Is reproducing building plans an infringement of copyright?

The Supreme Court of Queensland answered this question in the authority of Coles v Dormer & Ors [2015] QSC 224. There, the defendants were held to have substantially copied plans used to construct a house that they were unsuccessful in purchasing. The plaintiff, being the owner of the house, acquired the copyright in the plans, and was successful in obtaining an order that the defendants’ house be modified and that they pay him $70,000 in damages.

Should you wish to speak to one of our experienced lawyers about an issue you are facing pertaining to copyright, please contact our office on (07) 3009 8444.

Is reproducing building plans an infringement of copyright?

The Supreme Court of Queensland answered this question in the authority of Coles v Dormer & Ors [2015] QSC 224. There, the first and second defendants were builders who had been retained by a couple to construct a house from plans which had been specifically drafted by a building designer (the Plans). The couple later sold their architecturally unique home to the plaintiff. The third defendants were a couple who had sought to purchase the home but had been unsuccessful in their bid. Undeterred, they paid the same builders to construct a near identical house for them in the same estate in Port Douglas. Having heard rumours of the third defendants’ plans, the plaintiff acquired the copyright in the Plans from the building designer by way of an assignment.

Following on from acquiring the copyright, the plaintiff put the builders on notice that they held copyright in the Plans and that the construction of the identical house should be stopped.

It is important to note at this juncture that pursuant to section 202 of the Copyright Act 1968 (Cth) (the Act), a person who threatens another with an action in respect of an infringement of copyright may have an action brought against them by the other party to recover any damages sustained as a result of the threat, unless they can satisfy the court that they have an action in copyright. Accordingly, if you think you may have an action in copyright, contact our team of commercial litigators to determine how best to place the other party on notice of your rights.

Despite being placed on notice, the builders continued with the construction of the house, and the plaintiff commenced proceedings. In defending the proceedings, the defendants pleaded that the construction of the house did not reproduce or substantially reproduce the Plans.

Section 32 of the Act provides that copyright subsists in original artistic works by an author who is either an Australian citizen or resident. Building plans and houses fall within the definition of artistic works contained in the Act, making the act of reproducing plans without the consent of the copyright holder an infringement of the Act.

At trial, expert witnesses for each side came to agreement that the plans used by the defendants were in fact a substantial copy of the Plans.

Having regard to the defendants knowingly continuing with the construction of the house, Justice Henry ordered that the defendants remove the dormer roofs, arched and circular windows and the stone edge trim corners of the house. On the return date, Justice Henry awarded $70,000 in damages for the plaintiff’s loss of enjoyment of a locally unique house and a potential loss of the house’s value.

Should you wish to speak to one of our experienced lawyers about an issue you are facing pertaining to copyright, please contact our office on (07) 3009 8444.

Determining the value of security interests – a timely reminder on unfair preference claims

The recent authority of Trenfield & Ors v HAG Import Corporation (Australia) Pty Ltd [2018] QDC 107 called numerous points in relation to unfair preference claims into contention including whether:

  1. payments made in relation to an unperfected security interest can still be considered to be payments in relation to a secured debt;
  2. payments received can be applied to unsecured portions of debt first, making them recoverable as an unfair preference; and
  3. the value of the security can be determined in reference to the retail price of goods, or whether it will be determined in reference to the price actually paid to the creditor.

Background

The plaintiff liquidators sought to recover payments made by Lineville Pty Ltd (the Company) to HAG Import Corporation (Australia) Pty Ltd (the Creditor) for the supply of goods pursuant to a credit agreement. The goods were supplied on terms which included a retention of title clause, and a security interest over the goods. Of note, the total debt exceeded the value of the security.

Was the security interest perfected?

In determining whether the Creditor was in fact a secured creditor, the Court considered whether the security interest had indeed been perfected. Ultimately, it was held that perfection of the security interest had not occurred, as the Creditor had incorrectly categorised the agreement as a transitional security agreement. In the absence of any further argument by the Creditor that the registration was valid for some other reason, the Court concluded that as the security interest had not been perfected, the interest vested in the Company upon the appointment of the administrators. Of note, the Court held that though unregistered, the security interest was not void. This serves to be of particular interest to creditors, as it may be possible to argue that payments made to creditors are in relation to a secured debt and are not recoverable by liquidators as an unfair preference, regardless of whether the security interest has been perfected.

