on Bennett and Philp Lawyers.

The commercial real estate landscape of Brisbane is evolving.  The rise of the consultant, the increase in start-ups, and the need for more cost-effective office environments are driving this change.
The big question is – what are the impacts on the traditional commercial real estate sector?
Many of these types of companies are finding themselves looking for flexible or smaller workspaces and options that don’t require as much initial capital as a traditional office. Add into the mix larger companies looking to expand their existing operations and offer flexibility to their teams, and you have an emerging market of coworking spaces.
While still a relatively new concept in Brisbane, coworking spaces are giving a range of businesses different options to consider when looking at physical spaces.  A typical coworking facility comprises the following business model:

Initial establishment and running costs include rent, fit-out costs, building maintenance, personnel, IT systems; and
Primary revenue comes from membership fees, meeting room bookings, events and sales from amenities (e.g. on-site cafes).

However, how will these newcomers impact on the real estate market in Brisbane?
Landlords who are having difficulty leasing their large commercial spaces to single businesses may find that they will be in demand from coworking companies.
Coworking companies look to lease entire premises with a view to providing impressive fit-outs, facilities and amenities to attract their members. The current predominant business model of coworking companies is to take out long-term leases and incur some significant initial costs to create the space and services.  They will also seek an incentive period from their landlords to allow them to find members to fill their spaces.”
On the other hand, if these coworking companies are unable to establish a significant membership base both initially and during the course of their long-term lease, it could be extremely detrimental to both the landlord and the tenant.
For these coworking companies as tenants, there is a risk of being unable to recover enough of their initial expenditure and maintain their business model to the point where they are unable to complete or meet the obligations of their long-term lease.
For the landlords of coworking companies, how will their rights be sufficiently protected given the seemingly risky nature of the tenant?  And for those landlords that don’t want to run the risk of having such a tenant, will they find themselves struggling to keep up with market trends and demands?
As coworking spaces are still in their infancy in Brisbane and Australia, the market is yet to be properly tested.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post The Future of Coworking in Brisbane appeared first on Bennett and Philp Lawyers.

The team at Bennett & Philp were excited to have the opportunity of hosting the Young Asian Professionals (YAP) Association networking event on Wednesday night.
The event invites young professionals, spanning a wide range of disciplines from law and accounting to engineering and banking, to network and socialise in a casual and relaxed atmosphere.
Guest speaker, Mitchell Wan
It was a highly successful evening with over 70 in attendance. Bennett & Philp Disputes & Litigation Director, Charlie Young, was invited to share some words about our firm with all of the attendees.
We were also honoured to have the guest speaker, Mitchell Wan, sharing his heartfelt personal story and experiences with the group. Mitchell owns several medical service companies, including InfinityPATH, LinkFinity, and Independent Veterinary Pathology.
It was great to see the enthusiasm and passion the attendees displayed on the night. Growing networks and learning about other young professionals and their career journeys is an important part of growing both personally and professionally.
The entire team at Bennett & Philp would like to thank the YAP team for their hard work in organising the event and we look forward to hosting it again in the future.
 
 
Images sourced from Young Asian Professionals (Brisbane) Facebook group.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Bennett & Philp Hosts Young Asian Professionals Event appeared first on Bennett and Philp Lawyers.

The business landscape for retail pharmacies has changed with the rise of larger discount chains impacting on the profitability and viability of smaller pharmacy chains. 
Government regulations and the impact of changes brought on by PBS reforms have also had significant ramifications on the financial viability of pharmacies (along with increasing rent and wages costs).
We are seeing more and more pharmacy businesses seeking legal help in managing their affairs, especially when financial pressures come into play. Our specialist Disputes and Litigation team, supported by our Healthcare Solutions team, assist pharmacists in navigating what is fast becoming a very challenging business climate.
We recently assisted the Administrators of a group of pharmacies to obtain urgent orders from the Federal Court to allow the pharmacy group to continue trading while in administration.
Given the financial performance of the pharmacies, a number of those pharmacies needed funds to keep trading (which could only be obtained from other companies in the group within the time available). The Administrators were also concerned about continuing to trade on these pharmacies once they were due to become personally liable for the ongoing rent of the various premises and the equipment under the Corporations Act 2001 (“the Act”).
It was also clear that if the pharmacies were to be closed the value of any sale of these pharmacies would be substantially reduced.”
The Court after considering this matter ordered that:

