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Commercial Law & Contracts
Are you at legal risk? Changes to the Privacy Act: 22 February 2018
Post by Madeleen Rousseau | Posted 7 years ago on Monday, January 15th, 2018
From 22 February 2018 your business has a statutory obligation to report a data breach involving personal information to the Australian Information Commissioner. If this is not handled correctly your business could be at serious risk.
Who is subject to the Privacy Act?
All businesses and not-for-profit organisations with an annual turnover of more than $3 million are subject to the Privacy Act 1988 (Privacy Act).
If you do not comply with the provisions of the Privacy Act as far as collection, use, storage and disclosure are concerned or if correct procedures are not followed then you could be the subject of an investigation by the Commissioner and could face civil penalties for individuals up to $360,000 and up to $1,800.000 for companies. In addition the reputational risk to your organisation could be significant.
You need to ensure that you/your business has an up-to-date privacy policy which is visible and available at all times including on your website, that your key documentation (contracts and notices) is in order and that you have processes in place (including a data breach response plan) to ensure that you comply with Australia’s privacy legislation.
We urge you to assess how you and your business are handling and protecting your clients’ personal information.
Please contact us for a review of your privacy policy and procedures to ensure that you comply with your statutory obligations prior to 22 February 2018.
Madeleen Rousseau – madeleen.rousseau@whlaw.com.au
Amy Knight – amy.knight@whlaw.com.au
This article is general information only, at the date it is posted. It is not, and should not be relied upon as, legal advice. This article might not be updated over time and therefore may not reflect changes to the law. Please feel free to contact us for legal advice that is specific to your situation.
June Burton
ParalegalDiploma of Financial Services (Conveyancing)
EXPERTISE
EXPERIENCE
June is a senior Paralegal who also manages our Geraldton office. She has worked in local law firms for her whole working life. She has extensive experience in estates, wills and property related matters and a general knowledge of other areas of law.
Our clients appreciate June’s practical, common sense approach and her ability to communicate in an open and friendly manner. Families in distress particularly appreciate her ability to formulate a workable plan and break things down into manageable steps.
June also offers executors and administrators with practical assistance in general administration of estates, including:
- making superannuation claims.
- closing bank accounts.
- arranging sale or transfer of shares and property.
- distribution to beneficiaries.
June has experience in resolving historical property title issues, including complex chains of conveyancing. She also handles residential and farming settlements for our Geraldton office.
As a volunteer member of the Geraldton-Greenough State Emergency Service for 12 years, June was actively involved in a wide range of operations in the field. She also held various leadership, training and management roles (including as acting local manager)
When not at work, June enjoys any activity that takes her outside, particularly gardening, walking, cycling and kayaking.
Amy Knight
PrincipalLLB (Dist), BCom
EXPERTISE
EXPERIENCE
Amy practices in general commercial and corporate law with a focus on property, business and share acquisitions and disposals.
Amy has a particular interest in property law and is routinely involved in all aspects of property transactions including legal due diligence, acquisitions and disposals, financing, leases, subdivisions, strata titles, transfer duty advice and conveyancing.
On the corporate side, Amy has acted on buy, sell and financier sides of company and business acquisitions and disposals.
Amy is based in our West Perth Office.
Amy’s recent experience includes:
- Due diligence, contract negotiation and settlement of the acquisition of multi-lot properties exceeding $30m;
- Acquisition and funding (via convertible notes and security trust) of farming properties exceeding $25m;
- Negotiation and settlement of the disposal of securities to a multinational group exceeding $20m;
- Subdivision and sale of semi-rural development site exceeding 100 lots;
- Acquisition and disposal of a number of vineyards in the Margaret River region.
Wills, Estates & Probate
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Our lawyers have extensive experience in reviewing and drafting wills, applications for probate, powers of attorney, powers of guardianship, inheritance claims and letters of administration. We have particular experience in handling complex matters for private clients including complicated probate applications. We regularly assist executors in the administration and winding up of deceased estates.
