Publications > Corporate & Commercial

Rostron Carlyle prepares legal articles and papers for its clients on various areas of law.
The latest publications are listed below.

Corporate & Commercial

  • A 2 digit error has resulted in a company losing over 23 million dollars’ worth of equipment

    In the matter of OneSteel Manufacturing Pty Limited (administrators appointed) [2017] NSWSC 21 highlights the repercussions of not getting security interests properly registered on the Personal Property Securities Register (PPS Register). In particular the Court has provided guidance on the application of the Personal Property Securities Act 2009 (Cth) (PPSA) and the > Read More

  • The end of the PPSA transitional period – are you affected?

    By now most business owners, financiers and suppliers will be well acquainted with the impact and effect of the Personal Property Securities Act 2009 (Cth) (PPSA) and the Personal Property Securities Register (PPSR), which commenced operation on 30 January 2012. What may not be as well understood is the 5-year transitional period > Read More

  • Getting the terms of your agreement right

    Regardless of whether you are about to sign a lease, service agreement, business sale agreement, shareholders agreement or any other document in which you will be legally bound it is important that the terms of the agreement are right. Recently we have had a number of clients come to us requesting advice > Read More

  • Director duties and disclosure requirements – A reminder to both local and foreign directors

    The Federal Court of Australia has recently declared that a company and its foreign directors have breached the Corporations Act 2001 (Cth) (Act) and on application by ASIC will likely order the company to pay civil penalties and disqualify the foreign director from acting as a director in Australia. The company was > Read More

  • Implying terms into contracts

    Often when a dispute arises involving a contract, the parties will take their first really good look at its terms and to their horror, realise that it may not contain all that they wanted. They may then try to argue there are “implied terms”. However, this may not always be successful. The > Read More

  • NSW implements new requirements for vapour recovery systems

    The Protection of the Environment Operations (Clean Air) Regulation 2010 (‘PEO Clean Air Regulation’) provides the framework for managing emissions from motor vehicles and fuels across NSW. Under the said regulation, the NSW Environment Protection Authority (‘EPA’) has implemented strict requirements for vapour recovery systems at service stations across the Greater Metropolitan > Read More

  • Unfair Contract Terms and Small Business

    With just under 2 months left before the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Act) comes into effect, is your business prepared for the extension of the unfair contract term regime to small business? From 12 November 2016, the new legislation will apply to all new, renewed > Read More

  • Does your contract contain a penalty provision?

    Default provisions in contracts which are able to be characterised as penalties or unjust and unfair under statutory provisions are liable to be found to be unenforceable. In the recent class action decision of the High Court in Paciocco & Anor v Australia and New Zealand Banking Group Limited (“ANZ”) [2016] HCA > Read More

  • Director’s liability for underpayment of employees

    As per the current Fair Work Ombudsman speech to Sydney’s Australian Human Resources Institute late July this year, the Fair Work Ombudsman has brought a number actions against directors under the accessorial liability provisions contained in the Fair Work Act 2009 (Cth) (FWA). The Fair Work Ombudsman noted that the numbers of > Read More

  • Insolvency Law reforms and its impact on business and directors

    The Insolvency Law Reform Act 2016 (Act) is due to commence operation on 1 March 2017 and is the first set of reforms proposed by the Australian National Innovation and Science Agenda (NISA). The Act is generally a consolidation of the current rules which govern corporate and personal insolvency, as currently split > Read More

  • Can your business afford not to pay legal costs?

    Running a business is a costly practice; apart from expenses related to rent, employees, suppliers and production, business owners need to apportion a percentage of what little profit they make toward professional services.  No business owner would think twice about paying for the services of a qualified accountant or book keeper whether > Read More

  • Latest changes in Federal and State Taxes and Duties – Impact on foreign property investors

    Following the latest release of the state and federal budgets, new rules are set to be implemented which will affect Australia’s property ownership landscape and in particular foreign owners, developers and foreign investors of Australian real estate. We highlight a few recent measures in this article. Compulsory federal tax withholding regime – > Read More

  • Enforcement of Shareholder Restraints

    We were recently successful for a client in a fierce contest in the Supreme Court in enforcing a 12 month restraint on a shareholder working for a direct competitor contrary to the provisions in a shareholders agreement: See: LCR Group v Bell (2016) QSC 130. It is commonly the case that shareholders > Read More

  • Do you have a business loan with a bank? ASIC launches action against banks for interest rate manipulation

    ASIC has launched legal proceedings against ANZ, Westpac and NAB for conduct said to be: Artificial manipulation of interest rate markets; Unconscionable conduct; Misleading and deceptive conduct; and Breaches of the Corporations Act. The claims assert that the conduct by the banks resulted in financial detriment to the bank customers who had > Read More

  • How hard is it to show a “genuine dispute” in setting aside a statutory demand?