It was appropriate that the Administrators be entitled to make loans between the companies to allow the pharmacies to continue trading for a further three weeks;
If any of the pharmacies which received a loan were unable to pay it back, then the Administrators would not be personally liable to repay it (which would usually be the case);
The time period before the Administrators would become personally liable for the rent of the premises and the equipment under the Act was extended for a further three weeks.

The full judgment can be read here.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Working with Operators in a Challenging Pharmacy Market appeared first on Bennett and Philp Lawyers.

Recent Bennett & Philp recruit Tony Mylne has been cemented as one of the countries’ top litigation experts today after being named in the 12th edition of The Best Lawyers In Australia.
The prestigious nomination, which recognises the construction partner’s impressive 35-year tenure in the legal industry, comes just one month after Mylne joined the Brisbane-based legal practice.
Tony said he was humbled to have his work acknowledged by his peers.
I have dedicated myself to providing best possible outcomes for my clients, so I am extremely grateful to have that recognised.”
Bennett & Philp’s Managing Director, Lance Pollard, added he was proud to have a veteran like Mylne in the team.
“We’d like to congratulate Tony on his inclusion in this impressive list,” Pollard said.
Tony is recognised as a leader in his field and it’s been great to have him recently join our firm. This honor showcases the high degree of skill and expertise that Tony has used to bolster our construction litigation team.”
For award-winning legal representation in the construction industry or otherwise, Tony Mylne can be contacted on 07 3001 2918 or via email at [email protected].
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Bennett & Philp Litigator Nabs Top Honour appeared first on Bennett and Philp Lawyers.

So you have decided to start a new business? You have a novel idea or a better way of doing things? What’s next?
Our business advisory director, Nadia Sabaini, has developed a valuable 10-part guide for budding entrepreneurs looking to turn their idea into a reality.
In this guide, Nadia has identified the top 10 actions to consider before embarking on a new business journey.  These considerations are invaluable knowledge for start-ups and can help maneuver your business down the right path with the appropriate awareness for the business environment in which you intend to operate.
 
#7: Take care when choosing how to finance your business
There are numerous ways of financing a new business venture and careful consideration should be given to the options most suitable for your business at start up and in the future, as well as the legal steps involved.
Capital raising options include:
Bank finance
A bank loan is a good option when you don’t need or want investors and are satisfied with the interest and repayment obligations.
Venture capital
Venture capital funds look for newly established or emerging businesses to invest capital in exchange for equity.  There is usually a pre-agreed exit strategy such as an intent to later list on the stock exchange.  A term of the funding is usually the acceptance of strategic advice by the VC fund, which typically wants to be fairly heavily involved in the decision making.
Angels
Angels are experienced investors, usually affluent individuals with expertise in specific fields or industries, who are willing to invest in new businesses in exchange for equity or a debt convertible to equity.  Angels typically provide mentoring advice and offer their contacts, but rarely engage in day-to-day decision making.  The amount invested is typically far less than venture capital funds.
Government grants
Your business may be entitled to apply for start up grants or industry grant by local, State or Federal authorities. It is something every business should research as part of its planning.
Crowdfunding
If you are considering crowdfunding, take note that crowdfunding equity (shares) is the subject of new regulations by ASIC.  You must be a licensed Australian crowdfunding platform and you will need to prepare a disclosure statement and other information to be made available to potential investors. Crowdfunding in exchange for a future product or service may be the subject of other regulations.  Running a successful crowdfunding campaign is not simple and it requires careful preparation and marketing. You should consider engaging a consultant to assist you if you decide to crowdfund.
Keep in mind that the sale of shares in companies requires certain procedures to be followed, so seek legal advice before making offers of shares including to family and friends.
To find out more about capital raising, visit the Finance for your business page on the Australian Government’s Business website.
For more information regarding your start-up journey, download the full guide below or contact us today.
 
