Background
The Real Estate Institute of Queensland (REIQ) has made a revolutionary announcement that is set to modernise the property and leasing market. The REIQ has announced that by the end of the year, all residential tenancy agreements will have the ability to be executed and completed electronically.
With an estimated 400,000 residential tenancy agreements generated each year through document processing software Realworks alone, this change is to set to have a significant impact on the effectiveness and efficiency of property management.
What does the change involve?
The REIQ have partnered with Igloo, a start-up blockchain technology company, to create a platform that allows for residential tenancy agreements to be executed as digital smart contracts. The blockchain technology, being the same used for cryptocurrencies, creates secure individual transactions for each residential tenancy agreement.
The REIQ have praised the introduction of the new technology, saying that the technology will provide more transparency and functionality in the rental space.
The technology, when implemented and developed further, is set to have a myriad of different functions such as:

the ability for residential tenancy agreements to be completed and signed online;
providing a central record for all residential tenancy agreements and providing insight into:

(a) how much properties are rented for;
(b) the length of tenancies; and
(c) how long properties were previously vacant for,
which will give an invaluable insight to the rental market for property owners and managers around the country.
Will this be the new normal?
Although Queensland is the first state leading the way into the digital world of residential tenancy agreements, it does not appear the technology will remain exclusive to the State.
The New South Wales State government has announced it is looking into using blockchain technology to simply the conveyancing process, which undoubtedly will soon evolve into use in other areas such as leasing.
With the implementation of the technology set to be in full swing by the end of the year, we expect this will only be the beginning of REIQ documents being completed, signed and effectively completed online.
If you have any queries regarding property or leasing, please contact our team today.
The post DIGITAL TENANCY AGREEMENTS – THE NEW NORMAL appeared first on MacDonnells Law.

Have you ever tried to use that random gift card you got for Christmas only to be told it has expired!? In July!?
In Queensland, gift cards have never been subject to rules on how long they must be valid. As a general rule, most gift cards are valid for 6 or 12 months only. This is probably because gift cards are recorded in business accounts as a future liability and if the gift card is not used before expiry, the business keeps the money without supplying any goods or services.
Amendments to the Australian Consumer Law contained in the Competition and Consumer Act 2010 propose to deal with consumer angst with short living gift cards. And there seems to be a lot of consumer angst with the Explanatory Memorandum for the amended legislation stating that some $70 million is lost from expired gift cards each year!
The amendments will apply to gift cards supplied from 1 November 2019 and provide that:

Gift cards must have a minimum three year expiry period;
Expiry dates must be prominently displayed on the gift card itself; and
Certain post purchase fees on gift cards are prohibited.

Penalties of up to $30,000 can be imposed for non-compliance.
If you issue a gift card from 1 November that has an expiry date of less than 3 years, the date will be invalid and the consumer will have the legal right to use the gift card within the three year period.
Other notable amendments relate to:

Insolvency – if the supplier of the gift card becomes insolvent or bankrupt, the gift card will still continue for the full period with the holder being treated as an unsecured creditor.
Business sale – where a business is sold as a going concern or by way of share sale, the new owner will be responsible for honouring all unexpired gift cards.

In anticipation of the amendments taking effect, business owners should update their systems to ensure all gift cards comply and keep good records of gift cards as they are issued and used. Business buyers should ensure they obtain a list of all unused gift cards either before entering into a contract or early on during a due diligence process.
Should you have any concerns about gift cards you have issued or received or how to deal with them as part of a business sale, contact our experts.
The post The Gift (Card) that Gives Longer! appeared first on MacDonnells Law.

On 2 September 2019 the Federal Court made an important determination of native title in the ‘Gunggari People #4’ claim and marks the end of 23 years since the first Gunggari application was filed in the Federal Court seeking recognition of their native title rights and interests in the Maranoa region.
The external boundary of the determination area covers approximately 19,349km², roughly situated between the towns of Amby to the east and Morven to the west and extending from the southern boundary about 35km south of Mitchell to the junction of the Chesterton and Great Dividing Ranges to the north near Mount Moffatt. The determination area is particularly significant to the Gunggari People as it includes ‘Yumba’; an Aboriginal reserve where many Gunggari people grew up that was demolished more than 50 years ago.  The Determination is the Gunggari People’s third determination in seven years and adds to adjoining land across the Maranoa region.
Following the registration of this application for determination in early 2013, MacDonnells Law has acted for the Maranoa Regional Council. The overlap between the application area and Council’s local government area is significant, with the local government area covering approximately 86% of the application area. MacDonnells Law was involved in negotiating a range of tenure issues, representing Council at Court and case management conferences and negotiating an indigenous land use agreement with the Gunggari People.
The Media Statement issued by the Minister for Natural Resources, Mines and Energy, The Honourable Dr Anthony Lynham, can be viewed at:
http://statements.qld.gov.au/Statement/2019/8/30/gunggari-people-celebrate-their-largest-native-title-claim
If you have any queries in relation to any native title or cultural heritage matters, please call Jeremy Marshall on 07 3031 9739 to discuss.
The post Significant determination further recognising Gunggari Peoples’ native title rights and interests in the Maranoa recently made appeared first on MacDonnells Law.