When will security of the debt be assessed?

Section 267 of the Personal Property Securities Act 2009 (Cth) states that where unperfected, security interests will vest in the grantor immediately prior to the appointment of administrators. On this point, the Creditor submitted that as the payments had been made prior to the administrators being appointed, the payments were made prior to the security interest vesting in the Company. Further, the Creditor argued that at the time of the payments, the debt had been secured.

The liquidators presented the argument that whether the debt was secured was to be assessed at the time of the winding up of the Company. The natural consequence of this argument was that no security would exist, as by the time the Company was wound up, the security had vested in the Company.

The liquidators’ argument was three-fold, being:

  1. The structure of section 588FA of the Corporations Act 2001 (Cth) is that a preference is identified by the difference in outcome between what occurred and what would have occurred in a winding up; and
  2. The purpose of the word “unsecured” in section 588FA is to identify a class of creditors that exist at the time of the winding up, and is aimed at securing an equality of distribution among this class of creditors; and
  3. An interpretation should be preferred which would give effect to the intention of parliament, being that preference should not be given to a creditor with a defective security interest.

Adopting the Creditor’s submissions, the Court held that the relevant time for determining whether the debt was secured was the time of each payment. This conclusion may prove problematic, as it means that had the payments not been made, the Creditor would have been considered an unsecured creditor, and would not receive the priority otherwise afforded over the class of other unsecured creditors.

Can payments received be applied to unsecured portions of debt first?

The liquidators submitted to the Court that the payments made by the Company were recoverable, as the amount of the debt which was secured at the time of the payments was greater than the value of the security. What flowed from this argument was that the payments made would be taken to first discharge the portion of the debt that was unsecured. On this point, the Court adopted the liquidators submissions.

How is the value of the security determined?

Finally, the Creditor argued that:

  1. the value of the goods supplied should be determined in relation to their retail value, as opposed to the value they were sold to the Company; and
  2. the security interest applied to both the goods supplied and to the proceeds of sale.

The Court ultimately determined that the goods were to be valued at the price paid by the Company, and that, in light of the liquidators’ evidence that the proceeds of sale were not readily identifiable, that no security existed over the proceeds of sale.

As a result, the liquidators were successful in recovering the payments made by the Company to the Creditor as an unfair preference.

Ipso Facto and Safe Harbour: Recent Changes

The recent introduction of the safe harbour amendments to the Corporations Act and the newly implemented ipso facto exclusions (effective as of 1 July 2018) have been touted as a means of assisting companies to trade out of their bad times, instead being wound up in insolvency as a first resort. With these amendments, the Government is aiming to assist companies in their profitability whilst maintaining normal business conditions during a period of administration and receivership, to assist in facilitating a successful restructure.

Ipso facto Clauses – what are they?

An ipso facto clause is a standard inclusion in most contracts which allows a creditor to exercise certain rights or terminate or amend a contract upon an insolvency event occurring, such as a company being placed into voluntary administration or a receiver being appointed.

Prior to 1 July 2018, an ipso facto clause could be invoked to terminate a contract even if the company continued to meet its other contractual obligations.

Terminating a contract upon an insolvency event, regardless of the company’s ability to continue its payment obligations, often impacted the company’s ability to maintain its cash flow, improve their financial position and/or restructure its business.

Contracts entered into on or after 1 July 2018, with some exceptions, will be subject to the ipso facto amendments whereby creditors will be stayed from terminating, amending or exercising a right under the contract solely for the reason that the other party enters into voluntary administration, receivership or a scheme of arrangement. The stay is not permanent and only lasts until the administration period ends or when the company is wound up, when the managing controller or receiver’s control ends or 3 months after a scheme of arrangement is announced or if the arrangement application is unsuccessful.

The Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth) (the Amending Act) sets out the ipso facto stay in relation to receivers being appointed at sections 434J to 434M and in relation to a company being put into voluntary administration at sections 451E to 451H.

The Corporations Amendment (Stay on Enforcing Certain Rights) Regulations 2018 (the ‘Regulations’) specifies types of contracts which will be excluded from the ipso facto stay provision. These include contracts for defined building work where payments are at least $1 billion, for the supply of goods and/or services for the public health service and contracts which involve a special purpose vehicle for project finance or public/private partnership, among others.

Creditors should note that whilst they are stayed from terminating any contract pursuant to an ipso facto clause, there is no corresponding stay on a creditor terminating the contract due to the company failure to meet its other contractual obligations (ie. failure to meet loan repayments).

How to minimise the impact of Ipso Facto provisions

The new provisions will not be applied retrospectively and will only apply to contracts entered on or after 1 July 2018. Creditors seeking to minimise the impact of the new provisions should consider amending or extending their current contracts as these would not be subject to the provisions due to the original commencement date being prior to 1 July 2018.

As a further safeguard, creditors are advised to strengthen their current default provisions to ensure that they are broad enough to encompass all specific termination rights available, noting that clauses which attempt or purport to circumvent the new amendments may be considered void.

Safe Harbour Amendments – What are they?

Previous legislation promoted a tendency for directors to prematurely protect themselves through insolvency processes rather than fight to keep their company viable. This led to a high number of insolvency events and a significantly risk averse business culture.

In late 2017, the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth) (the Amending Act) amended the Corporations Act 2001 (Cth) (the Corps Act) with the aim of offering potential protection to directors from charges of insolvent trading if they were engaged in legitimate efforts to restructure the company.

Section 588GA of the Amending Act allows directors to avoid liability under section 588G(2) of the Corps Act, when they:

  • Recognise that a company may be or becoming insolvent and takes a course of action that is reasonably likely to provide a better outcome for the company;
  • Incur a debt that is indirectly or directly in connection to this action; and
  • Continue to meet obligations in paying employees and tax.

Section 588GA(2) of the Amending Act determines what is considered as reasonably likely to lead to a better outcome for the company. It considers whether the person is:

  • Properly aware of the company’s financial position; or
  • Taking appropriate steps to prevent misconduct that would negatively affect the company’s ability to pay its debts; or
  • Taking appropriate steps to ensure the company is keeping financial records relevant to its size and nature; or
  • Is obtaining advice from qualified entities with sufficient information; or
  • Is developing or implementing a plan to improve the company’s financial position.

This protection only extends to any debts incurred in relation to the course of action (ie. with the aim of bringing about a better outcome for the company) and ceases when:

  • The director ceases the course of action; or
  • It is no longer reasonably likely to lead to a better outcome; or
  • The company is placed into external administration.

Prior to invoking s588GA of the Amending Act as defence to a claim of insolvent trading, the Court must be satisfied that:

  • The company (and its directors) continued to pay all employee entitlements;
  • It was meeting its tax reporting obligations; and
  • Can retrospectively consider whether the director made the company’s books and records available to any liquidator or administrator within a reasonable time period or when requested.

The protection of safe harbour does not extend to debts incurred where the directors are aware of the company’s inability to meet the new repayment.

The legislation was introduced to reduce the number of premature entries into insolvency processes and to facilitate a positive improvement in Australian business culture to encourage potential entrepreneurs and investors to enter into the Australian business market.

Prior to taking any steps to minimise the impact of the recent legislative amendments, you should always obtain specific legal advice to your circumstances. If you have any queries in relation to your rights as a creditor or your rights as a company in relation to the above amendments, please do not hesitate to contact the Insolvency & Restructuring team at Rostron Carlyle Rojas Lawyers on 07 3009 8444.

Collecting and Pursuing Statute-Barred Debt

In Queensland, the Limitation of Actions Act 1974 (Qld) (the LAA) governs the time frames bestowed upon creditors in which they can commence actions to recover monies owed pursuant to a contract. A creditor must commence proceedings to recover debts within the limitation period. All Australian jurisdictions have similar legislation to the LAA but confer different time frames and effects once the limitation period has lapsed.

