News & Events

  • Uber Eats

    Uber Eats humble pie as restaurants are delivered from unfair contract terms

    Restaurants under immense pressure due to COVID-19 impacts received slight reprieve with Uber Eats being forced to remove unfair contract terms.

    Uber Eats can no longer have their cake and eat it too. The ACCC has forced the multinational company to remove “unfair contract terms” from their contracts with small restauranteurs.  It is no wonder that Uber’s contracts left a sour taste in the restauranteurs’ mouths when it included the following clauses:

    1. Restaurateurs party to the contract had to agree that Uber did not provide any delivery or logistics services. This lemon of a clause presents a pickle for contracting parties, not only does it present a legal fiction, but it is at odds with Uber’s website which is emblazoned with the words “we deliver”.
    2. The contract stated that the drivers were “agents” of the restaurant despite their workflow and pay being controlled by Uber, not the restaurant.
    3. In the event that the food became substandard, for instance if hot food became cold, Uber could demand that the restauranteur cover the customer refund.
    4. Uber Eats could unilaterally vary the contract at any time.

    Here the proof was in the pudding, as the ACCC considered that these terms were manifestly unfair and placed a disproportionate amount of risk on local restaurants.

    But what does it take for a term to be unfair?

    Section 23 of the Australian Consumer Law (“ACL”) prohibits unfair contract terms. For a contract term to be unfair it must:

    • Cause significant imbalance in the parties’ rights and obligations;
    • Not be reasonably necessary to protect the legitimate interests of the party advantaged by the term; and
    • Cause detriment to a small business (a business with 20 employees or less) if it were applied or relied upon.

    Uber’s terms outlined above from 1 – 4 contain all ingredients of unfair contract terms. For instance, consider terms two and three; here Uber essentially placed all risk associated with the standard of delivery on the restaurant. Despite the fact that these businesses have no control over delivery time, payment of delivery drivers or their workload. This is a classic example of how a ‘take it or leave it’ contract has caused a significant imbalance in the relationship between Uber and the restaurant. Uber would bear little to no risk under the contract, and restauranteurs would be liable under the agreement for issues of service outside of their control.

    Further, in instances where Uber has contracted with restaurants who employ less than 20 employees, if Uber choses to rely upon terms three and four, this could place small operators at considerable disadvantage. For example, some small restaurants reported that if Uber demanded that the restaurant refund a disgruntled customer, the restaurant had essentially provided their product for free to Uber.

    What are the consequences for an unfair contract term?

    In short, none. Including unfair contract terms in an agreement does not attract any penalty under law. Indeed, s 23 of the ACL merely enables the ACCC to challenge the offending term in court and have it declared “void”. In a nutshell, this means that the ACCC cannot obtain civil pecuniary penalties when a term of a contract is found to be unfair.

    The lack of penalties in this area of law means that small businesses are at a great disadvantage when it comes to negotiating standard form contracts, as there is very little incentive for large corporations to comply with s 23. This was certainly the case here, as Uber Eats only agreed to change the terms of the contract so that restaurants would only be responsible for matters “within their control” after the ACCC intervened.

    Even though restaurants have received a momentary reprieve from Uber’s unfair contract terms, any losses that they have incurred as a result of the unfair terms will not be reimbursed. Although the Silicon Valley giant can no longer contractually grind small restaurants to make their bread, the lack of penalties for unfair contract terms puts smaller businesses on the chopping block whilst big businesses board the gravy train free of risk and liability.

    Written by Riley Berry with the assistance of Claudia Weatherall.

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  • How to protect intellectual property online

    How to protect your intellectual property in unprecedented times

    COVID-19 has propelled businesses into unprecedented times.  Many businesses will be able to adapt to new lockdown measures by moving to partially or fully operate online. Businesses moving online must understand and act fast to protect intellectual property.  In the case of Hardingham v RP Data Pty Limited,[1] a photographer assumed an “implied licence”, mistakenly relying on the assumption that an implied licence restricted the use of his intellectual property.

