http://www.hyneslawyers.com.au/ Hynes Lawyers Articles 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 put a... 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 tonbsp;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 decisions, or... 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 lsquo;naked short salersquo; essentially involves a person entering an order in the market to sell certain products for example... 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 adjudicatorrsquo;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 variation. ... 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 adjudicatorrsquo;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 managerrsquo;s financial circumstances.Unfortunately... 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 hasnrsquo;t.Difficulties arise when the caretaking agreement does... 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. nbsp;The PJC report, called lsquo;Better Shareholders ndash; Better Companyrsquo; sets out 21 proposed law reform recommendations as a preferred approach to reform in this area, which are aimed at: improving the flow... 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 corporatersquo;s rights and responsibilities, essentially making the body corporate the lsquo;meat in the sandwichrsquo;. A body corporate... 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 to... 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.nbsp;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 licence to... 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 lsquo;flying minutesrsquo; or a lsquo;VOCrsquo; 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 motion must be passed by a... 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 committeersquo;s stance jeopardised not only our clientrsquo;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 wife team,... 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 sellerrsquo;s perspective, making the business as lsquo;cleanrsquo; 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 better off you are going... 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 scheme as a... 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 Australiarsquo;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 Grayrsquo;s... 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 lsquo;maintenancersquo; or an lsquo;improvementrsquo; of common property basically depends on the type of colour used. In a recent... 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 donrsquo;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 partnership... 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 amendments to... 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, which is... 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 against... 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 the... 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 lsquo;the Actrsquo; 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 been testament... 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 managerrsquo;s business. It is very difficult to change this position, as doing so will require a special resolution, which amongst other things requires a 2/3... 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:nbsp; 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 relation to building... 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 walls... 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 listed... http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3888 http://www.hyneslawyers.com.au/?process=views/article.php&articleId=3888 They were:OptionsWe 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 term....