We are a focused team of specialist lawyers with top tier firm expertise adding value with strategic thinking. |
Our main business focus areas are:
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| Clarks add value because our people are not just lawyers they are also skilled strategic thinkers with a commercial focus. |
Recent News |
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| DIRECTORS' DUTIES - Approving financial statements a serious matter |
| A recent court decision against the directors of a major company demonstrates how demanding are a director's duties when approving financial statements. |
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| Planning Ahead - What is an enduring guardian? |
| An enduring guardian is someone you appoint to make personal, health or lifestyle decisions on your behalf. |
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| STRATA LAW - Court puts limit on insurer taking it to excess |
| The amount of the excess payable by an owners corporation when a claim is made on a home owner's warranty insurance policy in relation to common property building defects has now been determined by the courts in NSW. |
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| DISPUTED DEBT - Company not saved from insolvency |
| The courts have found a company can be wound up for insolvency even though its debt is in dispute. |
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| OH&S - When is it safe to dismiss employees? |
| A string of recent unfair dismissal cases has seen employees reinstated to their former positions following dismissal for breaches of safety regulations and practices. |
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| Personal Information - Lessons from recent privacy violations |
| News of data security breaches at major organisations that reveal thousands of individuals' personal information is not uncommon these days. |
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| Handling a Tax Debt - Identifying technical issues is key |
| Unless you are a taxpayer who is self-assessing and subject to pay-as-you-go instalments, the general rule is that tax has to be paid within 21 days of receiving a notice of assessment. |
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| Astroturfing - Misleading advertising on social media |
| Astroturfing refers to an orchestrated expression of support for a cause, product, service or policy designed to give the impression of a grassroots movement. |
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| Carbon Price Gouging - Prevention is better than cure |
| The government has announced that the ACCC, the Australian Competition and Consumer Commission, will be given responsibility to police how businesses pass on the carbon price and for ensuring they do not engage in price gouging by using the carbon price as an excuse to increase prices beyond its actual effect. |
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| ROAD RULES - Heavy vehicle signage found to be outside the rules |
| The NSW Supreme Court has questioned the legality of heavy vehicle signage, which may render unsafe past convictions for contravention of these signs. |
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| Sham Contracting - Two parts to employee test involves intuition |
| Whether someone providing services to a business is classed as an employee or independent contractor can be difficult to assess. |
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| Family Trusts - Losing out on land tax threshold |
| A businessman with a family discretionary trust also had a block of land on the coast and plans to redevelop it. |
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| MEDIATION - Court is not the only way to resolve a dispute |
| Mediation can be a much more user-friendly way of resolving a dispute than going to court, and it has a proven success rate. |
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| FACEBOOK- Liability for publication |
| Businesses using social media need to closely monitor what goes up on such sites. |
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| SOCIAL NETWORKING - Can you control it? |
| Social media is a double edged sword. Businesses are increasingly starting to use it for marketing purposes. |
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| Illusory Savings - Misleading two-price comparisons under attack |
| The ACCC has been vigorously pursuing companies that quote misleading higher prices in comparison to so-called sale prices. |
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| YOUR WILL - Where is it? |
| Where should you keep your will? |
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| CLOUD COMPUTING - Legal issues for service contracts |
| Before you decide to sign up for cloud computing, there are issues relating to location of data, security and reliability, and data exit that you should be aware of. |
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| GREEN RETROFITS - New environmental upgrade agreements |
| Market barriers that have previously prevented owners from improving their buildings' green credentials have been removed with new laws. |
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| SUB-CONTRACTORS - Gain new right to earmark funds owed to contractor |
| Under recent changes to the law, subcontractors can now claim against principal contractors for payments due to them from contractors. |
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| FINANCIAL REPORTS - Company officer shares liability for failure to lodge |
| The company secretary of a business listed on the Australian Stock Exchange was placed on a good behaviour bond for six months and ordered to pay court costs earlier this year after failing to meet the reporting requirements that are part of the laws governing corporations. |
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| NEW CONSUMER LAW Mandatory reporting |
| Suppliers of goods and product-related services now face criminal offence penalties for failure to report incidents of harm to consumers. |
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| EVIDENCE - Signatures, squiggles and electronic signatures |
| If it is a symbol, a squiggle or in electronic form, can a signature still authenticate a document or piece of writing as that of the signatory? |
