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• "It is important for all companies to review their terms and conditions to ensure they are compliant with the ACL "

Are your terms and conditions compliant with the Australian Consumer Law?

It has been more than 12 months since the commencement of the Australian Consumer Law - ACL.

The ACL, amongst other things, covers a new, national unfair contract terms law covering standard form contracts and new national laws guaranteeing consumer rights when buying goods and services, which replaces existing laws on conditions and warranties.

Since 1 January 2012, a warranty against defects must be in writing and:

• Be presented clearly, expressed in plain language, and easy to read and understand;
• Contain the name, business address, phone number and email address (if any) of the person or business proving the warranty;
• Set out relevant claim periods or procedures and
• Include a statement that rights under the warranty sit alongside the consumer guarantees, which cannot be excluded

It is important for all companies to review their terms and conditions to ensure they are compliant with the ACL.

• "An illegal restrictive covenant has been made slightly clearer thanks to a successful appeal last year "

Court enforces three year employee restraint

The notoriously blurry line between what constitutes a reasonable measure to protect goodwill and an illegal restrictive covenant has been made slightly clearer thanks to a successful appeal last year to the Court of Appeal of the Victorian Supreme Court. In that case, the Court upheld a three-year non-solicitation clause and deemed that the pre-determined damages payable were a reasonable representation of the employer's loss. Although the departing employee was permitted to keep working for his former employer's client, he paid dearly for the privilege; having to pay liquidated damages for the clients as well as his former employer's legal costs.

Click here to read further details of the case and a summary of the key issues to consider when drafting trade restraints.

• "There are many pitfalls for purchasers to be aware of when considering the purchase of an aparatment "off the plan"

Exercise caution when buying property "Off-the-Plan"

There are many pitfalls for purcahsers to be aware of when considering the purchase of an apartment "off the plan".

An "off the plan" purchase arises where the property has not yet been constructed, or is in the process of construction by a developer, and settlement of your purchase won't take place until the completion of the building and registration of a new title for the property.

The key risk feature for a purchaser is that at the time of signing a contract there is no existing property for the purchaser to inspect. The purchaser is therefore completely reliant on the developer's marketing material, possibly a display unit set up by the developer, and ultimately the Contract of Sale and attached plans and specifications.

Your solicitor can help you by highlighting the pitfall areas. Some risk areas are:

• Incorrectly assuming that Builder Warranty Insurance will cover all building quality issues;
• Failure to properly inspect the property prior to settlement, and during any ensuing defects liability period (which is usually very short - sometimes only 1-3 months);
• Failure to ensure plans and specifications are sufficiently detailed

• "... the role of a lawyer is to be on your side and to help you work out the best strategy in your current situation"

Important tips to keep your legal costs low

People can forget that the role of a lawyer is to be on your side and to help you work out the best strategy in your current situation.

It is not unusual to be nervous or even embarrased to speak to your lawyers about your current issues, be it a civil debt, a partnership dispute or any nuimber of things of which we might not be proud. However, your lawyer is there to help you and your lawyer can help you by being apprised of all the facts. Clients balk at legal fees and it is not surprising that many people elect to limit the information that their lawyers receive to limit the legal costs to themselves.

Some tips on how you can empower your lawyer to protect you, yet to keep your costs low: -

1. Document a chronology prior to your first meeting

2. Provide any photographs of the incident to your lawer

3. Sort your documents into chronological order

4. Do not delete key emails and try to store them in a safe place

5. Provide your lawyer with copies of documents

• "Enduring Powers of Attorney are like an insurance policy"

Enduring Powers of Attorney

Enduring Powers of Attorney are like an insurance policy. It is important for you to nominate the person you would like to act on your behalf should you one day not be able to.

If you haven't appointed someone to act on your behalf, and you lose capacity, the Government may appoint a person as an Administrator (Financial) and Guardian (Medical and Guardianship) who may not be someone you would like handling your affairs.

By preparing a Financial, Medical and Guardianship Powers of Attorney you can retain this control by nominating someone you wish to administer your affairs.

• Links    
  • Department of Justice
  • ASIC
  • Consumer Affairs Australia
  • Law Institute of Victoria
  • Legal Services Commissioner

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