What’s next? #8: Don’t Forget to Sign Employee Agreements
 
Read from the beginning: #1: How to Make a Real Business Plan for Your Start Up
 

This guide is provided by way of general assistance only and for marketing purposes. Please contact us to discuss your personal situation and further information you may need.
 
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Financing Your Start Up appeared first on Bennett and Philp Lawyers.

People who think buying into a franchised business is a fast track to easy riches are deluding themselves, according to a Brisbane lawyer with expert knowledge of the risks. Media horror stories of franchisees whose lives have melted down through a collapse of their franchised business prompted Brisbane franchise lawyer Spencer Slasberg to produce a survival guide for franchisees.
Spencer, a member of the Disputes & Litigation team with Bennett & Philp Lawyers, has compiled a Top 10 advice list aimed squarely at people thinking of getting into a franchise and he pulls no punches with his advice.
“It’s the nature of the franchise world. It can be tough especially for people with no business expertise who go into a franchise expecting to be spoon fed. If they crash and burn, that’s when fingers are pointed everywhere, except usually inwards.
“Yes there are examples of franchisors who behave in an underhanded manner and shortchange their franchisees, but that’s not the general rule,” he says.
Spencer believes before people contemplate committing to a franchise they should consider 10 key points:
A franchise is not a business with training wheels.
People who want to get into business for themselves often think they are buying into a system where a franchisor is there to guide them through running a business. That is not the case. Franchisors are not there to train franchisees on how to run a business. Good franchisors may offer mentoring and training sessions on brand and systems, but without at least some basic business skills novice punters are bound to struggle.
Read the material!
Franchisors have pretty heavy regulations on the amount of information concerning the franchise structure they have to provide you before you even sign up. They even have to leave you alone for 14 days after giving you the information before they can start putting pressure on you to sign up and start paying. It can often look pretty daunting, the amount of information they provide you, but it is your best chance to get a snapshot of the business and know which direction to make any further inquiries you have before committing to the investment.
Do some research on the business and your proposed area.
Particularly in retail and hospitality franchises you are committing to a particular premises or restricted area of operations. During your cooling off/disclosure period, have a look around that area. See who your main competitors are. Do they look busy? Why are they busy or why are they quiet? Ask questions of everybody. You should be given a list of other franchisees (even if you aren’t look them up) call them and ask questions. Either a happy or an unhappy franchisee is usually willing to speak about why they are that way. Don’t be afraid to ask, you have a lot riding on this, don’t get shy now!
Get financial and accounting advice.
The disclosure material will contain financial information about the business, invest in some advice very early on to find out what your financial position actually is and what it might be projected to be in the first 24 months. This is where most young businesses fail, because people do not get enough advice on what their cashflows are going to be like until they establish themselves and only account for the initial costs, but don’t consider what life will be like without any real income to speak of until the business gets off the ground.
If you don’t have any business experience, consider a little bit more education.
Plenty of institutions offer diplomas and certificates in business management (often online now too). It might seem like a bit of a commitment but think about doing a business course to get the know- how behind you. This will help you avoid many of the traps of young players and if things start going wrong, will arm you better to decide if the problem is your franchisor or (might sound a bit harsh but…) or if it’s you.
Try to avoid putting all of your eggs in one basket.
Businesses fail, almost 50% of the time and for many reasons. Not just opportunistic franchisors or business partners, and not just because of your own issues but sometimes reasons completely outside of your control or ability to predict. Markets change, tastes and trends change. Can you survive this business failing? Get legal advice about protecting your assets BEFORE you invest in a new business.
Look at the franchise fee structure and ask why is that so?
A franchise that structures its fees based on a fixed percentage of your profits tends to be more committed to your success and confident of getting more money out of its successful franchisees. Franchisors that just charge a flat rate no matter how well or poorly your business runs may not have your best interest at heart. That’s not to say they don’t, but it does raise another question for you to ask!
Be prepared to work hard early on!
People often want to run their own business for the freedom it offers, time wise. Try and think of that freedom at least 2 years in advance. You will only get out of your business what you put in. If you take liberties early on, your business will suffer in those fledgling stages. Work hard and put effort into your business and your staff early on and the business has a better chance of reaching “critical mass” and being self-sustaining while you take your 10 to 30 weeks holiday each year!
Talk to other franchisees and if offered, join franchisee organisations.
This will be your best source of information and support. United you will stand, divided…
Be committed to the franchise you are buying into or don’t commit at all.
Learn their values and their goals and get behind them. You do not buy into a franchise to assert your own ideals. Chances are, you have seen something in a franchise business that connects with you. You are not in this to run your own game, you are committing to someone else’s idea. If you try and run your own play that doesn’t accord with the franchise philosophy, you probably should have just set up your own business. So back to square one again research, research, research, BEFORE you invest!
Spencer adds that when franchisors and franchisees are on the same page and committed to mutual benefit, and understand and appreciate each other, a franchise can be a powerful relationship.
“But self-serving ideas and opportunism can lead to mutual destruction. Be confident of what you are buying into, but committed to the process and your role in it and be informed! You won’t always spot a dodgy franchisor before you get into bed with them, but at least if you put the leg work in first you will be better armed to identify and deal with those issues” he says.
You can learn more about franchising on the Buying a Franchise page of the Queensland Government’s Business Queensland website, or on the Franchising Code of Conduct page of the Australian Competition & Consumer Commission’s website.
If you’re looking to become a franchise owner, read more on the Franchising section of our website or contact us today.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Lawyer’s Survival Guide for Franchisees appeared first on Bennett and Philp Lawyers.

