An agreement to negotiate a contract in good faith: No legal content and too uncertain for enforcement

The decision of Baldwin v Icon Energy Ltd [2015] QSC 12 is generally instructive upon the issue of the minimum required to enforce an agreement to negotiate .The language of these agreements is always couched in terms which include the expressions “good faith” and “reasonable endeavours” as descriptive of the yardstick of behaviour of each party in the intended negotiation to follow such an agreement. However, the mere statement of these intended characteristics of negotiation may not be sufficient to ensure that the agreement to negotiate is enforceable.

Breaches of lease between exercise of option to renew and expiry of lease in Queensland

The decision of Greppo v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131 illustrates a defect in s 128 of the Property Law Act 1974(Qld) which gives a right to a lessee to apply for relief against forfeiture against loss of a right to exercise an option to renew. The defect arises because the legislation does not adequately deal with breaches that occur after the exercise of the option but before the expiry of the lease. Most commercial leases of all kinds have a standard provisions, as the lease in this case, as a conditions of the exercise of the option to renew that the lessee will have given notice of exercise within the time specified to the lessor and will have up to the date of expiry of the lease paid all rent and observed all lessee’s covenants. The difficulties occur because invariably an option must be exercised before the expiry of the lease when a lessee may not be in breach of the lease but may later prior to the expiry of the lease fall into breach. As this decision indicates,at least in Queensland, that the lessee who desires to challenge the lessor’s right to enforce those conditions can neither seek relief under s 128 against forfeiture of the right to exercise the option ,or indeed, under s 124 of the Property Law Act 1974 to preserve the agreement for lease brought about by the otherwise regular exercise of the option to renew. The decision cries out for legislative reform along the lines of s 133E of the Conveyancing Act 1919(NSW) which was amended in 2001 to meet this contingency.

Bank guarantees and the reasonable expectations of beneficiaries

A bank guarantee has traditionally been viewed as a cash equivalent. This view is supported by the operation of the autonomy principle. However, the autonomy principle is subject to certain recognised exceptions both at common law and under statute. One of these exceptions is commonly referred to as the negative stipulation or underlying contract exception. In recent times the operation of this particular exception has given rise to a wealth of case law. This article examines whether this recent case law appropriately recognises the reasonable expectations of the beneficiary of a bank guarantee that a bank guarantee should function not only as a security but as a risk allocation device.

Reinforcing stigma or delivering a fresh start: Bankruptcy and future engagement in the workforce

In Australia, bankruptcy retains a social stigma, as is often seen as a personal failing, and an indication that the individual cannot be trusted to meet their obligations. Official labelling and informal labelling reinforce this stigmatisation of bankruptcy in employment and business contexts. This occurs through legislation and policy that imposes restrictions on participation in some occupations on the grounds of bankruptcy, and imposes obligations on persons to disclose their bankruptcy to their employer. These restrictions and obligations that are varying in length and extent, both within industries and professions and across industries and professions, and appear to lack a coherent policy justification. Further, informal labelling is facilitated by the law providing for a permanent, publicly accessible record of bankruptcy, and failing to restrict the use of bankruptcy information in employment and business decision-making. This stigmatisation of bankruptcy inhibits the fresh start objective of bankruptcy, and is not supported by a strong correlation between bankruptcy and negative personal or other attributes. This article therefore argues that a review is needed to determine the circumstances in which there is a genuine policy justification for employment restrictions, and the appropriate length and scope of such restrictions. Reform of the Bankruptcy Act should also be considered. Possible areas for law reform including reducing the minimum period of bankruptcy; removing the permanency and/or public accessibility of the bankruptcy record; revising the language used in the Bankruptcy Act; and introducing a prohibition or restriction on the ability of employers to use bankruptcy status in employment decision making. Such changes would promote the fresh start objective of Australia’s bankruptcy system, and increase the likelihood that bankruptcy does not unfairly inhibit an individual’s ability to engage as an economic actor in Australian society and thereby improve their financial well-being.

Submission to the draft Migration Assurance Policy - Improving the transition to the fixed-line national broadband network review

The rights of individuals to self-determination and participation in social, political and economic life are recognised and supported by Articles 1, 3 and 25 of the International Covenant on Civil and Political Rights 1966.4 Article 1 of the United Nations’ Human Rights Council’s Resolution on the Promotion and Protection of Human Rights on the Internet of July 2012 confirms individuals have the same rights online as offline. Access to the internet is essential and as such the UN: Calls upon all States to promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries (Article 3) Accordingly, access to the internet per se is a fundamental human right, which requires direct State recognition and support.5 The obligations of the State to ensure its citizens are able, and are enabled, to access the internet, are not matters that should be delegated to commercial parties. Quite simply – access to the internet, and high-speed broadband, by whatever means are “essential services” and therefore “should be treated as any other utility service”...

