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  • Business Names National Register, Trade Marks, ASIC, Company, Lawyers Brisbane
    departments to ensure it is not offending the rights of a trade mark owner Due to the lack of cross referencing between registers it has been possible to register a business name or incorporate a company with a name that is deceptively similar to a registered trade mark To combat this problem IP Australia has issued warnings such as Caution When you register your business name be careful that it does not infringe on someone else s trade mark It is wise to search the trade mark databases first and has encouraged more public education about the trade mark register However a search of the IP Australia trade mark database can be complex and difficult for a member of the public to carry out The New Developments TM Check is proposed to be launched along with the national register TM Check is a search tool developed through the Department of Innovation Industry Science and Research and IP Australia that looks at the business name sought and the goods or services describing the nature of the business When filling out an application for registration of a business name the applicant will be required to tick a box in acknowledgement of two questions That the applicant is aware that a business name does not entitle the application to ownership of the name and That the name of the business may offend the rights of a trade mark owner This questions includes an invitation to complete a simple check of the trade mark register using a link to TM Check There have even been recommendations to make the TM Check a compulsory step in the business name registration process This would work to attribute notice of a registered trade mark to the business name of the applicant and also to make an innocent

    Original URL path: http://www.awbrisbanelawyers.com.au/business-names-national-register-asic-company-commercial-law-brisbane-lawyers.html (2015-11-26)
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  • Personal Property Securities Register, Registration Requirements, Protection Of Interests, PPSA, PPSR
    that failing to register may have In this case Queensland Excavation Services Pty Ltd QES had an oral agreement to lease three Caterpillar machines to Maiden Civil P E Pty Ltd Maiden QES did not register its security interest in the property After taking possession of the machinery Maiden entered into a security agreement with one of its creditors Fast Finance The security granted for the loan was over the whole of the company s assets this included the Caterpillar machinery Fast Finance registered the security on the PPSR When Maiden went into liquidation Fast Finance sought to take possession of the security assets including the Caterpillar machinery The Court held that although the lease was entirely oral it still gave rise to a PPS Lease whereby a security interest existed and could have been registered Ultimately it was irrelevant that QES had legal ownership over the property and instead the entitlement and control over the property was determined by the priorities of the security interests Pursuant to the rules of priority under the PPSA the perfected security interest held by Fast Finance prevailed over QES s unperfected security interest As a result Fast Finance was able to take possession of the machinery to satisfy Maiden s outstanding debts Although the lease had commenced prior to the introduction of the PPSR if QES had registered their interest on the then current register the registration would have still applied under the PPSA on the new register QES would subsequently have been classed as a secured party with a perfected security interest and have the right to take back possession of the machinery on lease Unfortunately this was not the case and QES had failed to register their security interest losing the right to have control over the machinery It is evident from the outcome in Maiden Civil the importance of registering security interests on the PPSR to prevent situations where perfected security interests overcome legal ownership In order to be protected in situations whereby a security interest over personal property exists it is imperative that all security interests are registered on the PPSR and are enforceable To be considered an enforceable right the security interest must have attached to the collateral Attachment occurs pursuant to s 19 2 of the PPSA when grantor has rights in the collateral and value is given for the security interest or an act occurs giving rise to a security interest It is often beneficial for the security agreement to be in writing You can further strengthen your right to enforce the interest by perfecting the security interest this means that attachment has occurred the interest is enforceable against a third party and is registered on the PPSR As was seen in the case of Maiden Civil if a company or business fails to register their security interest they risk losing legal ownership of their goods to a secured party that has registered their security interest on the PPSR Similarly as a consumer it is important

    Original URL path: http://www.awbrisbanelawyers.com.au/personal-property-securities-register-ppsa-ppsr-security-interests-brisbane-lawyers.html (2015-11-26)
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  • Rention Of Title Clauses, Business, Law Articles, Brisbane Lawyers, Law Firms
    depending on the circumstances the goods may be sold by the buyer s trustee liquidator administrator or receiver In order to protect the seller in circumstances where a corporate buyer becomes insolvent after delivery of the goods but before the goods have been paid for in full it has become increasingly common for the seller to insert a condition into a contract of sale whereby the property in the goods sold is retained by the seller until the full price has been paid Such clauses are known as the retention of title or Romalpa clauses Upon the buyer becoming insolvent the seller can rely on those contractual provisions and rescue their goods or payment for the goods from falling into the hands of the buyer s secured creditors In addition to simply providing that the property in the goods is to be retained by the seller until the goods have been paid for in full the seller may wish to extend the operation of a retention of title clause by stipulating that The property in the goods is not to pass to the buyer until the buyer pays all moneys owing to the seller and not just the purchase price The seller is to retain the property in the goods where the buyer re sells the goods to any sub buyer The seller is to obtain title to the proceeds of any on sale by the buyer this clause will need to be drafted as a trust which in turn will only be effective if the goods can be sufficiently identified i e they did not become part of a new product fiduciary relationship between the parties must also be established The seller is to obtain title to any new product which the goods supplied become part of until the