The relevant time frames can be summarised, as follows:

  1. Commencing proceedings on contracts:
    1. Queensland, New South Wales, Victoria, Tasmania, South Australia, Western Australia and the Australian Capital Territory: 6 years
    2. Northern Territory: 3 years
  2. Continuing proceedings after a court judgment is obtained:
    1. Queensland, New South Wales, Tasmania, Western Australia, the Australian Capital Territory and the Northern Territory: 12 years; and
    2. Victoria and South Australia: 15 years.

In all states and territories, apart from New South Wales, once the limitation period has lapsed, creditors can no longer actively pursue outstanding debts, though they can still be listed on a person’s credit file (provided that the listing is made prior to the limitation date). However, in New South Wales, once the limitation period has lapsed, the debt is completely extinguished and cannot be pursued or listed on a credit file.

When does the limitation period start and can it be re-set?

In all states and territories apart from the Northern Territory, the 6 years is calculated once the debt becomes overdue, noting that the limitation period is reset each time the debtor makes a payment towards the account or acknowledges the debt in writing.

In Queensland, South Australia, Western Australia and Tasmania, the limitation period can be re-set with each action taken on the account. For example, if the account has become statute-barred and a debtor in Queensland makes a voluntary payment towards the debt, the limitation period is refreshed. Conversely, in New South Wales, the Australian Capital Territory and the Northern Territory, the limitation period (once reached) does not refresh regardless of any payments made or acknowledgements received.

The collection of statute barred debt

This is a process which is closely monitored and highly regulated by the Australian Securities and Investment Commission (ASIC) and the Australian Competition and Consumer Commission (ACCC). If attempting to collect upon a statute barred debt, a creditor or collection agent must not suggest that they can still take legal or collection steps to recover the monies.

In the Victorian matter of Collection House v Taylor [2004] VSC 29, a debtor was contacted by a collection agency in 2001 and advised that legal action was to be taken to recover the debt owed pursuant to a finance contract entered into in 1992. The Supreme Court of Victoria held that the agency had engaged in unconscionable conduct when it had advised the debtor that legal action was imminent unless an immediate payment was made, despite the debt being statute barred.

The principles and considerations espoused in Collection House v Taylor indicates that any attempts to recover statute barred debt means there is an increased risk of standard collection activities being considered unlawful, merely due to the age of the account.

Collecting statute barred debt

Collection of statute barred debt should be considered a last alternative. Steps should be put in place by creditors to avoid the statute barred period from lapsing and rendering the debt uncollectable.

If a debt has become statute barred, a creditor can still accept monies towards the outstanding balance, so long as it is voluntarily offered. It cannot take steps to force the repayment of the debt nor issue correspondence or elicit phone calls where payment is demanded or the potential for legal action is mentioned.

If collection action is taken on a potentially statute barred debt which is later disputed by the debtor, the onus is upon the creditor or collection agent to show that the transaction was fair, just and reasonable in the circumstances.

If you are considering taking action on accounts which may be close to becoming stat-barred, it is important that you obtain legal advice prior to doing so.

The RCR Recovery Team are able to provide advice in relation to the methods in all Australian jurisdictions which can be utilised to recover monies owing, including older accounts.

If you have any queries in relation to the above, please contact Ellen Naughton on 07 3009 8444.

Is a Landlord’s claim against a Company under administration extinguished by a Deed of Company Arrangement (DOCA)?

Traditionally, a DOCA extinguishes all claims that existed at the time when a company was placed into administration. This is governed by the Corporations Act 2001 (Cth) (the Act).

Section 444D(1) of the Act provides:

A deed of company arrangement binds all creditors of the company, so far as concerns claims arising on or before the day specified in the deed under paragraph 444A(4)(i).