    Answer: Not very hard. A party who is claiming a debt from a company will often want to consider the quickest and most cost-effective way for recovery. A drawn out court case over many months can often lead to a very unsatisfactory result, including lost time and legal fees. For these reasons, > Read More

  • Misleading Claims & Advertising

    “No sugar” – a sweetening incentive for the consumer, but a potentially misleading claim if proven incorrect or likely to create a false impression in the eyes of the consumer. When advertising and selling their product or services, businesses must ensure that they comply with the rules contained in the Australian Consumer > Read More

  • How will the CGT Withholding Regime affect you?

    With the new foreign CGT withholding tax regime to come into force from 1 July 2016, the question is not “Will the changes affect you?” but “How will the changes affect you?”. Under the new regime, any person accepting a transfer of certain Australian assets from a relevant “foreign resident” is required > Read More

  • Rostron Carlyle set to continue partnership with Valley Chamber of Commerce

    Rostron Carlyle will once again partner with the Valley Chamber of Commerce to support local businesses in the inner-city area by renewing their sponsorship of the organisation for the second consecutive year. Managing Partner of Rostron Carlyle’s Corporate, Commercial and Property Practices, Gavin McInnes, said the continued sponsorship was about supporting the > Read More

  • How should I set up my business?

    You’re motivated, you’re experienced, you’ve had enough of working for others and you’re ready to start your own business.  Apart from the many financial, compliance and licensing matters you need to address, serious consideration needs to be given at the outset to the structure of the entity that will be running your > Read More

  • An offer or a contract – Is email communication enough to form a binding contract?

    It is no surprise given the easy and instantaneous nature of email communication that emails are rapidly becoming the main exchange point for negotiations of contract terms. Whether you are a real estate agent, broker, purchaser of property or a business or tenant looking to enter into a lease, it is becoming > Read More

  • Look Out – It’s That Time of the Year Again

    It’s amazing how adding a little (or a lot) of alcohol can magically affect an individual’s behaviour. Rarely is the transformation a stunning improvement in the eyes and ears of those around the person. Mostly it’s a case of keeping ones’ distance from the affected person and sometimes deflecting unwanted or inappropriate > Read More

  • Liability of guarantors where misleading and deceptive conduct by lender

    Failing to inform all guarantors about the terms of any variation of loan terms can be a risk for lenders, and can constitute misleading and deceptive conduct and release guarantors from liability. In Adisan Pty Ltd v Irwin [2015] NSWCA 217, the facts were that in 2007, a loan agreement between the > Read More

  • Are your Terms of Trade and Privacy Policy up to date and compliant?

    As noted in the article 10 golden rules of credit control your terms of trade and policies help your company avoid bad debts and ensure that a consistent approach is taken when dealing with debtors. In addition to the points raised in that article, Rostron Carlyle has been seeing a number of > Read More

  • Is your franchising disclosure document up to date?

    Earlier this year, a raft of major changes to the Franchising Code of Conduct (Code) came into effect including a requirement that Franchisors maintain a disclosure document in a new form. A failure to comply with this requirement attracts a penalty of $51K (as at the date of this article). The key > Read More

  • Company Deregistration: Property Ownership and Trust Implications

    A company’s existence may be ended in a number of ways; most commonly we think of the traditional winding up or liquidation process (either with or without the intermediate step of administration) pursuant to which a liquidator takes control of the assets and realises them for the benefit of creditors. More simply, > Read More

  • Are agreements made in breach of statutory provisions enforceable?