    Two missing intellectual property ingredients

    James Hardingham, a professional photographer, who was the sole director and shareholder of Real Estate Marketing Australia Pty Ltd (‘REMA’), took photos and made floor plans for a number of real estate agencies. Those agencies then uploaded the content to realestate.com.au (‘REA’) who then shared it with corelogic.com.au (‘RP data’) (‘the websites’). The legal battle that ensued comprised of two parts:

    1. no formal ownership agreement existed between the real estate agencies, the websites and REMA in relation to the copyright of the photos and floor plans provided by Mr Hardingham; and
    2. no clear understanding that when agencies uploaded the photos and floor plans to online property listing platforms on the websites, the photos would still be used by REA and RP data even after the sale or lease of a property had been completed. [2]

    Whilst Mr Hardingham recognised that there was an implied licence for the agencies to use his photographs and floor plans for the marketing of sale and lease of the properties on REA, he argued that the implied licence did not extend to RP data nor that any such implied licence would allow his intellectual property to be used long after the sale or lease (for which the images were originally made) had been completed.[3]

    Court finds implied licence exists

    The Court found that Mr Hardingham had known that real estate agencies had been uploading his intellectual property to REA since 2014. He should have known that the REA privacy policy was freely available to him. Since 2014, Mr Hardingham had set the fees of his services with the knowledge that the images would almost certainly be uploaded to both websites.[4] These factors pointed to the existence of an implied licence for the websites to not only use the images for the purpose of the sale or lease, but that the websites could retain the photos and floor plans uploaded by real estate agents. Furthermore, the Court found that as such listing platforms were used by the overwhelming majority of Australian real estate agencies, and so Mr Hardingham would have known that agencies were going to upload his content to these platforms.[5] The Court concluded that the agencies who had commissioned REMA’s work did not “own” the copyright over the uploaded images. Rather, proving such “ownership” was unnecessary for reason that an implied licence allowed the website owners the right to retain and use those images.[6]

    Lessons

    There are two main lessons that can be drawn from the case of Hardingham:

    1. clear and written Intellectual Property Licence Terms are always preferable over assuming that another party will use or not use your intellectual property in a certain way; and
    2. knowingly “acquiescing” to use of your intellectual property can demonstrate an implied licence for third parties to take and use your intellectual property. Conversely, if a copyright owner had no actual or constructive knowledge of its intended use by third parties, they may be able to demonstrate that the initial permission to use the images was more limited.

    Put another way, if you don’t take reasonable steps to control your copyright, allowing it to be taken and used in a system with established rules of use, then you might lose your right to that control, at least within that system.

    Contact BAL Lawyers dedicated team of Business Lawyers for advice on protecting your Intellectual Property rights online.  Our lawyers will work with you to establish clear guidelines and expectations around the use of your IP, or possible infringements, in the context of Australian Copyright Law.

    Written by Riley Berry with the assistance of Claudia Weatherall.

    [1]  [2019] FCA 2075.

    [2]  Ibid 24.

    [3]  Ibid.

    [4]  Ibid 60 – 64.

    [5]  Ibid 60.

    [6]  Ibid 85.

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  • Message regarding COVID-19

    The following is a message from our Managing Legal Director, John Wilson:

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  • Coronavirus HR Webinar

    FREE WEBINAR

    CORONAVIRUS:
    EMPLOYMENT LAW ANSWERS FOR HR MANAGERS

    Coronavirus employment law answers

    As confirmed Coronavirus cases increase worldwide and in Australia, HR managers must consider strategies to adapt to, and deal with, the situation.  Gabrielle Sullivan, Director of BAL Lawyers Employment Law and Investigations Group and NSW accredited specialist in Employment and Industrial Relations Law, presents a free online webinar for HR Managers.

    This Webinar is provided under the banner of HR Breakfast Club.  HR Breakfast Club connects like-minded professionals in Canberra to share updates and insights on how to make businesses better places to work.  The format normally consists of a monthly live forum, bringing together HR people to benefit from the experience of their peers, our lawyers, and guest presenters, in a relaxed and open setting.

    For future clubs, participants can join our webinar using a unique link sent to them post-registration. Questions can be submitted during the session using an online messaging facility. If you wish to provide questions for  consideration in advance, please do so via your registration or by emailing events@ballawyers.com.au.

    Please keep in touch with your needs and the kinds of topics and information needed during these unprecedented times.

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  • Hey Google online reviews

    Hey Google - I give a damn 'bout my online review

    Anyone can post a negative online review and in the blink of an eye, bring down a business’ reputation.

    Negative online reviews have the power to permanently ruin the online presence of businesses on popular platforms such as Google. In this digital age, it is a situation not unfamiliar to business owners around the globe.