The case of Bryant v Competitive Foods Australia Pty Ltd trading as Hungry Jack’s Annerley (‘Hungry Jack’s’), Brisbane City Council (‘BCC’) and Wayne Blow and Associates Pty Ltd (‘the architects’) involved an unsuccessful attempt by Mr Bryant to recover damages for his nervous shock following the tragic death of a 3 year old infant at Hungry Jack’s Annerley on 26 April 2012.
Mr Bryant was the driver of the vehicle which struck and killed the infant as he drove through the Hungry Jack’s car park towards the drive-through.  Mr Bryant did not see the infant on the pedestrian crossing.  Various witness accounts suggested that Mr Bryant was distracted by music and/or his phone.
Mr Bryant was charged with dangerous operation of a motor vehicle causing death.  He was found not guilty following a District Court trial.
Undoubtedly the incident and subsequent trial caused considerable distress to Mr Bryant.  He rather bravely initiated a claim for damages for nervous shock.
His claim came on for trial in the District Court at Brisbane before His Honour Judge Jarro.
In a carefully considered judgement Judge Jarro found in favour of the defendants.
Hungry Jack’s was the occupier of the premises.  In 1999 they carried out some extensions and modifications to the store to include a covered outdoor play area and a second drive-through service window.  Hungry Jack’s commissioned the architects to draw plans. The architects also submitted a development application to BCC.  The application was approved on 11 January 2000.  There were subsequently some minor amendments to the driveway and the final plans were approved on 8 May 2000.  The development works were carried out in accordance with those plans.
Hungary Jack’s, as occupier, admitted it owed a duty to entrants such as Mr Bryant to take reasonable care for their safety upon its premises, including in the car park area.  They conceded they had a duty to take care to minimise the risk of foreseeable injury to persons who entered the property.
Both BCC and the architects denied they owed Mr Bryant a duty of care.
His Honour Judge Jarro held that BCC did not owe Mr Bryant a duty of care in respect of its planning approval role.  It had no role in the construction or maintenance of the pedestrian crossing.  It had no control over the area.
Similarly the architects had no control over the circumstances giving rise to the accident.  It was not reasonably foreseeable when the architects provided their services that Mr Bryant would suffer psychiatric injury due to his manner of driving.  The duty owed by the architects was confined to exercising reasonable care and skill in the provision of architectural services.  The scope of the duty of care did not extend to avoiding pure psychiatric injury.
Although it was conceded that Hungry Jack’s owed Mr Bryant a duty of care it was held that they did not breach that duty of care.  Mr Bryant’s case focused on the design of the driveway and car park. His Honour held that Hungry Jack’s discharged their duty of care in relation to the design of the car park by engaging appropriately skilled contractors to carry out the work.
His Honour also separately held that there was no breach of duty of care by BCC or the architects.
The operative cause of the accident was Mr Bryant’s negligent driving rather than any particular design feature.
His Honour went on to observe that even if Mr Bryant succeeded in establishing liability he would have reduced his damages by 90% for contributory negligence.
Mr Bryant’s claim was dismissed with costs.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Negligent Driver Fails in Claim to Recover Damages for His Own Nervous Shock appeared first on Bennett and Philp Lawyers.

