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Dispute Resolution and Commercial Litigation

Deal or no deal? Telco Financing Scam as seen on Today Tonight - Featuring Lauren Magasdi - Attwood Marshall Lawyers

Written on Wednesday, 1st February, 2012

We're being warned to think twice before signing up with a telco financing system, especially for a deal that seems too good to be true.

 

One man has spent $16,000 on a deal that included a free television. It seemed to be a good idea at the time, but has proven to be outrageously expensive.

Six years ago, when a Salesman knocked on 74-year-old Christmas tree farmer Alex Costa's door, he couldn't believe the deal he was being offered.

All Costa had to do was sign over his business phone line for five years, and in return the company, Axsiom, would give him a free 42 inch plasma TV.

The deal contract ends next week, and will end up costing Costa more than $16,500.

For five years a company called Quikfund has been debiting $275 from Costa's account each month.

While it was more than what he was previously paying, having the TV thrown in, according to him, made it all worth it.

We take the money out of your bank, and we pay for your telephone, simple as that - and at the end of five years the TV is yours,” Costa said.

Even though Costa switched back to Telstra a year ago, the contract he signed has meant he has had to keep paying.

“That's a pretty expensive TV. It turned out to be a gold TV, not a normal TV - it's made out of gold,” he said.

Costa isn't the only one to fall for this Telco financing scheme. A free laptop has ended up costing mechanic Kent Phillip's business even more.

He signed up for a four year capped $550 a month phone plan, but when he checked his statements, he claims three companies - including Quikfund and Axsiom - were debiting $1800 in total.

After breaking the contract nine months in, because Phillip claims the phones weren't working, Quikfund took him to court for $23,000 and won.

He vows to keep fighting.

“We've spent more fighting it, but I think it is worth it,” Phillip said.

Another one to fall for a similar deal was Greg Stevenson, who nearly lost $20,000 on a similar contract.

“We signed for the cheap telephone calls and the plasma TV, and after about eighteen months, the telephone company closed down. So we ended up without the phone calls, and we still had to pay the finance,” Stevenson said.

He fought the company, Enterprise Finance Solutions Directly and won, now he runs website Telco-Finance Scams.com to help others.

“Plasma televisions, photocopy machines, fax machines, phone systems - we've had everything - from boats and sheds to cash incentives,” lawyer Lauren Magasdi from Gold Coast law firm Attwood Marshall Lawyers said.

Magasdi knows this hard sell method better than most. She launched a class action to help thousands of victims stung by what she describes as unfair terms and conditions.

“There are multiple finance companies, Quikfund is just one in a very big sea,” Lauren Magasdi said.

“There are over 20,000 contracts Australia wide, of which we have been retained by over 300 claimants,” she added.

In a statement Quikfund claims they stand by their contracts, and are committed to sorting complaints out. They refer to Costa as a good client, who never missed a payment, and never made a complaint - like tens of thousands of other satisfied clients they have.            

Lawyer Sarah Wilson from the Consumer Action Law Centre says there are plenty of groups out there signing up customers to contracts they don't fully understand.

The devil, she says, is always in the fine print, so check it.

“If you do have a dispute about a contract, you need to contact your state consumer affairs department. If that term is unfair, then it may be removed,” she said.

Statement from Quikfund

Alex was a good client. He didn’t miss a payment and there was never a complaint. We’ve had tens of thousands of satisfied clients. If there is a complaint we sort it out – in all our interests. Sometimes it’s difficult, often when people’s circumstances change and they can no longer afford the payments.

Resource by: Jonathan Creek - Today Tonight Report - 31st January 2012 

Should you require any further information in relation to this matter, please go to our dedicated Telecommunications Class Action page or contact our Lauren Magasdi on 1800 621 071 or email lmagasdi@attwoodmarshall.com.au.

If you are interested in joining our class action group, why not complete our Telecommunications Class Action Questionnaire  and have us contact you! 

 

        

 

 

            

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Beware business owners – you need to update you warranty on your products as of Jan 2012

Written on Wednesday, 25th January, 2012

As of 1 January 2012 there are new laws in force that affect refund policies and warranties.

You may now be required to update your policy, packaging and advertising material.

Also relevant training may need to be provided to staff members to be able to assist a customer when the customer asks about any warranties.

All Australian businesses will need to comply with The Australian Consumer Law and the Trade Practices Amendments Regulation 2010 (No.1).

If you have a warranty against a defected product or sell products that holds a warranty you need to update the wording of your warranty to ensure you comply with the new legislation.

All warranties against defects must include the following statement:-

"Our goods come with guarantees that cannot be excluded under the Australian Consumer Law. You are entitled to a replacement or refund for a major failure and for compensation for any other reasonably foreseeable loss or damage. You are also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure."

If your business has its own specific warranty it must be stated that "The benefits under [Our Warranty] are in addition to other rights and remedies under a law in relation to the [goods/services]"

You must also ensure that the warranty is accessible, legible and written in plain text as a customer would be able to understand. You must also provide all business contact details.

If you fail to comply with the new regulation you may be fined up to $1.1 million for a company and $220,000 for an individual.

Remember also – it is unlawful to sell an extended warranty that only includes benefits that are already outlined in Australian Consumer Law.

Retailers should have their warranties and policies reviewed by a solicitor to ensure compliance.

For more information call Attwood Marshall Lawyers on (07) 5536 9777 or email info@attwoodmarshall.com.au

 
 

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Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

The ‘Big Banks’ Class Action – By Lauren Magasdi - Lawyer

Written on Wednesday, 25th January, 2012

2011 saw one of Australia’s largest class actions commence against ANZ bank in the Federal Court of Australia.

The claim, brought by Maurice Blackburn on behalf of 34,000 customers, and funded by IMF litigations funding, alleges ANZ bank were charging a penalty  in the form of the following fees:-

  1.  Honour fees;
  2. Dishonour fees;
  3. Over-limit fees;
  4. Non-payment fees; and
  5. Late fees.

 

Lenders are precluded from charging penalties under the Consumer Credit Code [year] (“CCC”) and the action claims that the above fees imposed by ANZ were thereby in contravention of the CCC.

On 5 December 2011, the Federal Court considered that four of the five fees charged by the ANZ bank were legitimate but that the fifth ‘dispute’, that of the ‘late fees’ could potentially be a penalty and therefore unenforceable.

The final determination is yet to be made by the Federal Court until such time as further evidence is provided however the above comments give an indication the position of the court at this stage in the proceedings. Whilst ANZ conceded that the charge was not a genuine pre-estimate of their costs which they may incur, ANZ argued that when properly characterised, a late payment fee was a fee charged by it, as part of the operation of the account and in respect of the increased risk of default in repayment of the amounts borrowed.

In essence, a penalty cannot arise in circumstances where the effect of a transaction is for a customer to request an indulgence of their bank. Absent a breach of contract, the law simply refuses to tolerate an argument that a charge applied by a bank is unenforceable as a penalty, as the bank would reasonably incur costs as a consequence of the indulgence.

On 19 December 2011 at a press conference held by the lawyers for the class action litigants, it was revealed that the remaining big banks, CBA, NAB, Citibank and Westpac would also be targeted. It is expected that proceedings will be commenced against them for late fees charged on credit cards.

