http://www.hyneslawyers.com.au/ Hynes Lawyers Articles http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11220 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11220 No matter what you do, it is almost impossible to have a management rights agreement (or in fact any agreement) that covers every single contingency or circumstance. One issue we see quite regularly in a management rights context arises out of a body corporate commencing a significant project involving substantial capital expenditure. This could be the repainting of the building, replacement of lifts, foyer and porte cochere... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11919 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11919 A recent decision of the commissioner’s office considered what was part of the body corporate records and the body corporate roll. Amongst other things, the modules provide that the body corporate roll must include: ‘the name, residential or business address and the address for service (if different from the residential or business address) of the current owner, or the current co-owners, of each lot included... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11838 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11838 In June 2010, the Western Australian Supreme Court had to consider the operation of the doctrine of ultimate effect and whether it still applied in relation to actions for recovery of what are alleged to constitute preference payments within the meaning of section 588FA of the Corporations Act 2001 (the Act). Section 588FA provides that an unfair preference will be given by a company to a creditor of a company if and only... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11749 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11749 Background behind the amendments Prior to financial reporting requirement amendments, all companies limited by guarantee were required to prepare an audited financial report in accordance with the Corporations Act 2001 (Cth). Most companies limited by guarantee are not-for-profit entities. These companies are relatively small and therefore did not have the capacity to comply with extensive reporting requirements under the Corporations... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11219 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11219 Conventional wisdom in the management industry is not to tell your body corporate you are selling until your contract is unconditional. This is put forward for a number of reasons, which includes: if the sale falls over, the committee might regard you differently in terms of work ethic, supervision etc; there could be costs incurred which are payable whether the sale proceeds or not; and there is no point upsetting the apple... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11653 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11653 It is not uncommon for a lender to rely upon a guarantee from a husband and wife as an important element in assessing whether or not to give finance. In a recent decision of Agripay Pty Limited v The Estate of Murray Andrew Byrne & Anor, the Queensland Supreme Court had to consider whether a wife was liable as guarantor to a lender for the debts of her husband and highlighted the steps that a lender should take to ensure that a... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11571 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11571 On 30 June 2010, the Foreign Investment Review Board (FIRB) published the Australian Government’s revised Foreign Investment Policy (New Policy). The New Policy is the result of a sharp increase in investment proposals by foreign investors, mainly driven by significant investment in the resources industry by Chinese owned entities. Whilst the Foreign Acquisitions and Takeovers Act 1975 (Cth) (FATA) provides the legislative... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11330 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11330 A body corporate is a creature of statute. That means that it can only do what legislation allows it to do. In recent times we have been engaged by both bodies corporate and disaffected owners to advise on matters where body corporate spending has allegedly gotten out of control. These circumstances giving rise to this increased spending have included: renovations and repairs of common property; engagement of lawyers for... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11218 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11218 The actual length of the term of a management rights agreement can be expressed in two very different ways. Some agreements are simply for a set term (ie ten years from 1 June 2010 to 31 May 2020). If that is the case, the term is set for that period. There is nothing more that you need to do to secure it. Other agreements are drafted as a term with an option (ie five years from 1 June 2010 to 31 May 2015, with an option for a further five... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11298 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11298 We recently (19 April 2010) sent a newsflash concerning changes to the ATO’s power to require security. The clamping down on unpaid taxes and the increased focus on phoenix avoidance continues with amendments just made to the Income Tax Assessment Acts. These amendments have been introduced pursuant to the Tax Laws Amendment (Transfer of Provision) Bill 2010 which received royal assent on 29 June 2010 and came into effect on 1 July... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11207 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11207 The Gold Coast office of Hynes Lawyers has informed its staff that the Gold Coast office will be amalgamating with its Brisbane office. All Gold Coast Hynes Lawyers employees have been offered to transfer to the Brisbane office under the same conditions of employment from 23 December. Frank Higginson, partner said: ‘As testament to the strength of commitment to the firm virtually all senior Gold Coast staff will be physically... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10966 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10966 The Queensland court of appeal decision of AG(CQ) Pty Ltd v A&T Promotions Pty Ltd & Anor has highlighted the need for holders of unregistered mortgages to actively take steps to protect their interests in the secured property, and cannot assume that the first mortgage granted by the borrower will take priority over subsequent mortgages. Disputes over the priority of security interests, particularly where there is... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11144 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11144 We were recently retained by a committee which was on the receiving end of some very hostile correspondence from an owner who alleged that it had been invalidly elected. The owner then threatened each of the committee members with personal liability for anything they did. On a review of the matter, it became apparent that the nomination forms, and the time when notices were sent out, did not strictly comply with the law. However, we advised... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10868 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10868 The position a committee takes on a matter can hold a fair degree of sway with owners. This comes by virtue of the nature of the title of their office. The reality (and danger) is that the appointment to that office can quite often come about without actual mandates from owners, election competition or any real qualifications. When a committee and a resident manager begin a dispute, it is quite common for a fair proportion of owners to side... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11020 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=11020 On 3 June 2010, amendments to the Listing Rules (New Rules) of the Hong Kong Exchanges and Clearing Limited’s (HKEx) Main Board and Growth Enterprises Market will come into effect, expanding the existing eligibility requirements for mineral companies wanting to list. The New Rules define a mineral company as ’a new applicant whose major activity (whether directly or through its subsidiaries) is the exploration for and/or... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10973 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10973 A summary of the progress of the review of the Aged Care Act 1997 (Cth) Aged Care Association Australia (ACAA), with the help of Julie McStay, partner and head of the aged care and retirement living team at Hynes Lawyers, are well under way with their joint review of the Aged Care Act 1997 (Cth) (Act). Hynes Lawyers, on behalf of ACAA prepared a survey tool which was distributed in March 2010. The survey was distributed to approximately... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10939 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10939 A landmark US court ruling against gene patents has reignited debate on the issue in Australia just as the senate announced an extension to the reporting time for the gene patents inquiry. Myriad case At the end of last month, in Association for Molecular Pathology et al v US Patent and Trademark Office (Myriad Case) the New York district court ruled that biotechnology company Myriad Genetics’ gene patents issued in relation to... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10938 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10938 Congratulations to our client QIT Plus who has been awarded the 2010 Meridian People’s Choice award this week. QIT Plus created Guardian Control Centre, a revolutionary multi-agency disaster response solution that provides emergency decision makers and response workers with real-time, automated, standardised location information to aid in disaster preparedness and management. Guardian Control Centre was really put to the test and... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10920 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10920 On 18 January 2010, Hynes Lawyers reported on the Productivity Commission’s (Commission) final report on Australia’s director and executive remuneration framework (Report). The Report followed public consultation which occurred late last year and contained the Commission’s final recommendations for law reform in this area. The Government has now responded to the Commission’s Report, supporting all but... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10919 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10919 The Australian Securities and Investment Commission (ASIC) has announced that it will delay the release of its proposed best practice guidelines on handling confidential information (Guidelines) for six to nine months. This follows an uproar from critics that the Guidelines would inhibit the efficient functioning of capital markets by wrapping the investment banking industry (Industry) in red tape. The Industry also argued that the Guidelines... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10854 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10854 The corporate team at Hynes Lawyers has strategically guided Meijin, one of the biggest coal producers in China, on its takeover bid of DMC Mining Limited (ASX Code: DMM). The Meijin offer effectively values DMC Mining Limited at $43.4m. ‘This high-end corporate takeover is a fantastic transaction for our client, and the quality of our client, is an excellent endorsement of the work performed by our first class corporate legal... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10725 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10725 We are well aware of the pressures that are placed on body corporate managers on a day to day basis. The Act includes a myriad of timing requirements around all forms and manner of notices, and the unfortunate reality is that sometimes those timeframes are not met. But what are the consequences of failure to comply with the statutory timeframes? Most of our readers would be aware that the BCCM Act requires that 21 days notice of any general... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10653 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10653 There are two codes of conduct for resident managers under the BCCM Act. One applies as a caretaking service contractor and the other as a letting agent. These codes of conduct are deemed to be part of every caretaking agreement and letting agreement. For all intents and purposes they include relatively similar duties, which include, amongst other things, obligations to: act with honesty, fairness and professionalism; act with... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10777 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10777 On 14 April 2010, the High Court found that deeds of company arrangement (DOCA) cannot extinguish debts owed by parties other than the company in administration. On 14 April 2010, the High Court delivered judgment in the matter of Lehman Brothers Holdings Inc v. City of Swan; Lehman Brothers Asia Holdings Limited (in liq) v. City of Swan (2010) HCA 11. The two appeals concern the application of part 5.3A of the Corporations Act to Lehman... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10654 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10654 On 17 March 2010 the Minister for Veteran Affairs Mr Allan Griffin MP introduced into the House of Representatives the Tax Law Amendment (Transfer of Provisions) Bill 2010. The bill is part of the Governments continuing project to improve the current state of tax laws by rewriting provisions of the Income Tax Assessment Act 1936 (ITAA 1936) into the Income Tax Assessment Act 1997 (ITAA 1997) and the Tax Administration Act 1953. One important... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10642 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10642 A body corporate was recently ordered to pay a large amount of damages to a commercial lot owner which had endured regular water leaks over many years from a podium above the shop. The court was not at all sympathetic to the fact that the body corporate had taken small steps from time-to-time to stop the leaks, nor that the claim for damages was out of all proportion to the physical damage caused. The court took the attitude that the body... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10515 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10515 The reality is that in business (as in life) mistakes happen. What generally matters after a mistake occurs is how the problem is rectified. Unfortunately (or fortunately – depending on which side of the fence you sit on), this is where we as lawyers are quite often called upon. One of our clients recently became aware that they had been overpaid their caretaking salary for the period of their ownership of the management rights... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10567 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10567 Insider trading – ASIC releases consultation paper for proposed best practice guidelines on handling confidential information The Australian Securities and Investment Commission (ASIC) recently released Consultation Paper 128: Handling confidential information (Paper). The Paper contains proposed best practice guidelines (Guidelines) to assist companies to maximise the protection of confidential information as well as to implement... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10550 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10550 The Lowitja Institute, Australia’s National Institute for Aboriginal and Torres Strait Islander Health Research, was launched in Canberra on 24 February. The Institute is named in honour of its Patron, Dr Lowitja O’Donoghue AC CBE DSG, in recognition of her pioneering work in the field of indigenous health. The establishment of the Lowitja Institute is the latest step in a journey that started in 1997 with the formation... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10374 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10374 In December 2009, Treasury released an exposure draft of the Corporations Amendments (Corporate Reporting Reform) Bill 2010 for public comment. One of the proposed reforms contained in the Bill is a simplified financial reporting process which will apply to companies limited by guarantee. The ‘company limited by guarantee’ model is commonly used by not-for-profit organisations, including research organisations such as... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10324 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10324 A determination made by the Aged Care Complaints Investigation Scheme (CIS) that an approved provider has breached their responsibilities under the Aged Care Act 1997 (Cth) or the Aged Care Principles should be made in accordance with the principles of natural justice. If a decision is not made on that basis then this may provide a basis upon which to apply to review that decision. The CIS determinations The functions of the CIS are... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9855 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9855 We are increasingly often being asked to advise as to the rights of a body corporate when one of its owners or tenants decides that their friend’s should be allowed to use common property or the body corporate’s assets. The typical enquiry concerns the use of a car park in a crowded area, or the use of the gym or pool. Obviously the body corporate is concerned that: if the practice isn’t stopped then... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10078 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10078 One of the ‘joys’ of the management rights industry is that there are no two identical management rights businesses. Each business has its own idiosyncrasies, whether they relate to the income streams, types of units, forms of management agreements and the like. More importantly though are the individual personalities that form part of the scheme. Bodies corporate are also known as ‘community’ title... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10026 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=10026 In a decision delivered on 16 February 2010, the Supreme Court of Queensland had to consider the position of a corporate trustee of a trading trust (which had been through a deed of company arrangement) and whether a creditor who would ordinarily be unsecured was in fact secured. The decision is Adams v Zen 28 & Ors (2010) QSC 36. Hynes Lawyers represented the respondents in these proceedings. By way of background, the applicant, Mr... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9956 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9956 In a recent newsletter, we highlighted the technicality surrounding the operation of the provisions of the Building and Construction Industry Payments Act 1994 (‘the Act’). In a recent decision under the Act between National Vegetation Management Solution v Shekar Plant Hire Pty Ltd (2010) QSC 3, a builder found that their attempt to resolve a payment claim only resulted in them having a judgment against them. Background... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9860 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9860 We are all aware that these days people who are injured are very quick to blame someone else for their injuries, and this is translating into an increasing number of legal claims being made against bodies corporate. The first step to avoid the claims is to make sure that the premises are in good condition, and that regular reports are sought from experts who assess those risks. The second step is to make sure that the expert’s... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9819 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9819 Welcome to the new decade! A recent supreme court decision in New South Wales has cast more legal light on the issues surrounding options in management rights agreements and what constitutes a default. While this decision is not formally binding in Queensland, it will be very persuasive. The situation was that a resident manager had an agreement for a five year term with a five year option. Exercise of the option was conditional upon the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9814 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9814 The Commonwealth Minister for Ageing recently released the terms of reference for the Commonwealth Government’s review of the Aged Care Funding Instrument (the Review). The Commonwealth Government is seeking submissions from a diverse range of individuals and organisations that have had experience with using the Aged Care Funding Instrument (ACFI). Submissions will be accepted by the Department of Health and Ageing (DoHA) until 5pm... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9742 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9742 On 4 January 2010, the Australian Government released the Productivity Commission’s (Commission) final report on executive remuneration in Australia (Report) which contains the Commission’s final recommendations for law reform in this area. The Report follows on from public consultation late last year on the Commission’s draft reform recommendations. In summary, the Commission’s fifteen core... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9563 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9563 With the annual schoolies ‘festival’ there has been a lot of press and other comment about the ability of a body corporate to restrict schoolies style tenancies. In addition, from an internal industry perspective there has been an increasing comment and concern about the mixing of short and long term tenancies (the usual owner occupier vs short term holiday maker argument). So what is the legal position? To start with... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9346 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9346 With the annual schoolies ‘festival’ there has been a lot of press and other comment about the ability of a body corporate to restrict schoolies style tenancies. In addition, from an internal industry perspective there has been an increasing comment and concern about the mixing of short and long term tenancies (the usual owner occupier vs short term holiday maker argument). So what is the legal position? To start with... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9344 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9344 We recently successfully represented shareholders of a unit trust who attempted to challenge a trustee’s discretionary powers in a bid to reshape the company’ s board. A group of shareholders of a publicly listed gold exploration company differed in their opinion about the exercise of voting rights for 8.8 million shares. The shares were held by a corporate trustee of a unit trust established by the original directors of... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9341 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9341 As a general rule, an organisation entering into a collaborative agreement will always assert and maintain ownership of its background IP (‘Background IP’) that it brings to the collaboration. It is also becoming common that the organisation asserts ownership of any improvement in the Background IP that arises out of the results of the collaboration. So the question arises: what differentiates an improvement in Background... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9338 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9338 On 14 November 2009 the Federal Assistant Treasurer Nick Sherry released for public consultation a package of proposed tax and corporate law reforms which have been designed to crackdown on fraudulent phoenix activity (Proposal Paper). The term ‘fraudulent phoenix activity’ is typically associated with a director who: transfers the assets of an indebted company into a new company of which they are also a... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9315 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9315 On 19 November 2009, the Supreme Court in Western Australia examined the strict requirements of section 459G of the Corporations Act 2001. Accommodation West Pty Ltd v Innis [2009] WASC 337 looked at the requirements under the section and whether or not an error of the registry staff and a filing clerk were fatal to an application to set aside a statutory demand. Section 459G governs applications made by companies to set aside statutory... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9264 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9264 Developing the reform agenda Aged Care Association Australia (ACAA) is pleased to announce it has engaged Julie McStay of Hynes Lawyers to undertake a long awaited review of the Aged Care Act 1997 (Cth) (Act). This marks a very important first step forward in the reform of community and residential aged care in Australia. It also demonstrates the ACAA’s commitment to addressing the concerns and difficulties in the provision of... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9090 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9090 Can final certificates ‘over-ride’ adjudication decisions made under the Building and Construction Industry Payments Act 2004? The recent Supreme Court case of Martinek Holdings Pty Ltd v Reed Construction (Qld) Pty Ltd [2009] QSC 328 dealt with an application by a principal to a construction contract to prevent a contractor enforcing an adjudication decision made under the Building and Construction Industry Payments Act... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9089 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9089 We are seeing an increasing number of bodies corporate which are considering amalgamating with an adjacent body corporate which was part of the same development. The setting up The interest in amalgamations is derived from a wish to reduce: administration expenses (two or more AGM’s, two sets of committee minutes etc); the rules and regulations governing the use of one body corporate’s assets by another Body... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8999 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8999 We have seen a very sharp rise in the number of breach notices being issued to Caretakers across the State. A committee should only issue a breach notice when it has genuine concerns over the performance of duties under a Caretaking or Letting Agreement, and verbal and informal efforts to resolve an issue have failed. However, they are being issued all too often as committees are breaching first and talking later. A breach notice is also... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9263 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9263 On 27 October 2009, the Queensland Court of Appeal handed down its much anticipated decision in Jomal regarding repair and maintenance of items in retirement villages. In a decision that will be welcomed by retirement village operators, the Court of Appeal unanimously found in favour of the operators that the residents were liable for the expenses. The original dispute revolved around whether residents of the village were obliged to meet the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9019 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=9019 On 9 October 2009, the Queensland Court of Appeal delivered its decision in Williams v Carlyle Villages Pty Ltd. The court considered whether the Retirement Villages Act 1999 (Qld) (Act) conferred a ‘right to reside’ on a resident that continued after the resident’s lawful termination of his lease which would give that resident an entitlement to share in any capital gain even though the residence contract made no... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8921 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8921 A recent Supreme Court case has highlighted the need to exercise caution and to obtain expert legal advice and representation when dealing with disputes under the Building and Construction Industry Payments Act 2004 (BCIPA). In Surfabear Pty Ltd v GJ Drainage and Concrete Construction Pty Ltd [2009] QSC 308, a builder was able to overturn a judgment entered against it by a drain layer under the provisions of BCIPA, due to a fundamental... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8895 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8895 On 30 September, the Productivity Commission (Commission) released a discussion draft of its report on executive remuneration in Australia (Report). Despite finding no systemic fault in the private sector’s approach to executive remuneration, the Commission has made a number of recommendations to strengthen transparency, improve the accountability of boards, remove conflicts of interest and enhance shareholder engagement... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8863 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8863 Unfunded places are offered in a variety of models across the residential aged care industry in Australia. The 2006/2007 National Residential Aged Care Survey shows that (of the APs who participated) 5 per cent of care recipients in low care and 3 per cent of care recipients in high care were unfunded. An unfunded place is a place offered to a care recipient of a residential aged care facility on the basis that the care recipient will... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8861 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8861 The Court of Appeal recently heard a case regarding a sign over the door of a business, where the sign extended 57cm over common property. The decision is of particular relevance for signs, storage areas and parking spaces. The case concerned the type of resolution needed to permit a person to have exclusive use of common property. The legislation is clear that: owners cannot be deprived of the use of any common property without... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8766 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8766 It has been a while since we have sent a newsletter about letting appointments, so we thought it timely to give everyone a reminder about the current state of play. The importance of having valid and assignable letting appointments to both prospective purchasers, their accountants and now their financiers is critical. Some simple things that we regularly see that can be easily cured include: Using the right form. A new PAMD 20A form... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8747 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8747 The recent decision by the Full Court of the Federal Court in University of Western Australia v Gray (1) to dismiss an appeal by UWA from the lower court should prompt research organisations and those collaborating with research organisation to review the strategies they use to secure intellectual property rights in their collaborations. The decision of the Court is significant as it affirms the lower courts consideration of who truly owns... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8702 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8702 At the end of a person’s life difficult ethical, legal and medical decisions must be made. Often a person may have lost capacity and another person must make those decisions on their behalf. Residential aged care providers should have a solid understanding of the laws relevant to the end of life decisions applicable to the jurisdiction in which they operate. They should ensure that their internal systems (including policies,... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8698 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8698 Companies which trade as trustees of trusts are increasingly prevalent given asset and tax structuring mechanisms. These companies run into financial difficulties just as often as any other company and take resort in the voluntary administration processes under Part 5.3A of the Corporations Act. One issue that has arisen recently is whether creditors of such trusts are to be treated any differently than the creditor. Trustees of trusts are... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8624 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8624 Is a commercial subsidiary of a non-profit research institution entitled to be endorsed as income tax exempt? It is not uncommon for research institutions, such as cooperative research centres, to set up a separate subsidiary vehicle to undertake commercialisation activities, with the profits of those activities directed back to research institution. Where the research institution is tax exempt, the decision of the High Court in Commissioner... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8618 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8618 Residents and occupiers An Interim Order has just been made by the Commissioner’s office which: states that a body corporate has no right to tow a car without first issuing a contravention notice (14 days) and obtaining an order from the Commissioner’s office (about four months); and ordered the body corporate to retrieve a towed vehicle at its cost. The decision will have a seriously detrimental affect on... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8603 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8603 We have recently been retained by a manager whose management rights were in grave danger of being terminated for entering into a contract with an Associate. An ‘Associate’ for the purposes of the BCCM Act is basically someone who has a shared business interest with, or is related to, a party, rather than being a normal service provider. The relationships that can create an association for the purposes of the Act... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8331 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8331 With AGM season fast approaching for most public companies, it is important that AGM preparations are commenced now. While the holding of an AGM is a relatively routine procedure, there are still a large number of technical issues which must be dealt with. This leaves significant scope for inexperienced companies or those holding their first AGM to make mistakes. Some of the more common mistakes include: newly incorporated public... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8375 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8375 It is no surprise that the therapeutic nature of the work undertaken in residential and community aged care can create an environment that puts staff and care recipients at risk of professional boundary violations. An effective professional boundaries policy can greatly assist care workers to identify violations which can occur when they place their own needs above the needs of a client and can assist providers to ensure those violations do... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8320 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8320 When it comes to situations of conflict in management rights situations, one of the major causes is the difference of interpretation over the nature of the caretaking duties. They can arise for any number of reasons. Two of the most common issues are: The duties are general in nature – meaning that there may be an obligation to ‘mow the lawns as required.’ If there is no time frame specified for that... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8701 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8701 Insolvent trading laws have been in force in the Corporations Act in their current form since 1993. In recent times, after some high profile corporate failures, a concerted push has been made in some quarters to water down the insolvent trading regime and provide directors with either a ‘safe harbour’ or additional defence. Currently, a director of a company which is or becomes insolvent can be liable for debts the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8031 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=8031 Databases may be a valuable part of the assets of your organisation and therefore its legal protection is important. Unlike Europe which has its own specific database protection laws, Australia has no specific law protecting databases so databases may only be protected if they fall under general copyright law. Australian copyright law protects ‘compilations’ which include collections of words, figures or symbols... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7960 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7960 Many committee members willingly devote a significant amount of their time to assist their bodies corporate. However, they are understandably less enthusiastic about having to pay for the fax, phone, travel and mailing expenses associated with their role. Accordingly, we are often asked whether a committee member can be reimbursed for the expenses they incur in their role. S.43 of the Body Corporate and Community Management (Standard... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7959 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7959 Happy new financial year! We often act for resident managers that are confronted by a body corporate that wants to renegotiate the management rights agreements as a condition of consenting to a transfer of the management rights agreements. This is simply unlawful, as a body corporate can only say ‘yes’ or ‘no’ – not ‘yes, subject to you agreeing to these changes to the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7800 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7800 We often see material transfer agreements (MTAs) and confidentiality agreements that are presented by US organisations that include provisions applying US Export Regulations to the use of the material or information by our Australian clients. So what does it mean if you enter into an international transaction that requires you to abide by the US Export Regulations? The US Export Regulations govern the distribution of strategically... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7685 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7685 In early April the ASIC and the ASX made an announcement regarding partly paid securities. The announcement stated that in order to better protect retail investors, certain amendments to the market rules are required, including: a new definition of ‘Partly Paid Security’, to be included in the definitions section of the market rules; and a new requirement for market participants and retail clients to enter into... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7684 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7684 In these times of economic hardship, an increasing amount of lot owners within a body corporate are experiencing difficult financial times and are failing to pay their body corporate levies. Levies are irretrievably attached to the lot pursuant to all regulation modules. This means that the liability to pay a body corporate debt is enforceable against the owner of the lot at the time the levy was payable and the owner of the lot at any time... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7070 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7070 Lot entitlement disputes have been attracting substantial press recently, and a large number of our clients have asked us about the background to the recent uproar. The legislation under which the vast majority of Queensland lot entitlements were set was the Building Units and Group Titles Act 1980. There was only one set of entitlements – and those entitlements governed voting, special levies, share of ownership of common property... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7272 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7272 Do you share the IP equally or obtain a percentage of the IP? Are you entitled to exploit the IP for your own benefit? Do you have to account to the other owner or owners if you do exploit the IP? Can you grant a licence or assign your interest in the IP? If these questions are not specifically dealt with under an agreement, how does Australian law operate? Patents, industrial designs, circuit layouts or plant varieties If the IP is a... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7246 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7246 It is said that one of the first things that people don’t pay when times are tough is their body corporate levies. From discussions we have had with various body corporate managers, it does appear that body corporate levy arrears are growing gradually. This places the body corporate in a difficult position, as it is not as simple to raise additional funds to cover what the arrears should have been used to pay. Purely from a body... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7193 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7193 The Residential Tenancies and Rooming Accommodation Act 2008 comes into effect on 1 July 2009. One of the major changes to the current law with respect to permanent tenants (which is the Residential Tenancies Act 1994 (‘the RTA’)) is that while tenants retain a right to give a landlord or their agent 14 days notice to leave before expiry of a fixed term tenancy, the same rights are not afforded to landlords. On and from... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7054 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=7054 In most Commonwealth contracts, the Commonwealth department or agency claims ownership of intellectual property rights in all materials and outcomes generated by the contractor. Potential contractors need not accept this as a non-negotiable position. Commonwealth departments and agencies who are subject to the Financial Management and Accountability Act 1997 (Cth) must have implemented the Intellectual Property Principles for Australian... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6996 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6996 The Federal Treasury recently conducted a study on ASX listed companies which linked financial performance to compliance with the ASX Corporate Governance Council’s Principles of Good Corporate Governance.   Not surprisingly, the research suggests that well-governed companies perform better than poorly-governed companies. The study found that good corporate governance is associated with higher: earnings per... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6989 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6989 One of the issues confronting people buying management rights businesses off the plan in a slowing property market is unsold developer stock.   Back in the ‘boom’ times, units sold like hot cakes, and come settlement time, there was basically no developer stock left. From a management rights purchaser’s perspective, this made buying the rights a relatively simple legal process – the letting... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6971 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6971 We are often asked who is responsible for insuring the building in a community titles scheme. Who is responsible will depend on two factors:  whether the plan which established the scheme is a building format plan (formally a BUP) or a standard format plan (formerly a GTP); and whether any buildings share common walls. Generally speaking:  a building format plan is a plan where the majority of lots in... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6738 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6738 What does it mean if you sign a contract that requires you to use 'best efforts' or 'best endeavours' or one that requires you use 'all reasonable endeavours'? Is there any difference in the amount of effort required by these standards? Often as lawyers we find ourselves arguing over whether a clause should say 'best endeavours' or 'reasonable endeavours'. We come across this particularly in relation to obligations to commercialise IP to... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6716 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6716 The issue of lot entitlement adjustments remains continually in the press. The state government has put out a discussion paper on the issue. They are seemingly looking for responses from the community. It is unlikely that this issue will progress in the near future following the state election being called. While the legal principles surrounding the actual adjustment of lot entitlements have not changed, there has been a recent decision... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6488 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6488 It appears to be the season for vendor finance in management rights transactions. Normally vendor finance arrives in circumstances where the buyer’s cash equity contribution or stricter lending criteria mean that previously available funding arrangements are no longer there. That could almost be the mantra for everything in this economic environment. However, it is not all doom and gloom. Managed correctly, the provision of... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6416 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6416 After having reviewed literally hundreds of management agreements over the years, we think it is safe to say that there is very rarely an agreement that is absolutely perfect. In addition, there is always a risk that our definition of ‘perfect’ is not the same as another lawyer’s. Varying a management rights agreement requires an ordinary resolution at a general meeting. Where the variation relates to the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6410 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6410 Under ASIC Class Order CO 02/831, ASIC grants disclosure relief to ASX listed companies for offers made to existing shareholders up to a limit of $5,000 in any 12 month period under a share purchase plan. ASIC has published Consultation Paper 103: Review of Share Purchase Plan Threshold, under which ASIC propose to increase this monetary limit to $15,000 in any consecutive 12 month period, as well as introduce a requirement for companies to... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6255 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6255 We regularly hear the line trotted out that ‘A committee has to act in the best interests of owners’. Our view is that this is not actually correct. At law, what a body corporate (and therefore a committee) is obliged to do is administer the common property and body corporate assets for the benefit of the owners of lots in the scheme. While doing this the committee must act reasonably, in making, or not making, any... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6408 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6408 Does Part 4 of the Queensland Plumbing and Waste Water Code apply to multi-unit developments that have received building approval prior to 1 January 2008? The recent decision of the Planning and Environment Court of Queensland in North Shore Bayview Street Pty Ltd v Gold Coast City Council [2008] QPEC sheds some much needed light on the issue of whether multi-unit developments that received building approval prior to 1 January 2008, but... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6256 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=6256 We wish you all the best for 2009. It is extremely unusual to see instances of disputes between managers in the same complex, primarily because there are very rarely buildings with different caretaking and letting entities, but we were recently engaged with respect to one. The dispute related to a building in which Stella had previously held both the caretaking and letting rights. At the time of the dispute it no longer held the caretaking... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5920 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5920 Welcome to 2009! Late last year we successfully represented two resident managers in two separate pieces of litigation which considered in great detail the ability of a body corporate to circulate non statutory material with an agenda for a general meeting. The first matter revolved around a four page ‘question and answer’ document drafted by a resident manager in relation to a variation to his management rights... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5893 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5893 We may soon be seeing changes in relation to what is patentable in Australia. The Minister for Innovation, Industry, Science and Research has appointed the Advisory Council on Intellectual Property to inquire, report and make recommendations to the Australian Government on patentable subject matter, which is becoming increasingly contentious. The current criteria for patentable subject matter, set out in the Patents Act 1990 (Cth), has been... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5859 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5859 We have recently acted for several bodies corporate in relation to claims for discrimination against them. Some of the factual circumstances of one claim were: An owner became physically impaired; The owner requested that impaired access be provided to the pool which would require the construction of a pathway and the installation of a chairlift; The body corporate committee initially ignored the request, although ultimately... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5774 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5774 One of the main aims of the BCCM Act is to have bodies corporate self govern. This means that owners are encouraged to accept committee positions and take an active involvement in the affairs of their scheme. To encourage this, the Act makes it clear that there are no training or other educational requirements to step up to a committee position. It also makes the chances of committee members being held personally liable for... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5590 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5590 The ASIC moved to ban both naked and covered short selling on 21 September 2008, with the ban on covered selling intended to be temporary. The ASX had indicated that when the ASIC reviewed the ban 30 days later, it would support maintaining the ban on naked short selling and lifting the ban on covered short selling. A ‘naked short sale’ essentially involves a person entering an order in the market to sell certain products... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5563 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5563 We recently acted for a resident manager who successfully appealed against an adjudicator’s decision. The case arose out of a general meeting which had voted in favour of the resident manager obtaining a variation to its management rights agreements to create a further five year option term in each agreement. Some salient facts were: The committee had called an EGM (paid for by the resident manager) to consider the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5554 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5554 Hynes Lawyers recently represented a resident manager who successfully appealed against an adjudicator’s decision. The case arose out of a general meeting which had voted in favour of the resident manager obtaining a variation to its management rights agreements to create a further five year option term in each agreement. Naturally the further option was very important to the resident manager’s financial... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5208 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5208 An adjudicator recently considered an application to make some owners responsible for the maintenance of a lift which only serviced a separate part of a tower, in circumstances where residents of others parts of the tower were prohibited from using the lift, even though they were members of the same body corporate. The applicant essentially claimed that the prohibition amounted to a grant of exclusive use of the lift, and therefore the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5155 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5155 The vast majority of disputes we see in a management rights context involve the performance of the caretaking duties. As you would expect, it is rare that we are engaged to advise about the non performance of a clearly detailed duty. Disputes about detailed duties are rare, primarily because they are well defined. The issue is black and white. The duty has been performed or it hasn’t. Difficulties arise when the caretaking... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5113 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=5113 The Australian Law Reform Commission issued the results of an inquiry into the Privacy Act 1988 (Cth) (Act) in August. The publication, titled For Your Information: Australian Privacy Law and Practice contains 295 recommendations for privacy law reform. The ALRC has recommended that the privacy principles, which underpin the unwieldy and overly complex Act, be rationalised. Currently, there are different principles for government bodies and... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4824 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4824 In late June, the Parliamentary Joint Committee on Corporations and Financial Services (PJC) published a report following an enquiry into the engagement and participation of shareholders in the corporate governance of companies.   The PJC report, called ‘Better Shareholders – Better Company’ sets out 21 proposed law reform recommendations as a preferred approach to reform in this area, which are aimed... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4800 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4800 In the last year we have received many instructions to advise bodies corporate on various building defect matters including corroding steel beams, leaking roofs, lifting tiles, cracking walls and podium slabs and water ingress into an electrical plant room. Building defects create a tension between a body corporate’s rights and responsibilities, essentially making the body corporate the ‘meat in the sandwich’. A... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4781 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4781 Most owners of management rights businesses would be aware that, with the right licensing, they can sell lots in their (and others) buildings. Many managers have expanded beyond the scope of their resident letting agents licence and actively solicit listings in their buildings. Valuers are still reluctant to ascribe any capital value to the income derived from sales activities, and in the current economic climate, this approach is not likely... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4572 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4572 The Australian Domain Name Administrator (auDA) has recently released its new policy in relation to the transfer of .com.au domain names. The previous domain name transfer policy limited the ability for a change in registrants beyond the transfer of the name with the sale of the business.   The transfer policy now allows a registrant to offer its domain name licence for sale to another eligible entity, by any means and transfer the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4556 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4556 Committee members can vote on issues and pass motions without holding a physical committee meeting. The regulation module which applies to the scheme determines the applicable rules. Such votes are usually referred to as ‘flying minutes’ or a ‘VOC’ (a vote outside committee). Some general rules for such votes are: The motion must usually be in writing and given to all committee members. The... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4542 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4542 We recently acted in the sale of a management rights business where the committee refused to provide its consent to the transfer as required by the management rights agreements and the relevant module. The committee’s stance jeopardised not only our client’s chances of selling the management rights, but also its chances of completing a contract for the purchase of other interests. The purchasing entity was a husband and... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4260 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4260 As the management rights market catches its breath, along with most things property related, it is time for everyone to make sure their business affairs are tidy. From a management rights seller’s perspective, making the business as ‘clean’ as possible for any potential buyer is critical. If it is a market where buyers are picky, the less potential defects (whether real or imagined) with a business, the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4259 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4259 An allegation that gets trotted out regularly in body corporate matters is that committee members can be personally liable for incorrect decisions made on their watch. It is an allegation that can scare committee members into making decisions they might not otherwise make. The cold hard facts of committee membership are: Each committee member has a statutory responsibility to act reasonably and in the best interests of the... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4258 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4258 Federal court judge Robert French recently dismissed the University of Western Australia’s claim for $150 million against former employee Dr Bruce Gray. The claim related to patent and intellectual property rights for the anti-cancer treatment developed by Dr Gray. The University of Western Australia claimed ownership of the technology as Dr Gray invented the technology while employed at the university. The judge found that Dr... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4134 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4134 We regularly receive enquiries about whether a body corporate project involves maintenance or an improvement to common property. Unfortunately, the distinction between the two can be difficult. However, the position is now much clearer, especially regarding painting. Whether painting falls within the definition of ‘maintenance’ or an ‘improvement’ of common property basically depends on the type of... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4133 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4133 Partnerships within management rights businesses are becoming more popular. Primarily this is because they are a great opportunity for pooling of finances for silent investors and also open doors for resident managers who want to get into larger complexes but don’t necessarily have the equity required to meet the price tag. A question we get asked quite regularly in management rights and other business matters is whether... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4131 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4131 ASIC has recently released a new class order and regulatory guide for rights issues. In June 2007, amendments to the Corporations Act 2001 (Cth) (Act) allowed certain rights issues to be offered without the requirement for a disclosure document. The new provisions related to traditional rights issues, made on a pro rata basis, with the terms of the offer being the same for each holder. ASIC has now broadened the application of these... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4070 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4070 One of the questions more frequently asked of us by our existing clients relates to how they get their caretaking remuneration reviewed and increased. There are three bases for a review of remuneration: Obtaining the support of owners by ordinary resolution at general meeting (preferably with the support of the committee); or Review to market remuneration under a market review clause in the caretaking / management agreement,... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4065 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4065 Branding is often a critical component to businesses success. However, there is still confusion as to how to protect a brand. There is a common misconception that a business, company or domain name confers proprietary or exclusive rights in that name - it does not. Any other person is free to use that name so long as it does not constitute trade mark infringement, passing off or a breach of the fair trading laws. Further, it does not provide... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4063 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=4063 We regularly receive queries as to the rights of owners to install hard flooring (timber or tiles) within their lot. The issue causes conflict as the lot owner believes that they should be entitled to fit out their lot the way they want to, but they do not realise the impact that the noise generated on the hard flooring will have on the occupants around (and particularly beneath) them. Many bodies corporate also have a specific prohibition... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3884 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3884 A common form of business in Australia today and continuously growing in number is a franchise. Reasons for the popularity of a franchise model include established goodwill, possible captive market within a territory and ease of growth. The franchisor sees the establishment of a franchise as less capital intensive, providing it with the opportunity to develop a widespread distribution base for products or services. One key advantage for... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3889 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3889 When living in a body corporate it is easy to become over-involved in internal politics. People tend to get lost in the emotions of a particular issue, and when this happens comments can stop being truthful, and in the interests of the community, and start being hurtful and defamatory. Hallmarks of defamation include a verbal or written publication of information that is untrue, and consequential damage, or the potential for damage to a... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3887 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3887 There is a common misconception that resident managers cannot lobby their owners to vote in a certain fashion. It must be promulgated by people who want to stop resident managers having their say, because there is nothing in the Act or Modules that prevents anyone having their point of view put forward to other owners. When a motion is included on the agenda for a general meeting, the maximum explanatory note to go with it (as circulated by... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3886 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3886 When the Body Corporate and Community Management Act (‘the Act’) commenced in 1997 it ushered in, amongst other things, a new regime for titling of developments in Queensland. Before the Act commenced, the creation of staged developments with both commercial and residential components was difficult. The Act made this a far easier and more feasible proposition, and the proliferation of mixed use buildings since then has... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3882 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3882 Over the past couple of months some highly publicised incidents on the Australian stock market have fuelled news agency reports and sparked media releases from the ASX and ASIC. These incidents have served as a reminder of the obligations on listed companies to continuously keep the market informed of relevant information. Such obligations are set out in the Corporations Act 2001 (Cth) (Act) and the ASX Listing Rules (Listing Rules). In this... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3880 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3880 Hynes Lawyers is often asked to advise on the rights of an occupier to conduct a business from a lot within a complex. The answer depends on the type of business being contemplated. Usually the by-laws will prohibit any business being conducted on the premises except for the resident manager’s business. It is very difficult to change this position, as doing so will require a special resolution, which amongst other things requires... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3879 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3879 We have recently seen a variety of building defect disputes involving matters such as:  faulty waterproofing membranes; cracking in balconies, walls and other concrete areas; faulty air conditioning systems; cracking and lifting of tiles on stairs and around swimming pools; incomplete building work; and failure to comply with rectification directions of the Building Services Authority. Disputes in... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3881 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3881 The question of who is obliged to pay for structural repairs to scheme land that forms part of a lot is a question that is often put to us. There are different rules depending on the type of plan and the form of repair required. Hynes Lawyers recently advised a body corporate in relation to their obligation to keep buildings within the scheme in good structural repair. A structural defect to a supporting beam was causing the flooring and... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3883 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3883 The ASX is currently revising listing rule 6.9, which provides that all ordinary shareholders must be entitled to one vote per share for a resolution that is to be decided on a poll. The ASX is considering allowing companies to issue non-voting ordinary shares and is seeking public feedback through a public consultation paper released in December. Comments are to be made on the paper by Friday 7 March 2008. A number of jurisdictions allow... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3888 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3888 They were: Options We had matters where clients forgot to exercise their options for further terms in their agreements. Most management rights agreements operate on a fixed term with further options terms. The joys of management rights means that not all agreements are identical, but the general rules are that option terms must be exercised by the resident manager within a certain period (usually 3 to 6 months) before expiry of the current...