We have acted for a number of charities in relation to bequests made to the charities and contested estates, including those based in Western Australia and nationally. We provide low cost or pro bono will preparation services for various charities including the Cancer Council and the Dogs Refuge Home (WA) Inc.
David Williams and Chris Osborn have each received the designation Trust & Estate Practitioner (TEP) by the Society of Trust and Estate Practitioners (STEP).
Our expertise in this area includes:
- Preparing simple and complex wills
- Dealing with superannuation entitlements outside of wills
- Applications for probate
- Applications for letters of administration (deceased did not have a will)
- Resealing (recognition) in Western Australia of probates and letters of administration from other countries and states outside Western Australia and applying for Western Australian probates to be resealed (recognised) in other jurisdictions
- Estate Planning
- Obtaining declarations of death
- Enduring Powers of Attorney
- Enduring Powers of Guardianship
- Inheritance / Family Provision Act claims
- Estates with a cross border element
Succession & Estate Planning, Trusts & Asset Protection
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Effective estate planning will ensure your assets, including property, trusts, investments and more, are provided to the intended beneficiaries. This reduces the chance of conflict between beneficiaries and protects the estate assets from claims by unintended recipients.
Our lawyers combine legal experience with an incisive and pragmatic approach to resolving issues for individuals and families in their estate planning and business structuring.
We act for numerous high net worth Western Australian families and individuals, including working closely with client’s accountants and financial advisers.
David Williams and Chris Osborn have each received the designation Trust & Estate Practitioner (STEP) by the Society of Trust and Estate Practitioners (STEP).
Our expertise includes advising in relation to:
- Establishing and varying trusts and asset protection structures
- Business succession planning and estate planning
- Complex wills
- Family discretionary, testamentary and unit trusts
- Preparing Self-Managed Super Fund Trust Deeds
- Preparing Enduring Powers of Attorney and Enduring Powers of Guardianship
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Our relevant experience includes:
- Advising high net worth family on separation of extensive interests in property syndicates, unit trusts and other business structures as part of intergenerational wealth transfer
- Advising high net worth executive on separation of personal investments from those of his employers
- Advising high net worth individual on implementation of testamentary trusts in circumstances where adult children were in dispute
- Advising farming families on intergenerational wealth transfer of family farms in a transfer duty and tax effective manner
- Advising various high net worth families on succession planning and generational relationship agreements
Residential Property & Settlements
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Our property lawyers and paralegals are well experienced in all legal aspects of buying or selling residential property in Western Australia. We act for both buyers and sellers in hundreds of transactions per year.
We offer a competitively priced property settlement service. Our fees are competitive with settlement agents but we give our clients the peace of mind of having qualified lawyers handle their property transaction.
We are members of PEXA, an e-conveyancing platform, and can settle your sale or purchase quickly and securely online. With PEXA we can provide our clients with greater certainty, fast access to funds, on-time settlement and no more cheques, saving time and money.
Our clients include buyers, sellers and real estate agents. We have extensive experience in the Perth and Geraldton property markets, and have strong relationships with real estate agents in both markets.
We act as town agents in Western Australia for various interstate law firms.
Our expertise in this area includes:
- Advising on sale and purchase of residential property
- Advising in relation to “off the plan” sales
- Reviewing property management agreements
- Advising in relation to structuring of property investments, including establishment and administration of property trusts
- Advising in relation to strata issues.Advising in relation to vendor finance
- Advising in relation to property seizure orders
- Preparing “granny flat” agreements
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Our releant experience includes:
- Completing hundreds of residential property settlements every year
- Advising on numerous residential property related disputes, including acting for buyers, sellers and against banks. Click here for further information
- Defending residential property seizure orders in criminal proceedings
- Advising many clients on how to set up a property investments trust and how to change trustees
- Advising numerous clients in their rights in relation to “off the plan” sales
- Preparing vendor finance agreements
- Preparing “granny flat” agreements for several clients
Commercial Property Sales, Leasing and Contaminated Sites
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We act for many property developers and advise across the range of issues involved in sourcing, developing and selling commercial, residential and mixed use property developments.
We have extensive experience advising on property leasing matters for large industrial, office and shopping developments, including lease preparation and lease disputes.