In the decision of MPL [2016] QSC 61, the Supreme Court of Queensland provided an important reminder of the relevant test to establish whether or not a person has testamentary capacity to make a Will and the importance of each limb of that test.
MPL is a 24 year old male who suffered a traumatic brain injury in 2012. As a result of the accident, he received a compensation payment in excess of $7 million.
In February 2016, he gave instructions to a solicitor to prepare a Will and he signed that Will.
MPL’s mother recognised that upon her son’s death, someone could try to argue that MPL did not have the necessary capacity when he created the Will, which might render it invalid. Therefore, to avoid any doubt, MPL’s mother made an application for a Court ordered Will  (or “Statutory Will”) for MPL in the same terms as ‘the Will’ he signed in February 2016.
The Court confirmed that before it can make a Statutory Will for any person, the Court must first be satisfied that the person lacks testamentary capacity.
What is testamentary capacity? It is often described has having soundness of mind, memory and understanding to make a Will.
What is the test for testamentary capacity? At the time a Will is signed, the person making it must:

understand the nature and effect of making a Will;
understand the extent of their property that they are disposing of by their Will; and
appreciate the claims that could be made on their estate when they die.

When assessing whether MPL lacks testamentary capacity, the Court considered several expert medical reports. Ultimately, the medical reports concluded that MPL understands the nature and effect of making a Will and the persons who will have a claim against his estate when he dies. However, the reports revealed that MPL was not aware of the nature and extent of his estate, on account of his short term memory loss. In this regard, MPL could report to his solicitor (after prompting) the amount of his compensation payment, but could not recall the amount of the payment when questioned by a doctor.
Therefore, because MPL could not satisfy all three limbs of the test for testamentary capacity, the Court determined that he did not have testamentary capacity to make a Will and that it was appropriate for the Court to make one for him.
MPL’s Statutory Will makes gifts to his mother, sister, step-brother and nieces and nephews. By comparison, if no Will was made for MPL by the Court, his estate would be distributed according to the rules of intestacy when he dies, being to his mother and father only.
This case is a powerful demonstration of the importance of Statutory Wills, to ensure that the wishes (or likely wishes) of those people who do not have the testamentary capacity to make a Will are carried out when they die.
For more information or advice in relation to Statutory Wills, please contact us today.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post What is Testamentary Capacity? appeared first on Bennett and Philp Lawyers.

Brisbane compensation law expert Mark O’Connor has some concise advice for Australians contemplating cosmetic surgery overseas – don’t do it.
“If you travel overseas for surgery and anything goes wrong. It doesn’t automatically mean you could pursue compensation action against the hospital or surgeon,” Mr O’Connor said his warnings especially applied to countries in parts of Asia and areas like Mexico, popular destinations for low-cost cosmetic procedures.
Medical tourism, as it’s now called, is a high risk venture. If you need any form of surgery, it’s safer overall to have it done in Australia.”
Mr O’Connor said someone suffering any medical negligence abroad would be thrown on to the compensation law systems of whichever country the surgery took place, and Australian law did not apply outside Australia.
“We have acted for people injured overseas, such as America, and in these cases engaged lawyers in the USA to run the matter. It’s feasible to run matters in America, Britain and parts of Europe but I would think that Mexico and parts of Asia would be an “iffy” prospect,” he said.
Mr O’Connor said while travel insurance was essential, travellers should also be wary of the fine print.
“The wording of some travel policies can exclude claims for the oddest excuses. I acted for a man who was injured diving into a swimming pool in America, but because he had been drinking quite a bit, the insurer- a major company- denied him cover. They claimed he was drunk and caused the injury,” he said.
“So you need to look closely at travel insurance wording but above all, you must have travel insurance and if you are intending to travel overseas for any surgery, you can’t rely on Australia to bail you out or compensate you if things go wrong,” Mr O’Connor said.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post The Unexpected Risks of Medical Tourism appeared first on Bennett and Philp Lawyers.