Background
From 1 July 2019, the new whistleblower protection regime came into effect under the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) (Whistleblowers Act). The regime is aimed at providing protection to whistleblowers in the corporate and financial sector.
The Whistleblowers Act applies to all companies and the new regime also extends to not-for-profit bodies and incorporated organisations that meet the definition of a trading or financial corporation as defined in Part 9.4AAA of the Corporations Act 2001 (Cth) (Corporations Act).
What are trading or financial corporations?
In a recent article published by the Australian Securities and Investments Commission (ASIC), it has provided some guidance as to what organisations could be considered trading or financial corporations.  Providing there is the necessary trading or financial element, relevant bodies falling within this definition include:

incorporated associations;
other bodies corporate, including not-for-profit bodies corporate;
incorporated organisations registered with ASIC as Australian registered bodies; and
incorporated organisations registered with the Australian Charities and Not-for-profits Commission (ACNC) as charities.

The answer to the question of what organisations actually meet the definition of a trading or financial corporation is difficult to establish and dependent upon whether the trading or financial element is met, with ASIC itself commenting that it is not always clear whether a not-for-profit organisation or charity falls within the definition.
In order for an organisation to ascertain whether the required trading or financial element is met, the organisation must look at the nature of its activities, specifically whether or not trade or financial activities count as a significant proportion of the organisation’s overall activities.
ASIC has provided some examples as to what not-for-profit organisations will be considered as trading or financial corporations. These include:

not-for-profit sporting clubs where it pays its players, charges spectators admission fees and sells television and advertising rights with respect to the matches;
animal welfare charities that earn substantial income from trading activities; and
not-for-profit finance organisations, such as not-for-profit building societies as they lend monies at interest and are therefore engaged in financial commercial dealings.

How do trading or financial corporations comply?
If a not-for-profit organisation or an incorporated association is considered to come under the definition of a trading or financial corporation, the organisation must comply with the whistleblowers regime.
Although public companies, large proprietary companies and proprietary companies that are the trustees of registrable superannuation entities are required to have a whistleblowers policy in place from 1 January 2020 under the Corporations Act, this requirement does not apply to not-for-profit organisations.
Regardless of no such policy being required, these organisations must still comply with the provisions under the regime and ensure that there is a strategy in place for dealing with any whistleblower reports it may receive.
If you are unsure if your not-for-profit organisation fits under the definition of a trading or financial corporation or if you require more information regarding the whistleblower protection regime, please contact us today.
The post WHISTLEBLOWER REGIME – NO EXEMPTION FOR NOT-FOR-PROFIT ORGANISATIONS appeared first on MacDonnells Law.

Have you heard the latest on the Fyre Festival fiasco?!? Influencers, including the likes of Kendall Jenner and Emily Ratajkowski, are being sued for their role in endorsing the failed event in 2017. The basis of influencers’ liability in the United States is largely social media platform terms and the Federal Trade Commission’s endorsement guidelines under the US Federal Trade Commission Act.
Because we’re a bit geeky, that got us thinking about the regulation and liability of influencers and their conduct under Australian law.
At the very least, ‘influencers’, or really anyone purporting to review or endorse a product or service on social media, might be liable under the same social media platform terms and Australia’s consumer laws. In particular:

The Australian Consumer Law (schedule 2 to the Competition and Consumer Act 2010) contains laws against engaging in conduct which is misleading or deceptive or likely to mislead or deceive and against making false or misleading statements regarding endorsements;
The Australian Competition and Consumer Commission has guidelines for reviews which requires reviews to be genuine and to disclose any incentives and any commercial arrangements; and
The Australian Association of National Advertiser’s has guidelines for influencer marketing which require that advertising or marketing posts be clearly distinguishable as such.