Under Section 444A(i) of the Act, a DOCA must indicate what date on or before which claims must have arisen. In the 1996 case of Brash Holdings Ltd v Katile Pty Ltd[1] the term “creditors” in Part 4.3A was held to be similar to the parts of the Act that relate to winding up. Therefore, the term “creditors” in Section 444D(1) of the Act, should be constructed in accordance with Section 553 of the Act which provides:

Subject to this Division and Division 8, in every winding up, all debts payable, by and all claims against, the company (present, future, certain or contingent, ascertained or sounding only in damages), being debts or claims the circumstances giving rise to which occurred before the relevant date, are admissible to proof against the company.

From the above, it is clear that a DOCA will not only bind creditors with a debt that was due and payable at the time of that the company was placed in administration, but also those with a claim which is “future, certain of contingent, ascertained or sounding only in damages”. However, this is not always the case.

In the matter of Baseline Constructions Pty Ltd (subject to a deed of company arrangement) [2017] NSWSC 1018, the Supreme Court of New South Wales granted a landlord leave to commence proceedings against a company subject to a DOCA.

In March 2018, Baseline Constructions (the Company) entered into a DOCA. At this same time, the Company leased premises from Place Management (the Landlord). Two months later, the Landlord terminated the lease and took possession of the premises on the basis that the Company failed to pay rent owing under the lease.

The Landlord sought leave of the Court to recover unpaid rent and future rent from the Company. As the Company was subject to the DOCA, the Landlord was required to seek leave under Section 444E of the Act.

The primary question before the Court was whether the Landlord’s right to unpaid and future rent, was extinguished by the terms of the DOCA (in this circumstance, the lease was entered into before the Company went into administration but the liability under the lease arose after the date of administration). To answer the question, the Court considered the terms of the DOCA.

Ultimately, the Landlord was granted leave to commence proceedings on the following conditions:

  1. the proceedings could not cause the administrator to engage in work over and above his fee cap. However, the Court noted that it was unlikely the administrator would be involved in the action given that control of the Company had passed back to the Company’s director; and
  1. the Landlord could not execute any judgment against the ‘Deed Fund’ established under the DOCA which comprised moneys to pay employee entitlements and the administrators costs.

Additionally, there are specific provisions in the Act that deal with Landlords rights during insolvent administration, namely:

Section 443B of the Act which provides that the Administrators’ liability under lease agreements does not commence until five (5) business days after the Administrators’ appointment. However, Section 443B applies if under an agreement made before the administration of a company began, the company continues to use or occupy, or to be in possession, of property which someone else is the owner or lessor.

In summary, a Landlord’s claim against a Company subject to a DOCA may not be extinguished, so long as the landlord can satisfy the requirements of Section 443B of the Act. For further information please contact our commercial litigation team on (07) 3009 8444.

The above information is intended only as a selective overview of the provisions of the Act and not be interpreted or relied upon for legal advice.

[1] Brash Holdings Ltd v Katile Pty Ltd [1996] 1 VR 24 at [34].

6 Things to Consider Before Taking Legal Action

6 Things To Consider Before Litigation

Taking a matter to court is a lengthy and complex process. If you are considering taking legal action (litigation), make sure that you first speak to a lawyer. There are many other avenues of dispute resolution out there and, for many disputes, legal action should be viewed as a last resort. Here are 6 things you should consider before taking legal action:

Have You Considered Alternative Dispute Resolution?

Before you decide to take legal action, you should first consider Alternative Dispute Resolution (ADR). In ADR, an independent third party person helps to resolve a dispute through mediation, conciliation and arbitration (as opposed to judicial determinations like court-decisions or a tribunal). ADR (Alternative Dispute Resolution) is a cost effective and timely way to resolve a dispute – it is often employed as an attempt to salvage the relationship between conflicting parties without resorting to drastic measures. Find out more about ADR.

Do You Have the Time?

Taking a dispute to court – especially without the expertise of a litigation lawyer or litigator – can be a very time-consuming and stressful process. Court proceedings take time – in many cases, disputes aren’t resolved for months or even years. So, before you take legal action, make sure that you are prepared to persevere and consider whether you have the time and patience to see the process through.

Do you Know What You Want?

You should never take a dispute to court without a clear idea of what you want to get out of the proceedings. Compensation? Acknowledgement? Apology? Make sure that your reasoning is concrete, and don’t let yourself be guided by feelings of anger, injustice or retribution.

