Dispute Resolution Clauses – Why You Need One in Your Business Contract

The commercial reality of business is that even the most agreeable of parties, can butt heads over issues arising in the course of operations. If disagreements aren’t resolved quickly and effectively, it can have a huge effect on your business. This is why including a dispute resolution clause in your business contract is so important.

A dispute resolution clause sets out how the parties involved in the contract will resolve a dispute. It allows a clear view of the process from the outset, which can help preserve your business relationship, keep things professional, and save time and costs associated with drawn-out disputes. A well-drafted dispute resolution clause can help you bring your disagreement to an end before you need to engage lawyers, or undertake formal court processes.

Dispute resolution clauses need to be clear, unambiguous and set out a process which the parties are to follow. As such, they should be drafted deliberately and carefully according the particulars of your business arrangement and the contract, rather than simply using a templated version.

A dispute resolution clause which is not well thought-out will not be effective if and when it comes time to actually use it.

So, how do you draft a dispute resolution clause which is specific to your business arrangements?

  1. Get good legal advice!

A lawyer will know the ins and outs of dispute resolution methods and terminology. They will also be able to help you identify some of the potential disputes which could arise and the legal scenarios they would create.

  1. Make the clause a precedent to formal court action.

A dispute resolution clause cannot prevent either party from commencing court proceedings. However, it should be clear that the clause provides an alternative dispute resolution process which is a condition precedent to litigation (i.e. – undertaken before litigation is commenced). An aggrieved party may still apply directly to the court however an application may be made to “Stay” proceedings and to enforce the dispute resolution process prior to court.

  1. Anticipate problems which may arise.

Think about the kind of problems that may arise under your particular business contract. Which parties would be involved? What are the potential issues? What would each party’s interests be in these problems? What would the key factors in the resolution of the problems be? (For example – timeliness? Cost?

  1. Include key details:
    Most dispute resolution clauses typically include the following:
  • The way in which a party is to provide notice to other parties to the contract that there is a dispute, and the nature of the dispute. This will trigger the dispute resolution process to begin.
  • A single tiered, or multi-tiered, approach to resolution:
    • The first step in the resolution process, for example a meeting to negotiate.
    • The next step in the resolution process, if the parties were unable to resolve their dispute at step one. The process used in step two will depend on your unique needs, but commonly it is mediation. If mediation is chosen, the clause should stipulate who will mediate the dispute, or how a mediator will be chosen; the timeframe of when mediation is to take place; any guidelines on how the mediation will be conducted; and how the parties will meet the cost of the mediation.
  • Guidelines for when the dispute resolution process is at an end and, if unsuccessful, the parties may commence formal court proceedings.
  • What jurisdiction any litigation should be commenced in.

As always, we strongly recommend you seek legal advice to assist you in drafting a dispute resolution clause which is specific to your business needs, and can help you save time, money and preserve your business relationships.

You can contact Brandon and Gullo Lawyers for legal advice regarding Business Contracts on (07) 5479 4733.

Smooth Sailing for Pirate-Blocking Legislation

Most of us will remember the landmark case last December in which the Federal Court ordered various Internet Service Providers (ISPs) to take steps to disable access to some of the biggest movie and TV show pirating websites.

It was a major win for the Australian film and Music industry, which had reported big losses due to pirating.

The two proceedings heard together from Village Roadshow and Foxtel were the first decided under the (then) newly introduced section 115A of the Copyright Act 1968 (Cth), which enabled the court to grant an injunction for ISPs to block overseas websites which have the primary purpose of infringing copyright.

The decision resulted in the disabling of access to a heap of notorious websites such as SolarMovie, The Pirate Bay, Torrentz, TorrentHound and IsoHunt.

Since then, the legislation has affected another giant in the pirating industry – KickassTorrents. In a case which relates to music copyright, Universal Music Australia Pty Ltd was successful in having ISPs ordered to block access to Kickass Torrents in April this year.

Australia’s major rights holders including Foxtel, movie distributor Village Roadshow, and music corporation Universal Music, have all filed and won site blocking applications over the last 12 months.

The latest case is part of a broader industry strategy to systemically knock large piracy websites off the internet.

And it seems to be working; Village Roadshow this year hailed their win in last year’s case as a great success.

“Access to The Pirate Bay website has been blocked, resulting in a dramatic reduction in downloads from that site,” the company said in February.

Other sites have reported the slow in illegal downloads may be due to the rise in Netflix, Stan and other legal streaming services.

It seems the stormy seas of pirating may be calming at last.

The 2017 Queensland Budget – How Will it Affect Commercial and Residential Property?

The recent Queensland Government budget saw a number of changes introduced in relation to both commercial and residential properties.