The potential liability does not relate to influencers generally and does not prohibit the use of influencers by businesses. However, influencer conduct could be misleading or deceptive or in breach of guidelines if it leads consumers to think it is a genuine user comment when it is in fact a paid endorsement. This is usually clarified by the influencer using #ad, #paid or #sponsored in the post.
As influencer marking continues to grow it will be interesting to see any if any cases come out of it or if the regulation is updated and tightened.
If you have any doubts as to what you are posting on social media, or what you see others post, please get in touch with our experts.
 
The post Liability of Influencers appeared first on MacDonnells Law.

A common occurrence as a finalisation of initial negotiations between parties to a contract is signing what is commonly referred to as a ‘terms sheet’ or ‘letter of offer’. A letter of offer is a document that lists in short form the key commercial terms of an agreement and is usually signed by both parties to the transaction.
Letters of offer are regularly used in property matters, such as the sale or lease of land, due to the nature of the matter requiring the parties to come to agreement on a number of commercial aspects of a deal.
A common aspect of a letter of offer is that the document will ordinarily purport to be “intended to be legally binding” or words to that effect. Even if the document is not expressed as intended to be legally binding, this is an issue we frequently see raised in the event of a dispute between the parties.
The recent Victorian Court of Appeal case of The Edge Development Groups Pty Ltd v Jack Road Investments Pty Ltd [2019] VSCA 91 (Edge case) is an example of where the wording of a letter of offer signed by the parties to a proposed sale of land had significant consequences for one party.
Background
The Edge case revolved around the interpretation of the wording of a letter of offer signed by The Edge Development Groups Pty Ltd (Edge Group) as buyer of a property owned by Jack Road Investments Pty Ltd (Jack Road).
The letter of offer provided, amongst other things, that:

Edge Group would pay $6 million for the property;
a 20% deposit would be paid upon execution of a contract, with 1% payable on signing the letter of offer;
Edge Group would be entitled to immediate access to the property under a license agreement upon execution of a contract; and
the parties would adopt the terms of Jack Road’s standard contract.

Importantly, the letter of offer also included the wording noting that the letter of offer was “subject to the Contract being executed”.
After Edge Group had paid the 1% deposit, Jack Road subsequently received an offer to purchase from a third party for a higher sale price. Edge Group then lodged a caveat on the title to the property in an attempt to stop Jack Road from selling the property to the third party. Edge Road also brought a claim against Jack Road seeking specific performance of the contract.
Decision
The Victorian Court of Appeal found in favour of Jack Road in holding that the letter of offer was not a binding agreement and the parties did not intend to be legally bound by the document. In coming to this decision, the Court considered:

the offer was clearly expressed to be “subject to the contract being executed” indicating the partied intention was that the letter of offer was merely to be a bridge before the execution of a formal contract;
the final terms of the contract were not sufficiently finalised and there was still significant scope for negotiation between the parties before entering into a formal contract;
the execution of the formal contract was intended to mark the point at which the transaction became legally binding and to confirm the balance payable of the deposit, grant of access to the property and the confidentiality between the parties; and
the absence of key terms in the letter of offer provided no commercial deal to be agreed between the parties.

What this means
As there are potentially significant financial obligations and impacts that can come from a letter of offer being found to be enforceable, it is important to consider the wording of the document prior to execution.
Any deal being documented between parties with their signatures placed on same should first be reviewed by a lawyer to ensure the terms meet the intention of the parties and are capable of being legally binding if the intention of the parties is for it to be so.
Please contact our office if we can provide any further advice on the above.
The post Terms Sheets and Letters of Offer – are they legally binding contracts? appeared first on MacDonnells Law.

In matters involving rental disputes, a common train of thought by lessors is to detain the lessee’s goods until such time as the lessee makes payment of the outstanding rent.
The Victorian County Court recently heard a case in which a lessor followed through with implementing this line of thought in what proved to be a costly error of judgement.
Background
In the case of Katranis v Bahrou & D’Azzena, the lessee operated a car repair business out of a property it leased from the lessor. The lessee had failed to pay rent, following which the lessor subsequently terminated the lease and took possession of the premises.
The lessor, upon retaking possession of the premises, refused to allow the tenant to collect its personal tools and equipment from the premises until all outstanding rent was paid. Following this, the lessee made an application to the Victorian Civil and Administrative Tribunal (VCAT) and obtained an order requiring the lessor to allow the lessee access to the premises on a certain date to collect its personal equipment.
Despite the VCAT order, the lessor still refused the lessee access to its personal goods until the outstanding rent was paid. As a result, the lessee made an application to the Victorian County Court.
Decision
The Court held that a failure to remove goods before termination of a lease does not bring about a change in ownership of the goods or give the lessor the right to refuse access to the goods unless the lease clearly has a term to this effect.
As such, it was ordered that:

the lessor was to pay the lessee for the value of the goods held, amounting to $101,460; and
the lessor was entitled to a set-off for the unpaid rent in the amount of $7,420.

