An interesting case arose recently in the High Court of Australia (‘HCA’) when a loyal employee took on his former employer, one of Australia’s largest banks.
Mr Barker had been employed by the Commonwealth Bank of Australia (CBA) for about 18 years in its financial services sector, which was being restructured.
On 2 March 2009, Mr Barker was told by his bosses that the bank had decided to make him redundant. The bank was going to try and find Mr Barker another suitable position within the bank (‘the redeployment’), but failing that, he would be terminated four weeks later (‘the notice period’). Mr Barker was told to spend the rest of the day cleaning out his desk, but not to return to work the following day, or for the remainder of the notice period. At the same time Mr Barker’s access to his work email account and his work voicemail messages was blocked.
On 20 March 2009, members of the bank’s management sent correspondence to Mr Barker’s work email, seeking to assist Mr Barker with the redeployment. Having no access to his work email, Mr Baker did not receive that correspondence until it was passed onto him later on 26 March 2009.
Having received notice of the possible redeployment initiative only days before his scheduled termination, Mr Barker argued that he had lost the chance to participate in the redeployment process.
Mr Barker was covered by a written employment contract (‘the contract’) and his termination had largely been conducted in accordance with it. Mr Barker argued however, that although it did not appear in the writing of the contract, the court should imply into the contract a term that the bank would maintain trust and confidence with [Mr Barker] (‘the term of trust’). Mr Barker further argued that, because of the failure on the bank’s behalf to properly notify him of the redeployment initiatives, the bank had breached the term of trust, which he asserted to be implied.
Mr Barker won his argument in front of a single Judge of the Federal Court of Australia (‘FCA’), but the bank appealed to the full court (seven Judges) of the FCA, where Mr Barker won again. The bank then appealed again to the High Court of Australia (‘HCA’), which is the last right of appeal in the Australian court system.
Mr Barker lost in the HCA. The HCA said that the term of trust could not be implied into the contract because it was not necessary for the contract to act effectively. The fact that such a term may have made the contract more reasonable, was not enough to force its implication.
If you have an employment law question, contact Everingham Solomons because Helping You is Our Business.
Many commercial contracts contain provisions to the effect that one party must use their reasonable endeavors, best efforts or best endeavors to fulfill some promise to another party.
In the recent case of Electricity Generation Corporation v Woodside Energy, the High Court of Australia examined exactly what an obligation to use reasonable endeavors involved.
Woodside Energy (Woodside) and another business called Apache Energy (Apache), were the two main suppliers of natural gas in Western Australia. Electricity Generation Corporation (EGC) was a statutory body that supplied electricity to Western Australia and relied on natural gas from both Woodside and Apache to power its electricity stations.
EGC had entered a long term contract to buy natural gas from Woodside at a certain price (the initial market price). There were two relevant clauses in the contract, stated, essentially as follows:
Clause 3.2 Woodside will make available to EGC a guaranteed daily quantity of gas (GDQ);
Clause 3.3 In addition to the GDQ, Woodside will ‘use reasonable endeavors, taking into account all commercial, economic and operational matters’ to make available to EGC a supplemental daily quantity of gas (SDQ), should it be requested by EGC;
In June 2008 an explosion occurred at an Apache gas plant and stopped the plant’s production. As a result there was an undersupply of gas in the Western Australian market, driving up gas prices.
Shortly after the explosion, Apache and others, entered agreements to buy gas from Woodside above the initial market price. Woodside, now able to receive a higher price for their gas elsewhere, informed EGC that they would no longer make the SDQ available to EGC at the initial market price.
These facts gave rise to a dispute about whether Woodside had breached their obligations to usereasonable endeavors to supply the SDQ to EGC, by refusing to supply the gas to EGC at the lower price.
By a majority of four judges to one, the High Court sided with Woodside. Applying commercial considerations and having regard to the wording of clause 3.3, the court said that the contract did not oblige the Woodside to forgo or sacrifice their own business interests when applying their reasonable endeavors to supply the SDQ.
So, as it turns out, when it comes to exercising your reasonable endeavors in business, the above case seems to suggest that you don’t need to be very reasonable at all.
