Mar312023 by Connor JamesNo Comments

Brief Breakdown: Australian Competition and Consumer Commission v Booktopia Pty Ltd [2023] FCA 194

Welcome to “Brief Breakdown,” where we dive into noteworthy legal cases and explore their implications. In today’s edition, we examine a case that put the spotlight on consumer rights in Australia.

Today, we examine Consumer Commission v Booktopia Pty Ltd [2023] FCA 194. The parties involved were Booktopia, a leading online bookseller, and the Australian Competition and Consumer Commission (ACCC). At the core of this decision were Sections 18 and 29 of the Australian Consumer Law (ACL), which prohibit misleading or deceptive conduct and false or misleading representations. In this breakdown, we’ll outline the key findings, and we discuss the court’s decision.

The commencement

The ACCC commenced the proceedings on 10 December 2021, alleging that Booktopia Pty Ltd had engaged in conduct in contravention of sections 18(1) and 29(1)(m) of the Australian Consumer Law (ACL) (Schedule 2 of the Competition and Consumer Act 2010 (Cth)) by making various representations to customers about their rights to refunds and remedies in respect of goods purchased from Booktopia’s online bookstore that did not comply with the consumer guarantee regime.

The legislative provisions

Section 18(1) of the ACL states:

(1) A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.

5 Section 29(1)(m) of the ACL states:

(1) A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services:

(m) make a false or misleading representation concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy (including a guarantee under Division 1 of Part 3-2).

Decision

Booktopia accepted that certain representations made were false, misleading or deceptive. The Court went on to examine the conduct, in the context of the making of orders by consent.

The court noted that: The principles applicable to determining whether conduct contravenes s 18 of the ACL are well-established. Conduct is misleading or deceptive, or likely to mislead or deceive, if it has a tendency to lead into error: Australian Competition and Consumer Commission v TPG Internet Pty Ltd [2013] HCA 54; 250 CLR 640 at [39] (French CJ, Crennan, Bell and Keane JJ). Whether conduct in relation to a particular class of consumers is misleading or deceptive is a question of fact to be resolved by a consideration of the whole of the impugned conduct in the circumstances in which it occurred. The principles that apply to what is considered to be misleading in s 18 of the ACL are the same in respect of s 29 of the ACL: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 634; 317 ALR 73 at [35]-[47] (Allsop CJ).

The court found that Booktopia had contravened the ACL by making misleading representations about notification requirements, returns and refunds, and its obligation to remedy. Key findings included that Booktopia had misled consumers about the requirement to notify the company within two business days of delivery of a damaged, faulty, or incorrect product to have a right to a refund or other remedy, misled consumers about their entitlement to obtain a refund for certain products, and misled certain customers about Booktopia’s obligation to provide a remedy because the customer had failed to contact Booktopia within two business days of delivery.

The overall outcome was that Booktopia was ordered to pay a pecuniary penalty of $6,000,000 to the Commonwealth of Australia, publish a notice on its website for 60 days, establish and maintain a Consumer Law Compliance Program for three years, review its financial position annually and notify the ACCC if repayment of the penalty can be accelerated, and pay the ACCC’s costs of the proceeding, fixed at $75,000.

This decision serves as an important reminder for businesses to have robust processes in place to ensure compliance with the ACL.

Jan152023 by Connor JamesNo Comments

Expert Legal Representation on the Central Coast: Contact Law Quarter for Tailored Advice and Professional Service

Commercial Law

Are you looking for a dependable, experienced lawyer to handle your legal matters? Look no further than Law Quarter on the Central Coast. Finding a lawyer can be difficult. This is an important decision as quality representation from a suitably experienced lawyer is super important.

How to find a lawyer

Navigating the legal system can be intimidating and confusing. When it comes to finding a lawyer, it is important to do your research and make sure that the lawyer you choose is experienced in the field of law that you are seeking, has a clear pricing methodology, and is committed to providing excellent service.

What should I consider when choosing a lawyer?

Asking the right questions is important when you’re looking for a lawyer. You need to be confident that they are the right choice for your legal matter. Here are some questions to ask your prospective legal team:

How long have you been in business?
Do you specialise in my area of law?
What is the range of fees that you charge?
How much will you charge me, and when will I be charged?
How can I contact you?

How do I know if a lawyer is qualified for my legal issue?
All lawyers must be registered with the Law Society and be admitted to work as a lawyer. This means that they have undertaken the necessary training, graduated from university and been admitted to the profession. As part of the registration process, all lawyers must complete continuing professional development (CPD) annually. That doesn’t mean that all lawyers are created equal. So make sure you ask if your lawyer has experience in the area of law you are interested in.

