sunshine coast solicitor Tag

Did you use the "out of office assistant" to notify people that you were away during the Christmas Break?  Ironically that automatic reply may be proof that you received an email that, you did not in fact receive.  Proof of receipt by the receiving system may be enough to show receipt by you.  We are governed by both the contracts we sign but also by contract law.  The contract does not stand by itself in a vacuum.   Contract Law affects all of our dealings with each other.  If you are entering into a contract of any kind you should see us first for a fixed fee quote.  Contact Riba Business Lawyers The problems that we can experience with email notices are an example. There are legal problems associated with using email to make contracts and futher problems are associated with issuing notices by email under a contract.  Those problems relate to
  1. whether an email notice is a valid written notice and,
  2. the timing of receipt by the intended recipient. Is the email received when it is received to, the server, the computer or when the recipient reads it?  Many contracts specify required time frames. If an email is used then it is essential that the time of receipt can be identified.

Riba Business Lawyers Most people think that businesses have to register a business name.  They are not correct.  You can always trade using your own name or your company name and it is not necessary to separately register a business name. Of course there are some rules that must be followed if you chose to do this. Firstly you must trade using your full name.  In the case of company this means using all of the name of the company and this includes the end part of that name.  For example a company called The Groovy Herb Pty Ltd must in all documentation signage etc. include the whole of that name which means writing "Pty Ltd" on everything.

Riba Business Lawyers

Have you ever wondered whether licensing or franchising is the best model to grow your business?  Many people wanting to avoid the cost and regulation of franchising will consider licensing as an alternative. But is licensing your business model really an alternative to franchising? What is licensing anyway and what is the difference between a franchise and a licence?

Firstly you cannot convert a franchise to a licence simply by changing the name at the top of the document.  The label given to the arrangement has no influence over the legal effect of the arrangement.  Franchising is just a form of licensing.

Whether the relationship that you wish to establish is really a franchise or a licence can be determined only in one way.  The Franchising Code of Conduct defines certain arrangements as a franchise.  The code provides that if certain ingredients are present then a franchise exists.

Before explaining what a put and call option agreement is, we should firstly examine what a "contract" is.  In law a contract is formed when certain things happen. Two of the most important things that must happen is that there must be an offer by one party and an acceptance by the other.  Without this there is no contract.  There are other ingredients in a contract also such as:
  • intention to create a legal relationship
  • certainty of terms
  • consideration
For the purposes of this discussion the important two ingredients are:
  • offer and
  • acceptance
A put and call option agreement uses this basic contract law to ensure that a contract does not come into existence until some future time. This is a good example of how very old law can be used in innovative ways even today.

It is quite common for Franchise Agreements to contain clauses which have a significant effect on the way in which the sale contract should be drafted.  If  a contract for the sale of a Franchised business is signed without first reading the Franchise Agreement and checking any requirements, then it may be difficult to unravel the resulting mess. There is a lengthy list of things that need to be checked.  If  steps are not taken to ensure compliance, then it is likely that any sale contract will be in conflict with the Franchise Agreement.  This problem can be difficult to resolve because the sale contract may oblige the seller to do one thing and the Franchise Agreement may prohibit the doing of that same thing.

There is no such thing as a standard Franchise Agreement.  However there are certain things that all Franchisors will try to control using their agreement.  This need for the Franchisor to maintain control gives all Franchise Agreements a common flavour. There is sometimes a misconception that the Franchise Agreement is designed to protect both Franchisor and Franchisee.   There is however little contained in a Franchise Agreement which is designed to protect a Franchisee and this is often a source of disappointment to the Franchisee once the documents are reviewed.  Franchisees do however enjoy significant protection given at common law, from legislation such as the Franchising Code.

When a retailer purchases from a wholesaler or a manufacturer the retailer must ensure that they know the limitations of the goods purchased.  If the goods are faulty then the retailer may be liable to any subsequent buyer.

Whenever a retailer sells goods to a consumer there is a sale agreement and conditions are implied into that agreement.  Consumers may make use of these conditions to successfully claim against a retailer.

The stakes can be high!  If a product is not fit for a purpose it may cause damage and necessitate rectification works the cost of which may go well beyond the cost of the goods supplied.

In our last article we described how it is necessary for a Queensland landlord to issue a form 124 notice before taking any steps to retake possession of premises from a tenant who holds those premises under a Queensland Commercial Lease. A commercial tenant will always have the right to apply to the courts for something called "relief against forfeiture".   The relief may be given even if the tenant is in default of the lease and even though the lease specifically provides that the landlord has the right to terminate. Courts have a wide and unfettered discretionary power to take into account all of the circumstances before deciding if the Court will allow a landlord to retake possession from a tenant.  Therefore a landlord may not have the ability to terminate a lease even if the tenant is in default. A tenant cannot claim relief against forfeiture before the landlord has commenced proceedings for possession or has taken possession. If the tenant anticipates that the landlord is making preparation to take possession then the tenant may apply for an injunction.  The tenant may do this once the section 124 notice is served. So how does the court decide if it will grant this "relief against forfeiture"?

If your Tenant has failed to pay rent or is in breach of some other essential term of the Lease, you may decide that terminating the Lease and searching for a new Tenant is the best way for you to limit your losses.   It may be, for instance, that the tenant is impecunious.

Before you will be able to “change the locks” and re-enter your property, Section 124(1) of the Property Law Act provides that you must first serve on your Tenant a notice which states the breach complained of and what the Tenant has to do to remedy the breach.

It is in your best interests that any breach notice is issued correctly the first time.  You must ensure that the breach notice is factually accurate and complies with the technical requirements imposed by law.

Providing a defective notice can be costly.

Firstly, a defective notice may give the Tenant the ability to have the notice set aside. This would force you to re-issue the notice thus delaying your efforts to terminate the Lease. This may allow the Tenant to continue to occupy the Premises while in breach until such time as the notice is re-issued correctly.

If you are a commercial tenant you probably already know that retail shop tenants have a higher level of protection than do other commercial tenants. A retail shop landlord is restrained from doing certain things.

You may be a retail shop tenant even if you do not operate a retail shop. It is essential that you are able to determine if you are entitled to the benefits of the act. A link to the Retail Shop Leases Act is set out here.

Landlords are not permitted to pass on the cost of preparing a lease to their retail shop tenant.

There are rules about the maximum proportion of outgoings that a landlord can ask a retail shop tenant to pay.

The landlord is restricted in the way that increases in rental can be imposed.

There are other benefits also.