Our clients include landlords, tenants, real estate agents, property developers and buyers. We have extensive experience in the Perth and Geraldton property markets, and have strong relationships with major leasing agents in both markets.
We act as town agents in Western Australia for various interstate law firms.
Our expertise in this area includes:
- Advising on sale and purchase of retail, commercial and industrial buildings and properties
- Advising in relation to “off the plan” sales
- Preparing property development and syndicate agreements
- Preparing property management agreements
- Drafting and reviewing offers to lease and lease agreements (including retail, commercial and industrial properties), including negotiating fixtures and fit-out terms and dealing with caveats and liquor licensing issues
- Preparing deeds of assignment and variation of leases
- Advising on termination of leases, make good obligations and lease disputes
- Advising on the Commercial Tenancy (Retail Shops) Agreements Act, Property Law Act, Transfer of Land Act and other relevant legislation
- Advising in relation to structuring of property investments, including establishment and administration of property trusts
- Advising in relation to strata issues
Contaminated Sites
We have extensive experience advising in relation to contaminated site issues.
We are routinely involved in matters relating to the leasing, sale and purchase of businesses, companies and commercial and residential properties. As part of these transactions, we are often required to advise clients in relation to contaminated sites issues.
Our expertise in this area includes:
- Searching the Contaminated Sites Register to identify potential contamination
- Advising clients in relation to their remediation obligations under the Contaminated Sites Act 2003
- Advising owners and occupiers of land in relation to pollutants and contaminants that have emanated from adjacent properties
- Advising landlords and tenants in relation to who has responsibility for remediating contamination
- Drafting special conditions, warranties and indemnities for commercial contracts in relation to contamination
- Drafting land owner’s disclosure forms required under section 68 of the Contaminated Sites Act 2003 (WA)
- Advising clients and liaising with the Department of Water and Environmental Regulation in relation to compliance with the Contaminated Sites Act 2003 (WA)
- Litigation involving contaminated sites, pollution and environmental liabilities
Project, Group & Debt Finance
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The commercial team at Williams + Hughes regularly acts for borrowers in single lender and syndicated finance facilities.
With our extensive experience with bank documentation, particularly in negotiation of financial covenants, we are able to negotiate carve outs and concessions from the typical bank contract wording, including better outcomes in terms of financial ratios, debt covenants and cure periods for temporary breaches.
We have expertise in acting for farmers in disputes with bankers, including in relation to foreclosure.
Our expertise in this area includes:
- Reviewing standard bank documents and negotiating carve outs and concessions
- Reviewing and advising in relation to syndicated debt facilities
- Advising borrowers in relation to breaches of debt agreements
- Advising in relation to PPSR issues
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Our notable and relevant experience includes:
- Advised various family groups in relation to $100+ million debt facilities, including club and syndicated bank debt
- Acted for large family owned borrower to achieve carve out of joint venture assets and other shared ownership assets from bank security arrangements
- Advised large corporate borrower in relation to syndicated debt facility and financial ratio breaches and curing breaches
- Successfully restructured $87 million debt financing facility for ASX-listed Apex Minerals (end to end restructuring advice and negotiations with security trustee, hedge funds, etc)
- Acted for large wine producer in relation to structuring complex debt facilities, prioritisation and subordination agreements
- Acted as escrow agent for Wave Park Group in relation to private capital raising to construct surf park in Melbourne
- Acted as escrow agent for Integrated Marketing Technology in relation to private capital raising
- Acting for various clients in negotiations with banks for project specific debt facilities
- Advising borrowers in relation to PPSR matters
- Advised in relation to suborigination agreements for regional finance and mortgage broking group
- Advised prominent Perth property developer in relation to bank debt facilities
- Acted for buyers of loan trailer book
- Prepared numerous loan facility agreements for private financiers
- Review equipment loan finance agreements for numerous borrowers
- Advising in relation to numerous financing and debt related disputes, payment claims, debt recovery, etc. Click here for more information
Construction Contracts & Subcontracts
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We advise principals, developers, contractors, sub-contractors, project managers and consultants on all aspects of commercial construction contracts. We have extensive experience in preparing the full suite of documents relating to construction projects.