How much will it cost to hire a lawyer?

When you engage a lawyer to help with your legal issue, it is important to know what their fees will be. Lawyers will bill you for their time and costs. If you don’t understand the billing arrangements, you need to ask them before you sign a retainer agreement.

The most common method of paying for a lawyer’s services is an hourly rate. The hourly rate will vary depending on the area of law. You need to consider that it is generally cheaper to get advice at the beginning of a matter, than at the end.

Are there any free or low-cost legal services available in NSW, Australia?

There are a number of free and low-cost legal services in New South Wales, including:

– NSW Legal Aid
Legal Aid NSW offers free legal help to people with limited means. The full range of their services is available at https://www.legalaid.nsw.gov.au/. Their hotline can be reached on 1300 888 529.

–Community Legal Centres
Community Legal Centres (CLCs) are independent, non-profit organisations that provide free legal services across Australia. They offer free or low cost legal services for people who cannot afford private lawyers.

Law Quarter is based on the NSW Central Coast.

All our work is conducted with a strong emphasis on client service and communication, so you’ll always know where you stand and be fully informed about your matter. Whatever your needs, we have the expertise to deliver tailored advice and professional representation. Contact us today for more information or to request an appointment. We also have in-depth experience with all types of property law. We’re experts in conveyancing and will guide you through the legal processes, ensuring everything goes smoothly from start to finish.

Are you looking for a dependable, experienced lawyer to handle your legal matters? Look no further than Law Quarter in the Central Coast. We specialize in commercial law and litigation, so we can provide the tailored advice and representation you need. Our team of experienced lawyers have years of experience in all aspects of the law, from contract drafting and dispute resolution to negotiations and representing clients in court.

We understand that legal issues can be overwhelming and stressful, which is why we are here to help. We take the time to explain the legal process and ensure you have the best possible outcome. So if you’re in the Central Coast area and need a reliable lawyer, give Law Quarter a call today!

Get in touch

When it comes to quality legal representation, look no further than Law Quarter on the Central Coast. To find out more about how we can help you with your legal needs, get in touch today!
Contact Us. We’re always happy to hear from our customers.

Jan132023 by Jacqui JubbNo Comments

How do I protect my assets and wealth?

Business Sale, Private Law

The start of a new year is a time for reflection and planning for all of us. You might be setting some big, dreamy, personal goals that will outlast the hangover of New Year’s Day.

But if you’re a business owner, you’re likely also in goal setting mode too and putting your ‘blue ocean strategy’ thinking hat on to create long term success. This is why asset protection should be a top priority for you in 2023. It’s a perfect time to think about what will happen to you and your business if things don’t quite go as planned.

What is asset protection?

If you’re a business owner, your assets may be at risk to creditors, which include lenders, suppliers, the trustee in bankruptcy, the ATO, and any other people or organizations you owe money to. You also need to consider any statutory obligations that come with your role as a director and/or employer.

Asset protection is the process of legally safeguarding your assets from creditors, lawsuits, and other types of claims. For example, what will happen to your assets if an unexpected event occurs, such as a litigation or a personal accident? What happens if your business falls into tough times and the creditors come calling?

Strategies for asset protection

There are several ways to protect your wealth and assets. Some common strategies include:

Creating a trust: A trust can be used to protect assets such as property, investments, and cash from creditors and litigants.
Setting up a company: By transferring assets to a company, you can limit your personal liability and make it more difficult for creditors to access those assets.
Superannuation funds: Superannuation funds can provide protection against creditors as long as they are set up correctly.
Offshore structures: Some individuals may consider using offshore structures, such as foreign companies or trusts, to provide an additional layer of asset protection.
Insurance: Obtaining insurance for assets can provide protection against risks such as theft, fire, and other types of damage.
Estate planning: This is the process of organising and preparing for the distribution of your assets after you pass away. It involves creating a plan that takes into account your financial situation, your goals, and the needs of your loved ones (including creating a will, potentially setting up trusts, naming beneficiaries, having a lawyer draft up powers of attorney (giving a person, or trustee organisation the legal authority to act for you to manage your assets and make financial and legal decisions on your behalf) and appointing an enduring guardian to make decisions about your health and lifestyle in the event you cannot make these decisions for yourself.

Protecting the Family Home

One of the primary concerns of most people is protecting the family home. The family home is often one of the most significant assets a person can own but as it is generally held in an individual’s name, it can  be at risk.