If you are engaged in any type of commercial dispute, contact Everingham Solomons, because Helping You is Our Business.
There are a few circumstances in which the Roads and Maritime Service (RMS), or Road Transport Authority as they used to be called, can decide to suspend your driver’s licence.
These are the types of suspensions in which you receive a letter from the RMS in the mail, not the type where your licence is confiscated by a police officer.
Sometimes the decision of the RMS may appear to you to be harsh however, there may be good grounds for you to apply to the court to overturn it and have your licence suspension lifted.
The relevant provisions differentiate between provisional drivers, or P-platers and full licence holders.
For full licence holders, the RMS will likely suspend your licence if you are driving faster than 30km/hour over the speed limit. This is one type of decision that can be appealed in the Local Court.
If you are a P-plater the RMS will also suspend your licence if you are travelling faster than 30km/hour above the speed limit, but they will also suspend your licence if you exceed your demerit points quota.
A P-plater has as few as four demerit points, which can easily be exceeded by a relatively minor offence during a double demerit point period.
In the country being able to drive is very important. Having your licence suspended can have a devastating effect on your employment and on your family. In certain circumstances it may be well worthwhile appealing the RMS’s decision to suspend your licence.
If you would like any further advice about licence appeals or any other court matter, please contact Everingham Solomons becauseHelping You is Our Business.
The last number of months has seen the media filled with a number of high profile criminal cases which has in turn generated a great deal of media attention and public discussion about the court’s effectiveness in dealing with criminals.
In criminal matters the court has two essential tasks. The first is concluding whether or not the defendant is guilty. If he or she is so found to be, the second task is to decide what sentence is appropriate in all of the circumstances.
It often appears as though the court’s second task, the exercise of sentencing discretion, is the one that draws the most public attention. With that in mind, it is useful to look at exactly what courts are entitled to consider when embarking upon a sentencing exercise.
The starting point comes from section 3A of the Crimes (Sentencing Procedure) Act 1999. That section guides the court by setting out the purposes for which a court may impose a sentence on an offender. They are:
to ensure the offender is adequately punished;
to prevent crime by deterring the offender and other persons from committing similar offences;
to protect the community from the offender;
to promote the rehabilitation of the offender;
to make the offender accountable for his actions;
to denounce the conduct of the offender; and
to recognize the harm done to the victim of the crime and the community.
In applying the purposes above, section 21A of the Act says that the court is to take into account the aggravating and mitigating circumstances of the offence, and any other objective or subjective factors that affect the relative seriousness of the offence.
The sort of things that aggravate an offence include the offender’s record for similar offences, the level of planning that went into the offence, the harm caused by the offence, the vulnerability of the victim and the offender’s personal benefit arising from the offence.
The sort of things that tends to mitigate an offence include provocation or duress of the offender, the offender’s good character, the offender’s prospects of rehabilitation and the remorse shown by the offender.
In most circumstances, the court is also bound to take into account an offender’s early plea of guilty as a demonstration that the offender has accepted responsibility for the crime.
If you have questions about a criminal matter, please don’t hesitate to contact Everingham Solomons, because Helping You is Our Business.
Often, if you consult a contractor to do any sort of work, you will be provided at the outset with either an estimate, or a quote. The two are very different.
If you have been given and have accepted a quote, a contract is created. The contractor can only charge the quoted amount for the work done.
If you have been provided with an estimate on the other hand, a contract is not created. Two essential elements of a contract are that:
the terms are certain; and
there is an intention to create a legally binding relationship.
A quote fulfills both of the above elements, whilst an estimate fulfills neither.
Often people are lured into a contract by a favourable estimate, only to later be charged a higher amount. If this has happened to you there are a number of possible remedies, but they are not based on the contract.
The first remedy is in misrepresentation, or misleading and deceptive conduct. If you have been lured into a contract by a misrepresentation, then you can apply to have the contract set aside. If however, you have received the benefit of the contract, you will still have to pay the reasonable amount for the work done, but nothing in excess of that.
The second remedy is the equitable remedy of estoppel. Estoppel is a rule of law that says that if one party makes a representation, and it is relied on by another party to their detriment, the first party cannot act in a manner contrary to the representation.