The final amount the Court required the lessor pay was therefore $94,040, plus interest and costs.
What this means for lessors
What this means for a lessor of a premises first and foremost, upon coming in to a dispute with a lessee, is that legal advice should be sought prior to taking any action to retain goods or terminate a lease.
Secondly, it is importantly to note that any decision made by a Court or Tribunal must be followed. Lastly, if the intention is for a lessor to be allowed to retain the goods of a lessee in the event of default under a lease, this should be expressly written into the lease itself.
Please call our team if you require advice on an issue raised in this article.
The post Can you hold a tenant’s goods after failure to pay rent? Katranis v Bahrou & D’Azzena appeared first on MacDonnells Law.

Recent amendments to the Corporations Act 2001 (Cth) (the Act) have doubled the threshold requirements for defining a “large” proprietary company as of 1 July 2019. The changes are set out in the Corporations Amendment (Proprietary Company Thresholds) Regulations 2019 (Cth) which modernises the thresholds defining whether a proprietary company is considered “large” or “small” for the purposes of financial reporting.
Under the Act, large proprietary companies are required to lodge an annual financial report, a director’s report and an auditor’s report with the Australian Securities and Investments Commission (ASIC), while small proprietary companies are only generally required to keep sufficient financial records and are only required to lodge audited financial reports if directed by ASIC, or if directed by 5% or more of its shareholders.
As of 1 July 2019, for a company to fit within the definition of a “large” proprietary company it must meet at least 2 of the 3 thresholds outlined below:

Threshold pre-1 July 2019
Threshold post-1 July 2019

Number of employees within the company and any entities it controls
50
100

Value of the consolidated gross assets of the company and any entities it controls
$12.5 million
$25 million

Consolidated revenue of the company and any entities it controls
$25 million
$50 million

These changes will bring substantial reprieve to companies that formerly fell within the threshold of a large proprietary company and will decrease their mandatory reporting obligations. The increased thresholds ensure financial reporting requirements are targeted at economically significant companies, while reducing costs for smaller proprietary companies that are no longer required to comply with additional reporting requirements to ASIC. However, the threshold changes only come into effect as of 1 July 2019 and companies that previously met the threshold will still be required to meet their reporting obligations for the financial year ending 30 June 2019.
If you have any queries about your organisations reporting obligations, please do not hesitate to contact our commercial team.
The post REDEFINING THE THRESHOLD FOR LARGE PROPRIETARY COMPANIES appeared first on MacDonnells Law.

Just prior to the Coalition claiming victory in the last federal election, Prime Minister Scott Morrison announced the introduction of the First Home Loan Deposit Scheme (Scheme), set to take effect from 1 January next year.
Background
The announcement of the Scheme is set to work alongside the First Home Super Saver Scheme, also introduced by the Coalition, which allows participants to release voluntary contributions from their superannuation fund to assist them with the purchase of their first home.
The Coalition has said that the Scheme is aimed at allowing first home buyers who may struggle to ever afford a loan on the bank’s requirements, to enter the housing market with ease.
What is the Scheme?
Under the Scheme, first home buyers would only required to be pay a 5% deposit to secure a mortgage, as opposed to the standard 10-20% deposit.
First home buyers with an income of up to $125,000.00 annually or $200,000.00 annually for couples will be eligible under the Scheme.
The Scheme will be available to 10,000 people annually, with the government acting as guarantor on the mortgages.
At this stage the Coalition has stated that the value of homes that can be purchased under the Scheme will be determined on a regional basis, reflecting the different property markets across Australia.
What are the benefits of the Scheme?
The Scheme’s main benefit lies in the deposit required to be paid by first home buyers, being a lower deposit than what is usually required to secure a mortgage. This will assist first home buyers who are struggling to save enough money to put towards a deposit and will also likely reduce the time it takes for a first home buyer to amass the required deposit amount, allowing them to enter the property market earlier.
The Scheme will also help buyers avoid having to pay lender’s mortgage insurance and overcome many financial institutions tighter lending requirements.
What are the disadvantages of the Scheme?
Many financial and research analysts have commented on the Scheme, saying that although in the short term the Scheme does have merit, the Scheme will cost first home buyers far more in the long run as it will increase first home buyers’ overall debt.
This is particularly the case given that a lower deposit requirement of 5% will lead to a buyer having to obtain a larger loan for the balance purchase price (as compared to a higher deposit requirement of 10-20%). This will in turn increase the buyer’s monthly interest repayments and depending on the loan amount, may lead to a substantially higher amount of interest being paid over the life of the loan.
Considerations
Given that the Scheme has only recently been announced, with further details to be announced prior to the Scheme’s commencement, there are many factors that first home buyers will have to consider before deciding if the Scheme is right for them.
As the interest payable for mortgages under the Scheme will be higher, first home buyers should consider if this disadvantage is worth the benefit of being able to enter into the housing market sooner.
If you are a first home buyer and would like to know more about the Scheme, please contact our office.
The post FIRST HOME BUYER DEPOSIT SCHEME – IS IT WORTH IT? appeared first on MacDonnells Law.