There are several ways a business owner can ‘ring-fence’ the family home from his or her business activities. However, there are some risks and misconceptions about protecting the family home.

Establishing a business in a company or trust structure gives the owner the protection of the corporate veil and generally creditors only have access to the company’s or trust’s assets. But if a company or trust can’t pay its debts, there is a risk that creditors will be able access the personal assets of the director or trustee to pay some or all of the debts.

One strategy is to give majority ownership of the home to a person who is not at risk from any bankruptcy or litigation procedures, for example, your spouse. This might lead to some stamp duty exemptions and doesn’t usually result in any capital gains tax (CGT) liabilities.

However, under the presumption of resulting trust, a party can be treated as a beneficial owner of property under the law of equity, despite the fact they are not the legal owner of the property. The presumption generally arises where a person contributes purchase money to a property but is not registered on title as an owner, or where a person transfers a property or part of a property to another for no payment.

If a resulting trust can be established, the creditors of the at-risk party may be able to lay claim to an interest in the family home – even if the home is solely in the name of the other partner – unless evidence shows the transfer was intended as a gift (referred to as the ‘presumption of advancement’). There are a number of other factors to consider under the Bankruptcy Law as to whether or not a presumption of advancement would arise, and it ultimately comes down to the intention of the parties.

Currently, the “presumption” of advancement applies only in cases of gifts or contributions made by a husband to a wife, or by a parent to a child, however the High Court in Bosanac v Commissioner of Taxation [2022] HCA 34 indicated that it is open to expanding the categories to align with current values.

An alternative strategy to signing over the home to the unexposed spouse is to borrow against the property and to allow a related charge to be made over the primary residence, meaning there is very little equity left for creditors to pursue. These are not the only options for business owners, however, so it’s best to obtain advice on the most appropriate strategy for you.

Next Steps

Prior to making any changes to your business structure and other asset protection decisions, it is important to review the potential costs or tax implications that may arise from such alterations in order to effectively protect your assets.

You should consider seeking advice from a legal and financial professional before implementing any of these strategies to make sure that you are complying with all applicable laws and regulations.

For advice on business structure and asset protection, contact us at info@lawquarter.com.au or call us on

Jan122023 by Jacqui JubbNo Comments

What is the difference between an Australian Financial Services Licence and an Australian Credit Licence?

Business Sale, Regulatory Updates

What is an AFSL?

An Australian Financial Services Licence (AFSL) is a licence issued by the Australian Securities and Investments Commission (ASIC) that allows a company or organisation to provide financial services to clients.

This can include a wide range of services such as:

Providing financial advice to clients, including advice on investment products, superannuation, and insurance.
Dealing in a financial product, such as buying and selling shares or derivatives on behalf of clients.
Making a market for a financial product, such as trading shares or derivatives on behalf of clients.
Operating registered schemes, such as managed funds or superannuation funds.
Providing traditional trustee company services, such as acting as a trustee for trusts, estates and other securities.

To obtain an AFSL, a company must meet certain requirements and comply with certain regulations, such as having sufficient capital and insurance, and maintaining proper records and reporting. As an AFSL holder, you have a general obligation to provide efficient, honest and fair financial services. You must comply with the conditions of your AFS licence and the Corporations Act 2001.

What is an ACL?

An Australian Credit Licence (ACL) is a licence issued by ASIC that allows a company or organization to engage in credit activities, such as:

Providing credit assistance, such as helping clients apply for a loan or mortgage.
Brokering credit, such as arranging loans or mortgages on behalf of clients.
Providing credit advice, such as giving advice on the best type of loan or mortgage for a client’s needs.

Credit activities include providing credit assistance, brokering credit, and providing credit advice. For example, a mortgage broker would need an ACL, but the bank providing the mortgage would need an AFSL.

To obtain an ACL, a company must also meet certain requirements such as training and compliance and be able to demonstrate its ability to conduct the credit activity and how it will engage in good credit practice.

You have general conduct obligations that include:

acting efficiently honestly and fairly
being competent to engage in credit activities, and ensuring your representatives are competent and
being able to ensure your clients are not disadvantaged by an conflicts of interest that you or your representatives may have in relation to your credit activities
ensuring you and your representatives comply with the credit legislation
having appropriate dispute resolution systems (including both internal systems and being a member of an external dispute resolution scheme)
having appropriate compensation arrangements in place (which for some will include holding professional indemnity insurance)
having adequate resources (including financial, technological and human resources) and risk management systems
having appropriate arrangements and systems to ensure compliance.