For an estoppel to arise, the representation made must be sufficiently clear and certain. A party is unlikely to be estopped unless there can be little dispute about the effect of the representation.
If you have a query relating to invoices, quotes or estimates, please contact Everingham Solomons, because Helping You is Our Business.
Federal legislation provides protection for people that are misled in business. Section 18 of the Australian Consumer Law says that a person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive.
The courts have spent much time in considering what sort of conduct is able to be categorised as misleading or deceptive or conduct likely to mislead or deceive.
Generally to be misleading there must be a statement made about a fact, and the statement must be false. To make a statement of fact is to refer to an objective feature which is not reasonably disputable. An example of a statement of fact is to say that a car is 4 metres long.
Where someone expresses an opinion, the law on misleading and deceptive conduct is less clear. An example of an opinion would be to say that a car is nice, or that a car is safe. Those statements are not statements of fact. Two people could reasonably come to differing views on the car based on the information they have and the way that any information is applied to the person’s subjective standards.
Courts have said that a statement of opinion can be misleading when there are no grounds for expressing the opinion. For example if a person was to say that a car was safe, when they in fact knew that the brakes did not work.
Advertising puffery is when sellers describe items without reference to any particular standard. For example to say that a car is nice. How nice a car might be to an individual probably depends on what they currently drive and cannot easily be compared to any global standard. Generally, advertising puff is unlikely to be considered misleading or deceptive.
Silence is rarely considered to be misleading or deceptive. Staying silent is no act at all, and therefore generally, the courts have said that remaining silent does not satisfy the requirement of conduct under section 18 of the ACL . There are however, three main exceptions which apply to that general rule.
Firstly, where there is a reasonable expectation that the matter not announced should be disclosed.
Secondly, where a half truth is told. For example to say a car is 4 metres long, without going on to say that the reason for the length of the car is because the bumper bar is partly detached and is dragging behind it.
Thirdly where a representation about a factual matter is initially made, but the state of the factual matter subsequently changes, and there is an obligation to tell of the change in circumstances.
If you think you have been the subject of misleading and deceptive conduct, please contact Everingham Solomons, because Helping You is Our Business.
It is very common in society for two or more people to buy a property jointly.
When it comes to real property, that is land and buildings, there are essentially two types of co-ownership.
The first is joint tenancy. The other common form of co-ownership is called in tenants in common.
Joint tenants are often married. Tenants in common are often business partners.
Regardless of the manner in which property is owned, often it becomes the case that one of the co-owners no longer wishes to hold on to the property.
Problems arise when people cannot agree how to end to their joint ownership in assets, like land, which is not divisible.
The relief that is available to a joint owner in these circumstances comes from section 66G of the Conveyancing Act. That Act gives the court power to order the sale of the land and to bring about the end of the joint ownership.
In the usual course, the court will appoint a trustee to hold the property for sale and to forward the proceeds to the owners.
Because the law realises that a joint owner should be able to realise the interest held in their property, the court will only refuse such an application if there are special reasons for doing so.
The relevant application is complex and is required to be heard in the Supreme Court of NSW. The proceedings and any negotiated resolution of the matter can be lengthy.
If you have any questions concerning the termination of co-tenancy please don’t hesitate to contact Everingham Solomons, because Helping You is Our Business.
History has shown that disputes often arise over fences that divide separately owned properties.
A fence can be an asset that you share with people that you don’t know, don’t want to know, or didn’t know would be so unreasonable.
In a rural setting the cost of repairing fences is often significant. The cost of not repairing fences can sometimes be even greater.
Who owns the fence, who wrecked it, who should fix it, to what standard and at what cost are all common dispute issues.
Thankfully, there is a piece of legislation which answers most of the above questions and provides a mechanism to resolve fencing disputes.
It is called the Dividing Fences Act and it applies to both rural and residential areas. It’s pretty straightforward to understand and easy to apply. However, most applications will require some time inside a court room and the production of evidence tailored to address specific issues raised by the act.
In some cases a dividing fence will simply be dilapidated by the rigors of time, weather and normal use. Sometimes however, it might be the case that one party in particular has caused all or most of the damage to the fence.