As part of the State Budget, the Queensland Government has introduced changes to certain land tax rates and surcharges which took effect on 30 June 2019. The changes include increased tax rates for companies and trustees with landholdings above $5 million and an increase in the absentee surcharge for foreign individuals who own land and do not ordinarily reside in Australia. The changes also include the introduction of a surcharge for foreign companies and trustees of foreign trusts that own land in Queensland.
What is Land Tax?
Land tax is a state tax that is calculated annually at the end of each financial year on the freehold land you own in Queensland. The respective tax rate will depend on the type of land owner, the taxable value of the land and if any exemptions apply. Land tax is calculated on the total taxable value of all land that a land owner holds in Queensland, excluding any land which an owner has received an exemption for. Land owners are not liable to pay land tax on land they use as their principal place of residence. Land tax will only become payable when the total taxable value of a land owner’s investment or commercial properties exceed the respective tax-free threshold.
What are the changes?
The changes will not have any effect on land tax calculations for Australian resident land owners and the land tax exemption for a land owner’s principal place of residence will remain in place. The rate of land tax and the tax-free threshold of $600,000 for investment or commercial properties will also remain unchanged.
There are similarly no changes to land tax rates for Australian companies and trustees that have landholdings with a total taxable value of $5 million or less. However, a new land tax surcharge will apply to foreign companies and trustees of foreign trusts that are subject to land tax.
The applicable changes are as follows, all of which took effect from 30 June 2019:

an increase in land tax rates from 2% to 2.25% for companies and trustees with landholdings of more than $5 million but less than $10 million;
an increase in land tax rates from 2.5% to 2.75% for companies and trustees with landholdings of more than $10 million;
Australian citizens and Australian permanent residents holding permanent visas living, working or travelling overseas will be assessed as resident individuals and will no longer be assessed as absentees. Accordingly, they will benefit from the same tax-free threshold and land tax rates as residents living in Australia (which is a higher tax-free threshold and lower rates of tax as compared to absentees) and will not be subject to the absentee surcharge;
the absentee surcharge will increase from 1.5% to 2% and similarly apply to foreign individuals who own land and do not ordinarily reside in Australia; and
a new land tax foreign surcharge of 2% will apply to foreign companies and trustees of foreign trusts that own land in Queensland. The surcharge will apply to the portion of the taxable value of the land that is $350,000 or more. This surcharge will apply in addition to the land tax rate increases for companies and trustees mentioned above with landholdings with a taxable value of more than $5 million.

What does this mean for you?
It is important for land owners to take note of whether their property is affected by any of the above changes to the land tax rates or surcharges. In addition, tenants of commercial or industrial properties should also review their obligations under their lease to determine if they are liable for the payment of their Landlord’s land tax and take note of the respective increases in land tax rates and surcharges.
If you have any queries about the changes or your obligations as a landowner or tenant in respect of land tax, please do not hesitate to contact our team.
The post Changes to Land Tax in 2019-2020 appeared first on MacDonnells Law.