The applicable legislation is the National Consumer Credit Protection Act 2009 and the National Credit Code. The credit legislation also contains more specific obligations and requirements, including:

the responsible lending requirements (ascertaining and verify a consumer’s financial situation and assessing whether the credit contract is not unsuitable)
requirements in the National Credit Code dealing with precontractual disclosure and conduct in relation to the terms of credit contracts and consumer leases
maintaining trust accounts (if you hold money on behalf of another person while providing a credit service).

The above list, however, is not an exhaustive list of your obligations.

In summary, AFSL allows the holder to provide financial services, including credit services, while ACL allows the holder to engage in credit activities only.

An Authorised Representative (AR) of an AFSL is a person or entity that is authorised by an AFSL holder to provide financial services on their behalf. The AR must be appointed by the AFSL holder in writing and must meet certain requirements, such as having the necessary qualifications and experience to provide the financial services offered. The AR must also comply with the conditions of the AFSL and with all applicable laws and regulations. They essentially act as an agent of the licensee, providing financial services under the licensee’s AFSL and conducting responsibilities on behalf of that licensee.

If you’re receiving either credit or financial advice, you need to ensure that the company or person is authorised and properly licensed to provide the advice.

We’ve represented clients who have encountered problems when they’ve been dealing with an unauthorised or unqualified professional and have lost a significant amount of money as a result.

Check the Registers

You can check if a company or organisation holds an Australian Financial Services Licence (AFSL) by searching the Financial Advisers Register on the Australian Securities and Investments Commission (ASIC) website.

To check if a company or organization holds an AFSL, follow these steps:

Go to the ASIC website: https://www.asic.gov.au/
Click on “View All Registers” on the top right menu
Under “Financial Advisers”, click on “Financial Advisers Register”
Search for the company or organisation using the name or Australian Company Number (ACN)
The search results will provide information about the company or organisation, including whether it holds an AFSL and the scope of the licence.

It’s important to note that the Financial Advisers Register only includes information about companies and organisations that hold an AFSL for providing financial advice and related services, not for credit services.

If you want to check if someone holds an Australian Credit Licence (ACL), you can look it up on the National Credit Licence Register, which is also available on the ASIC website. You can search by the name of the company or individual, or the credit licence number. The register will show you the type of credit activities the licensee is authorised to conduct, the expiry date of the licence, and other related information.

Contact Us Now

If you’ve received poor professional advice from an adviser, or you’re looking to obtain an AFSL or ACL in order to provide advice to clients and consumers, please contact us at info@lawquarter.com.au or call us on (02) 8318 5962

Jan122023 by Connor JamesNo Comments

Finding the Right Fit: A Guide to Choosing a Lawyer in Australia

Business Sale, Commercial Law

Choosing the right lawyer for your legal needs is an important decision, and one that should not be taken lightly. There are many factors to consider when choosing a lawyer, and it is essential to ensure that you are working with someone who is qualified, experienced, and able to meet your specific needs. In this blog post, we will discuss the key factors to consider when choosing a lawyer in Australia, and provide an overview of the legal profession in Australia to help you make an informed decision.

The first factor to consider when choosing a lawyer is their qualifications and experience. Lawyers in Australia are required to be admitted to practice by the legal professional body of the state or territory in which they practice. They must also comply with continuing professional development requirements and maintain their registration with the relevant professional body.

It is also important to consider a lawyer’s experience and area of expertise. While all lawyers are trained in the same basic principles of law, some may have more experience and specialized knowledge in certain areas of law. For example, if you are looking for a lawyer to assist you with a commercial dispute, you will want to choose a lawyer who has experience and expertise in commercial law and disputes resolution.

Another important factor to consider is the lawyer’s communication style and approach to client service. It is important to work with a lawyer who is responsive, attentive, and willing to take the time to explain complex legal concepts in plain language. Additionally, they should be able to provide a clear understanding of the process and realistic estimates of the time and costs involved in your matter.

Cost is another important factor to consider when choosing a lawyer. Legal fees can vary widely, and it is important to understand the costs involved and the basis on which the lawyer will charge you. Most lawyers in Australia bill on an hourly basis, and they should provide an estimate of the total costs involved in your matter.

Location is also a factor to consider, especially if you are dealing with a legal matter that involves court appearances or frequent meetings with the lawyer. It can be more convenient to choose a lawyer that is located close to your place of business or residence.