If you’re not sure what you want out of your court proceedings, make sure that you speak to a legal expert who can guide you through the process and discuss potential outcomes.

Do You Have a Cause of Action?

 A ‘cause of action’ is the technical legal term for the set of facts that give rise to a claim enforceable in court – it is the legal theory that forms the basis of a lawsuit. Examples of cause of action include negligence, breach of contract, battery and false imprisonment.

Having a grievance or an annoyance isn’t enough to go to court – you need a valid cause of action and sufficient evidence to support your case. Often, it is difficult to determine whether a dispute should be taken to court without the expertise of a lawyer.

Will it Damage Your Reputation?

If you are taking legal action on behalf of a business, it is important to consider the extent to which this legal action will affect your reputation. A business reputation takes years to build – regardless of whether you win or lose a case, this reputation can be instantly destroyed if you receive bad publicity or ill-advisedly take legal action against one of your key clients or suppliers.

Do You Have a Lawyer?

Don’t take the risk of representing yourself in court. Legal action can be a complex and frustrating process – having an experienced lawyer at your side will give you the best chance of success.

More Articles on Litigation & Dispute Resolution

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The Importance of Updating a Will

After preparing a will it is important that the testator does not have a “set-and-forget” approach to the document, or indeed their wider estate plan.  Circumstances change over time: potential beneficiaries are born or die, marry or divorce, or may fall into acrimony with the testator; assets are purchased, sold or partially transferred by the testator; the testator themselves may marry or divorce, have children, change the jurisdiction of their residence, or come into financial success or fall upon financial hardship.  Where any such major life event happens to a testator it is likely that their estate will be impacted significantly, and the testator should update their will accordingly.  Failure to do so will likely require the involvement of the Court to apply the common law doctrines of lapse or ademption.

Ademption applies if specific property gifted under a will no longer forms part of the testator’s estate at the time of death. Any such gift will fail as it is not possible for that property to be gifted as part of the testator’s estate.

Lapse can apply in various situations including where the will provides for a gift over of property, chattels, money or share of the residuary of a testator’s estate to a contingent beneficiary where the contingency does not happen.  In such circumstances the Court will generally look behind the wording of a will to ascertain the intention of the testator under the presumption that the testator did not wish to die intestate.[1]  In Queensland, s.6 of the Succession Act 1981 (Act) gives the Court broad powers in determining all matters relating to the administration of the estate of a deceased person and making any declarations and orders as are necessary and convenient.

The Supreme Court of Queensland was recently called upon to make such orders in respect of an estate potentially affected by lapse.  The matter of Sadleir v Kahler & Ors [2018] QSC 67 concerned the hand-written document of a testator that purported to be a will, written in 1984, in which the testator’s entire estate was left to his brother provided the brother was not separated or divorced from the brother’s wife, in which case the brother’s children were to inherit the estate in equal shares.  After determining under s.18 of the Act that the document was the testator’s will notwithstanding that it did not comply with the strict formalities of execution under the Act, the Court was then called upon to decide whether the children of the testator’s brother were entitled to the residuary estate given that the brother had died in 2009 and had remained married to his wife at the time of his death.  The testator died in 2016.

In making her determination Atkinson J reviewed case law surrounding the doctrine of lapse.  Her honour noted that the rule in Jones v Westcomb[2] forms the basis of the notion that in certain circumstances a beneficiary can receive a gift over even though the precise contingency does not occur where the Court determines that this was the testator’s intention.  In applying a case involving similar facts in Queensland[3], Atkinson J determined “the real contingency that [the testator] was intending to guard against was the failure of [his brother] to take under will whether that failure was caused by [his brother] dying before [the testator] or being separated or divorced at the time of [the testator’s] death.”[4]  Her honour therefore declared that the brother’s children were entitled to the residuary estate under the will.