    Original URL path: http://www.awbrisbanelawyers.com.au/a1003-retention-of-title-clauses-business-commercial-articles-law.html (2015-11-26)
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  • Basic Legal Contractual Concepts - everyday occurrences, Law Articles, Brisbane Lawyers, Law Firms
    right to terminate the contract and make a claim for damages Warranties A warranty is a non essential term and a secondary obligation in a contract A term will be classified as a warranty if it is collateral to the main purpose of the contract If a warranty is breached it only gives the innocent party a right to claim for damages and not to terminate the contract Guarantees A guarantee is a secondary liability which can only be given by a third party outside the main contract A term will be classified as a guarantee if it is considered to be a binding promise of one person to be answerable for the debt or obligation of another party if that party breaches the contract Indemnities An indemnity is a primary liability involving an undertaking by one party to keep the other party harmless against loss and as such does not involve default by a third party Classification of terms The classification of a contractual term as constituting a guarantee warranty or indemnity requires an examination of the natural meaning and substantial character of the contract as well as the nature of the transaction between the parties Once difference is in contracts of sale The terms warranty and guarantee are often used interchangeably to classify performance obligations Within a contract of sale the terms warranty and guarantee have a completely different meanings and are taken to refer to an undertaking as to the title quality or quantity of a thing sold under a contract For example a warranty can be given when a motor vehicle is purchased Approach of the Courts to Warranties and Conditions In Australia the High Court has adopted a test of essentiality to determine whether a term of a contract is essential and thus a condition

    Original URL path: http://www.awbrisbanelawyers.com.au/a0509-legal-contracts-articles-law.html (2015-11-26)
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  • National Unfair Contract Terms, Law Articles, Brisbane Lawyers, Law Firms
    apply to the contracts of salvage or towage ship charter parties or carriage of goods by ship and company and managed investment scheme constitutions How will the new provisions apply A term of a consumer contract will be void but may be severed if the contract is a standard form contract and the term is unfair What is a standard form contract Whether the contract would be considered a standard form contract depends on the following factors whether one of the parties has all or most of the bargaining power in the transaction whether the contract was prepared by one party before the negotiations commenced whether the other party was required to either accept or reject the terms of the contract as opposed to negotiating the terms of the contract excluding the upfront price and whether the terms of the contract take into account the specific characteristics of the transaction What will be considered unfair A term will be considered unfair if the term causes a significant imbalance in the parties rights and obligations under the contract a question of fact and the term is not reasonably necessary to protect the legitimate interests of a party to the contract to negate this presumption it would have to be established that the legitimate interest of the party was greater than the detriment caused to the consumer In determining whether a term is unfair the court must also take into account the extent to which the term would cause detriment to one of the parties and the extent to which the term is transparent meaning expressed legibly in plain English having regard to the contract as a whole The Bill provides examples of types of terms that may be considered unfair These include terms that allow one party to a contract but not the other party to avoid performance of the contract terminate the contract renew or not renew the contract vary the upfront price payable vary the goods services or financial services to be supplied or limiting vicarious liability or another party s right to sue However terms that define the subject matter of the contract or establish the upfront price are excluded from the operation of this section What is the upfront price The upfront price is defined as the consideration provided for the supply or sale under the contract which is disclosed when the contract is entered into In the context of the ASIC Act the upfront price means the total amount owing under the credit contract including both principal and interest as long as it is disclosed at or before the time the contract was made It may also extend to the cash price payable for goods or services as well as a series of future payments In determining whether or not a payment forms the upfront price a key consideration will be the transparency of the disclosure of the payment such that the consumer understands the price to be paid Commencement It is intended that the Australian

    Original URL path: http://www.awbrisbanelawyers.com.au/a0209-national-unfair-contract-terms-articles-law.html (2015-11-26)
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  • Unfair Dismissal Over Facebook Content, Employment Law, Social Media Law
    Facebook but was led to his page after seeing his comment on the page of someone with whom she was a mutual friend Although she was not his friend she was able to view these comments on his page because it was open to the public After an investigation by the company into the Facebook comments Mr Stutsel s employment was terminated Prior to that incident Mr Stutsel s record throughout his 22 years of employment had remained unblemished Mr Stutsel claimed that his account had been set up by his wife and daughter and that he had believed it to have maximum security settings and that only those who he had accepted as Facebook friends would be able to view the content on his page He also highlighted that many of the comments had not been made by him but by others on his page and when asked why he did not take action to remove the comments he claimed he had no knowledge that it was possible to do so Fair Work Australia Fair Work Australia held that while the conduct by Mr Stutsel was undoubtedly inappropriate and the dismissal was procedurally fair there was no valid reason for his dismissal It was accepted that Mr Stutsel believed his page to be private and it was stated that his Facebook page did not qualify as a public forum The reference to bacon hater was accepted as clearly referring to his muslim manager and while clearly in bad taste it did not amount to being a racially derogatory remark intended or acting to vilify the manager on racial grounds as it could just have easily referred to other religious groups Furthermore it was noted that the context of the comments made on the page were comparable to a conversation between co workers in a pub blowing off steam they merely occurred on Facebook instead The comments referring to the female manager were of a different nature however the main offending comments were not made by Mr Stutsel himself and it was accepted that he was not aware that he could delete the comments from his page It was further noted that it was strange that Linfox chose to take action against Mr Stutsel in regards to these comments rather than the actual author The comments alleged to be threatening were instead deemed metaphorical The employer was ordered to reinstate Mr Stutsel and compensate him for lost wages from the time of termination until reinstatement deducting any amounts he had made in other employment since the termination What should Employers do At the time of Mr Stutsel s dismissal and the time of the hearing Linfox did not have a policy relating to the use of social media by its employees This was highlighted by the commissioner who pointed out that while the company relied on its induction training and handbook to regulate such behaviours in the current electronic age this is not sufficient This case demonstrates the risks associated