When the matter resumes in the Federal Court, following the addition of evidence, ANZ is expected to justify the size of the fee and may seek to attribute some part of the fee to credit risk.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Representative Class Actions - Strength in Numbers

Written on Monday, 16th January, 2012

Do you believe that everyone has a voice and should be able to express their opinion and do something about their concerns?

Are you not the only one that may have been ripped off or scammed?

Do you know that there are more people that will come forward if a class action was being represented?

Then don’t be shy and let us know!

Every day, people are being ripped off by large companies. Most people won’t take any action as they don’t have the proper resources or man power, and in some cases, knowledge of a representative action. Let us help you, all you need is 7 people and a law firm like Attwood Marshall to get you on your way.  

We urge you to do something about it today!

As you may have seen your everyday Joe Blow is now taking a stand, in numbers!

Representative class actions are the perfect avenue for over 7 claimants to proceed against a mutual entity regarding the same dispute.

Class actions are cost effective and strong. They have the benefit of combining evidence through numbers. They also have a greater likelihood of their concerns being heard.

The greater the members in the class, the better. It may be something as small as a penalty owed to the big banks, or could be and large as a medical issue or life changing loss of income as a result of a scam.

We want to help you.

Our Commercial Litigation team here at Attwood Marshall can answer your queries and assist you with this or any other issue you have. Contact an Attwood Marshall Lawyer today on 1800 621 071 or email jhuckstepp@attwoodmarshall.com.au.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Keeping ones word in an agreement!

Written on Friday, 16th December, 2011

We all have entered into a verbal agreement among friends, family and/or even a stranger at one time or another, where we relied on the good faith of all parties for the agreement to go smoothly. The common reasons for entering into a verbal agreement is because the party believed the risk was considered low at the time, is acquainted with the other party, the other party appeared to be a good bloke, and not seeking advice before entering into the agreement.  Hopefully in your case the transaction was successful, however many people are now facing costly and difficult disputes due to verbal and/or poorly prepared written agreements. Quite often written agreements are very unclear which creates   difficulty for the courts in trying to determine the parties intention. Sometimes critical terms of the agreement are missing such as the name or entityof the party to the contract,  the amount to pay, when to pay it , what happens if one party defaults on the agreement. If the  verbal agreement is too vague, it can be void for uncertainty. 

As a general guide verbal contracts can be just as binding as a written agreement and can be held up in a court, however the difficulty is proving what was agreed.

In some cases you may find it not necessary to have a detailed written agreement, especially if the value of the transaction is low and/oryou have a document that still protects your interests, for example a quote or tax invoice.

Verbal agreements can be substantiated by the conduct of all the parties, specific actions, and previous dealings. Despite this it is preferable to have an agreement in writing. 

Should there be a dispute regarding a verbal agreement you may have the following options:

  1. Talk to the other party and see if you can negotiate a solution. If you reach an agreement, put it in writing.
  2. Seek legal advice about alternative ways to resolve the dispute.
  3. If you cannot solve a dispute, contact a specialised Dispute & Commercial Litigation Lawyer to work to enforce your rights under the agreement.

 

Attwood Marshall Lawyers specialises in Dispute & Commercial Litigation in both Queensland and New South Wales. 

If you have a breach of agreement or cannot solve a dispute, do not hesitate to contact us.

We can also provide assistance for drafting or obtaining legal advice before entering into an agreement.

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Facebook could see you fired! - As published in the Gold Coast Sun Legal Affairs - 7/12/11

Written on Saturday, 10th December, 2011

Be careful what you say on Facebook. 

Social media such as Facebook, twitter and other public forums enable employers to ‘screen’ employees or prospective employees and may allow the employer to terminate employment on the basis of disparaging remarks. 

People who vent via a public forum may be placing their jobs at risk. 

In the past six months, several cases of work termination have been reported on public media forums as a warning to users to be careful what they post on websites. 

Such reports include: 

  • A UK travel agent who posted comments on Facebook about a colleague, calling her a `‘brown-nosing cow’’;
  • A Newcastle bank employee who whinged about the bank’s customers, and;
  • A British woman who started her post by claiming she ‘hated her job’.
    •  

Now, some workplaces are imposing restrictions on employees making comments on social websites, including termination of employment. 

Unless someone has strict privacy settings, any and all comments made by an employee are available to the world at large. 

Employers also may review job applicant’s Facebook or other social media pages. 

Photos, the comments applicants make, and information published about them may help decide whether a person is given a job. 

However, there also may be consequences for employers. 

Several unfair dismissal cases flowing from comments made on social media have come before the courts. 

A Victorian hairdresser, for whom comments posted on Facebook were one of four reasons for dismissal, won her case and was awarded compensation. 

Comments of a defamatory nature posted on social media websites also can result in legal action and damages payouts. 

As well, following a precedent set in Victoria,persons can now be served through public forums with intervention orders, statements of claim and other legal documents. 

For more information please contact our Commercial Litigation and Dispute Resolution team at Attwood Marshall Lawyers on on (07) 5536 9777.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

New Personal Security System receives Green Light - By Barry van Heerden - Partner

Written on Tuesday, 6th December, 2011

The most anticipated Personal Property Securities Act 2009 will formally commence on 30 January 2012. 

All existing securities which are registered on any State, Territory or National Register will be transferred over to the new Personal Property Securities Register (PPSR) from 21 November 2011. 

The new Act allows for one register (PPSR) in which securities relating to personal properties can be registered to provide security and priority over other securities. 

The PPSR will be a "one stop shop" for anybody who wants to do a search to determine whether any goods are secured.  On the other hand, if you wish to register any interest in goods, which can be anything from supplying goods in terms of a Retention of Title Agreement, consignment, charges over a company, hire purchase equipment or lease of goods, you may register your interest in the PPSR which will allow you protection of your interest. 

Should you fail to register your interest you may find that other parties have priority over your interest and in case of liquidation or bankruptcy you may even lose your property entirely.  

We strongly recommend that any client who currently has some interest registered over personal property to consider the following:- 

  1. Review your current securities.
  2. Check whether your registered securities will be transferred to the new PPSR.
  3. Contact us should you require any assistance or are unsure about the process.
    4.  

We will publish further blogs in relation to the PPSR closer to the final date of implementation.

 
 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Relief Awarded under the Contracts Review Act (NSW) – By Lauren Magasdi - Lawyer

Written on Friday, 11th November, 2011

On 2 September 2011, the NSW Court of Appeal upheld the decision of the primary judge  in Fast Fix Loans Pty Ltd v Samardzic [2011] NSWCA 260 to award relief under the Contract’s Review Act 1980 NSW) in respect of a guarantee that was given by two guarantors under pressure from their son.

In November 2006, Milan (the son), through his company, entered into a call option for nine months to purchase a property at Head Street in Forster for $1,330,000 plus GST. With stamp duty, this price exceeded $1,400,000.

In order to purchase the property, Milan asked his parents for financial assistance. His parents, both of Yugoslavian nationality, were only able to speak communicative English, or as the primary judge referred to it as ‘simple’ English.

