Bradley Allen Love Lawyers is comprised of devoted teams covering a wide range of legal services. We have a strong focus on commercial and business law, property, local government, employment, dispute resolution, estate planning and litigation.

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  • will and estate planning

    Salvation Army Wills Day

    This month, the Estates team donated their time and expertise to the Salvation Army Wills Day.

    The Wills Day has been initiated by The Salvation Army to help relieve some of the confusion and anxiety associated with making Wills, while raising funds for their extensive work with the needy.

    For recognition of their pro-bono work, the team were awarded a certificate of thanks.

    Salvation Army Wills Day

    To see more of the great work the Salvation Army does, or to see dates and locations for their upcoming will days, see their website.

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  • Shareholders meetings – where the majority rules

    Shareholders meetings – where the majority rules

    Directors are not the only decision makers regarding the operation and direction of a company’s business; shareholders also have a lot of power. By being entitled to vote on key resolution affecting the company’s future, its directors and strategic goals, shareholders can be crucial to a company’s success and expansion. Shareholders exercise their powers through general meetings – but who has the right to call these meetings, and what resolutions can be considered by the shareholders?

    Under the Corporations Act 2001 (Cth), such meetings can be called by either a company’s director(s) or its member(s), where the shareholders hold at least 5% of the eligible votes and make the appropriate meeting request to the directors.

    Before a meeting can be held, a notice must be issued to shareholders, detailing the proposed resolutions. Share holders can also propose ordinary resolutions from the floor, if they meet the minimum threshold requirements (5% or 100 members). Ordinary resolutions require 50% majority support to be adopted. Generally, these resolutions relate to the day to-day business of the company, such as the appointment of directors or auditors. Special resolutions require a higher threshold of 75% support which is reflective of their importance.

    Generally share holders cannot overrule a Board decision, but in extreme circumstances they can apply to a Court to prevent the Board from carrying out a decision if deemed ‘oppressive conduct’. This occurs where the conduct of the company’s affairs is either:

    1. contrary to the interests of the members as a whole; or
    2. oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member.

    Read More.

    First published in B2B Magazine.

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  • Australian Employment Contract

    Australian Employment Contracts: The good, the bad & the uncertain

    “The law concerning the duty of good faith, if any, in employment contracts is currently in a state of flux, just as it is in the law of contracts generally.” — Mark Irving

    In 2012, barrister Mark Irving commenced the section on good faith in employment contracts in his text with that pithy summary of the uncertain legal position. He continued: “The following description of the law will be completely outdated once the High Court has resolved these issues.”

    When Mr Irving appeared before  Australia’s apex judiciary two years later, for the respondent in Commonwealth Bank of Australia v Barker, he must have wondered whether those words would prove prophetic.

    Unfortunately for Australian employment lawyers, the occasion has not yet arisen for Mr Irving to wholly revise his consideration of the implied term of good faith. While the High Court in Barker definitively rejected the implication of a term of mutual trust and confidence in employment contracts, they refused to consider its ‘sibling’, good faith.

    The plurality of French CJ, Bell and Keane JJ observed: “The above conclusion [regarding mutual trust and confidence] should not be taken as reflecting upon the question whether there is a general obligation to act in good faith in the performance of contracts. Nor does it reflect upon the related question whether contractual powers and discretions may be limited by good faith and rationality requirements analogous to those applicable in the sphere of public law. Those questions were not before the Court in this appeal.”

    Kiefel J provided a slightly lengthier consideration, pondering that ‘in some legal systems good faith is regarded as a vitally important ingredient for a modern general law of contract … This raises the question how other legal systems cope without it.’

    Yet she too refused to delve further. Despite admitting that the question had not been resolved in Australia, as it was not raised in argument she concluded: “It is therefore neither necessary nor appropriate to discuss good faith further, particularly having regard to the wider importance of the topic.”. Read more.

    Written by John Wilson, Director, Employment & Workplace Relations, and Kieran Pender, Law Clerk.

    First published in Ethos.