The suite of changes, most of which took effect on June 16 2017, had some positives and some negatives.

The major positive for those on the lookout for their first home was the extension of the First Home Owner’s Grant. The temporary increase to the amount of the grant from $15,000 to $20,000 will be extended another six months.

This means the $20,000 grant will be available for eligible applicants who enter into contracts up until 31 December 2017. This is great news for those looking to either buy or build their first house, unit or townhouse valued at under $750,000.

There is also good news for tenants of some commercial properties, and not so good news for the landlords of said properties. Changes to the Land Tax Act will restore a prohibition on landlords passing on the cost of land tax on commercial leases entered into after January 1992 and before 30 June 2009.

Other amendments to land tax include an absentee surcharge of 1.5% imposed on people who don’t ordinarily reside in Australia but are liable to pay land tax in Queensland. This tax will take effect in the new financial year.

Finally, there have been some changes to the Additional Foreign Acquirer Duty (AFAD), which foreign acquirers of residential land are liable to pay.

The AFAD applies to foreign acquirers who are acquiring certain types of residential land in Queensland, such as homes and apartments, vacant land on which a home or apartment will be built, properties that have been refurbished or renovated for residential use and land for residential developments.

The budget amendments will mean the duty will apply even when the purchase is made by an Australian person acting as an ‘agent’ for the foreign purchaser. It will also apply to pre-incorporation contracts if the intended ultimate transferee is a foreign corporation.

You can contact Brandon and Gullo Lawyers for like legal advice regarding commercial and residential land and property on (07) 5479 4733.

Queensland Drivers – Do You Know These 10 Obscure Road Rules?

Most of us drive on the road every day, but there are some road rules you just never really come across. Were you aware of these obscure Queensland road rules?

You are required by law to lock your vehicle.

If you are more than three metres away from your car it is considered unattended. You are required to switch off the engine, apply the park break and remove the ignition key. You must then wind up the windows so a gap of no more then 5cm and lock the car. This rule applies in all road related areas including car parks.

You must give way to horses.

When a horse and rider are on the road, you must give way to them if the rider gives a special signal; raising their hand and pointing at the horse. You are required to pull over, stop your car and turn off the engine so as not to spook the horse. You may start driving again once the horse and rider have safely crossed.

…..and to buses.

It is spelled out on most buses, however many people are still unaware of this rule. If you are driving in a built-up area with a speed limit of 70km per hour or less, you must give way to a bus displaying a “give way to buses” sign and indicating to enter traffic from a bus zone, bus stop, bus stop bay, road shoulder or left side of the road.

You can’t park bumper-to-bumper.

Drivers must leave at least one metre between their car and the next car when parking. This distance also applies when parking your car near fire hydrants.

When parking near intersections, you must be 20 metres away from an intersection with traffic lights or 10 metres from one without lights.

You can’t interrupt a funeral procession.

If there is a funeral procession on the road, it is not only respectful to wait until the procession has past, it is also the law. You can’t interrupt or drive through the procession or you may get slapped with a fine.

It is an offence to drive with an animal on your lap.

Doggy drivers, beware! You cannot drive with a dog, cat or any other animal on your lap. The department of transport actually recommends that animals are restrained while in the car, but you aren’t required by law to do so.

You cannot ride a bike and lead and animal at the same time.

You may think riding your bike while walking your dog just lets you keep up with your dog! However, Queensland road rules stipulate you must not lead an animal while riding a bike, including having the lead tethered to the bike.

You can drive through a red light to give way to an emergency vehicle – but only if there’s no other option.

While the law allows you to drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle, you should only take this action if there is no other safe option.

You can be fined for indicating too long.

Drivers can be fined for failing to turn off their indicators after they have made a turn.

But don’t indicate too little, either.

If you are parallel parked, you must indicate for five seconds before joining the road, not just for a few seconds when you are about to enter a gap!

 

As with all law, ignorance of the law is not an excuse – you can still be fined (however unlikely it may be) even if you have never heard of the road rule!

The road rules can be confusing and sometimes accidents happen! If you get into an prang on the road and need legal advice you can call Brandon and Gullo Lawyers on (07) 5479 4733.

 

The Great Escape – The Best Aussie Road Trips

Here at Brandon and Gullo Lawyers we love to see what our great country has to offer. Being based on the Sunshine Coast and Innisfail, we are familiar with the beauty of the north and southeast Queensland coast, but the rest of Australia has just as much to offer! Why not check out what marvels are in our own backyard with these great driving trips?

Cairns to Cape York – Queensland

This journey is adventurous and ideal for those who want to experience gorgeous rainforest scenery, and the biodiversity our great country has to offer. A 4WD is best to get all the way to the Cape, but you can still get to Cooktown without one.