The parents gave a short term loan to the company (a loan using their own property as security) which enabled a second mortgage over the property. Milan’s parents advised Milan that they had no assets and were unable to meet any obligations under the loan but said “we can help you by putting our name on the bank document if it helps you get the loan, but only if our obligation ends in three months". Milan stressed to his father that it was a “big problem” and they [the parents] would need to lend him the money for the property in Forster.  Following on from the comments above, Milan said that they would need to sign some documents and see a solicitor.  A lawyer who spoke Serbian explained the documents to the parents in the presence of Milan.

The findings by the Court of Appeal:-

  1. The Primary Judge found that Milan had pressured his parents to obtain legal advice and sign the documents
  2. There was no evidence that Fast Fix Loans Pty Ltd had any  insofar as  Fast Fix Loans Pty Ltd made no enquiries as to the financial position of the parents and was only concerned about that of the security in the case of a default.
  3. At the time that a deed of loan and mortgage was provided to the parents, the parents only had a general understanding of the document, nor were they aware of the interest rates associated with the mortgage.
  4. The primary judge incorrectly applied the principles relating to borrowers in assets lending cases to guarantors.
  5. There was ample basis to conclude that the contracts were unjust and thus, relief to be granted against the Appellant (Fast Fix Loans Pty Ltd)
  6. Reference was also made to the high interest rate and said it may be a significant contributor to the injustice of a loan if the lender has not ensured that an unsophisticated borrower has received an explanation that brings home to the borrower the reality of how the interest rate, including any compounding, actually operates.

 

This case stresses upon lenders, the need to make enquiries of a guarantor’s ability to meeting their obligations irrespective if they have received legal advice. It should not be concerned only with security available in the case of a default.

Our Commercial Litigation team here at Attwood Marshall can answer your queries and assist you with this or any other issue you have. Contact an Attwood Marshall Lawyer today on 1800 621 071 or email jhuckstepp@attwoodmarshall.com.au.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

When is a Contract a Contract - By Christine Martin - Department Manager

Written on Friday, 14th October, 2011

Whilst most of us agree that a Contract is a written document, they do not always exist in a formal manner.  It is not uncommon for Contracts both short and long term to be negotiated verbally without ever being formalised in writing.  Whilst these can operate successfully, while relationships are flowing smoothly, they are a source of great uncertainty once disputes begin to emerge.  At some point in time, if a party or parties to the arrangement experience changes in their situation ie relationship; financial; inability to perform his/her implied duties under the contract or death then a raft of problems may arise.

The undocumented conditions of a verbal Contract often create uncertainty as to exactly what terms have been agreed between the parties and in the event of unresolved disputes the parties may find themselves in Court to determine the terms of the verbal Contract.

Some of the points that may be examined by the Court in determining judgement could be:

  • surrounding circumstances, which include the history of the relationship between the parties
  • the conduct of the parties both before and after the time of Contract, which in itself may be the means by which the parties manifested their agreement
  • the original intentions of both/all parties in agreeing to the terms of the Contract.  The Court will recognise a contract if it can be shown that by a certain point, the parties mutually agreed to a clear proposal which was intended to be binding

 

Ideally, parties should document the exact terms and conditions of the Contract noting their respective obligations and then commit them to writing before embarking on the arrangement.

Take note however that legislation precludes any verbal arrangement when proposing to transfer land and a written agreement is always required.

If you find yourself embroiled in a dispute regarding any implied/verbal or written Contract a member of our Commercial team at Attwood Marshall can help you to resolve the issues to achieve your best outcome.  Our advice is to act quickly before the matter is out of hand, however, we can easily assess your situation and the clearest path forward in an initial appointment.

 
 

 

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers (Gold Coast based Lawyers), we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Equine Influenza Update (30 September 2011)

Written on Friday, 30th September, 2011

On  18 May 2011 the parties appeared in the Queensland Supreme Court before Justice Peter Lyons and the following directions were made:

  1. That the plaintiff deliver a notice to admit facts and documents by 4pm on 8 June 2011;
  2. That the defendant deliver its response by 4pm on 3 August 2011
  3. That the matter be fixed for further review on 25 August 2011.

 

On 15 June 2011 we served the commonwealth with a Notice to Admit Facts consisting of 74 pages and 817 paragraphs.  The Notice to Admit Facts seeks the Commonwealths admissions in relation to certain facts and findings of Justice Callinan in the Enquiry into the Equine Influenza Outbreak in Australia handed down in April 2008.

By serving the Notice to Admit Facts, we hope to narrow some of the issues in dispute and thereby streamlining the proceedings as much as possible.

The Commonwealth have also indicated their desire to limit the issues in dispute as much as possible and have undertaken to act in good faith in responding to our Notice to Admit Facts by admitting to as many facts they are reasonably able to.

Since we served the Notice to Admit Facts, the Commonwealth have had 2-3 dedicated lawyers working full time on the response, in addition to a senior associate, partner and counsels involvement when necessary. 

We have consented to, and the court has granted the Commonwealth a number of extensions within which to respond to the Notice to Admit Facts.  The Commonwealth will now provide a substantial, but partial, response to our Notice to Admit Facts by 30 September 2011, with the balance of their response to be provided to us no later than 15 November 2011.

The matter has been set for review before the court on 9 December 2011. In the interim, we have been working on gathering the evidence for the case before the court, including gathering information and obtaining serology samples with respect to the horses in question, and liaising with Vincents Accountants with respect to the preparation of an expert report.

We will provide another update to you after the court review on 9 December 2011.

Please ensure that we have your updated details so we may continue inform you of the progress of this matter.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers (Gold Coast based Lawyers), we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Buying a new or used car? Beware of the conditions with cooling off periods - By Holly Gilholme - Commercial Litigation Paralegal

Written on Wednesday, 24th August, 2011

When purchasing a new or used car there are different laws in relation to cooling off periods in NSW and QLD.

NSW

In NSW a 1 day cooling off period applies when purchasing a new or used vehicle through a credit contract. 

A cooling off period does not apply when a new or used car is purchased in cash or at auction or being purchased by another motor dealer. 

A purchaser may terminate the contract in writing to the dealer during this cooling off period. 

A termination amount is required to be paid, this is either $250 or 2% of the purchase price – whichever is of lesser value. 

The cooling off period begins when the contract is signed and ends at 5pm the next day that the dealer is open for business. 

The dealer must disclose the cooling off period to the purchaser and the prescribed form 20 of the Motor Dealers Regulation 1999 must be attached to the contract. 

The cooling off period may be extended but this is to be agreed upon by both purchaser and seller and written into the contract. 

The purchaser is not entitled possession of the car during cooling off unless it is agreed upon by the dealer and the purchaser is to be liable for any damage to the vehicle during this time other than wear and tear. 

If you have a trade-in vehicle with the dealer during this cooling off period the dealer is not to sell the car and is also liable for any damage other than wear and tear. 

If you have a dispute with a dealer generally termination of contracts can only occur when the terms and conditions have been breached.

QLD

New Car Purchases

In QLD when purchasing a new car there is NO cooling off period available. 

A vehicle is considered a new car if it has never been licensed or registered.  A demonstration car is not considered a new car. 

Cooling off period is unavailable when the car is sold by auction or sold privately. 