    But how can companies defend their reputation from defamatory and damaging reviews when Google requires no verification from its users? Australian business owners have struggled for years to convince Google to take down negative and allegedly false reviews when unable to identify and contact anonymous authors. The recent decision of Australian Federal Court Judge, Murphy J, has tipped the scales back in favour of independent business owners.

    Following the Federal Court’s decision on 12 February 2020, Google will be compelled to provide information to Melbourne dentist, Dr Matthew Kabbabe, to help him track down anonymous author “CBsm 23” who posted an allegedly defamatory review in relation to Kabbabe’s dental practice.

    According to Murphy J, the review stated that Dr Kabbabe was “extremely awkward and uncomfortable”, that the procedure was not “done properly” and it seemed that the he “had never done the this before”, such that other patients should be warned and “STAY AWAY”.[1] In November 2019, Dr Kabbabe had asked Google to remove the review and in February 2020 asked Google to identify CBsm 23. Google refused both requests, stating that “we do not have any means to investigate where and when the ID was created.”[2]

    Despite this, Murphy J has considered that Google is likely to have or have had control of the documents or data to help Dr Kabbabe identify CBsm 23 and will be ordered to provide information including IP addresses, subscriber information, and any phone numbers associated with that account. [3]

    With anonymity as a shield against any repercussions, it is a very real possibility that online reviews provide false and misleading information about companies. As identified by Dr Kabbabe’s lawyer, the CBsm 23’s review was “malicious” and there exists a possibility that it came from a competitor or disgruntled former employee.

    The Federal Court’s decision comes after the Supreme Court of South Australia’s ruling in Cheng v Lok [2020] SASC 14 where a Barrister, Gordon Cheng, was awarded $750,000 in damages over an online review containing false information from a woman who never hired him.

    This case stands as the latest of many defamation claims raised against large digital platforms, including Google and Facebook, who refuse to take down anonymous and allegedly false reviews about businesses.

    It seems the tables are turning, and Google has some answering to do.

    Written  by Laura Scotton with the assistance of Felicity Thurgate.

    [1] Kabbabe v Google LLC [2020] FCA 126, at [15].

    [2] Kabbabe v Google LLC [2020] FCA 126, at [17].

    [3] Kabbabe v Google LLC [2020] FCA 126, at [18].

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  • Digital platforms inquiry

    What the ACCC’s Digital Platforms Inquiry Means for Your Business

    It is no secret that in today’s society there are a few companies that reign supreme when it comes to how we view digital content. Regulatorily speaking – erhem – keeping up with the evolution of technology is a never-ending game of fat cat and mouse. Australian Competition and Consumer Commission’s (“the ACCC”) recent inquiry into Digital Platforms (“the Inquiry”) has given us insight into how these large corporations collect, use and share our data – often without us even realising that it is happening. But the impact of the Inquiry is not limited to just those few large foreign companies, such as Facebook and Google, the findings and the resulting policy and law-making changes will no doubt have far reaching consequences that will affect small and large business alike.[1]

    Generally, the outcome of the Inquiry is that, in the field of “data collection,” there needs to be in place measures that will better protect smaller players in the market, namely by:

    • improving transparency of how data is collected, used and shared;
    • addressing the power imbalances – whether between consumer and company, or between different companies; and
    • finding ways to ensure that where large corporations do have substantial market power it is not used to lessen competition in the media and advertising services markets. [2]

    The Government Response to the Inquiry

    On 12 December 2019 the Government released ‘Regulating in the Digital Age’ – their response to how they plan to tackle issues unearthed by the Inquiry. The Government’s immediate response to the report includes investing $26.9 million in a new branch of the ACCC to monitor and report on competition and consumer protection in digital platform; its first order of business: to investigate the supply chain of online advertising and ad technology. [3]

    The opaque nature of the ad-tech supply chain means that businesses who use these services are never sure if they are getting bang for their buck, as the sum of prices charged by ad tech suppliers and the share of advertising expenditure they retain are unknown to consumers.[4] This lack of clarity is exacerbated by Google and Facebook obscuring how they rank and display their advertising. The Government’s decision to immediately allocate funds and investigate the online advertisement supply chain bodes well for smaller Australian businesses who rely on online advertisements, as they may be better placed to make more informed decisions on how to strategically enhance their online marketing strategy.