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  • Section 46 of development standards

    Using clause 4.6 of the Standard Instrument to vary development standards

    Councils and developers are continuing to grapple with the process of amending development standards under clause 4.6 of the standard instrument local environmental plans. However, the trend in recent cases, including the recent decision in Zhang v Council of the City of Ryde , has been towards taking a more liberal approach to allowing variations to development standards.

    Clause 4.6

    Clause 4.6 allows a consent authority to grant consent for development, even though the development would contravene a development standard imposed by an environmental planning instrument, where the following requirements are met;

    1. the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

    a.  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
    b.  that there are sufficient environmental planning grounds to justify contravening the development standard.

    2. the consent authority is satisfied that:

    a.  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and
    b.  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

    3. the concurrence of the Secretary has been obtained.

    Four2five Pty Ltd v Ashfield Council [2015] NSWLEC 9 was one of the first appeal cases to consider clause 4.6. In this case, the Court refused to vary the relevant development standards for two primary reasons:

    1. the written request failed to demonstrate that the grounds for departing from the standard were particular to the circumstances of the proposed development on the subject site; and

    2. the applicant had not demonstrated that compliance with the development standard was unreasonable or unnecessary, in addition to demonstrating that the proposal was consistent with the objectives of the standard.

    The Four2five case, other recent cases demonstrate a trend towards allowing variations where these two elements are not necessarily met. This is facilitated by the broad discretion given to the consent authority under clause 4.6.

    Applying clause 4.6 – a recent example

    Zhang v Council of the City of Ryde is the latest in a series of cases to apply clause 4.6. The case involved an application for the construction of in-fill affordable housing (multi-dwelling housing) in the low density residential zone (R2). The proposed development exceeded the 5m height requirement which applied and also exceeded the density controls for the zone.

    The applicant had prepared a written request to vary the relevant height and density controls. He argued that strict compliance with the standards was unnecessary, in part, because the proposed development would not have any unreasonable adverse impacts and would facilitate the provision of an additional dwelling house to be dedicated as affordable rental housing for a period of 10 years. Similar reasons were put forward to justify departure from controls on environmental planning grounds. The Council did not support the written request.

    Commissioner Brown reiterated that clause 4.6 imposes three preconditions which must be satisfied before the application could be approved:

    1. The consent authority must be satisfied that the proposed development will be consistent with the objectives of the zone;

    2. The consent authority must be satisfied that the proposed development will be consistent with the objects of the standard which is not met; and

    3. The consent authority must be satisfied that the written request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify contravening the development standard.

    It is only if all of these conditions are met that consent can be granted to the application, subject to an assessment of the merits of the application.

    The Commissioner applied the now familiar approach to determining consistency with zone objectives by considering whether the development was antipathetic to the objectives. Like most zone objectives, the R2 zone objectives were relatively general. They did not specifically relate to building height and, although the objectives referred to the provision of housing within a low density residential environment, that term was not defined. The Commissioner accepted that the proposed development was consistent with the zone objectives.

    The Commissioner was also satisfied that the proposed development was consistent with the relevant objectives of the height controls, accepting that the development was both compatible with the character of the local area and would avoid any overshadowing impacts. The LEP did not include any specific objectives for the density standards and, although the development control plan did contain provisions which addressed density, these were in conflict with the density controls in the local environmental plan and were of limited assistance.

    The Commissioner went on to find that there were sufficient grounds to justify contravening both development standards in this case and approved the application on its merits. However, in contrast to four2five, the reasons relied on to justify the departure from the standards in this case were not necessarily site specific.

    The decision in Zhang follows another recent case, Randwick City Council v Micaul Holdings , in which the Court allowed a departure from development standards in comparable circumstances. Provided the processes required by clause 4.6 are followed, it therefore seems that a consent authority has a broad discretion as to whether to allow a departure from development standards under clause 4.6, even where the variation is not justified for site or development specific reasons.

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  • contract

    Small Business to benefit from the Unfair Contract Terms Regime

    Small businesses will soon enjoy the benefits of protection against unfair contract terms, previously available only to consumers, following Royal Assent given to the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Bill 2015 on 12 November 2015. The Legislation will apply from 12 November 2016, giving businesses nearly 10 months to make sure their contracts are compliant.

