Much damage can be done to a business where an executive or senior manager resigns taking valuable customer information and confidential information. Restraint of trade clauses, or post-employment restraints, play a crucial role in protecting the legitimate interests of the employer.
In order to protect business interest’s employment contracts should contain protections which operate after the employment ends.
It is important that anyone who is asked to provide a guarantee or indemnity understands precisely what their liabilities are under the arrangements.
In this article, we identify the distinguishing features of both guarantees and indemnities and consider the significant differences between the 2 kinds of arrangements.
If your business or one you know (or an individual) is facing litigation, either because another party is threatening it, or because you feel you have a right to take action, what do you do first and where do you seek help?
It has been said that litigation is a game in which the court is the umpire. It is an area of law where the client needs to have great faith in the legal team because it comes at a cost. Many cases have been commenced by inexperienced and excitable legal practitioners who want to help. The client has come looking for legal help and too often legal help is sought unwittingly from the wrong firm or the wrong practitioner.
What is an Agreement to Lease?
When renting business related property it is important for both landlords and tenants to understand the relationship they are entering into and the rights and obligations that they each have, the document that governs this relationship is usually a Commercial Lease.
A Commercial Lease gives the tenant an immediate right to take possession of premises and occupy those premises to the exclusion of all others, including the landlord or owner.
An Agreement to Lease is used prior to a Commercial Lease being signed in circumstances where there are things to be done before the landlord can give the tenant exclusive possession of the premises.
An Agreement to Lease documents each party’s rights and obligations and sets down all of the requirements that have to be satisfied prior to the terms of the actual Lease taking effect.
An Agreement to Lease can be very useful for both landlords and tenants and it is important to understand the relationship being entered into and the rights and obligations of each party.
Lawyers are often stereotyped as being interested in prolonging an expensive Court action. More often the opposite is true.
Lawyers know that Court cases are expensive and that clients are fearful that legal costs could escalate to an intolerable level. Lawyers interested in preserving long standing relationships with their clients will often recommend alternative dispute resolution options - mediation being one.
Mediation allows parties to remain in control of their own disputes and outcome while facilitating parties to tell their side of the story to the other party and the mediator.
Warranty & Indemnity (W&I) insurance is an insurance product that has been developed specifically for the mergers and acquisitions (M&A) market. This type of product is sometimes referred to as Representations and Warranty (R&W) product cover, particularly in the US. W&I insurance provides cover for unidentified breaches of warranties or representations in a share or asset sale agreement.
The purpose of W&I insurance is to transfer the risk of any financial loss that may arise from a breach that arises from a share or asset sale agreement from the seller (or some other person or entity providing the warranty or representation) to the insurer or issuer of the W&I policy.
Choosing a Business Structure
There are 4 main types of business structures for doing business in Australia, each with their own advantages and disadvantages. A person can carry on business as a sole trader, partnership, trust and company.
The choice of business structure is an important decision to make at the start of a business venture, as the structure can impact on tax implications and reporting requirements during the lifetime of the business. When setting up a business structure, consideration should be given to factors such as how many people will be involved in the business, what the business will do, how much income is likely to be earned from the business and the intended growth of the business.
In recent times the term ‘corporate governance’, and the increasingly popular ‘good corporate governance’, appear to be regular topics of discussion both in the media and the general population.
These terms are routinely used when considering the actions of a wide range of companies from very small local companies through to global giants such as McDonalds and Nike.
However, it is not always clear what these terms actually mean or what steps a company or its board of directors need to take to ensure they are able to demonstrate that they are exercising good corporate governance.
Does bullying exist in your boardroom?
Boardrooms are often the place of heated debate over a range of matters affecting the operations of an organisation. Vigorous discussion that airs all possibilities can sometimes be beneficial (and necessary) when making critical decisions which will ultimately determine the future direction of a corporation.
It is not unusual for egos to be tested and tempers tried when board members, equally passionate about the best interests of an undertaking, engage in tactics, strategies and politics to put across their point of view.
But, if strategic ‘play’ is perceived as bullying, does a member of an executive committee have recourse to make an application under the Fair Work Act 2009 (Cth) (the Act)?
The question arose in Trevor Yawirki Adamson  FWC 1976 and the answer is ‘yes’. The Fair Work Commission took a broad view of the term ‘worker’ to allow a board member to bring an application for a stop bullying order.
The case sends a clear message to corporations that certain antics in the boardroom could potentially be perceived as bullying, leading to actionable claims.
Did you know that company directors may potentially become personally liable for unremitted Pay As You Go (PAYG) deductions and Superannuation Guarantee Charges (SGCs)?
The Australian Taxation Office (ATO) has significant powers to recover a company’s unpaid liabilities personally through its directors and may issue a Director Penalty Notice (DPN).
This article focuses on the DPN regime and the options directors have in the event that they receive a DPN.