    Original URL path: http://www.awbrisbanelawyers.com.au/employee-unfair-dismissal-facebook-content-employment-social-media-law-brisbane.html (2015-11-26)
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  • Letter of Demand, Debt Recovery, Brisbane Lawyers, Solicitors
    and Insolvency Lawyers And Solicitors for Brisbane Queensland Letter of Demand Example date your address address of debtor Dear name DEBT OWED TO NAME You are indebted to us in the amount of Y for unpaid tax invoices dated x and y in relation to services goods rendered to you by us We demand that you repay the full amount of Y into our bank account details of which are set out below or by sending a cheque to us by 4pm on date failing which we intend to instruct our solicitors to commence proceedings against you for the recovery of the sum without further notice If that proves necessary we will further recover court costs professional fees and interest from you We trust that will not be necessary your bank account details here including name of account bank BSB and account number Yours faithfully signed Call Aitken Whyte Lawyers for solutions and results for expert and experienced advice to represent you at this important time or if you want to learn more about Debt Recovery Bankruptcy Insolvency in Queensland For Brisbane and surrounding areas including Ipswich Redlands Logan Redcliffe and Caboulture call 07 3229 4459 or email us Office Location and Contact Details Brisbane Aitken Whyte Lawyers Level 2 303 Adelaide Street Brisbane Ph 617 3229 4459 Fax 617 3211 9311 E enquiries awbrisbanelawyers com au Contact 07 3229 4459 Email Related Articles Debt Recovery Bankruptcy Insolvency Applying To Make An Individual Bankrupt Bankruptcy And The Family Home Bankruptcy Legislation Amendment Bill 2009 Exposure Draft Company Wound Up In Insolvency Under Corporations Act Creditor s Statutory Demand for payment of debt Winding Up Strict compliance with form required Determining Solvency Of A Company Cash Flow Assessment Confirmed As The Most Appropriate Method Insolvent Trading Letter Of Demand Example Liquidation

    Original URL path: http://www.awbrisbanelawyers.com.au/letter-of-demand-debt-recovery-brisbane-lawyers-solicitors.html (2015-11-26)
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  • Creditors' Statutory Demand - Setting aside, Brisbane Lawyers, Solicitors
    do not have sufficient information to do Genuine dispute about the debt claimed If there is a genuine dispute over the existence or amount of debt demanded pursuant to s459H 1 a you can apply to set aside the statutory demand When deciding if you could satisfy the court that a genuine dispute exists it is important to consider What evidence supports the existence and amount of debt Was a demand for payment made before the statutory demand was served Did the terms on earlier demands differ from the statutory demand What was your response to the initial demand Did you acknowledge the debt ask for more time to pay or dispute the debt What was promised in exchange for an alleged promise to pay Did you receive your side of the bargain Were you the correct debtor or should another entity have been served with the demand Was the amount incorrect because it was not what you agreed to pay or it was calculated incorrectly Have you paid all or part of the debt If you can establish a genuine dispute consider whether it relates to the whole debt or all the debts if more than one If after deducting the amount in dispute a balance remains which does not equal or exceed the statutory minimum you can apply to set aside the demand The evidence needed for the demand to be set aside needs to be detailed enough to substantiate the submission of genuine dispute Offsetting Claim Pursuant to 459H 1 b you can apply to set aside the statutory demand if it has an offsetting claim which when deducted from the amount demanded by the creditor which is not in genuine dispute results in an amount less than the statutory minimum An offsetting claim is defined in 459H 5 and is a genuine claim against the creditor by way of counter claim set off or cross demand even if not arising out of the same transaction or circumstances When deciding if you have a genuine offsetting claim it is important to consider The facts and circumstances behind your claim Is there any evidence supporting these How long have you asserted a claim against the creditor If it was only when the creditor sought payment this gives rise to an inference that the claim will not be genuine and you will need to closely examine the evidence Was there a delay between when the claim was made and when you raised it with the creditor or sought legal advice What is the amount of the offsetting claim and what evidence is there to support it Did the creditor breach the agreement under which payment is sought Is the claim a genuine claim stemming from unrelated facts If you decide that there is a genuine offsetting claim deduct the offsetting claim from the undisputed debt If this balance does not equal or exceed the statutory minimum you can apply to set aside the demand The evidence filed in support

    Original URL path: http://www.awbrisbanelawyers.com.au/setting-aside-creditors-statutory-demand-brisbane-lawyers-solicitors.html (2015-11-26)
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