    Currently protection from ‘unfair contracts’ is only available to consumers who enter into standard form contracts under Part 2-3, Schedule 2 of the Competition & Consumer Act (2010) (Cth). Yet, small business can be just as vulnerable to unfair terms and standard form contracts as consumers. Small businesses can lack the bargaining power to successfully negotiate changes to the terms of contracts or may simply lack the resources to identify unfair terms and understand their legal and practical risks. The Government has described the amendments as one which will “level the playing field in commercial transactions”.

    Under the Legislation, a small business will be able to seek relief with the courts being able to strike out terms considered unfair. The protection would apply to businesses with fewer than 20 employees at the time of the transaction and the upfront price payable under the contract is either:

    1. $300,000 or less; or
    2. $1,000,000 or less if the contract lasts more than 12 months.

    What is an unfair contract term?

    The Legislation does not propose to amend what an unfair contract term is, but simply extend the right to claim that there is an unfair term by small business.

    Pursuant to section 24 of the Act, a term is unfair if:

    1. it would cause a significant imbalance in the parties’ rights and obligations under the contract; and
    2. it is not reasonably necessary in order to protect the legitimate interests of the party who would be advantaged by the term; and
    3. it would cause detriment (financial or otherwise) to a party if it were applied or relied on.

    However, all three limbs of the test must be made out, and the court must consider the contract as a whole before a term will be deemed ‘unfair’. Unfair terms can include terms permitting unilateral changes by one party, terms limiting the rights of one party, terms which penalise a party for breach and terms which permit the assignment of a contract to the detriment of the other without their consent.

    What is a standard form contract?

    Standard form contracts are usually template documents produced by one party and offered on a “take it or leave it” basis. Sometimes, but not often, standard form contracts can be one-sided and contain rights that go beyond the requirements to legitimately protect the drafter’s business interests and may, in fact, cause detriment to the other party.

    In determining whether a contract is a standard form Courts will consider:

    1. whether one of the parties has all or most of the bargaining power relating to the transaction;
    2. whether one party was, in effect, required to either accept or reject the contract in the form presented (i.e. whether they were given an effective opportunity to negotiate); and
    3. whether the terms of the contract take into account the specific characteristics of the transaction.

    The way forward

    The Legislation will affect all contracts made on or after 12 November 2016, and will also apply to existing contracts that are renewed after this date. Businesses have a one year grace period to review and amend their existing standard form contracts to ensure compliance.

    Obviously we recommend seeking advice on your contract terms if you are unsure about the legal or practical implications however the extension of the unfair contracts regime will provide comfort to small businesses that cannot afford to negotiate or seek such advice on its contracts.

    By Katie Innes, Senior Associate, Business Law

    This article is intended to provide a summary of the subject matter only. It does not purport to be comprehensive or to render legal advice. No one should act on the basis of any matter contained in this article without first obtaining specific professional advice.
    Read more
  • social media

    Social Media & Small Business Politics

    Social media has irrevocably changed the way people communicate and do business. It allows individuals and businesses to engage in a multifarious communication and exchange of information and ideas in real time. That said, whilst social media is both convenient and readily accessible, there can be serious consequences for failing to appropriately manage its use, due simply to the inherent risks that exist in using a technology with such instantaneous impact.

    The objective of social media is to create a dialogue with your existing and potential customers. Participation is imperative; having a passive social media “presence” is not generally enough to generate a positive business outcome. You need to understand the technology, have a plan for proactive engagement and be both energetic and consistent in your use of social media.

    A business owners’ focus should be on developing and sustaining a great business and investing in its success. This calls for a broad vision and an open mind when it comes to marketing techniques. With a solid plan and proactive strategy, adding a social media approach can maximise your business’ market presence while (importantly) controlling the risks posed by potential breach of copyright or misleading representations. The most effective way to minimise the risk to your business is to have appropriate terms and conditions and disclaimers for your website.

    To learn more, download our free eBook.

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