Under the act a party can request another person to pay an equal amount for the fence to be fixed, or any other amount which reflects the parties’ proportionate liability for the fence’s damage. The request must be set out in a particular manner and form.
If the requested party either does not respond to the request, or disputes some element of the request, an application can be made to the local court to have the dispute determined. The proceedings are usually fairly quick and fairly cheap.
If, at court, you are the successful party, you can apply to have your costs paid by the other party. However, you need to be careful when you commence the proceedings because if what you request is unreasonable or untenable and the court decides against you, you can be ordered to pay the other party’s costs.
If you, like many people, have a problem with a dividing fence, contact Everingham Solomons, because Helping You is Our Business.
The Home Building Act 1989 (‘the act’) is a set of laws designed specifically to help residential homeowners who have received sub-standard building work.
The act can help almost any homeowner from almost any form of bad building related work
The act provides protection to homeowners who have constructed a new home, including cases where the home was built with structural defects, with poor quality materials or in a way that departed from the building plans. However, the act is not limited to new buildings and also applies to renovations and home additions as well as any isolated specialist work, like plumbing, electrical work, tiling and cabinet or kitchen making. Basically any work related to building or altering a residential dwelling will be covered under the act.
In certain circumstances, the act even helps the purchaser of a used home to rectify poor building work supplied to the home’s previous owner.
The act helps homeowners in two main ways.
Firstly, it ensures that all tradesmen are insured. This means that if a tradesman is ultimately found to be liable for a building problem, and becomes insolvent or disappears, that there will be an insurer in the background who can pay for the inadequate work to be rectified.
Secondly, the act gives each homeowner a warranty as to the quality of the building work that they receive from the tradesman. The warranties are very broad but basically mandate that:
the work will be of good tradesman quality;
the work will be done in accordance with the plans;
the materials used will be good, new and suitable;
the work will be done on time; and
the work will be fit for the purpose that it was designed for.
The majority of claims made under the act are heard in the Consumer Trade and Tenancy Tribunal (‘CTTT’). This is a real benefit for homeowners. The process is much cheaper and is informal. Applying to the CTTT is not as slow, expensive or as intimidating as going to court.
Just like with most legislation, time limits and warranty periods apply. If those periods lapse before the homeowner makes a claim, the homeowner can lose the right to recover their money or have the work rectified.
If you have any questions about the quality of building or construction work, contact Everingham Solomons, because Helping You is Our Business.
In business deals, sometimes one party just won’t pay up.
As a creditor (person who is owed money) one option that is available is to pursue the debtor (person who owes the money) through the court system for payment.
Unfortunately however, sometimes debtors don’t respond to court proceedings. The issuing of a statement of claim, entering of judgment and enforcing of an order can be a long, and cumbersome exercise. The debtor gets to keep your money in his pocket for months while you jump through the hoops.
If, however, the party that owes you money is a corporation, there is another very, very effective alternative available to you.
It is called the statutory demand and it works like this:
You send a simple and inexpensive document requesting payment to the debtor company. If the debtor company does not pay the debt within 21 days, the company can be almost immediately wound up – The company’s life is over. Trading stops, an administrator is appointed and all the company’s assets are sold off to pay you.
If the debtor company has even a half serious business they will not want this to happen. It’s not a good outcome for it’s business.
Of course, the debtor company can always object to the statutory demand by refuting the legitimacy of the debt. But, they have a very strict 21 day deadline in which they are entitled to do so. They will also have to pay a filing fee of about $2,500 to give a Supreme Court Judge the pleasure of listening to their argument.
It’s the perfect medicine to wake up a sleepy debtor that will not respond to any other prodding for payment.
If the creditor’s entitlement to the debt is straightforward, it will be futile and incredibly expensive for the company to resist. A smart debtor will simply pay up rather than being wound up.
A statutory demand is a simple document but must be drafted meticulously. It must be verified, sworn and served in accordance with complicated Corporations Rules.
If a statutory demand contains any defect it can be set aside by the court and the creditor can be ordered to pay for the debtor’s inconvenience.
In order to make sure your statutory demand is done correctly the first time, contact Everingham Solomons, because Helping You is Our Business.
– Commonwealth Bank of Australia v Barker –