Finally, it’s important to choose a lawyer you feel comfortable working with. The lawyer should be someone you feel confident in, and who you trust to represent your interests. The lawyer should be approachable, accessible, and responsive to your needs, and you should feel comfortable discussing your matter with them.

When looking for a lawyer, it’s recommended to start by asking for referrals from friends, family or business colleagues who have had a positive experience with a lawyer. You can also check the lawyer’s credentials and reviews through the legal professional bodies or online review platforms.

In conclusion, choosing the right lawyer for your legal needs is an important decision that should not be taken lightly. There are many factors to consider, including qualifications and experience, area of expertise, communication style, cost, location and comfort. By taking the time to consider these factors and seeking out the right lawyer for your needs, you can be confident that you are in good hands and that your legal matter will be handled effectively and efficiently.

Jan122023 by Connor JamesNo Comments

Contract Review 101: A Step-by-Step Guide for Reviewing Proposed Contracts in Australia

Business Sale, Commercial Law

Contracts are an essential part of doing business in Australia, and they play a critical role in protecting the rights and interests of both parties involved. However, reviewing proposed contracts can be a complex and time-consuming task, particularly for those who are unfamiliar with the legal and regulatory framework surrounding them. In this blog post, we will discuss the best process for reviewing proposed contracts in Australia and provide an overview of the key concepts and considerations to keep in mind when reviewing a contract.

Key terms

The first step in reviewing a proposed contract is to understand the key terms of the agreement. This includes understanding the rights and obligations of both parties, as well as the specific terms and conditions that are applicable to the agreement. It is important to pay special attention to any clauses that are particularly important to the business or organization, such as payment terms, delivery dates, and intellectual property rights.

Regulatory considerations

It is also important to consider any legal and regulatory requirements that may be relevant to the contract. This includes understanding the relevant laws and regulations that govern the contract, such as the Australian Consumer Law, the Privacy Act, and the Competition and Consumer Act. It is also important to ensure that the contract complies with any relevant industry standards or codes of conduct.

Uncertainty and concern

Another important step in the review process is to identify any areas of concern or uncertainty in the proposed contract. This includes identifying any terms or clauses that may be ambiguous or that may place the business or organization at an unfair disadvantage. It is important to flag these concerns with the other party and to work with them to clarify or revise the terms of the contract as necessary.

Impact

It is also important to consider the potential impact of the contract on the business or organization. This includes assessing the potential financial impact, as well as the impact on relationships with customers, suppliers, and business partners. In some cases, it may be more advantageous to negotiate more favorable terms in order to mitigate any potential negative impacts on the business.

It’s highly recommended to seek the help of a legal professional when reviewing proposed contracts, as they are trained in identifying potential legal issues and can advise on the best course of action. They can also help to negotiate and revise the terms of the contract to ensure that it is in the best interests of the business or organization.

In conclusion, reviewing proposed contracts is an essential part of doing business in Australia and it plays a critical role in protecting the rights and interests of both parties involved. However, it can be a complex and time-consuming task. By understanding the key terms of the agreement, considering any legal and regulatory requirements, identifying any areas of concern or uncertainty and seeking the help of a legal professional, businesses and organizations can ensure that contracts are fair and in line with their best interests. This will help them to navigate the process with confidence, and move forward with their business.

Jan122023 by Connor JamesNo Comments

Navigating Commercial Disputes in Australia: A Guide for Businesses and Organizations

Private Law

Commercial disputes are an unfortunate reality of doing business, and they can be both time-consuming and costly. In Australia, commercial disputes can arise in a wide variety of contexts, and they can be challenging to navigate, particularly for those who are unfamiliar with the legal framework surrounding them. In this blog post, we will discuss the key concepts and considerations surrounding commercial disputes in Australia, and provide an overview of the legal framework that governs them.

A commercial dispute is any disagreement or conflict between two or more parties involved in a commercial transaction. These disputes can arise in a wide variety of contexts, including contracts, partnerships, joint ventures, and intellectual property. Common examples of commercial disputes include breach of contract, fraud, and misappropriation of trade secrets.

Commercial disputes can have a significant impact on businesses and individuals, both financially and emotionally. We wrote about the impact of litigation here. The cost of legal fees and the time involved in resolving a dispute can be substantial, and disputes can also cause significant disruption to the normal course of business. Additionally, commercial disputes can damage relationships with customers, suppliers, and business partners, making it more difficult to do business in the future.

In Australia, the legal framework surrounding commercial disputes consists of both state and federal legislation.