There is no cooling off period available for consignment vehicles and the dealer must tell the purchaser that the car is a consignment vehicle.

If you have a trade-in vehicle with the dealer during this cooling off period the dealer is not to sell the car and is also liable for any damage other than wear and tear. 

Used Car Purchases

A cooling off period of 1 day applies to all used car purchases. 

If you take possession of the car during the cooling off period you can lose the right to a cooling off period. However you can take the vehicle to an independent mechanic and take the car for a test drive during this time.

A dealer must give you a form PAMD Form 37a before you sign the contract. I they do not give you this for they must give you a 7 day cooling off period. 

The dealer can charge you a non refundable deposit during the cooling off period, this cannot exceed $100. 

A purchaser may terminate the contract in writing to the dealer during this cooling off period. 

A dealer can still offer a car under cooling off to another purchaser, however, if you decide to purchase the car any deposits held form another purchaser are returned. 

The cooling off period begins when the contract is signed and ends at 5pm the next day that the dealer is open for business. 

Cooling off period in unavailable when the car is sold by auction or sold privately. 

There is no cooling off period available for consignment vehicles and the dealer must tell the purchaser that the car is a consignment vehicle.

If you have a trade-in vehicle with the dealer during this cooling off period the dealer is not to sell the car and is also liable for any damage other than wear and tear. 

Consumers should never sign a contract for a vehicle unless they are 100% sure about it. You should never sign a contract for cars with more than one dealer and you should never sign a contract for a vehicle that has parts of the contract missing or blank.

If you require further legal advice in relation to a problem with buying or selling a new or used car please do not hesitate to contact Holly Gilholme to arrange an appointment to see one of our commercial litigation lawyers on  07 5506 8202 or by email hgilholme@attwoodmarshall.com.au.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers (Gold Coast based Lawyers), we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Payment Claims under the Building and Construction Industry Security for payment Act 1999 (NSW) and the Building and Construction Industry Payments Act 2004 (Qld)

Written on Thursday, 11th August, 2011

The Building and Construction Industry Security for Payment Act 1999 (NSW) and its Queensland equivalent, the Building and Construction Industry Payments Act 2004 (“the Acts”) provide mechanisms for building contractors to recover monies owed to them for building and construction work. 

The process under the Acts are as follows: 

  • A payment claim in accordance with the relevant act is sent by the claimant   to the respondents address.  The payment claim form must be precise as to the contract and works it relates to and must specifically state “This is payment claim under the Building and Construction Industry Security for payment Act 1999 (NSW)” or “This is a payment claim under the Building and Construction Industry Payments Act 2004 (Qld)”.

 

  • If the respondent chooses to dispute the amount of the payment claim they must, within 10 business days after the payment claim has been served, serve you with a payment schedule pursuant to the relevant act. The payment schedule must outline the reasons why the amount of the payment claim is disputed and the amount the respondent proposes to pay (if any).

 

  • If the respondent provides a payment schedule, the parties must then apply for adjudication of the dispute. An adjudicator will determine the amount payable. 

 

  • Once an amount has been determined by the adjudicator the decision of the adjudicator can be filed as a judgment in the relevant court.

 

  • If the respondent does not respond with a payment schedule within 10 business days, the respondent becomes liable to pay the entire amount claimed. The amount then becomes a statutory debt.  

 

Once the amount in the payment claim becomes a statutory debt there are two effective ways in which you can recover the amount owing: 

  • Issue proceedings in the relevant court;

 

  • Issue a Statutory Demand on the Company.

 

It is important that the payment claim is correct in order to invoke this procedure. There are many other issues to consider during the process, such as whether the contractor you are claiming from is trading insolvent. 

If you have done some work as a contractor, and have not been paid we can provide you with practical advice as to the best way forward in your particular circumstance.

By Kelli Edwards - Senior Commercial Litigation Lawyer

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers (Gold Coast based Lawyers), we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

 You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Were you affected by the Equine Influenza Outbreak? If so we can help you!

Written on Thursday, 4th August, 2011

The outbreak of Equine Influenza in August 2007 saw devastation throughout the thoroughbred racing and breeding industry.

This did not only affect the owners of racehorses but many businesses indirectly. Equestrian photographers, produce store proprietors, stallion and broodmare owners, transport companies, trainers, non-thoroughbred breeders, and various associations of people who work in the industry were also affected. 

We have clients that have lost everything from this outbreak. We know firsthand how it has impacted on the industry. Jeff Garrett the Practice Director here at Attwood Marshall has been affected by this disaster. 

Jeff is a commercial breeder and had 4 broodmares stranded on his own broodmare farm in Queensland.  He also had 3 racehorses in work in Brisbane who were also affected by the restrictions. 

"I know exactly what people are going through given my own involvement in the industry.  This gives me a great insight into the problems that the people in the thoroughbred industry are facing". 

As the matter stands now we have been running the class action since 2007 and have a strong test case running through the Queensland Supreme Court. The Plaintiff in our test case has lost more than 3 million dollars as a result of the EI outbreak. While this test case is running all of the clients that have registered their interest will be “waiting in the wings” for the outcome.

It is our view that the Government has clearly breached its duty of care to the members of the various equine industries in Australia. Although there are some complex legal issues surrounding the duty of care owed by the Government to the participants in the industry and the various losses suffered by claimants, we believe there is a strong moral duty on the part of the Government to compensate the losses suffered by people whose livelihood depended upon the industry. 

If the test case is successful, compensation to the people and businesses affected by the equine influenza outbreak could extend to some 60 million dollars. 

We have a directions hearing set in the Supreme Court in the coming months which will serve to shape the progress of the test case proceedings.  Whilst we will endeavour to have the proceedings finalised by the expiry of the limitation period, being August 2013 we cannot provide guarantees that this will be the case. Should the test case proceedings extend beyond August 2013 without a final order being made, people and business with potential claims not already registered with us  may be locked out of bringing any action for damages by reason of the expiry of the limitation period. We urge everyone who had suffered loss to register as part of the class action no matter how small the claim may seem.

If you may know of anyone that may have been a victim of the Equine Influenza Outbreak you can also have them complete our online questionnaire and we will register their interest in the class.

If you are already registered with the class and may have changed your contact details or email address, please also complete our questionnaire.

http://www.attwoodmarshall.com.au/ei-class-action-questionnaire/

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers (Gold Coast based Lawyers), we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

 You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

I did some work, I haven’t been paid and I haven’t got a contract, What can I do? – By Lauren Magasdi - Commercial Litigation Lawyer

Written on Friday, 8th July, 2011

In this situation you are entitled to sue for Quantum meruit a Latin term generically meaning “what one deserves” or “what a job is worth”.  Quantum Meruit is an action for payment or reimbursement of costs which were incurred, or the reimbursement of the reasonable value of the services performed. An action in Quantum Meruit will only arise when work has been completed by one party which provided a benefit to another, where no agreed value was determined and in most cases where , a contract had not been entered into.