So you have decided to start a new business? You have a novel idea or a better way of doing things? What’s next?
Our business advisory director, Nadia Sabaini, has developed a valuable 10-part guide for budding entrepreneurs looking to turn their idea into a reality.
In this guide, Nadia has identified the top 10 actions to consider before embarking on a new business journey.  These considerations are invaluable knowledge for start-ups and can help maneuver your business down the right path with the appropriate awareness for the business environment in which you intend to operate.
 
#6:  Ensuring your start up’s licenses and policies are in place
It is imperative for start ups to have their necessary licenses and policies in place before they commence trading.
During your business research and planning you will have hopefully discovered any licenses, permits and other requirements that you will need.
If you live in Queensland, a good starting point is to use the Queensland Government’s Australian Business Licence and Information Service which contains a guided questionnaire on your proposed business designed to identify any possible licenses, permits and other requirements you may require. You should also enquire with any industry association in your industry, membership may provide you with access to industry services and compliance advice.
Australian Business Licence and Information Service
Most Government departments offer hotlines designed to assist customers with general information. However, should consider engaging a qualified industry consultant to give yourself the best chances of success in applying for Government licenses and permits, particularly if you are applying for licenses in specialist areas such as environment, liquor and gaming.
Most businesses are legally required to have a number of standard policies in place, such as a privacy policy and workplace health and safety policies.  If your business turnover is likely to exceed $3m per annum, if you will be obtaining credit information or reporting to a credit reporting body, or if you are providing goods or services on credit exceeding 7 days, a basic privacy policy is not sufficient.  There are more complex privacy requirements and disclosure material that you will need.
If you will be collecting personal information, credit information or tax file numbers, you may be the subject of data breach reporting obligations and you will need a data breach response plan.
Your lawyer can assist you with the formulation of policies and practices for your business.  If you are engaging a business consultant, they may also advise you on these matters and provide you with pro-forma policies, but make sure that you review them and that they are satisfactory for your business. Policies should be reviewed regularly with you business plan and actively implemented with your staff.
If you live in Queensland, visit this Queensland Government’s Business Queensland website for useful information on licenses, permits and policies required for start up businesses.
For more information regarding your start-up journey, download the full guide below or contact us today.
 
What’s next? #7: Take Care When Choosing How to Finance Your Business
 
Read from the beginning: #1: How to Make a Real Business Plan for Your Start Up
 

This guide is provided by way of general assistance only and for marketing purposes. Please contact us to discuss your personal situation and further information you may need.
 
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Ensuring Your Start Up’s Licenses and Policies Are in Place appeared first on Bennett and Philp Lawyers.

The Firm
Bennett & Philp are lawyers who understand the real world. We offer practical legal solutions with the full range of business and personal legal services and as a result have grown a stellar client base and superb working culture. In particular, the intellectual property practice group has a client base of manufacturing, engineering, IT technology, medical, life sciences, agribusiness corporations as well as clients in the beauty and food industries.
 
The Role
As part of the firm’s growth strategy, Bennett & Philp is looking to appoint an Intellectual Property / Technology Lawyer to our busy litigation team. This is a graduate to lawyer position (up to 2 years PAE) and your career will of course be mentored and developed. The role is ‘hands on’ and you will be involved in preparing advices, preparing agreements and licenses, researching emerging areas of jurisprudence, litigation discovery and due diligence, preparation of court documents and court filings, and assisting clients with their needs.
The work will be a mix of patent, trade mark, copyright and designs matters and commercial IP transactions.
Join a firm where the working culture is inclusive, supportive and progressive. Be impressed with our state of art of technology and resources. Work with high calibre colleagues
At this firm, you will enjoy your career being taken to a new level. This is the perfect opportunity for the lawyer who is passionate about the intellectual property / technology area.
 
