New Federal Asbestos Legislation

If your workplace or commercial holdings were constructed prior to 31 December 2003, then the new federal asbestos laws will apply to you.

You will need a current Asbestos Register and current Management Plan to comply with legislation commencing 1 January 2012. You will also need to ensure your reviews are up to date.

If you do not have a current Asbestos Register or current Management Plan and have not had a review, Quality Building Management (QBM) can take steps to ensure you comply with legislation.

Bennett Carroll Solicitors have offices located in Brisbane and the Sunshine Coast

Freecall: 1300 334 566
Fax: (07) 3343 8664

Email: info@bcglaw.com.au

Website: www.bcglaw.com.au 

Transfer Documents

There's a small suite of documents and a clutch of processes that go with them, designed to transfer to the buyer the tangible and registrable assets that make up the business. In most cases it is the buyer's responsibility to create the documents that create these transfers, and you simply need to sign and return them.

You need to be aware however of the process.

Lease
In  some jurisdictions the Lease Transfer is made up of two documents; the Assignment of Lease itself, and a Deed of Covenant.

The Lease Assignment document (it may be called the Transfer or a Deed of Assignment depending upon the type of lease you hold), will be prepared by the buyer and sent to you to sign and return. That document effectively transfers any rights that you have in the Lease. You should not return it unless you receive a written undertaking from the solicitor to the buyer, that the document is not to be used pending settlement. If you do not receive this Undertaking, do not return the document. Do not accept this Undertaking from the buyer itself.An Undertaking from the solicitor is an enforceable undertaking able to be pursued both through the Courts and through the Solicitor's disciplinary body. An Undertaking from the buyer itself is worthless.

The Deed of Covenant is a document designed to create a direct link between the buyer and your landlord. It enables the landlord to sue and creates what is called "Privity of Contract". This document is prepared by the landlord's solicitor at your expense and is often done very slowly, and in fact may not be ready by settlement.

You should check as soon as possible on the cost of this document, as prices vary wildly. You do not have an opportunity to shop for prices, as the landlord will choose its own solicitor for it.

Your responsibility after the Contract is signed, (obligations vary slightly from Contract to Contract so check yours), is usually simply to take all reasonable steps to obtain the consent of the landlord to the Assignment. Chasing the documentation is the buyers responsibility.

Business Name, Website, Telephone and other services
Again it is up to the buyer to produce documentation for you to sign, but if you want to avoid ongoing responsibility for electricity, telephone, Internet and other services, it is important to take a direct hand in seeing that these services are cut off from the day after the settlement. This will take them out of your name. Remember, many of these services have security deposits, which should be adjusted off your final bill or returned to you.

Local Authority and State Government Licences
Most authorities maintain that these licenses cannot be "transferred" or "assigned", and have to be applied for freshly by the buyer.

Regardless of the wording used, the buyer will be responsible for obtaining licenses in its name for the continuation of the business.

One potential catch for a seller is where the Contract makes the purchase of the business subject to obtaining all of these licenses, and gives the buyer the opportunity to back out if those licenses are not obtained. It is implicit in that situation that the buyer will have to take all reasonable steps to secure that outcome.

Regardless, it will be important for you to be on top of the status regarding each of those licences, and in direct contact with the licencing authority to ensure that this is happening.

Requisitions on Licenses
Some of these licences have a requisitions regime.

Particularly in a food preparation business, the Local Authority License process often creates a situation where the local authority will indicate that the license can be assigned but only once several requisitions have been completed.

The Contract will usually specify but this is your responsibility, but sometimes will place monetary cap on the value of requisitions which with you have to comply after which it is the buyer's responsibility to pay. If you believe that requisitions are possibly or likely you should attempt to limit the monetary value of your contribution.

Bennett Carroll Solicitors have offices located in Brisbane and the Sunshine Coast

Freecall: 1300 334 566
Fax: (07) 3343 8664

Email: info@bcglaw.com.au

Website: www.bcglaw.com.au  

Have you had an employee take your business secrets elsewhere? Or perhaps you’re a frustrated employee who’s considering it? Consider this:

An action for breach of confidence has quite a wide scope. It may arise where an employee takes secrets from their boss to their competitor, or even where a partner in a married couple divulges secrets of their relationship. The basis for the action can come from a variety of legal realms, however the most common is through a provision in a contract of employment.

Elements

In order to maintain an action for breach of confidence, the person who brings the action must establish three elements;

1.     That the information has the necessary quality of confidence or secrecy;

2.     The information was imparted in circumstances importing an obligation of confidence;

3.     There was (or may be) an unauthorised use of the information.

Unless you are an expert, it can be quite a complex process to determine whether these elements are met. Most people will approach a lawyer after satisfying element three, however it is numbers one and two which create the most difficulty.

 Defences

If you are concerned because you may have disclosed confidential information, do not fret. There is a range of defences which may aid you. Defences to an action for breach of confidence include:

·         Consent of the confider

·         Disclosure for the purpose of complying with the law

·         Disclosure of a crime, wrong or misdeed

·         If disclosure is in the confidant’s interests

·         Disclosure in the public interest (for national security, public health, and things of this gravity)

Remedies

Remedies awarded in breach of confidence cases include:

·         Injunction to prevent either;

a)      the information being revealed in the first place, or

b)      further misuse of the information.

·         Monetary Remedies (either an account of profits or damages)

·         Formation of a constructive trust (where a defendant acquires some property by use of the confidential information, it may be held on trust for the plaintiff)

·         Orders for delivery-up and for destruction

If you are concerned that your confidential information is at risk, or if you are unsure what you should or shouldn’t tell your next employer about your current work, make an appointment to speak with us about your rights.