Latest publications
Landlords beware — Incentive claw-back provisions deemed to be penalty clauses
In Brief The recent Supreme Court of Queensland decision of GWC Property Group Pty Ltd v Higginson & Ors affirms the long-held but (until now) untested fear that the ubiquitous claw-back provisions which accompany most incentive provisions may very well constitute a penalty clause. What is a penalty provision? The modern law of penalty provisions…
“Who really brings the game into disrepute?”
In Brief A public spat. A drunken fall. A scathing comment. Professional athletes, like many of us, occasionally do careless and reckless things. Unlike many of us, however, professional athletes are often fined exceedingly large amounts of money, suspended or terminated from their employment for doing these things. And you can almost be…
They just don’t get on… but what can I do?
In Brief It can be a really difficult situation for an employer when two staff members simply do not get on. Neither is necessarily at fault or, alternately, both of them are. But what can an employer do? An employer is not able to make people like one another and their…
Testing the water — does a builder owe a duty of care to an Owners Corporation?
In Brief In an important decision which has ramifications for Owners Corporations, the High Court has recently held that a builder did not owe a duty of care to an Owners Corporation to avoid causing it to suffer economic loss from latent defects in common property. The Facts Brookfield Multiplex Ltd v Owners Corporation Strata Plan…
Mr Process Server wants to connect with you…
In Brief Recently the Irish High Court ruled that court documents could be served via a person’s LinkedIn account. The widespread adoption and active engagement with social media sites, including LinkedIn, Facebook and Twitter, facilitate an unprecedented level of connectivity in Australia and abroad. Does this mean that we can now also…
Liquidators — examining pre-examination steps
In Brief Examinations under sections 596A and 596B of the Corporations Act 2001 (Cth) are an important method for liquidators to assess the prospects of success and basis for bringing court proceedings as part of the liquidation. However, given the cost and time involved in conducting an examination, it is often…
Directing an employee to go on gardening leave
In Brief When an employment relationship comes to an end, there are various mechanisms available to an employer to protect their business interests from an ex-employee. One such mechanism is to place the employee on gardening leave. Habersberger J of the Victorian Supreme Court described “gardening leave” as a “colloquial or euphemistic…
A flattering performance appraisal can be your undoing
In Brief We all try and see the best in people, right? We have been told that if you compliment and encourage people their behaviour will improve, correct? So, shouldn’t a performance review emphasise the positive to get the best out of your staff? Yet, in a recent decision of the Fair Work…
Recent M&A trends in the food distribution industry
In Brief From their experience working on a number of recent M&A transactions in the food distribution sector, Alistair Jaque, Partner, Andrew Draper, Senior Associate, and Euge Power, Solicitor, highlight some recent trends which have become common themes in M&A transactions in this industry. The Facts 1. Succession planning and staged exits The food distribution industry…
Can the Springboard principle be applied to restrain a former employee?
In Brief Employers have struggled in the past to find ways of restraining a former employee from setting up in competition and from soliciting their clients and their goodwill in the absence of a dedicated restraint of trade covenant contained in the employee’s contract of employment. However, a recent decision of the Federal Court of…