Notwithstanding the Court’s broad powers under s.6 of the Act to interpret wills, testators should primarily seek to avoid the involvement of the Court if possible by keeping their wills updated with respect to property, beneficiaries and life circumstances.  A great deal of time and cost to executors, beneficiaries and the estate in general could have been avoided in this case had the testator amended his will in the years following his brother’s death.

If you would like to update your will don’t hesitate to contact one of our solicitors for a free initial consultation.

[1] Buckley LJ in Kirby-Smith v Parnell [1903] 1 Ch at 489

[2] (1711) Prec Ch 316

[3] Re Stacey, deceased [1949] St R Qd 244

[4] [2018] QSC 67 at para 37

Misrepresentations in Business Sale Agreements

The recent case of Shah v Hagemarad [2018] FCA 91, case concerned the sale of Subway franchise for $460,000 where the seller made certain representations to the buyer as to the average weekly and monthly sales. The contract provided that:

1. the buyer entered into the agreement as a result of their own due diligence;
2. any representation not warranted in the agreement was withdrawn;
3. each of the parties was released from all claims in respect of any representation not warranted in the agreement;
4. the buyer would not bring a claim against the seller unless based solely on and limited to the express provisions of the agreement.

Despite the buyer noting in correspondence that the practice of cash sales could allow for fake sales the buyer elected to rely on the combo reports and weekly inventory & sales report provided by the seller. It does not appear that the buyer engaged professionals to conduct due diligence into the business or its finances and merely used the reports provided by the seller and sat across from the store to observe the traffic into the store during lunchtime.

The buyer after purchasing the business subsequently discovered that the business averaged less than $12,000 weekly which was substantially below the average represented sales figures of just over $16,000 weekly. After considering the arguments of the seller the Court found that:

1. the seller sold the business during a period of cash flow problems and poor trading performance and that in order to inflate the sale price of the business he had created fake sales;
2. the buyer would never have agreed to purchase the business if he knew the sales were fake;
3. it was not unreasonable for the buyer to rely on the reports as provided by the seller as these reports were generated by the store for the purpose of reporting to the franchisor and were regarded by both franchisees and prospective purchasers as important and reliable records of a store’s sale performance;
4. the terms of the contract disclaiming liability and representations made before the contract were entered did not apply to exclude the liability of the seller in engaging in misleading and deceptive conduct by providing reports that misrepresented sales for the business in circumstances where they knew those documents were likely to be relied on by the buyer in entering into the contract,

and ordered the seller to pay the buyer $300,000 being the difference between the price paid by the buyer ($460,000) and the true value of the business ($160,000).

This case illustrates the importance of:

1. the seller of a business ensuring that the representations it provides to a buyer are correct as they may be liable for any misleading and deceptive conduct used to induce the buyer to enter the contract irrespective of any limits on liability or warranties included in the contract;
2. the seller ensuring it is able to substantiate any representations made regarding the business to the buyer;
3. the buyer undertaking thorough financial and legal due diligence prior to purchasing a business.

If you need advice or assistance in respect of the sale or purchase of a business including due diligence searches, please contact us.

Use of SMSFs as Investment Structures

Self-Managed Super Funds (SMSFs) are increasing in popularity as retirement savings structures. Investors often choose to set up SMSFs instead of using retail super funds because they prefer to have control, flexibility and transparency over their money. There are also tax incentives to using SMSFs in the form of lower rates of income tax and capital gains tax.

Control and versatility 

One of the key benefits of using an SMSF is investment control and versatility of investment products. Compared to retail or industry super funds, investors can choose to invest in a broad range of assets, including listed and unlisted shares, collectibles, term deposits and residential and commercial property.  Investors with less knowledge in finance and share trading may choose to invest in real property, while experienced property investors and small business owners may look to establish an SMSF to hold real property for the tax benefits it provides.  One often-used structure for business owners is to purchase the commercial property from which the business is operated using their SMSF and then lease the property back to the business. This structure provides not only secure tenancy for the business but also steady income for the SMSF which is entitled to the benefit of a lower income tax rate.