In the (NSW) court system, disputes are resolved through the courts, starting from the Local Court, moving to District Court and ultimately to the Supreme Court and the High Court, if the matter is escalated. The Federal Court system can also apply. Commercial disputes can also be resolved through alternative dispute resolution methods such as mediation, arbitration and conciliation, which are often considered to be faster, less formal and less expensive than court proceedings.

When it comes to commercial disputes, one of the key considerations is to understand your legal rights and options. This includes understanding the relevant laws and regulations that govern the dispute, as well as the legal remedies that may be available. Additionally, it is important to understand the strengths and weaknesses of your case, and to develop a strategy for resolving the dispute that is in your best interests. This is where it is critical to consult with a good lawyer.

Another important consideration is to understand the costs and benefits of different dispute resolution methods. While court proceedings may be necessary in some cases, alternative dispute resolution methods such as mediation or arbitration can often be faster and less costly. It is important to evaluate the specific circumstances of the dispute and to select the method that is most appropriate for your needs.

It is also important to consider the potential impact of the dispute on your business or organization. This includes assessing the potential financial impact, as well as the impact on relationships with customers, suppliers, and business partners. In some cases, it may be more advantageous to settle the dispute out of court, even if it means accepting less favorable terms, in order to preserve relationships and avoid further disruption to the business.

In conclusion, commercial disputes are an unfortunate reality of doing business, and they can be both time-consuming and costly. In Australia, commercial disputes can arise in a wide variety of contexts, and they can be challenging to navigate, particularly for those who are unfamiliar with the legal and regulatory framework surrounding them. It is important to understand your legal rights and options, the costs and benefits of different dispute resolution methods, and the potential impact of the dispute on your business or organization. By working with experienced legal professionals and carefully evaluating the specific circumstances of the dispute, businesses and organizations can navigate commercial disputes effectively and resolve them in a manner that is in their best interests.

Jan122023 by Jacqui JubbNo Comments

How do I enforce a judgment debt in NSW?

Litigation

So a company or person owed you money and you’ve now managed to secure a judgment in a court of NSW ordering them to repay the debt (a judgment debt). What now?

When a person (the ‘judgment creditor’) obtains a court judgment ordering a person (the ‘judgment debtor’) to return goods or pay money, the judgment debtor will not always comply with the judgment. They may not have the money or resources to pay the debt or they may simply be avoiding payment.

In this situation, the judgment creditor has 12 years from the date of the judgment to enforce the judgment. This is known as an ‘enforcement’ action. Enforcing a judgment debt in New South Wales (NSW) involves a process of collecting the money that is owed to you by the judgment debtor.

Here are the general steps to enforce a judgment debt in NSW:

Obtain a copy of the judgment: This can be obtained from the court that issued the judgment or from the Sheriffs’ Office. The ‘Office of the Sheriff of NSW’ is a government authority responsible for court security, administering the NSW jury system and specific law enforcement such as serving warrants and enforcing various court orders (such as a writ).
Identify the judgment debtor’s assets: This can include property, bank accounts, vehicles, or wages. You will need to find out where the judgment debtor’s assets are located and how they can be accessed. You can do this through a court via an examination notice (a form the debtor must fill out responding to questions about their income, assets and liabilities) if the judgment debtor’s assets are not easy to ascertain.
Issue a Writ for Levy of Property: Once issued, this type of writ authorises the Sheriff to seize and sell at auction personal property belonging to the debtor to pay the debt. You will need to provide the Sheriffs’ Office with a copy of the writ of execution, the judgment, and a fee for their services. The writ is valid for 12 months. If there is not enough personal property to satisfy the judgment debt that is owed to you and the debt is over $20,000, you can apply for an order seeking the sale of real property (land).
Issue a Writ for the Delivery of Goods: This can be used if the court ordered the judgment debtor to return certain goods to you and they haven’t been returned. It authorises the Sheriff to seize the goods and return them to you (the judgment creditor) or recover their value by seizing other property and selling it. This type of writ is also valid for 12 months.
Garnishee Order: If the judgment debtor has income, such as wages or salary, you can obtain a garnishee order. A garnishee order directs the judgment debtor’s employer or other organisation that holds money for the judgment debtor to pay some or all of the money owing to you, directly to you from their bank account, salary or wages.
Charging Order: In the case of a judgment debt of the District or Supreme Court of NSW, you may wish to obtain a charging order. A charging order creates security over a specific asset(s) owned by the judgment debtor to the value of the judgment debt and restrains the judgment debtor from dealing with the asset.
Debtor Examination: If the judgment debtor fails to comply with an examination notice you may apply to the Court for an examination order. An examination order summons the judgment debtor to Court to provide details of their financial affairs. To obtain an examination order you must apply to the appropriate Court and then personally serve it on the judgment debtor. The judgment debtor will then be required to attend an examination hearing where they will complete a statement of financial position attaching all relevant documentation.
Bankruptcy Proceedings: Where the judgment debt is greater than the statutory minimum and the judgment debtor is an individual, you may wish to serve a bankruptcy notice. The current statutory minimum for a bankruptcy notice is $10,000.00. A bankruptcy notice must be personally served on the judgment debtor. Once served with a bankruptcy notice the judgment debtor has 21 days to make payment, or otherwise enter into a suitable repayment arrangement. If the judgment debtor fails to comply with the bankruptcy notice then they have committed an “act of bankruptcy”, and you are able to present a creditor’s petition seeking a sequestration order which effectively makes them bankrupt. A trustee in bankruptcy is then appointed to investigate the debtor’s financial affairs for the benefit of creditors.