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| CONFIDENTIALITY - Employer’s right to view lawyer’s email |
| A recent US case noted that an email sent by an employee to her lawyer from her work computer was not a ‘confidential communication between a client and a lawyer’. |
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| ADVERSE ACTIONS - Broader protections withstand the test |
| If you are an employee and union member facing disciplinary action because of your union activities, two recent decisions by the courts may come to your rescue. |
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| COURT ORDERS - An inconvenient truth |
| If you believe your intellectual property, such as a trademark, is being copied, you will usually want the other business to stop straight away, but as a recent high-profile incident shows, a strong case is not the only consideration. |
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| NEIGHBOURS - Building good fences may take negotiation |
| There is no requirement to have a fence if you and your neighbour don’t want one. But..... |
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| SUPPRESSION ORDERS - Protecting people living with HIV |
| The ability to make suppression orders is an extremely important power of the court to protect the confidentiality of people, for example, those living with HIV who are often discriminated against or victimised. |
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| OHS Goes National |
| New South Wales has introduced a bill to bring NSW into line with the other states and territories from 1 January 2012. |
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| Bullying in Victoria - Brodie's Law |
| The Victorian Government has introduced legislation titled 'Brodie's Law' after Brodie Panlock, who committed suicide after workplace bullying. |
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| Security of Payment Act strengthened |
| The Building and Construction Industry Security of Payment Act 1999 NSW has been amended effective as at 28 February, 2011. |
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| Casuals, Awards and All-in Payments |
| If you are making "all in" or gross payments, whether it be casual or permanent, you need to specify the award, the classification and the base rate of pay for that classification. |
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| Director Penalty Notices |
| There are a number of ways a company director can become personally liable for the debts of his or her company. |
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| Employment Restraints |
| Court supports employer relying on fixed term contract and liquidated damages clause. |
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| Breaking the Contract |
| An employee can't automatically terminate an employment contract by simply rejecting it and walking away from the job - and there can be costly consequences for them if they do. |
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| Rising Seas - Protecting the beachhouse |
| New laws from January 2011 may help resolve some of the problems arising from property damage due to rising seas, but the strict conditions applying to protection works will make it very difficult for landholders in emergency conditions. |
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| Tenders Pitfall - Beware of creating risk of claims |
| The process of tendering can give rise to contractual rights and obligations before any final deal is signed. |
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| Wills - Can I change my mind? |
| You are free to alter your Will at any time. |
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| Landlord and Tenant - Renting laws have been rewritten |
| New laws to deal with issues in the rental market and reduce the level of disputes started on 31 January 2011. |
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| Paying Tax on Employees Shares - Clearing up the rules |
| The law on the taxation of employee share schemes changed in 2009, but some still find it confusing. |
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| Early Guilty Plea - How are sentencing discounts decided? |
| In 2000, courts gave guidelines that the sentencing discount for a guilty plea should fall in the range of 10 to 25 per cent. |
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| Safety slip - Compensation could be harder to win |
| It may now be difficult to prove responsibility for injury when someone slips and hurts themselves at a time and place you would usually expect spillages to occur. |
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| Commercial Offices - Sellers or lessors must disclose energy efficiency |
| Energy efficiency is now a legal consideration when leasing or selling commercial offices space of 2,000 square metres or more. |
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| Drafting The Contract - Interpretation is more than words in isolation |
| A recent UK case shows the importance of clear and unambiguous drafting, and that contractual interpretation is not simply a matter of considering words in isolation. |
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| Not Just The Money - Suspension of employee a loss of 'non-pecuniary attributes' |
| In a recent case where an employee had been suspended on full pay, the courts found that employees have rights to more than just a pay cheque. |
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| Hybrid Dispute Resolution - Getting the best of both worlds |
| Courts are streamlining their processes around the world. |
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| Duty of Care - Managing agents and caretakers responsible |
| Managing agents and caretakers might like to check their contracts in light of a recent case which found that the owner of premises had effectively delegated the duty of care. |
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| Key Changes - New guardianship laws |
| Several changes to guardianship laws came into effect in September 2010. |
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| Self-managed super - New law removes special trustee status |
| A law brought in on 1 July removes trustees of self-managed super funds from the Office of State Revenue's definition of special trustee. |