Some examples of claims in Quantum Meruit are as follows:- 

1. Bob the Builder is a contractor. Sam is an owner of a house. Bob is asked by Sam to do work on a property. Bob and Sam do not enter into a contract, nor is a price agreed upon but a quote is provided. Bob ends up doing work on the property but the cost far exceeds that of the quote. Bob demands payment from Sam.  Sam refuses to pay. Bob justifies the work based on the services and materials provided as well as the cost incurred. Bob would be able to claim from Sam the “reasonable value” of the work, being the cost of the materials and the reasonable labour costs incurred. 

2. Bob the builder is also the owner of Lot A. Sam is the owner of Lot B. Bob and Sam are discussing erecting a new boundary fence. Bob and Sam neither agree on the type of fence or a price.  Bob constructs the boundary fence to his liking. Bob asks Sam for half of the cost of the fence but Sam refuses. Bob can then claim from Sam, the reasonable expense for that fence (usually in the case of a boundary fence, half) as Sam benefited from the fence.

The test:-

The three elements in which the court will determine if a party has been unjustly enriched are:-

  1. Has a party been enriched by the receipt  of a “benefit”;
  2. Was this “benefit” gained at the “expense of a contractor”; and
  3. Would it be “unjust” to allow the first party to retain the benefit.

 

What if there is a contract:-

Although most Quantum Meruit actions do not have contracts, an action can be brought in Quantum Meruit where a contract is still on foot. Some instances where an action can be brought are as follows:-

  1. There is no price fixed by the contract or pricing mechanism indicated;
  2. There is a quasi-contract (ie where someone starts work on a site whilst still negotiating the  express terms of the contract);
  3. Work commencing outside of a contract (ie on building contracts where the owner requests of the contractor an additional item of work not specifically listed in the contract); or
  4. The contract on foot is determined void, unenforceable or terminated but work still resulted in a benefit.

 

Does it have to go to court?

Quatum Meriut cases need not only be run through a court but can also be run through Queensland Civil and Administrative Tribunal or the Small Claims Tribunal if the amount claimed is small.

Conclusion:

In most cases, Quantum Meriut action’s aim to reimburse to a reasonable value, a contractor or individual for works undertaken. In some cases, they can be beneficial, in others; the reasonable value of the work may be estimated to be far less than what was claimed. Ultimately, if you receive a benefit for work undertaken, be prepared to pay the reasonable value of the work.  

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers (Gold Coast based Lawyers), we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

 You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

What can the Consumer, Tenancy and Trading Tribunal (CTTT) do for you? By Holly Gilholme - Commercial Litigation Paralegal

Written on Tuesday, 21st June, 2011

The CTTT provides an informal low cost service where consumers can resolve disputes between consumers and traders and tenants and landlords in New South Wales.

If you are having a dispute with a person, company or business you can lodge an application through the CTTT.

To do this you will need to lodge an application form and pay the associated fee to commence proceedings in the CTTT. Provide as much information as possible on the application form and what you want to achieve from this and the reasons why. If your claim is against a business or a company you may need to do a company or ABN (Australian Business Number) search to find their legal details

The CTTT is divided up into the following divisions:-

  • Tenancy Division –Deals with a General Tenancy Agreement (rental agreement)
  • Social Housing Division – Deals with social housing providers.
  • General Division – Deals with consumer claims against a business about the supply of goods or services up to the value of $30,000
  • Home Building Division – Matter dealing with work done by a building contractor
  • Motor Vehicles Division - Deal with consumer claim in relation to motor vehicles used for private use the max amount of claim is $30,000 unless it is regarding a new car used for private use.
  • Strata and Titles Scheme Division – Matters in relation to a block of units and common property.
  • Residential Parks Division – Matters in relation to General Tenancy/Site Agreements in residential parks.
  • Retirement Village Division – Matters dealing with retirement villages.
  • Commercial Division - Disputes about finance broking, appeals against Travel Compensation Fund decisions, commission fees charged by agents and some credit matters.

 

You will need to determine which division you matter falls under to complete the correct application form.

You can either lodge an application online or print and send a form by post or in person at a registry office in NSW.

You can lodge your application online at - https://esd.cttt.nsw.gov.au/Application/Main.aspx 

You can find the appropriate forms at - http://www.cttt.nsw.gov.au/Applications/Forms.html

What happens next?

The CTTT will then send you and the other parties a Notice of Conciliation and Hearing this should be revived within 14 days.

The Notice will contain the date time and place of the Hearing, both you and the other parties will need to attend the hearing.

Usually matters will be set for group hearings and parties and will be encouraged to attend conciliation.

What is Conciliation?

Conciliation involves bringing the parties involved in a matter together in an informal meeting and trying to mediate a solution that is agreeable by all parties. If a solution is reached by both parties it will be made into a legal order.

If no solution is reached, or if a party does not attend the conciliation the matter will go to a hearing.

Tips to get the best outcome out of conciliation

  1. Write down a summary of what you want to achieve.
  2. Work out how you will negotiate. It may be that you will have to compromise in some way to get the best result.
  3. Briefly explain your side of the story and ensure you have proof to back up events that occurred. Focus on a solution, not who is right or wrong.
  4. Listen to the other people talking, you may want to take notes. Don’t interrupt, try and consider their point of view.
  5.  Focus on the issues at hand not your emotions as these tend to get in the way of coming to a result.
  6. Only agree with what you think is acceptable.
  7. If an agreement is made make sure you write it down and when you have a final copy that both parties agree on write it on the form supplied which will be what is made into the legally binding order which you will need to understand. If you have any questions it is best you raise them before the form is lodged.
  8. If an agreement is not reached a hearing will be held either that day or at a later date.

 

What happens at a hearing?

Most of the CTTT hearings are held in group hearings, this is where a number of matters are held before a tribunal. 

Types of Hearings

  1. Special Fixture Hearings – are a formal hearing that are used when attempts at conciliation have failed and more time is needed to hear the case, it may take a few hours or spread over a few days.
  2. Direction Hearings – are for matters more complex where there needs to be certainty in jurisdiction and the issues involved. A timeframe may need to be set and evidence exchanged.
  3. Determinations on Paper – Matters can be determined on paper with the consent from both parties.  Parties are invited to submit all relevant information and submissions before a decision is made. If you matter falls under the Strata and Titles Scheme Division your  matter will be determined on paper.

 

In most matters your decision will be issued same day most decisions are followed by brief oral reasons, the decision is the typed into orders and sent to all parties.

Tribunal Decisions are final and binding and may only be reheard by appeal to the district court of NSW.

If you are not happy with your decision and orders you are entitled to come in and have an initial consultation with one of our Commercial Litigation Solicitors and we can help you from there.

Your claim may be too large for the CTTT to deal with, we suggest it is best to come in and have an appointment with one of our Commercial Litigation Solicitors at Attwood Marshall Lawyers.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

 You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Secure your interest now! How will the Personal Property Securities Act 2009 affect you? By Kelli Edwards - Senior Commercial Litigation Lawyer - Attwood Marshall Lawyers

Written on Wednesday, 30th March, 2011

Personal Property as security for credit is an essential part of Australia’s economy. The law underpinning this is undergoing a major overhaul.

The Personal Property Securities Act 2009 (PPSA) is scheduled to commence in October 2011 and will have a significant impact on the core business operations of many industries. 