Checklist

Requirement	Status
Obtain a copy of the judgment
Identify the judgment debtors assets
Issue a Writ for Levy of Property
Issue a Writ for the Delivery of Goods
Garnishee Order
Charging Order
Debtor Examination
Bankruptcy Proceedings

The process of enforcing a judgment debt can be complex and time-consuming, and it may be necessary to seek the advice of a lawyer or a debt collection agency.

Additionally, there may be limitations on the amount and types of assets that can be seized, and there are certain exemptions that apply, such as a principal place of residence and other assets with exemptions by law.

For help recovering a judgment debt, reach out to us at info@lawquarter.com.au or call us on (02) 8318 5962 for assistance and advice from one of our experienced litigation and commercial lawyers.

Jan122023 by Connor JamesNo Comments

Powering Up: Power Purchase Agreements in Australia

Energy Law

Power Purchase Agreements (PPAs) are becoming an increasingly popular means of financing renewable energy projects in Australia. These agreements enable businesses and organizations to secure a reliable and cost-effective source of clean energy, while also supporting the growth of the renewable energy industry. However, despite their benefits, PPAs can be complex and difficult to navigate, particularly for those who are unfamiliar with the legal and regulatory framework surrounding them. In this blog post, we will discuss the key concepts and considerations surrounding PPAs in Australia, and provide an overview of the legal and regulatory framework that governs them.

A Power Purchase Agreement (PPA) is a contract between an energy generator and an off-taker, such as a utility company or a large commercial and industrial consumer, that defines the terms of the sale of electricity generated by a renewable energy project. Under a PPA, the energy generator agrees to supply electricity to the off-taker at a fixed or variable price over a defined period of time, typically between 10 and 20 years. The off-taker, in turn, agrees to purchase the electricity at the agreed upon price, regardless of the prevailing market price.

One of the key benefits of PPAs is that they provide a predictable source of revenue for renewable energy developers. This, in turn, enables them to secure financing for their projects, as lenders and investors can rely on a steady stream of revenue to repay loans and earn a return on their investment. Additionally, PPAs can provide a hedge against rising energy prices, allowing businesses and organizations to lock in a fixed price for their electricity over the term of the agreement.

Another benefit of PPAs is that they can help to promote the growth of the renewable energy industry. By providing a reliable source of revenue, PPAs can attract investment and encourage the development of new renewable energy projects. Additionally, PPAs can help to increase the adoption of renewable energy by providing businesses and organizations with a means to access clean energy, regardless of the availability of renewable energy projects in their immediate area.

However, despite their benefits, PPAs can be complex and difficult to navigate. The legal and regulatory framework surrounding PPAs is complex, and the terms and conditions of PPAs can vary significantly depending on the specific project and the parties involved. Additionally, PPAs can be impacted by changes in government policies and regulations, which can add to the uncertainty surrounding them.

Law Quarter has drafted a significant number of PPAs in Australia. Our clients include some of the most innovative businesses globally. Watch a short testimonial below:

In Australia for those states that have adopted the National Energy Customer Framework, the legal and regulatory framework surrounding PPAs is governed by (inter alia) the National Electricity Law and the National Electricity Rules. These laws and rules set out the framework for the sale and purchase of electricity, and provide a framework for the negotiation and execution of PPAs.