    In Gnych v Polish Club Limited [2015] HCA 23, the Polish Club leased premises to Gnych. A dispute arose between the parties and the Club sought to terminate the lease. Gnych argued that the Retail Shop Leases Act afforded them protection from the termination. The Club contended that the lease for five years, > Read More

  • When a distribution agreement is really a franchise agreement

    The proper establishment of a franchise business model involves considerable thought, planning and capital. It also requires compliance with the Franchising Code of Conduct. For many reasons, some companies deliberately seek to avoid having their business arrangements characterised as franchises and in other cases-they do so in the genuine belief that the > Read More

  • Buying a Business – Is it Really a Going Concern?

    There are many factors that need to be taken into account when buying a business: transferring employees, apportionment of leave entitlements and adjustments generally, leases, encumbrances over goods, stock, goodwill, trade marks, supply and service agreements amongst others.  In addition to these many factors, it is important to ensure that the business > Read More

  • The Importance of Shareholders Agreements and Buy Sell Deeds

    It is common for small businesses to use a company structure to run a business.  Companies are effective vehicles for such a purpose, providing a legal entity distinct from its individual shareholders and directors, perpetual existence, ease of issue and transfer of equity (shares), clear management structure (directorship), and a flat tax > Read More

  • Execution of Documents by Company Directors – a Timely Reminder

    Section 124 of the Corporations Act 2001 (Cth) (Corporations Act) provides that “a company has the legal capacity and powers of an individual”, which means that a company is an entity legally distinct from its individual shareholders and directors.  One of the powers of an individual who is not under a legal > Read More

  • Confidentiality of Databases and the Real Estate Industry

    Real estate agencies place a high value on their databases. This is understandable because a well-constructed database provides considerable commercial advantage for an astute salesman to identify and contact potential buyers and sellers of property and make sales to earn commissions. When an employee (a salesperson) leaves a real estate agency, there > Read More

  • Franchising your business in Australia

    Introduction Franchising if done properly is a great way to expand your business without you having to inject the relatively large amounts of capital required if you decided to expand by yourself. Essentially franchising your business requires you form an agreement with a franchisee where in return for you providing the “know > Read More

  • Is your trust up to date?

    General A trust is an entity where a trustee holds and controls property or other assets for the benefit of another person or persons (beneficiaries). A discretionary trust allows the trustee to determine both to whom and how the trust’s property is distributed. The Bamford Case The High Court of Australia, in > Read More

  • Raising capital with disclosure

    General In order to raise capital, companies issue securities which may includes shares, debentures, and options to acquire shares and debentures. The Corporations Act 2001 (Cth) requires that disclosure to be made, subject to the certain exemptions, where an offer is made. If there is a failure to disclose in accordance with > Read More

  • Raising capital without disclosure

    General In the ordinary course where there is an offer of securities, a disclosure document must be prepared. However, there are some exceptions to this rule under sections 708, 708AA and 708A of the Corporations Act 2001 (Cth) where disclosure is not required. This article will briefly consider the small scale offering sophisticated investor > Read More

  • What is a discretionary trust and what are the advantages?

    What is a Trust? A trust is a relationship where a person (the Trustee) is under an obligation to hold property for the benefit of other persons (the Beneficiaries). The terms of the obligation are defined by the terms of the Trust Deed entered into between the Trustee and the Settlor. The > Read More

  • What restrictions apply to foreign investment in Australia?

    The Australian Government’s Foreign Investment Policy (Policy) generally regards investment by foreigners positively, subject to certain restrictions imposed by the Foreign Investment Review Board (FIRB), a section of the Commonwealth Department of Treasury. The Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) regulates non-residents acquiring interests in Australian assets. Foreign Investment Review > Read More

  • Buying or establishing a small business

    Unfortunately, too many new small businesses fail within a very short period of time, often with disastrous personal losses to the owners. The best chance for new business success is to get the right start with professional guidance from Rostron Carlyle’s Solicitors. Business Structures When setting up a new business or buying > Read More

  • Consumer Guarantees under the Australian Consumer Law

    This article assumes that the general article on the Australian Consumer Law (ACL) has been read.  The consumer guarantees contained in the ACL are a major change from the ones previously contained within the former Trade Practices Act 1974 (Cth) (TPA),  as a breach of the consumer guarantees now gives rises to > Read More

  • Franchising Code of Conduct reviewed and the potential for it to be enforced

    On 24 July, the Australian government released its official response to the Review of the Franchising Code of Conduct (Report). Most of the recommendations in the Report were accepted or accepted in principle, and based on comments from the government it is highly likely that these proposed changes will be put forward > Read More