The Great Ocean Road – Victoria

The famous Great Ocean Road offers sweet little towns, spectacular views and of course the magnificent apostles!

Tassie’s East Coast – Tasmania

Take a trip from Hobart to the Bay of Fires and you will uncover gems like Maria Island, beautiful, beaches at Wineglass Bay (home to delicious oysters!) and adventurous hiking trails at the Freycinet Peninsula.

The Savannah Way – Queensland, Northern Territory and Western Australia

At a whopping 3,700 kilometres this trip from Cairns, Queensland to Broome, Western Australia requires preparation and time, but is worth the effort. The trip features 15 national parks and five World Heritage areas across three states!

Uluru to Kings Canyon – Northern Territory

This shorter trip is no less breathtaking! Just three hours drive along the Lasseter Highway, this trip is through real red-earth country, with big, blue open skies. Keep an eye out for Camels on the way! For a longer trip, start at Alice Springs and take the Red Centre Way!

The Coral Coast Drive – Western Australia

The Coral Coast drive, from Perth to Exmouth, is where the desert meets the sea. Offering a true taste of Western Australia, this trip features dolphins at Monkey Mia, The Pinnacles, Kalbarri’s wild flowers and Ningaloo Reef, where you can swim with whale sharks!

The Grand Pacific Drive – New South Wales

From Southern Sydney to Shoalhaven, this trip takes in natural attractions such as the blowholes at Kiara and the white sands of Jervis Bay. The views along the way are spectacular!

These road trips are adventurous and sometimes accidents can happen! If you get into an prang on the road and need legal advice you can call Brandon and Gullo Lawyers on (07) 5479 4733.

Conveyancing: Some of the Basics

You have spent countless hours researching, gone to what feels like one thousand inspections and endured the highs and lows of house hunting, but now, finally, you’ve found your dream home!

Now you need to get down to the nitty-gritty, formal process of actually purchasing the property. Knowing the ins and outs, being able to handle deadlines and deciphering legal jargon can be difficult – this is where a conveyancer can help.

A conveyancer is a licensed professional who, provides legal advice and information about the sale or purchase of a property, prepares the documentation and conducts the settlement to make navigating the process of buying or selling a whole lot easier.

Buying a propety? Your conveyancer will prepare, clarify and lodge documents for you. They will research the property including information about easements and locate the certificate of title and the type of title. They will also calculate adjustments of tax and rates, settle the property on your behalf and represent your interest with a vendor or agent.

Selling a property?  Your conveyancer will, complete the legal documents and ensure they are all sorted, represent you and respond to requests from the buyer and navigate any issues which may arise.

Real estate agents will ask buyers and sellers to provide the details of their conveyancers early on, so it’s important to be prepared and have one ready

We strongly recommend that you seek independent legal advice before you sign any form of contract to ensure your agreement and any issues relating to the purchase or sale are adequately dealt with in the terms of the contract.

A typical conveyance transaction consists of three stages:

  1. Before contract.
  2. Before completion.
  3. After contract.

Once your conveyancer has helped you through the formal process, you can relax knowing your property has been successfully sold!

If you are buying or selling a residential or commercial property, Brandon & Gullo Lawyers can offer you straightforward and practical property law advice. Give us a call today.

Have you been injured at work?

If you have sustained an injury at work or in the course of your employment, we can assist you with making a claim for Workers’ Compensation, covering treatment, expenses and lost wages now and into the future.

At Brandon and Gullo Lawyers, we have extensive experience in workplace injury law. We take a client-first approach to our workplace injury matters to ensure that we can help you navigate your recovery, your claim and your future. Our no-win no-fee policy gives you confidence knowing you only have to pay legal fees if we win your claim.

If you are considering making a claim, please note there are strict time limits surrounding personal injury claims. We are here to assist you & can provide you with all the information you need to know at first consultation with us.

What you need to bring:

What to bring to our first meeting:

  1. The details you collected surrounding the accident (such as the names of parties involved, employment details, photos and the time and date of the accident.
  2. Names of any doctor/s, hospital/s or treatment provider/s who have assisted you medically since the accident.
  3. Details of your injuries.

Some useful tips:

Things to do after you are injured at work:

  1. Report your injury to someone at work, such as your supervisor or manager.
  2. Establish if there are any witnesses to your injury.
  3. See a registered practitioner (you will need to obtain a Workers’ Compensation Medical Certificate)
  4. Contact Brandon & Gullo Lawyers as soon as possible to discuss your legal rights and obligations as strict time limits apply.