One of the key considerations for businesses and organizations entering into PPAs is to thoroughly review the terms and conditions of the agreement. This includes understanding the pricing structure, the length of the agreement, and any termination provisions. Additionally, it is important to understand the roles and responsibilities of the parties involved and to ensure that the PPA is structured in a way that aligns with the business or organization’s goals and objectives.

Another important consideration is to understand the legal and regulatory environment, in order to ensure compliance with all applicable laws and regulations. This includes ensuring that the PPA is structured in a way that meets the requirements of the National Electricity Law and the National Electricity Rules.

Finally, It’s important to consider the potential impact of government policies and regulations on the PPA. This may include changes to the Renewable Energy Target (RET) or other government incentives for renewable energy, as well as future policy developments that could affect the economic viability of the project. It is important to understand how these factors may impact the PPA over its term, and to structure the agreement in a way that is flexible and resilient to changes in the regulatory environment.

In conclusion, Power Purchase Agreements (PPAs) can be a valuable tool for businesses and organizations looking to secure a reliable and cost-effective source of clean energy. They can also help to promote the growth of the renewable energy industry. However, despite their benefits, PPAs can be complex and difficult to navigate, particularly for those who are unfamiliar with the legal and regulatory framework surrounding them. It is important to work with experienced legal professionals who can guide you through the process and help you understand the key concepts and considerations surrounding PPAs in Australia. By understanding the legal, regulatory and policy environment and reviewing the terms and conditions of the agreement, businesses and organizations can enter into PPAs with confidence, knowing that they have a structured and sound agreement that aligns with their goals and objectives.

Jan122023 by Connor JamesNo Comments

Navigating the Challenges of Litigation: Strategies for Managing the Process

Litigation

Litigation can be a complex and challenging process for all parties involved. Whether you are a plaintiff or a defendant, the legal system can be daunting and difficult to navigate. The uncertainty and financial burden of litigation can take a toll on both individuals and businesses. In this blog post, we will discuss some of the challenges of dealing with litigation and strategies to manage the process.

Uncertain outcome

One of the most significant challenges of litigation is the uncertainty of the outcome. There is no guarantee of a favorable outcome, and even if you have a strong case, there is always the possibility of losing. This uncertainty can be emotionally and financially draining, and it can be difficult to know how to plan for the future.

For most of our lives, we have the ability to control events around us. From going to work, to socialising, we are usually in control. In litigation, however, the outcome and process is set by the rules of court procedure, the other side and other factors.

Cost

Another challenge of litigation is the cost. Litigation is expensive, and the cost can quickly spiral out of control. Even if you have a strong case, the cost of legal fees, expert witnesses, and other expenses can be prohibitive. This can be especially difficult for individuals and small businesses who may not have the financial resources to cover the cost.

When engaging a lawyer, ensure that you have a frank up front discussion about costs. They may need to give you a revised cost estimate over time and need to ensure that you know the status of your case and likely future costs.

Time

The length of the process is also a significant challenge in dealing with litigation. Litigation can take a long time, and the process can be drawn out for months or even years. This can be frustrating, and it can make it difficult to move on with your life or your business.

Personal stress

In addition to the financial and emotional challenges, litigation can also have a significant impact on your personal and professional relationships. The legal process can be stressful, and it can put a strain on relationships with friends, family, and business partners.

Strategies

Despite these challenges, there are strategies that can be used to manage the process and mitigate the negative impact of litigation. One strategy is to work with a qualified lawyer who can guide you through the process and help you understand your rights and options. A good lawyer will be able to assess the strengths and weaknesses of your case and help you develop a strategy for moving forward.

Another strategy is to try to settle the case out of court. Mediation, arbitration, or settlement negotiations can be effective in resolving disputes without the need for a trial. This can save time, money and the emotional toll of the litigation. A good lawyer will be able to advise you on the best approach to take and help you reach a resolution that is in your best interests.

It is also essential to stay organized and keep detailed records of all correspondence and expenses related to the case. This will help you keep track of the progress of the case and will be helpful if you need to provide evidence in court.

A good way to manage the emotional and stress aspect of litigation, is to set expectations and create a plan to keep your work and personal life separate. This can help you avoid becoming too consumed by the case and will make it easier to focus on other important aspects of your life.

In conclusion, litigation can be a challenging and difficult process for all parties involved. The uncertainty, cost, and length of the process can take a toll on individuals and businesses. However, by working with a qualified attorney and adopting strategies such as settling out of court, staying organized and setting expectations and boundaries, it is possible to mitigate the negative impact of litigation and move forward with your life or business.

If you would like to discuss your matter, please contact us.