In the recent case of Re Quinn [2019] QSC 99, a video filmed on a man’s phone 4 years before his death was found to be a valid Will. The Supreme Court of Queensland exercised its discretion under section 18 of the Succession Act 1981 (Qld) (the Act) to dispense with the requirements of a valid Will, by looking at the deceased’s testamentary intentions.
Background
In June 2015, Leslie Wayne Quinn (Mr Quinn) committed suicide, leaving behind his wife Leanne Quinn (Mrs Quinn) who he was separated from but not legally divorced and 3 sons, being 2 he shared with Mrs Quinn and an older son from a previous marriage. In the video, filmed by Mr Quinn in 2011, he stated that:
‘In the event of my death, I would like all my goods, my interests in property… my share of those to go to my wife, Leanne Quinn, anything, any money that I have, cash, I’d like that to go to my wife Leanne. That, I think is basically it, so this is my only Will.’
Decision
In determining whether or not the above statement and video was sufficient enough to make and grant an application under section 18 of the Act to dispense with the requirements for a valid Will, the Court considered the following:

is there a document by the deceased person?
does the document fail to comply with the execution requirements found in the Act?
does the document purport to state the testamentary intentions of the deceased person?
is the court satisfied that the deceased person intended the document to form the person’s Will?

In considering the above, the Court came to a view that there could be no doubt that Mr Quinn:

made the recording to record his testamentary intensions as to what was to happen to his possessions after his death;
intended for the video to be his last Will, even referring to the video as his last Will in the recording, although it was not written or witnessed as usually required; and
expressed a strong intention to leave all his assets to Mrs Quinn, which the Court considered as logical given the young age of his children at the time.

Prior to determining that the video was a valid Will, the Court undertook searches to ensure that there were no other subsequent video recordings or otherwise that could be considered to be another Will, but nothing was located.
The video was therefore determined to be Mr Quinn’s last Will.
Implications
Although the video recording was determined by the Court to be a legally binding Will, the judgement itself has not shown that the requirement to have a Will that complies with the formalities in section 10 of the Act is no longer valid or should not be complied with.
If a Will is made that does not comply with section 10, the estate of the deceased must bear the costs of proving that such a document, recording or whatever the case may be, is legally valid.
Not only does this effect the estate’s assets, and effectively what is to be the inheritance of the beneficiaries under such a document, but the process is time consuming and could be avoided by having a valid Will that complies with the Act.
If you would like to prepare a Will or discuss your estate planning needs, please contact our succession law team today.
The post SMART PHONE VIDEO = VALID WILL? appeared first on MacDonnells Law.

As of July 2019 we will have two new Directors/Owners and a new Practice Leader as part of our Leadership Team!
Melinda Foley has become an Owner/Director after heading up our Litigation and Dispute Resolution team since 2014 and being a partner of the Firm for the last 12 years. Melinda has been with the Firm since 2002 and is a trusted advisor to many of our long-standing clients throughout the community. Melinda has a particular expertise is in assisting clients resolve commercial and contractual disputes.
Melissa Sinopoli has also become an Owner/Director after 3 years as our Commercial Practice Leader. Melissa started as a graduate of MacDonnells Law in 2009 already has a ton of achievements under her belt including Finalist, Senior Associate of the Year, Women in Law Awards in 2015. She has been instrumental in the development of our Commercial Practice Area in the Cairns and Brisbane market over the last 10 years.
Finally, Patrick Day has been promoted to Practice Leader after returning to MacDonnells Law in a Special Counsel role last year. Having started his career at MacDonnells Law way back when, he has spent the last 6 years firming up his abilities in Property, Planning and Local Government Law establishing himself as a highly sought after advisor in this space.
Melinda, Melissa and Pat are welcomed into their new roles by our existing Directors Russell, Luckbir and the rest of the team. We are all very excited for the times ahead in this new era of MacDonnells Law.
The post Big news at MacDonnells Law! appeared first on MacDonnells Law.