    Notably, the Government’s response to the Inquiry has remained silent on its first recommendation regarding mergers and acquisitions of digital platforms.[5] Despite the Government’s silence, the ACCC will take a tougher stance on any merger in the digital platform space that threatens potential competition.[6] This may place a spanner in the works for both tech behemoths and small digital start-ups whose aim is to be bought out by big tech companies. This could have adverse effects on small scale digital innovation, as it may make it harder to appeal to potential investors. Ultimately, this heightened regulatory scrutiny may benefit consumers through enhancing competition, as big companies may be prevented from gaining an even larger market share.

    What this Means for Your Business

    Although it is premature at this stage to gauge the full impact of the Inquiry on Australian business, it marks the dawning of a new era of regulation in the Wild West of digital platforms. Digital monoliths may face closer scrutiny when buying out their rivals and when developing their advertising services, while smaller businesses and advertisers who use these platforms stand to benefit from greater transparency around the digital advertisement supply chain. However, all digital platforms, regardless of size, will have increased obligations to protect consumers’ privacy and data if the recommendations of the Inquiry are implemented.

    Written by Anna Phillips with the assistance of Claudia Weatherall.

    [1] Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) 1 – 3.

    [2] Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) 3.

    [3] Department of Prime Minister and Cabinet, ‘Response to Digital Platforms Inquiry,’ (Media Release, 12 December 2019) < https://www.pm.gov.au/media/response-digital-platforms-inquiry>.

    [4] Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) 12.

    [5] Department of Prime Minister and Cabinet, ‘Response to Digital Platforms Inquiry,’ (Media Release, 12 December 2019) < https://www.pm.gov.au/media/response-digital-platforms-inquiry>.

    [6] Australian Competition & Consumer Commission, Digital Platforms Inquiry (Final Report, June 2019) 10.

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  • company agents

    How to prevent a rogue company agent – Australian Agency Law

    When you think of the word ‘agent,’ a 007 Bond type character may spring to mind. However, in the far more textured but mundane corporate world when a company agent goes rogue, the company (‘the principal’) might find themselves liable under contracts they never intended to be party to.

    What is a Company Agent?

    An “agent” for a company is someone, usually an employee, who has the authority to create legal relationships on behalf of the company with third parties.[1]  This is not to say that an agent has unlimited power to bind the company; the critical issue is “where does that limit lie?”. An agent can only bind the company when the agreement in question falls within their ambit of their ostensible authority or their actual authority.[2] An employee is not an “agent of a company” merely because they are an employee, as their “authority” flows from the role the employee is required to perform. There are several ways that an agency relationship can develop, and this includes:

    • Express agreements between the company and the employee, conferring actual authority;
    • Ratification – When the company sanctions the agent’s actions after the fact, regardless of whether the agent had authority or exceeded their actual authority;[3]
    • Estoppel – Is a common law mechanism that prevents companies from avoiding liability for legal obligations simply through denying that the ‘agent’ had the authority. In these scenarios, the company, at the time of the agreement, will have led the other contracting party to believe that the employee had the authority to bind the company in a legal agreement;[4] and
    • Necessity[5] – An agency relationship will be created when it is necessary in cases of emergency.

    Expressly stating that a person is an agent of a company does not indicate they are in fact an agent (though it does tend to imply that some authority is held), rather, the actual nature of the relationship between the alleged agent and the company will determine whether the person is truly the company’s agent. [6]

    The Nature and Scope of an Agent’s Authority

    A company will not usually be bound by their agent if the agent enters into an agreement on behalf of the company that is outside their authority.[7] If an agent acts outside of their authority, they may be liable to both the company for a breach of contract and, also, to the third parties of the agreement. An agent can have:

    1. Actual Authority – This is where the principal has explicitly given their written or verbal instructions to the agent. This type of authority is limited to the terms of the principal.[8]
    2. Actual Implied Authority – This is where the agent has authority to enter into agreements that are incidental to the principal’s express instruction or from the normal function of the agent’s role. For instance, where an agent has been instructed to purchase shares on behalf of the company, the agent will also be expected to hold authority to do everything in the usual course of business to carry out that transaction.[9]
    3. Apparent Authority – This is where the company either holds their agent out as having a certain amount of authority or acquiesces when an agent proports to have authority to perform certain actions. Consider the case of Panorama Developments Ltd v Fidelis Furnishing Fabrics Ltd,[10] where a company secretary hired luxury cars for his own personal use. Despite that the principal company had no knowledge of the hire agreement until they were invoiced, the company was liable for the secretary’s expenses, as it was held that a secretary would usually have the authority to hire cars in the course of ordinary business.[11]

    In conclusion, it always pays to give good instructions and to clearly set out the boundaries of your employees’ authority to minimize the risk of ‘rogue agents’.  Better still if an agent has limited authority, communicating the limitation (i.e. subject to approval by management) to the “other side” provides the best defence.