Your suitability
You will be an Intellectual Property / Technology lawyer with a passion for science and technology. Ideally, you would have an undergraduate degree in science / technology / engineering or biotechnology and gained some litigation experience from a law firm environment. Commercial nous, drive and attention to detail are paramount as is impeccable writing skills.
 
The Benefits
A highly competitive salary package is on offer. Your ability to fast track your career is assured. The working culture of this firm is superb: down to earth yet professional, dynamic and above all supportive and inclusive.
 
 
Contact
Kim Malone at Kim Malone Recruitment.
p: 0411 107 757
e: [email protected]
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Bennett & Philp is Seeking an Intellectual Property Lawyer appeared first on Bennett and Philp Lawyers.

Due to the nature of Wills and Estate Law, we often have a fair insight into the lives of our clients and it is our duty to maintain a high level of sensitivity regarding this insight. When meeting with clients, much is spoken about the client’s life, but what about your lawyer? What type of person are they? What interests them?
Our Wills and Estates team rarely gets the chance to speak about themselves and would like to take this opportunity to share a little bit about their work and personal life outside of law.
The team consists of eight lawyers and paralegals working both in estate planning and estate litigation. On the estate planning side, the team helps create various succession documents such as wills, powers of attorney and advance health directives. They also interpret old Wills and help with the administration of estates.
The estate litigation side provides assistance during disputes that may arise over an estate, such as disputes regarding trusts, powers of attorney, guardianship, or administration duties. They also help in circumstances where there is no Will or where a Will has been drafted negligently.
Kellie Keenan

With over 15 years’ of experience in succession law, director, Kellie Keenan heads the Estate Planning side of the team. Kellie is a keen Maroons fan, making sure to attend a home State of Origin game every year. The only thing she may have spent more time watching is Grey’s Anatomy, in which she claims to have logged over two weeks of screen time following the drama inside the walls of Seattle Grace Hospital.
 
Geoff Armstrong

Alongside Kellie is one of our newest team members, Geoff Armstrong. Formerly a sole practitioner for many years, Geoff has slotted into the team with ease and brings with him his compassionate, courteous and approachable manner. A keen guitar player, Geoff currently plays bass for a band on the Sunshine Coast and once played bass on a CD with the late Phil Emmanuel. Despite this claim to fame, Geoff’s proudest achievement was being named the Louth Single Dart Champion in 1982 back in his home country of England.
 
Charlene Rayner

Backing up Kellie and Geoff is one of our youngest lawyers, Charlene Rayner. Having worked as Kellie’s assistant for a number of years before earning her practising certificate, Char has a deep understanding of the ins-and-outs of Wills and Estate law. Char is a proponent for the phrase “never stop learning”, as she loves to study new cultures and can often be found spending her free time lost in a good book. Although she doesn’t make it too well known, she’s a big Harry Potter fan and is still holding out for her own Hogwarts letter to arrive.
 
Michelle Stevens

Completing the estate planning side of the team is our paralegal, Michelle Stevens, whose ability to handle large volumes of estate administration matters is second-to-none. Michelle is a self-confessed travel nut, especially if the destination has a Disneyland resort. After her most recent trip to Hong Kong’s Disneyland Resort, Michelle has only Disneyland Paris left to cross off her list. In a change of pace for Michelle, at the end of 2019, she will be hitting the heights of the Himalayas as she treks around Everest Base Camp.
 
Charlie Young

On the other side of our Wills and Estates team, heading the estate litigation practice, you’ll find, director, Charlie Young. Charlie’s expertise covers elder abuse as well as trust and estate disputes, which, in 2013, included successfully arguing the validity of Australia’s first iPhone will. According to an anonymous source, Charlie is one of Warrnambool’s greatest exports, a claim that has yet to be verified. He is also an AFL fanatic, with the Collingwood black-and-white decorating his office, and after giving so much to the game, was rewarded as the winner of the prestigious 1999 ‘Murri Mavericks’ Coaches Award (6th division).
 