With the ever-increasing prevalence of electronic communication in the digital age, gone are the days of sending a letter by post. Why wait 3 days for a letter to be read by the intended recipient when they can receive the same letter almost instantaneously by email?
With the increased use of email as a means of communication, there has also been an increase in the use of email correspondence as a form of written notice under a contract, with such contracts ranging from a lease to a standard residential conveyance to multi-million-dollar commercial arrangements.
However, is a notice provided by email from one party under a contract to the other a good form of notice, that is, is the notice sufficient for a party to rely upon in Court?
This issue was recently discussed by the Supreme Court of New South Wales in the case of Kegran Pty Ltd v Warrik Pty Ltd (Kegran’s case).
Background
Kegran’s case related to the service of a notice to exercise an option to renew under a commercial lease.
The lease allowed the tenant to exercise an option to renew the lease for a term of a further 5 years, subject to the tenant providing notice to the landlord of their intention to do so no less than 6 months before the expiry of the initial term of the lease.
The lease also noted that any notice provided to the landlord would be “sufficiently served if it was served personally, sent to the lessor’s facsimile number or sent by prepaid post“. It is important to note that this clause did not specify that a notice could be served by email.
7 months prior to the expiry of the initial term of the lease, the tenant gave notice to email address of the sole director of the landlord of their intention to exercise the option to renew. The landlord did not agree to the tenant exercising the option to renew and argued that the tenant had failed to properly provide notice under the lease.
Decision
The Court held that the language of the notice provision under the lease was “facultative” rather than “mandatory“. That is to say, the language of the relevant clause specified methods in which the parties may have given notice, without necessarily requiring those means of communication as the only methods to provide notice.
The Court’s positions was that an email was a satisfactory method of notice in the circumstances and, as such, the option to renew was validly exercised within the required timeframe under the lease.
Conclusion
What this decision means is that no notice provided by another party to a contract should be disregarded, even if the notice is in a form that is not specified in the contract itself.
That being said, it is important to ensure that when entering into an agreement the terms regarding the service of notices should be reviewed and amended to suit the preferred method of the parties. Given the prevalence of email as a modern form of communication, this is generally something that should be included in any notice clause.
If you require any further information on this, please contact our team.
The post Notices Provided by Email – Are they Good Notices Under a Contract appeared first on MacDonnells Law.

The Building and Other Legislation (Cladding) Amendment Regulation 2018 (Qld), has recently been passed to amend the Building Regulation 2006 (Qld) and imposes obligations on owners of certain residential and commercial buildings to identify and risk assess whether a building contains combustible cladding.
The Regulation imposes obligations on owners of buildings that are:

Described as Class 2 to 9 buildings (which includes generally all residential and commercial/industrial buildings of at least 2 storeys, other than houses and certain low-rise buildings);
Are of either Type A or Type B constructions (this is determined based on the number of storeys of the building); and
Were given development approval to build or to alter cladding after 1 January 1994 but before 1 October 2018.

Generally, buildings that may fit within the Class 2 to 9 will include multi occupancy units, residential buildings (including hotels), office buildings, shops, car parks, storage buildings, laboratories, industrial buildings used for trade and repair and buildings of a public nature.
Buildings classified as Class 1, which includes single dwelling houses and small boarding houses, and Class 10 buildings, which includes private garages and sheds, are not affected by the legislation
A full description of each Class and Type of building can be found on the QBCC website here.
Where buildings are comprised of multiple lots, the Body Corporate will be considered the owner for the purposes of this legislation.
The Regulation introduces a 3-stage process that owners must comply with:
Stage 1 – Combustible Cladding Checklist (Part 1)
The first stage of the process requires building owners to register details about the building by completing Part 1 of the Combustible Cladding Checklist online through the Queensland Building and Construction Commission (QBCC) website to determine if the building is privately owned, its size and the general materials used on the outer sides of the building. Failure to complete the checklist by 29 March 2019 will attract a maximum fine of $2,611.00.
The purpose of the initial stage is to identify if the building is an “affected private building”, meaning it may contain combustible cladding on an external part of the building. In the event the building is not an affected private building, no further action will be required after completing this stage.
Stage 2 –  Combustible Cladding Checklist (Part 2) and Statement
After the building owner has completed Part 1 of the Checklist, they will be advised if their property is an “affected private building” and if so, prompted to complete the second stage which will require the building owner to engage a building industry professional to provide detailed information about whether the materials used on the exterior of the building are potentially combustible. This must be completed prior to 29 May 2019.
The building owner must complete Part 2 of the Combustible Cladding Checklist online and submit a statement by a building industry professional as to whether the building is an “affected private building”, meaning it has combustible cladding forming part of, or attached or applied to an external wall or other external part of the building other than the roof.
A failure to complete this stage can attract a maximum penalty of up to $2,611.00.
Stage 3 –  Building Fire Safety Risk Assessment
If a building is found to potentially contain combustible cladding, the owner must obtain a building fire safety risk assessment from a fire engineer and determine if any rectification works are required.
The building owner must provide to the QBCC the name and registration number of the fire engineer who has been hired to complete the assessment prior to 27 August 2019. Failure to do so may attract a penalty of up to $6,527.50.
The building owner must then complete the Part 3 of the Combustible Cladding Checklist and provide to the QBCC a copy of a cladding report detailing information about the cladding that forms part of the building and a statement from the fire engineer as to the building’s fire safety risk assessment prior to 3 May 2021. Failure to provide this information can attract a maximum penalty of $21,540.75.
Building owners will be required to retain all Checklists, reports and statements for a period of at least 7 years.
After the completion of Stage 3, the building owner must, within 60 days of receiving the cladding report, display a notice stating the building contains combustible cladding, in a visible position at the building. In the event the building contains multiple lot owners, each tenant must also be provided with a copy of the cladding report.
If the property is sold or changes ownership, the Seller is required to provide to the new owner a notice in the approved form setting out the extent to which the Seller has complied with the above stages and providing a copy of each document that has previously been provided to the QBCC. Notice must also be given to the QBCC.
If you have any queries about your obligations as a building owner or whether your building is affected by this legislation please do not hesitate to contact our team.
The post Combustible Cladding Legislation – New obligations imposed on building owners appeared first on MacDonnells Law.