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| Compensation for rescuers - Aftermath of accident causes mental harm |
| A recent case improves the likelihood that rescuers and emergency workers who suffer 'pure mental harm' in the course of their duties can gain compensation. |
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| Aboriginal cultural heritage- Improved protection and harsher penalties |
| New laws have come into force to improve the protection of Aboriginal cultural heritage. |
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| Purple Winning Colour - Another colour is trade marked |
| After another court case over the colour purple ended up in the Federal Court. |
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| WORKPLACE HARASSMENT AND BULLYING |
| Employers have a positive duty to prevent harassment and bullying, and breach of the duty can result in damages claims against employers. |
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| UPDATE |
| The high income threshold and compensation cap for unfair dismissal applications are $113,800 and $56,900 respectively. |
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| Intellectual property - Hard questions on the internet |
| Cyberspace is at the cutting edge of intellectual property rights, with many tricky questions. |
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| WILLS What happens if I don't leave a will? |
| New rules from 1 March this year affect how your assets will be distributed if you die without leaving a will. |
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| Positive Outcomes - Considering mental illness of offenders |
| By section 32 of the Mental Health Act, someone with a developmental disability, mental illness or mental condition can be diverted from the criminal justice system and given rehabilitative treatment ordered by the courts. |
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| Special disability trusts - Proposals to expand beneficiaries and uses of funds |
| The federal government has proposed an expansion of the definition of those who can be beneficiaries of special disability trusts and the allowable uses of trust funds. |
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| Insolvency - You can serve a bankruptcy notice by email |
| While serving bankruptcy notices by post has been valid for many years, most people still use hand delivery. |
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| Fraud in tender Limitation caps won't limit liability |
| On the basis that it is contrary to public policy to do so, liability for fraud cannot be limited or excluded by a contract. |
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| Credit History - How can businesses comply with privacy laws? |
| Some simple tweaks to procedures and documentation may be all that is needed to allow businesses to comply with privacy legislation while sharing customers' details with credit-reporting networks. |
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| NEW LAW ON CONSUMER CONTRACTS - Unfair contract terms invalid |
| A new consumer contract law can quash contract conditions that are unfair. |
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| Poor reputation - Evidence after the defamation |
| A key legal issue in cases of defamation is whether the court in considering possible compensation for damage to a person's reputation should take into account evidence of a person's poor reputation from the period after the defamatory material was published. |
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| Raising rent deceit - Shopping centre landlord's misleading behaviour |
| How often does a leasing representative pressure a tenant by emphasising how good a deal is, when there may be no basis for that belief? |
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| Estate Executors - Know your tax obligations |
| Agreeing to be executor of an estate means accepting obligations to the tax office. |
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| Trust deeds - Stamp duty costs if the deed is lost |
| The cost of registering an original trust deed generally pales into insignificance compared to the cost associated with a lost one. |
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| Builders' payments - Residential restriction on security of payment law |
| In a recent case a builder failed in a claim for payment from a homeowner who was not living in the property while the work was being carried out. |
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| Mortgage trap - Stamp duty payable on vendor finance |
| Structuring a loan transaction correctly is important to avoid unnecessary stamp duty. |
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| Illegal downloads - Internet service provider not held responsible |
| Courts are showing increasing understanding of internet based business models. |
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| Major reform of freedom of information laws |
| An information commissioner with broad investigative - and some coercive - powers is just one element of major freedom of information law reform in NSW. |
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| Tender bids - When price can change after closing date |
| Price is an essential element of a tender, and courts have found that an offer which is uncertain on price cannot form the basis of a binding contractual relationship. |
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| Third Party Liability - A 'reasonable response' to risk of criminal act |
| A truck driver was tragically killed when four youths dropped blocks of concrete from an overpass into the freeway below. |
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| Resale Royalties - Sellers - and buyers - of art works may have to pay |
| A new law introduces a five per cent royalty payable on the commercial resale of works of visual art, including ceramics, fine-art jewellery and sculptures. |
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| Voting rights for vision impaired |
| The NSW Electoral Commission has been reconsidering its position since the courts found it had unlawfully discriminated against someone who was blind by failing to provide a Braille ballot paper. |