Regulating against corporate phoenix activity

This paper considers the adequacy and efficiency of existing legal and regulatory frameworks to deal with corporate phoenix activity. Phoenix activity, which is often triggered by a solvency crisis, is estimated to cost the Australian economy up to $3 billion each year. Despite the raft of piecemeal Australian legislation directed at this activity, phoenix activity does not appear to be abating. This paper considers regulatory approaches to detection and enforcement of the underlying law. This study reveals and explores a perception that the law is deficient, and the tension that exists between the adequacy of the law and the regulatory approach.

The conundrum of phoenix activity in Australia: Is further reform necessary?

Corporate phoenixing activity is estimated to cost the Australian economy $1-3 billion dollars annually. Significant questions arise as to whether existing legal frameworks are adequate to deal with phoenix activity, and whether further reform is necessary. Bills proposing reform appear to be languishing amid doubts as to their potential effectiveness. This paper will examine the conundrum presented by phoenix activity, the importance of further reform and the impact of the lack of a statutory definition of ‘phoenix activity’ on a regulatory environment that not only uses the term, but punishes offenders accused of it.

Micro, small and medium enterprise in insolvency: An international perspective

UNCITRAL Working Group I is presently developing a legal framework dealing with the entire lifecycle of Micro, Small and Medium Enterprises. The central focus of this work is to guide MSMEs in developing countries out of the grey economy and into the regulated, tax-paying space where these business will also have greater access to legitimate finance. Insolvency is an important, perhaps inevitable aspect of the life cycle of these enterprises. The question that is yet to be considered is a simplified insolvency regime for MSMEs. While the Working Group I is focused on the development of a model for developing economies, MSMEs in robust, highly developed economies also face particular challenges when faced with a solvency crisis. The present one-fits-all approach to insolvency requires a rethink.

Evolution of the concept of compulsory licensing: A critical analysis of key developments before and after TRIPS

Patents provide monopoly rights to patent holders. There are safeguards in patent regime to ensure that exclusive right of the patent holder is not misused. Compulsory licensing is one of the safeguards provided under TRIPS using which patent granting state may allow a third party to exploit the invention without patent holder’s consent upon terms and conditions decided by the government. This concept existed since 1623 and was not introduced by TRIPS for the first time. But this mechanism has undergone significant changes especially in post-TRIPS era. History of evolution of compulsory licensing is one of the least explored areas of intellectual property law. This paper undertakes an analysis of different phases in the evolution of the compulsory licensing mechanism and sheds light on reasons behind developments especially after TRIPS.

Liability and statutory defence in Queensland

Context Increasing client awareness of valuer's duty of care - Webb Resolutions Ltd v E.Surv Ltd [2012] - Provident Capital Limited v John Virtue Pty Ltd (No 2) [2012] - Including disciplinary actions: Valuers Registration Board of Qld v Conroy [2013] QCAT 688 combined with Post-GFC ‘drops’ in value!

Australia

Crisis management in the banking sector is a topical issue in Australia. This is not because financial institutions are facing a financial crisis. Indeed, in 2012, the International Monetary Fund (IMF) noted that ‘Australia has a history of few bank failures, even fewer financial crises, and its banking sector emerged from the global financial crisis relatively well.’ Rather, crisis management of banks is topical because there has been the first full review of Australia’s banking and financial system in nearly 20 years, which has examined and raised issues about the resilience and capacity of the Australian regime in this post GFC world. At the time of writing, the Report’s recommendations, including for Australian banks to meet capital standards in line with emerging international practice, are the subject of industry debate in advance of the Australian government’s decision.

The conundrum of phoenix activity: Is further reform necessary?

Phoenix activity presents a conundrum for the law and its regulators. While there is economic cost associated with all phoenix activity, the underlying behaviour is not always illegal. A transaction with indicators of phoenix activity may be an entirely innocent and well-intentioned display of entrepreneurial spirit, albeit one that has ended in failure. Restructuring post business failure is not illegal per se. Recent reforms targeting phoenix activity fail to grapple with the vast range of behaviour that can be described as phoenix activity since they do not differentiate between legal and illegal activity. This article explores the importance of the distinction between legal and illegal phoenix activity, the extent to which the existing law captures a range of behaviour that can be described as illegal phoenix activity and the response of key regulators and governmental bodies to the absence of single law that attempts to define illegal phoenix activity.

The changing face of conveyancing responsibility

In this note the authors examine two cases, one from Australia, the other from New Zealand, both of which explore the responsibility of legal practitioners engaged as professionals in the buying and selling of land. What is shown is that the allocation of risk and responsibility is constantly under scrutiny for those involved in the conveyancing process, something which the nascent Australian electronic conveyancing protocols will only heighten.

The Statutory Defence(s) of 'peer professional opinion'

In the wake of the GFC and with ever increasing consumer-protection-related laws, clients are more aware of their rights and your obligations as a professional valuer. They also are more likely to take legal action if, as a result of their reliance on a valuation, they suffer a financial loss. In some Australian jurisdictions, in response to a claim of negligence, the professional valuer may be able to raise a professional practice defence under civil liability legislation. This article considers the nature of this statutory defence, what is required to rely upon it and in which jurisdictions it applies.