The aim of the legislation is to bring an end to the inconsistent and duplicate laws and registers which presently govern personal securities law in the various Australian Jurisdictions.  It will replace 70 Commonwealth and State Acts.

The PPSA’s objective is to :

  • Increase Certainty for holders of competing securities interests;
  • Increase Consistency with consistent and comprehensive legislation;
  • Reduce complexity with simpler registration procedures;
  • Reduce Costs.

 

Over 40 existing security registers will be migrated to the PPs Register including:

  • ASIC Register of Company Charges;
  • Co-operatives register of charges;
  • Bills of sale;
  • Motor vehicle securities;
  • Ship mortgages;
  • Crop liens;
  • Stock liens;
  • Register of trademarks.

 

What the PPS Register will Look like

The PPS Register will be wholly electronic and, contrary to current processes, will operate on the basis of notice rather than document registration.  Notice can be registered before any secured transaction takes place. One registration can cover multiple security interests.

Under the PPSA it is not mandatory to register your security interests, and there is no time limit for registering. However, failure to register/perfect your interest will have consequences for enforcement and priority. A security interest may be void on the insolvency of the debtor and the security party may lose priority to other perfected security interests as a result of the delay.

What the Register will Cover

The PPSA applies to personal property only, including the following:

  • Charges
  • Mortgages (excluding mortgages over land or water rights)
  • Retention of title arrangements
  • Hire purchase agreements
  • Pledges
  • Trust receipts
  • Leases of goods
  • Consignments
  • Assignments
  • Transfers of title

 

The PPSA specifically excludes: 

  • Land,
  • Fixtures,
  • Water rights,
  • A right, entitlement or authority (including access easements) that is granted by or under the law of the commonwealth, state or territory and declared by that law not to be personal property for the purposes of the act.

 

The PPSA  Register will allow parties to register their interest that comply with the following three elements:

  • An interest in relation to personal property;
  • Provided for by a transaction;
  • That, in substance, secures payment or performance of an obligation.

 

How will the PPSA’s affect particular forms of Securities

 Fixed and Floating Charges

Copies of the security documents will not be included in the PPSA register.  Subject to satisfying the basic requirements of the act, the parties are generally free to negotiate the terms, and form, of the security agreement. Information in the register is included by the ‘financing statement’. 

 The PPSA does not distinguish between “Fixed” and “floating” security interests.   There is no ongoing relevance for the concept of ‘crystallisation’ in relation to floating charges and it is open to the parties to agree to circumstances in which the security can be exercised. All securities are effectively “fixed”.

Retention of Title Arrangements

A retention of title (“RoT”) clause is often used by suppliers to retain ownership of or title to goods until the buyer makes full payment.

The PPSA will recharacterise  a sale on RoT  terms as a “security interests”.  This means that the PPSA will treat the purchaser as if it already owned the goods despite the RoT clause, and the seller as only having security over the goods for the amount owed.

After the introduction of the PPSA, sellers who rely on with RoT clauses will have to ensure their security interest is registered and perfected under the PPSA process, otherwise the RoT clause and the security interest it thereby creates may not be recognised.           

Review your contracts and Security interests NOW !

Many participating registers will be transferred over to the PPS Register and you do not need to do anything about these. However, there are still many registers that will not be included.

The PPSA allows for the pre loading of financing statements for transitional security interests in the lead up to the PPS register commencing operation. Your current security interests, and contracts creating security interests, need to be reviewed and transferred into the PPSR so that your secured interests, including RoT clauses which were previously unregistrable, are recorded and in the one place.  The timing of the registration of your security could have important ramifications for your securities priority.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Service of Court Documents via Social Networking Websites by Alica Bradford - Attwood Marshall Lawyers

Written on Tuesday, 29th March, 2011

It appears that Australian courts are beginning to recognise social networking sites as a practical way of communication.  

MKM Capital Pty Ltd v Corbo & Poyser (Unreported, ACT Supreme Court, Master Harper, 12 December 2008)

The defendants failed to keep up with repayments on a loan owing to MKM Capital Pty Ltd (“MKM”).  The defendants did not make an appearance at the hearing, and MKM obtained default judgement for the value of the loan amount and possession of the defendant’s house.  Despite numerous attempts at personal service, MKM were unable to serve the default judgement notice on the defendants. 

MKM applied to the court applied to the court for an order for substituted service.  Rule 6560(3) of the Court Procedures Rules 2006(ACT) provides that a court can make such order if it is satisfied that: 

  • it is impracticable, for any reason, for the document to be served in the authorised way; and
  • the alternative way is reasonably likely to bring the document to the attention of the person to be served.

 

MKM submitted that it was impractical that service be effected in the authorised way and that an alternative way of service via Facebook would bring the documents to the defendants’ attention.  MKM led evidence that:- 

  • the dates of birth and email addresses displayed on the Facebook profiles matched the 2 defendants; and
  • the ‘friend’ list on the Facebook profiles showed that each of the 2 defendants were friends with the other.

 

On the basis of this evidence the court found that it was reasonably likely that the document would be brought to the defendants’ attention and ordered substituted service of the default judgement be effected by sending a private message to the defendant’s Facebook page informing the entry and the terms of the notice. 

Citigroup Pty Ltd v Weerakoon[2008] QDC 174

In an earlier decision, the Queensland District Court reached a decision that Facebook was not a suitable method of serving court documents.  The reasons for that decision were:- 

  • the uncertainty of the Facebook page;
  • the fact that anyone can create an identity that could mimic the true person’s identity; and
  • the court not being satisfied that the person who created the Facebook page was indeed the defendant.

 

First Writ Served on Twitter – British High Court

On 1 October 2009 the British High Court ordered its first injunction via Twitter, stating the social website and micro-blogging service was the best way to reach an anonymous “Tweeter” who had been impersonating the Donal Blaney on the micro blogging site, Twitter.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Equine Influenza Update (17 March 2011)

Written on Thursday, 17th March, 2011

The matter has now been placed on a Supervised Case List in the Supreme Court in Brisbane.

This means that the court will now conduct regular reviews of the matter to ensure that both parties are moving the matter towards a resolution in a timely fashion. 

The first review date with be in May. 

In the meantime, we have almost finalised the evidence of each of the witnesses who will be giving evidence at the trial.  260 witnesses gave evidence at the Inquiry. We have narrowed that to around 40 for the test case. 

It is important that we keep our records of everybody who has registered an interest in the class action accurate and up to date. If there is any doubt whether we have current contact details for you, please let us know. 

Please note that email is our preferred means of communication.

If you are aware of anybody who was adversely affected by the escape of the EI virus in August 2007 who has not yet registered an interest, would you please urge them to do so. 

We must be able to calculate with reasonable accuracy the number of claimants and the potential amount of the claim as a group. 

Should you require any further information in relation to this matter, please do not hesitate to contact Lauren Magasdi on 07 5506 8253 (lmagasdi@attwoodmarshall.com.au) or Holly Gilholme on 07 5506 8202 (hgilhome@attwoodmarshall.com.au).

If you are interested in joining our class action group, why not complete our EI Class Action Questionnaire and have us contact you today!