Chai Hoe

Assisting Charlie is another one of our newest team members, Chai Hoe. Chai has previous experience working in Family, Succession and Commercial law and has excelled due to her proficiency in language. She can communicate in English, Mandarin and Malay, as well as various dialects such as Cantonese and Hokkien. We’re not sure where she finds the time to practice all these languages as, in her time off, she’s often found instructing classes for both Zumba and KpopX Fitness. It’s no surprise that she’s into Zumba and KpopX as she’s a lover of singing and dancing and a self-confessed Kpop fangirl.
 
Jim Byrne

Extending into the Elder Law area, we have Jim Byrne, who joined the team after Bennett & Philp absorbed Jim’s long-running former firm, James Byrne & Company. Jim acts as a consultant for the team and maintains the records for his multitude of clients he has acquired of his sixty years of practice. Well into his eighties, we’re unsure if Jim has simply forgotten to retire. This is unlikely seeing as Jim has one of the best memories in the firm, with a story for every client he’s worked for. We’re not sure how he does it, but, at times, it seems as if his mind is more accurate than our client database.
 
Barbara Houlihan

Rounding out the team is our Family Law expert, Barbara Houlihan. Alongside Jim, Barb was another valuable addition to the team during the acquisition of James Byrne & Company and brings with her more than 34 years of legal practice. As our resident family law expert, Barb currently acts for third generation members of families with whom she’s had a professional association over those three decades and finds value in establishing strong and long-standing client relations.
 
 
 
 
We hope this brief look into the team helps you have a better insight into the type of people assisting you with your Will. The team strives to produce the best results for each and every one of their clients, and the team culture they have developed allows them to produce these results with great efficiency.
If you need any assistance or advice regarding your Will or the estate of a loved one, please contact the team today.
The post Meet Our Wills and Estates Team appeared first on Bennett and Philp Lawyers.

So you have decided to start a new business? You have a novel idea or a better way of doing things? What’s next?
Starting a new business can be daunting, but with good planning and the help of experienced advisors, success is just around the corner. In this guide, our business advisory director, Nadia Sabaini, gives her top 10 actions to consider for Start Ups embarking on a new business journey to maximise their chances of success and avoid legal hardships.
Nadia Sabaini is a director in our business law team. Nadia routinely acts for clients in start-ups, mergers and acquisitions. Nadia also advises in the areas of finance and general contract law.
 
#5:  Registering your start up’s intellectual property
Before commencing business, it is important to have taken the necessary steps to protect the intellectual property that the business will be using. 
Common forms of IP protection include:

Registering the business name
Registering a trademark
Registering a patent
Registering a design

Applying for a patent can be expensive but it may be critical if your business is relying on a new invention or idea. Once an invention becomes public, it is no longer possible to patent it.
When considering trademark and patent registration, we recommend you consult with a IP attorney to get advice and correctly make the registrations required.
If registering a patent is outside your budget or you think it’s too early to do so, you may be able to protect your interests when sharing your idea with others by using a confidentiality agreement. Although there are confidentiality agreement templates available online, it is recommended that you have a confidentiality agreement drawn up that is suited to what you intend to disclose and the purpose of the disclosure.  This is particularly important if your business is wholly dependent on the idea you are disclosing.  Most lawyers can prepare a simple but tailored confidentiality agreement at little cost.
It goes without saying that you should also check if anyone already owns or is operating under your proposed business name or logo, and you should never attempt to operate under a business name, logo or idea that’s deceptively similar to or a spin-off on someone else’s.  Although it might sound smart or quirky, you are putting yourself squarely in the line of fire and IP litigation can be extremely costly.
You can learn more about intellectual property and search registered trade marks, patents and designs on the Australian Government’s IP Australia website.
For more information regarding your start-up journey, download the full guide below or contact us today.
 
What’s next? #6: Ensuring Your Licenses and Policies Are in Place
 
Read from the beginning: #1: How to Make a Real Business Plan for Your Start Up
 

This guide is provided by way of general assistance only and for marketing purposes. Please contact us to discuss your personal situation and further information you may need.
 
Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Registering Your Start Up’s Intellectual Property appeared first on Bennett and Philp Lawyers.