    Written by Riley Berry with assistance from Claudia Weatherall.

    [1] Clive Turner and John Trone, ‘Australian Commercial Law 31st Edition’, (Thomson Reuters, 2016) 222.

    [2] Collins v Blantern (1767) 2 Wils 341; [1558-1774] All ER Rep 33; (1767) 95 ER 847.

    [3] Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 at 82.

    [4] Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd  [1964] 2 QB 480 at 498.

    [5] Sachs v Miklos [1948] 2 KB 223 at 35.

    [6] International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644 at 652.

    [7] Clive Turner and John Trone, ‘Australian Commercial Law 31st Edition’, (Thomson Reuters, 2016) 226.

    [8] Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd  [1964] 2 QB 480 at 502 – 503.

    [9] Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 at 583.

    [10] Panorama Developments Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711 at 717 – 718.

    [11] Panorama Developments Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711 at 717 – 718.

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  • Jill McSpedden Christine Harvey

    Jill McSpedden and Christine Harvey join BAL Lawyers Estates and Estate Planning Team

    In January 2020, Jill McSpedden and Christine Harvey moved to BAL Lawyers in Canberra City.  They join Keith Bradley AM and Ellen Bradley in BAL Lawyers Estates and Estate Planning Team, which boasts a wealth of experience and strives to deliver an exceptional quality of service to its clients.

    Two unique careers

    Jill McSpedden ran a private legal practice in Canberra for more than 30 years, which was known as Jill McSpedden and Associates.  Prior to starting her own practice, Jill worked in various contexts including at the Insurance Commission and the Trade Practices Commission, now known as the ACCC.  Jill McSpedden and Associates was established in 1983, first operating out of Jill’s home in Canberra’s inner south.  Jill built the practice from the ground up into a flourishing business with loyal clientele in its core areas of estates, estate planning, conveyancing and business law.  As the practice grew, Jill settled in commercial premises in Yarralumla.

    Christine Harvey has had a diverse career in both private and government practice and as a special magistrate of the ACT Magistrates Court.  She has held a wide range of executive and director level positions for peak industry bodies, professional associations and has been a director on boards of several companies in the not-for-profit sector.  Christine has held positions as Director of Professional Standards of the Law Society of the ACT, Executive Director of the Law Society of the ACT, Deputy Secretary-General of the Law Council of Australia, Chief Executive Officer of the Royal Australian Institute of Architects, Junior Vice President of Professions Australia and Chief Executive Officer of The Victorian Bar.

    Joining forces as McSpeddenHarvey Lawyers in Canberra’s Yarralumla

    McSpeddenHarvey was formed in 2008 when Christine Harvey and Jill McSpedden joined forces.  Over the following decade the firm continued to prosper as a well-established boutique legal services practice, recognised for its focus on estates and estate planning.

    Jill and Christine joined BAL Lawyers in January 2020.  At BAL Lawyers, Jill, Christine and the team will work with you to put in place forward-thinking and flexible estate planning, tailored for families’ individual needs and circumstances.  BAL Lawyers has six legal teams with experience and expertise in estates and estate planning, commercial and business law including co-operatives and mutuals, real estate law, local government, planning and environment law, employment law, litigation and business succession.

    How to contact Jill McSpedden or Christine Harvey at BAL Lawyers

    Jill can be contacted on (02) 6274 0906 or by email at jill.mcspedden@ballawyers.com.au.  Christine can be contacted by phone on (02) 6274 0982 or email at christine.harvey@ballawyers.com.au.

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  • personal guarantee

    The cost of doing business: A directors’ personal guarantee

    If you are a director of a small company, it is likely that you have signed a personal guarantee, perhaps several. Whether or not directors’ personal guarantees are an inevitable cost of doing business for small companies with limited assets, the effects can be serious and are often misunderstood. So how much have you put on the line for your business, and what can you do to minimise your exposure?

    What is a personal guarantee?