Go to our EI Web Page

Previous updates:

 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

New favours for Sub - Contractors in NSW

Written on Thursday, 10th February, 2011

On 28 February 2011 the Building and Construction Industry Security of Payment Amendment Act 2010 (NSW) will come into force which contains a new Part 3 that deals with payment due to sub-contractors by head contractors.

Currently the position is that sub-contractors must follow an adjudication process if they are not paid by the head contractor.  In a few recent cases the head contractors went insolvent before the adjudication process was finalised and the sub-contractors were left in the cold.  Sub-contractors had no security for any outstanding monies due to them.

The new amendments to the Act now allows a sub-contractor who has started an adjudication process to require the principal not to pay all monies due to the head contractor but to retain enough money to cover the payment claim of the sub-contractor.

The sub-contractor may serve a ‘payment withholding request’ on the principal and it is important to note that if the principal refuses to retain an amount equal to the payment claim of their sub-contractor, the principal becomes jointly and severally liable with the head contractor towards the sub-contractor.

Where a sub-contractor is unaware of the identity of the principal, it may request the adjudicator to direct the head contractor to disclose the details of the principal to the sub-contractor.

The new amendments provide more security for sub-contractors which may limit the commencement of adjudication processes where there is a dispute relating to the payment of a sub-contractor's claim.

It is important that principals specifically be aware of their obligations under the new amendments when they receive a payment withholding request from a sub-contractor.  Principals must respond in an appropriate way to avoid becoming liable to the sub-contractor. 

If you require any further information and/or advice in relation to these amendments please do not hesitate to contact our office. 

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Royal Inquiry into Queensland Flood

Written on Thursday, 27th January, 2011

On 17 January 2011 Premier Anna Bligh announced an inquiry into Queensland’s flood disaster.  The inquiry will have the full powers of a Royal Commission and is expected to take one year.

The inquiry will, among other things, examine the following issues:- 

  • Changes to insurance policy definitions for flood events;
  • The performance of private insurers;
  • How state and local governments across Queensland can better protect their communities from the risks of flooding in the future;
  • Whether the operators at Wivenhoe Dam retained water in the dam’s flood compartment for too long, forcing a drastic release that compounded the flood instead of mitigating it.
  • Local government policies that permitted the building of thousands of properties in low lying and flood prone areas;
  • The adequacy of forecasts and warning systems;
  • The emergency response in natural disaster events.

 

The inquiry will be headed by Justice Cate Holmes and will be assisted by former police commissioner Jim O’Sullivan and international dam expert Phil Cummins. 

The Commission is required to seek public submissions and hold public hearings in affected communities. 

An interim report is expected in August 2011, and the final report is expected by January 2012.

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

 You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Equine Influenza Update (December, 15 2010)

Written on Wednesday, 15th December, 2010

PRESS RELEASE

 

CLASUL PTY LTD v COMMONWEALTH OF AUSTRALIA

There are no further meetings planned with the lawyers for the Commonwealth prior to Christmas.  Nevertheless, we are continuing to have discussions with our opponents about refining the parameters of the document protocol that will be used as the vehicle for the electronic disclosure of the thousands of documents involved in the case. 

The Brisbane Supreme Court has now issued us with an Intervention Notice.  This is a standard document generated by the Court and sent to both parties to the litigation once pleadings have closed.  The Notice requires the parties to submit a timetable for the completion of certain steps in the case.  We are in the process of agreeing on a timetable with our opponents that will ensure the timely completion of steps leading up to a mediation or a trial. 

This will be our last report for the year.  We are looking forward to resuming in the New Year and having the case finalised, one way or another, in 2011. 

Merry Christmas and a safe and happy new year to you all.

Should you require any further information in relation to this matter, please do not hesitate to contact our Lauren Magasdi on 07 5506 8253 or  1800 621 071 or email lmagasdi@attwoodmarshall.com.au.

If you are interested in joining our class action group, why not complete our EI Class Action Questionnaire and have us contact you today!

Go to our EI Web Page

Previous updates:

 

Bad Call Telco Finance Scams - Join Attwood Marshall Lawyers Class Action

Written on Tuesday, 2nd November, 2010

If your business has signed up for cheap telephone deals with "free" Plasma TV`s, Telephone Systems or Electrical Goods, you may be caught up in one of the biggest scams in Australia.

Attwood Marshall is running a Class Action for consumers against these dodgy operators.

The ABC program 'Four Corners' conducted an investigation into this rip off of small to medium businesses.

View the program by clicking on the link below:

Resource by: ABC - Four Corners Report - 1st November 2010

Should you require any further information in relation to this matter, please go to our dedicated Telecommunications Class Action page or contact our Lauren Magasdi on 1800 621 071 or email lmagasdi@attwoodmarshall.com.au.

If you are interested in joining our class action group, why not complete our Telecommunications Class Action Questionnaire  and have us contact you!

Facing a difficult situation? Looking for sound legal advice? At Attwood Marshall Lawyers, we’ve got you covered. We provide expert advice across a range of legal specialities including…

 

We are one of the few legal firms to offer an all round legal service to our clients and if there are some specialty areas that we do not accommodate, we will gladly refer you to one of the specialty firms that we have a relationship with and trust to deliver the service you require.

 You can call us on 1800 621 071 or use our Online Enquiry Form to send us your details.

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff you can also visit us an office near you!

 

Equine Influenza Update (October, 22 2010)

Written on Monday, 25th October, 2010

At the meeting on 13 October 2010 we discussed the most efficient and cost effective way for the parties to undertake disclosure.  The lawyers for the Commonwealth advised that they may have up to 100,000 documents to disclose, in addition to the 3000 odd that were tendered as evidence at the enquiry.  It is contemplated that the exchange of documents will take place electronically, and that at first instance, the Commonwealth give disclosure of 20,000 documents that were provided to the Inquiry, but were not actually tendered as evidence.

The second main topic of discussion revolved around expert evidence concerning the means of escape of the virus from Eastern Creek, the adequacy of the system of work at the quarantine facility and evidence from a forensic accountant about financial losses.  There may be some agreement about who the experts might be and what specific questions the experts might be asked.

Further meetings with lawyers for the Commonwealth are contemplated in the near future.

Should you require any further information in relation to this matter, please do not hesitate to contact our Lauren Magasdi on 07 5506 8253 or  1800 621 071 or email lmagasdi@attwoodmarshall.com.au.

If you are interested in joining our class action group, why not complete our EI Class Action Questionnaire and have us contact you today!

Go to our EI Web Page

Previous updates:

 

When Should a Statutory Demand be Issued?

Written on Thursday, 21st October, 2010

Statutory Demands are aggressive legislative tools used to recover outstanding monies from incorporated entities.

When issuing a Statutory Demand there must be no dispute or doubt as to the amount owed. For this reason, statutory demands are usually reserved for recovery of judgment amounts; however, they can be used to recover other debts in the appropriate circumstances.

Time Limits under a Statutory Demand

Once a Statutory Demand has been served on a company, the company has 21 days within which to either pay the amount owed, or apply to the Supreme Court to have the demand set aside.

Applications to Set Aside a Statutory Demand

The grounds on which a demand can be set aside are outlined in section 459G and 459J of the Corporations Act and are broadly as follows:

  1. Where there is a dispute as to the amount owed;
  2. Where there is an offsetting claim;
  3. Where there is a defect in the demand and substantial injustice unless the demand is set aside;
  4. There is some other reason why the demand should be set aside.