Borrowing Capacity

Since the amendments to the legislation concerning limited recourse borrowing arrangements in 2010, SMSFs have been able to take out loans to purchase residential or commercial property provided, among other things, that the recourse of the lender is to the specific property only and that the borrowing is not being undertaken to improve the property. Generally, an SMSF may borrow up to 75% of the purchase price of a property. This means that, where the SMSF meets the servicing requirements of the financier, if the SMSF holds $300,000 in cash it may purchase an investment/commercial property up to the value of $1 million (including legal costs, transfer duty, and other costs).

Tax Incentives

Nearly all superannuation funds offer the ability to take a tax-free pension as an income stream upon retirement. An SMSF additionally allows more flexibility when it comes to timing of contributions, amounts of contributions, allocation of earnings and implementation of reserves. A tailored investment combination provides trustees with the ability to minimise the amount of overall tax that the SMSF members pay within the fund by utilising concessional tax treatment and franking credits.

For example, if an SMSF has income of $200,000 for a financial year, the tax payable is 15% x $200,000 = $30,000

If $70,000 of the $200,000 represents fully franked dividend income from shares in a public company (providing $30,000 franking credits), then the tax payable is nil because the franking credits offset the income tax payable

The tax benefits in purchasing properties via an SMSF in comparison with purchasing personally can be summarised in the table below:

Purchasing Property in Personal Capacity v SMSF

  Personally SMSF
Deposit / Transfer Duty/ Legal costs Personal Savings Funds in Super
Loan Repayment 30 years Up to 25 years
LVR Up to 90% Up to 75%
Rental Income Tax Rate 19% – 45% 0 – 15%
Marginal Tax Rate 19% – 45% + Medicare levy 2% (potential) 0 – 15%
Capital Gains Tax Assessable income taxed at marginal rate 0 – 10% (if property held for more than 12 months)

Asset protection

Superannuation in general can be a structure that protects members from litigation and bankruptcy. If an individual’s assets are owned by an SMSF, such assets are protected from creditors in the event of business failure. The legislative policy behind this is that superannuation is intended to fund an individual’s retirement, so SMSF assets cannot be accessed either by the member to revive the failing business (prior to preservation age) or to creditors in the event the member becomes bankrupt.

Establishing an SMSF

The decision whether to set up an SMSF should first be discussed with financial advisors such as accountants and financial planners. It is important to understand the responsibilities involved in acting as the trustee before establishing the SMSF, and once it is established ongoing professional advice should be sought as superannuation is a highly regulated and technical area.  If you would like to discuss the use of an SMSF structure for investment purposes, please don’t hesitate to contact us.

Breaking News – Building Construction Law Update – New Security of Payment Commencement Date Announced

The Queensland Government has announced a timeframe for the implementation of the new security of payment regime under the Building Industry Fairness (Security of Payment) Act 2017 (“the BIF Act”).

In a media statement released on 12 June 2018, the Minister for Housing and Public Works, Minister for Digital Technology and Minister for Sport, The Hon Mick de Brenni, announced that the security of payment provisions under the BIF Act are to commence from 17 December 2018.  You can find the complete media statement here.

Previously, it was expected that the provisions would commence on 1 July 2018. Please read our recent building industry update here for more information.

Until 17 December 2018, the Building and Construction Industry Payments Act 2004 and Subcontractors’ Charges Act 1974 will remain in force.

It is important to note the commencement date still requires proclamation by the Queensland Government and may be subject to further change.  Stay tuned as we will release another industry update once this has occurred.

The amendments are part of a broader approach by the Queensland Government to regulate and reform Queensland’s $45 billion building and construction industry.  These reforms also include the implementation of project bank accounts and the establishment of a regime to monitor non-conforming building products.  Our update on non-conforming building product regulations can be accessed here.

Presently, project bank accounts only apply to government construction projects between $1 and $10 million with only 4 projects announced so far to fall within this regime.  The broader implementation of project bank accounts to private construction projects will be considered after a government review scheduled for early 2019.

At this important turn point for Queensland building industry, it is crucial that contractors and developers are aware of the changes.  If you require advice on the implications of these changes, please contact RCR Construction team on (07) 3009 8444 or by email at [email protected]

Click here to read our latest building industry updates.