From 26 October 2018, the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC) have expanded powers to investigate unfair contract terms in consumer and small business contracts. Previously, the ACCC and ASIC only had power (under section 155 of the Competition and Consumer Act (2010) (Cth) and section 13 …

Continue reading “UNFAIR CONTRACT TERMS AND THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION – BUSINESSES BE WARNED”

The post UNFAIR CONTRACT TERMS AND THE AUSTRALIAN COMPETITION AND CONSUMER COMMISSION – BUSINESSES BE WARNED appeared first on MacDonnells Law.

The Federal Government has recently released proposed legislative changes to modernise the Australian Business Register, ASIC Registers and introduce Director Identification Numbers (DIN). Upon the introduction of the legislation and the legal framework, the DIN regime will require all current and future directors to confirm their identity and be issued with a DIN. The purpose …

Continue reading “Director Identification Numbers legislation released”

The post Director Identification Numbers legislation released appeared first on MacDonnells Law.

On 30 January 2019 the Personal Property Securities Register (PPSR) turns 7 years old. With this anniversary comes a very important date by which secured parties must ensure any registrations that are due to expire on 30 January 2019, or shortly thereafter, are renewed before their expiry date. The Australian Financial Security Authority estimates that …

Continue reading “Expiry deadline for registrations fast approaching!”

The post Expiry deadline for registrations fast approaching! appeared first on MacDonnells Law.

I’ve said it before, and I’ll say it again, PLEASE try to avoid common or descriptive stuff in your trade mark or logo. A recent case is another example of why. The decision of Australian Meats Group Pty Ltd v JBS Australia Pty Limited [2018] GCAGC 207 (accessible here) was an appeal from a previous …

Continue reading “Common or Descriptive Words, Acronyms and Images in Trade Marks”

The post Common or Descriptive Words, Acronyms and Images in Trade Marks appeared first on MacDonnells Law.

One of the most important matters to be aware of when operating a business out of a leased premises is when the term of the Lease expires and what conditions must be met for a Lessee to be able to exercise any available Option to Renew. The recent New South Wales case of Ko v …

Continue reading “Exercising an Option to Renew under a Lease – Meeting the requirements”

The post Exercising an Option to Renew under a Lease – Meeting the requirements appeared first on MacDonnells Law.

The recent Supreme Court decision of Cranitch v Cranitch & Ors [1] showed the value of specialist Will drafting as well as some practical effects that can arise during the estate administration.
In her Will, the deceased left an option for one of her daughters (Catherine) to purchase her freehold property from the estate. Otherwise, the balance of the estate was to be split between her nine surviving children and daughter of her predeceased son.
The option required that the recipient of the option, Catherine, “notify my trustees in writing whether or not she accepts such option within a period of two months after such option is communicated to her.”
Complicating the matter practically, was the daughter was the sole surviving executor of the estate.
The Court considered specially whether;

The option was exercised within time; and
The option was properly exercised.

It was held the option was exercised within time (being the time from when Catherine considered the independent valuations and decided to accept the option).
However, in entering a contract to document the exercise of the option, the contract was made conditional upon approval of finance.
The Court held that the Will on its proper construction gave Catherine a one-off opportunity to accept the option and did not contemplate a conditional acceptance.  As she did not unconditionally accept the option, she lost the right to do so.
This decision serves as clear reminder that what appears to be straightforward intention, drafting and process can easily go wrong without the advice of a professional being an expert in this area of law.
If you require advice regarding putting in place a Will reflecting your wishes or exercising a benefit available to you in a Will, please don’t hesitate to contact our expert lawyers.
[1] [2019] QSC 42
The post Option to Purchase Property in a Will – The Practical Effect appeared first on MacDonnells Law.