 

If you serve a statutory demand is issued, and the Debtor applies to have it set aside you have two options:

  1. To consent to an order that the demand be set aside;
  2. Defend the application.

 

Whether you consent to set aside the demand will depend on the grounds the debtor alleges that the demand should be set aside.

If you choose to defend any application to set aside the statutory demand, and the demand is ultimately set aside by the court, it is likely that the court will order that you pay the other parties costs of the application. 

Consequences if Statutory Demand is not Set Aside or Complied With Within the Time Limit

If 21 days passes after being served with the Statutory Demand and the debtor does not either apply to have it set aside, or make payment in full of the amount owed,  the Debtor has failed to comply with the Statutory Demand.  Failure to comply with a Statutory Demand is an act of insolvency by the debtor company and you are entitled to apply to the court to have the company wound up. The costs of this application are recoverable from the Company.

Once you have an order that the company be wound up a liquidator will step in and take over the company’s assets and you will be registered as creditor. You must register a creditor and if there are sufficient funds in the company, the liquidator will pay either the full amount owed, or a portion of the amount owed to you, once it has finalised the company’s affairs.

For enquiries regarding Dispute Resolution and Commercial Litigation please contact our office on 1800 621 071 or fill in an online enquiry form today.
 

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff, you can visit at an office near you.

 

Equine Influenza Update (October, 14 2010)

Written on Thursday, 14th October, 2010

Our meeting with the lawyers for the other side went ahead yesterday as planned.  The meeting was held “without prejudice” which means that details of matters discussed at the meeting must stay between those who attended.  Nevertheless, we have asked the other side for permission to provide a general advice to the group about what was discussed at the meeting, and we hope to be able to disclose further information later today or tomorrow.  We can advise however, that there was no discussion about a settlement, which we know many of you were hoping for.

Should you require any further information in relation to this matter, please do not hesitate to contact our Lauren Magasdi on 07 5506 8253 or  1800 621 071 or email lmagasdi@attwoodmarshall.com.au.

If you are interested in joining our class action group, why not complete our EI Class Action Questionnaire and have us contact you today!

Go to our EI Web Page

Previous updates:

 

Equine Influenza Update (September, 20 2010)

Written on Monday, 20th September, 2010

Our opponents have invited us to attend a meeting to discuss the case, disclosure and next steps.  The meeting will be held on 13 October 2010 at 10:00am.  The other side will be flying from Sydney to Brisbane, where the meeting will take place.  We shall report on the outcome of the meeting shortly after it has been held.

Should you require any further information in relation to this matter, please do not hesitate to contact our Lauren Magasdi on 07 5506 8253 or  1800 621 071 or email lmagasdi@attwoodmarshall.com.au.

If you are interested in joining our class action group, why not complete our EI Class Action Questionnaire and have us contact you today!

Go to our EI Web Page

Previous updates:

 

Equine Influenza Update (September, 10 2010)

Written on Friday, 10th September, 2010

Pleadings in the case have now closed. This means that all of the documents outlining our case against the Commonwealth, and all the Commonwealths documents outlining its defence, have now been filed in court and served. The battle lines are therefore drawn. 

The next step is to undertake Disclosure. This is a process that requires both parties to exchange a List of Documents in their possession that are relevant to the case. 

Our List of Documents has been finalised up to this point. To view a copy of our List of Documents please click the link below.

 

The Commonwealth is now required to provide us with its List of Documents. 

Our accountants report is expected no later than 17 September 2010.

Should you require any further information in relation to this matter, please do not hesitate to contact our Lauren Magasdi on 07 5506 8253 or  1800 621 071 or email lmagasdi@attwoodmarshall.com.au.

If have not already joined our EI Class Action, why not complete our EI Class Action Questionnaire and have us contact you today!

 

Equine Influenza Update (August 30 2010)

Written on Monday, 30th August, 2010

A Reply to the Defence was filed by the Plaintiff in the Brisbane Supreme Court Registry on 26 August 2010.

To view a copy of this document please click on the link below.

Reply to the Defence  -  Clasul Pty Ltd v The Government

Should you require any further information in relation to this matter, please do not hesitate to contact our Lauren Magasdi on 07 5506 8253 or  1800 621 071 or email lmagasdi@attwoodmarshall.com.au.

Why not complete our EI Class Action Questionnaire and have us contact you today!

With three offices conveniently located at Robina, Coolangatta - Tweed and Kingscliff, you can also visit us an office near you. 

 

Equine Influenza Update (August 2010)

Written on Tuesday, 3rd August, 2010

The task of quantifying Wattlebrae Stud’s losses is a large and difficult job. The areas of loss that need to be calculated are loss of service fees and forward bookings, vet fees and medication, loss of agistment income, loss of opportunity to syndicate new stallions, loss of value of the horses and foals that died, borrowing and holding costs, general loss of business and damage to business reputation. There are thousands of documents that need to be considered when formulating the claim. The accountants now estimate that their report will be finalised by the end of August.

Lauren Taylor goes off on maternity leave today. We wish her all the best for the birth. Any enquiries after that date can be directed to Lauren Magasdi on 5506 8253 or at lmagasdi@attwoodmarshall.com.au

 

What it takes to run a class action

Written on Friday, 9th July, 2010

A Representative Action, commonly referred to as a Class Action enables 7 or more claimants to bring an action against the same person or company where the dispute is common.

There are no limitations as to what actions can be brought.

Recently, the Courts have seen a trend of actions in areas such as product liability, medical negligence, financial and securities and immigration.

To be classified as a Class Action, the following requirements, as set out in Section 33C (1) of the Federal Court of Australia Act 1976 (Cth) must be met:-

  1. Seven (7) or more persons who have claims against  one or more individuals or corporate bodies;
  2. The claims must be in respect of the same, similar or related circumstances; and
  3. The claims must give rise to a substantial common issue of law or fact.

In cases where there are less than 7 people  who all have the same dispute, with leave of the court, you are still able to run the matter as a Class Action.

One of the main advantages of being in a Class Action is the costs. All costs are shared equally amongst members.  As the saying goes  - ‘the larger the class, the cheaper the costs’. Various other  benefits include the support  and encouragement offered from other members of the class ,reducing the potential of adverse costs orders being made, minimising risks involved and the benefit of a section in the Federal Court Act to follow for procedure. However, the greatest incentive of all is that as a class, your proceedings are stronger.

Some disadvantages noted with Class Actions are the expenses incurred to advertise, as required under section 33x of the Federal Court of Australia Act 1976 (Cth), Claimants are unable to settle or discontinue the Class Action without leave of the court and in some circumstances, contact with the Solicitor is kept at a minimum to allow him/her to discuss matters with all members of the class equally.

Further, at the time Judgment is provided, all Claimant’s are identified in the Judgment, unless with leave of the court. Following on from this, not only does Judgment bind those within the Class, but also persons who may have the same interests but were not formally included in the Class.

If you think you may have a potential Class Action, or would like further information, please contact our office on 1800 621 071 or use our Online Enquiry Form to send us our details..

 Resource By: Lauren Magasdi