    The most important feature of modern companies is the idea of limited liability. By establishing a legal entity that stands between you and your business activities, the buck stops with the company, preventing shareholders and directors from personally bearing the burden of any liabilities incurred by the business (subject to a number of statutory exceptions).

    However, banks, landlords, financiers and other key business partners almost uniformly ask small companies with limited assets to ‘lift the corporate veil’ and have directors (and occasionally shareholders) promise to be personally liable if the company fails to pay its debts or perform its obligations. By signing a personal guarantee, you are therefore contractually putting your own assets on the line, including your personal finances, your material assets and even your family home.

    What are some of the risks?

    Personal guarantees can take a variety of forms, but are often more extensive than many directors may realise. In addition to the principal liability incurred by your company, the guarantee may also cover extra costs, such as interest rates, debt recovery fees and even creditors’ legal costs. Directors are often required to sign an ‘all moneys’ guarantee, rendering them personally liable for the entirety of the company’s debts and liabilities regardless of their origin and when they arise.

    One of the most onerous features of personal guarantees—and one that can lead to nasty surprises for former company directors—is that they often (and typically will) extend beyond the life of your directorship. The guarantee is a contract signed in your own name, so there is nothing that inherently makes the liability under it dependent on your position within the company. Unless the terms of the guarantee itself specify otherwise, this means that your liability will extend beyond your resignation, and potentially even after the company stops trading or winds up.

    Finally, many guarantees are given ‘jointly and severally’ by directors. This may not mean much to you, but these words can have serious implications. It means that a creditor may call on all directors to pay a company debt, but they could equally pursue any one director for the entirety of the debt.

    What can you do?

    While a personal guarantee can be often unavoidable for smaller businesses, it is not necessarily inevitable in all cases. Where your business is important to a particular creditor and you have enough negotiating power, you may be able to assure them with an alternative, such as a bank guarantee. In any case, you should always attempt to limit your liability as far as possible, including by limiting the term of the guarantee to the period of your directorship or to a particular amount.

    If the other party still refuses to extend credit without a full and largely unlimited personal guarantee, then you must ensure that you keep on top of your obligations. Maintain a comprehensive register of any personal guarantees you have given so you don’t lose track. Once your time as director is up, then you need to take active steps to withdraw your guarantee or replace it with one form a new director. This can be complex and often requires approval or confirmation by the creditor, so it is important to get independent legal advice. Sometimes it may require ending an account and opening a new account.

    If you’ve been asked to sign a personal guarantee—or don’t know how to get out of one—get in touch with our Business team.

     

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  • New gift card laws

    Changes to gift card laws came into effect late in 2019 that impacted the issue and use of gift cards.  Just in time for Christmas shopping, the changes mean fewer wasted gift cards expiring before customers have a chance to use them.

    From 1 November 2019, gift card laws meant that all gift cards must comply with the following rules:

    1. gift cards must be redeemable for at least 3 years;
    2. the date of expiry must be prominently displayed on the gift card (or, if applicable, words to the effect of “no expiry date” must be included);
    3. most post-purchase fees or charges cannot be required in respect of a gift card; and
    4. a term or condition of a gift card will be void if it:
      1. allows or requires a non-authorised post-purchase fee or charge; or
      2. reduces the period for which a gift card is redeemable to earlier than 3 years from the date of issue.

    Restrictions on post-purchase fees includes a restriction on charges such as activation fees, account keeping fees and balance enquiry fees. Standard business fees, such as those charged in respect of payment processing costs and not solely in relation to gift cards, are not restricted.

    There are certain exclusions in terms of the types of gift cards that must comply with the new laws. For example, the three-year expiry period does not apply to gift cards that can be reloaded, that are issued for temporary marketing purposes or issued as a bonus under customer loyalty programs. However, all standard gift cards and vouchers will otherwise be required to comply, with strict penalties applicable for both companies and individuals in the event of non-compliance.

    Consumers will now be able to enjoy more certainty when purchasing and using gift cards, as these new requirements are applicable to all gift cards and vouchers supplied from 1 November 2019 onwards, regardless of whether or not the gift card appears to comply. Older gift cards will have the same expiry date and post-purchase fees applicable at the time of purchase.

    Businesses offering gift cards should take note to update their systems and terms and conditions so as to be compliant with the new laws.

    These amendments were made to the Competition and Consumer Act 2010, which provides various protections for Australian consumers for the purpose of promoting fair trading and competition.

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