Registering Trademarks: Protecting your Brand

Sam is the owner of a Brisbane café, which is known for excellent coffee, having won several awards for the best coffee in the region. The coffee takeaway cups are easily identified by a distinctive logo, which Sam created himself using a photo of some of the latte art he had poured. This logo is a vital part of Sam’s café’s identity, and great for marketing.

Several years after Sam created the logo, one of the roasters who supplies Sam’s coffee beans pointed out that his logo was very similar to the one they used. He told Sam that they had trademarked the latte art shape and that they would turn a blind eye this time, but if they wanted to, they could bring legal action.

Sam was shocked and disappointed. He had created the logo well before ever seeing the roaster’s logo, and it was created from his own photo! Plus it was an important part of his café’s identity, and if he was ever forced to stop using it, he would have to work hard to get a new logo known to his customers.

This was a lesson for Sam in the importance of registering trademarks for your business. While there is no legal requirement to register a trademark in order to use it, if someone else has already registered the same trademark as yours, they can take legal action against you if you infringe their IP (Intellectual Property) rights.

A trademark, sometimes referred to as a brand, identifies your product or service in the marketplace, and differentiates you in comparison to your competitors.

A good trademark, like Sam’s, can identify your product at a glance and becomes synonymous with the quality of what you are offering.

A trademark isn’t limited to a logo – it can also be a letter, number, word, phrase, shape, sound, smell, movement, an aspect of packaging, or a combination of these. Think of your trademark like your brand “package”. A trademark can also be differentiated from a “design”. A design requires unique or new elements to be registered, whereas a trademark does not.

Trademarks are registered under the Trade Mark Act 1995 and you can apply to register your Trademark with IP Australia. The registration will be valid for ten years from the date of filing and a reminder will be sent to you when it’s time to renew your application.

During the registration process, there are opportunities for other entities to oppose the registration of your trademark. Similarly, you may like to oppose the registration of another entity’s trademark because;

  • The trade mark is identical or very similar to your trademark, which is registered in Australia.
  • Deception or confusion is likely because of the reputation of another trade mark in Australia.
  • The trade mark applicant is not the true owner of the trademark.

If you wish to take opposing action, we strongly suggest you seek legal advice.

If somebody infringes your IP rights by using your trademark after you have registered it, you may be able to take infringement action. If you find yourself in this position, you should seek legal advice as soon as possible. You can contact us for a FREE case evaluation on (07) 5479 4733.

Considering becoming an Uber driver?

Did you know there are tax implications associated with providing free-ride services such as Uber? It’s something many people wanting to become Uber drivers don’t think about but popular second-income earning sources like Uber, Ebay & Airbnb are all subject to income tax.

When it comes to Uber, even if you earn under the $75,000 GST threshold you are still required to register for GST.

That’s right, if you use a car to provide transport to passengers for a payment, under GST law you are considered to be providing taxi travel. This means before you set up your Uber Driving Account, you will need to apply for an ABN, register for GST and submit the GST part on your fare to the tax department as part of your quarterly BAS. You will also need to declare your income on your tax return.

There are some easy steps to think about when you are setting up your Uber Service:

  1. Apply for an ABN
  2. Register for GST – you can either do this in conjunction with your ABN application or (if you have an ABN) directly with the ATO.
  3. Keep a logbook record the business-use of anything you purchase in order to carry out your Uber service. The ATO doesn’t have a templated log-book, but it does provide logbook recording requirements available on its website.
  4. Get good tax advice! Good advice from the start can help you avoid tax headaches.

As an Uber Driver you will need to lodge your GST and Business Activity Statement (BAS) quarterly, not annually.

Noting these important requirements before you start the process of becoming an Uber Driver can help you avoid any nasty tax surprises down the track.

6 Top Tips for Wet Roads and Car Accidents

 

Other than the obvious difficulty of wet, slippery roads, the weather impacts on our roads through reduced visibility, high winds and traffic delays. Wet road significantly increases the risk of an accident, and it is important for drivers to take extra caution to avoid accidents.

If you are involved in an accident, Brandon and Gullo Lawyers can help you with legal advice.

Always remember the following steps:

At the accident scene:

1. Remain at the scene & call the police & ambulance immediately if you or anyone else is injured. Medical attention is of paramount importance.

2. Do not admit fault.

3. Write down the registration numbers of all vehicles involved, together with names and addresses of people involved in the accident.

4. Take photos of the cars involved, showing the number plates and damage to the vehicles.

After the accident:

1. Contact Brandon & Gullo Lawyers as soon as possible to discuss your legal rights and obligations as strict time limits do apply.

2. Seek medical attention if required.

Stay safe on the roads everyone!