Our expertise includes:
- Preparation, negotiation and review of construction contracts, including:
- EPC contracts
- Building refurbishments and upgrades
- Road construction
- Construction management agreements
- Major works and major project agreements
- Equipment and plant supply, installation and commissioing agreements
- Earthmoving contracts
- Plant hire agreements
- Testing and inspection contracts
- Underground and directional drilling contracts
- Oil and gas services construction agreements (pipeworks, inspection, upgrade and modification, compressor installation, etc.)
- Standards Australia, Masters Builders and HIA contracts
- Builder/subcontractor contract reviews
- Payment disputes
- Advising on liquidated damages claims and cancellation fees
- Construction insolvency advice
- Procurement strategies
- Advising on health and safety issues
- Due diligence advice
- PPSR advice
- Advising on construction related insurances
We also advise in relation to construction disputes, including mediation, adjudication and arbitration. To see our experience click here.
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Our notable experience includes:
- Acting for Coogee Group - Mitsubishi joint venture for construction and operation of $100m+ Port Bonython diesel fuel terminal, including FEED study, build, terminal services, terminal lease and shareholders agreements
- Preparing numerous construction contracts for Craig Mostyn Group, including construction contracts for:
- multiple abalone farm extensions in several locations across Australia, including at Australia's largest abalone farm
- multistage expansion of Western Australia’s largest pig abattoir, including new buildings and plant upgrades
- multistage construction of large commercial piggeries at Mogumber (six large buildings)
- multistage expansion of Western Australia’s largest meat and poultry waste rendering facility, including plant upgrades, new water treatment plant and new rendering line
- refit of the Group’s head office in Fremantle
- Preparing construction contract documents for Tier 1 international data centre operator for multi site upgrade program across Australia
- Advising Scott Park Group for many years in relation to corporate and construction matters
- Advising subcontractors supplying equipment and services to major resources projects including Inpex Icthys, Rio Tinto (various Pilbara), FMG Cloud Break, BHP Newman, and Main Roads WA projects (various in Western Australia)
- Preparing contracts for construction of a grain ship loader and heavy duty hopper, including dealing with cross border payment and security issues
- Preparing construction contracts for WA based premium home builder
- Preparing joint venture agreement for construction joint venture
- Preparing shareholders agreement for home building company
- Prepare construct and leaseback agreement for major plant hire company
- Advised CCM Group in relation to various construction related matters
- Advised Diab Engineering in relation to various construction related matters
- Prepared granny flat agreement for various clients
Williams + Hughes has significant experience advising in relation to construction related disputes, payment claims and debt recovery. Click here for more details
Mergers & Acquisitions
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At Williams + Hughes we advise on all aspects of buy and sell agreements, in both private and public spheres. Our lawyers adopt a strategic approach to mergers and acquisitions, working closely with our clients and their advisors to ensure the best commercial outcomes.
We have worked with many publicly listed companies buying other companies and projects, including mining projects, joint venture interests and farm-in arrangements.
We are specialists in advising private and family groups in buying and selling assets and businesses.
We have significant expertise in stamp duty and transfer duty advice and structuring of M&A transactions from a duty perspective.
Williams + Hughes’ lawyers regularly present lectures and seminars to The Law Society and other professional bodies in relation to complex M&A issues.
Services provided include:
- Developing Term Sheets /MOU’s and deal structuring advice
- Legal due diligence
- Negotiation and execution of M&A agreements - including asset sale agreements, share sale and purchase agreements, option agreements and farm-in agreements
- Advising on employment issues arising from a merger or acquisition
- Project managing M&A deals from inception to completion and post-merger matters
- Advising on property and security related matters, such as lease assignments and removal of PPSR registrations
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Our notable transactions include:
- Numerous M&A deals involving mining and exploration companies. Click here for further information
- Advised the sellers on the sale of the Harvey Fresh businesses to Parmalat
- Acting for Fogarty Wine Group, WA’s largest wine producer, on numerous acquisitions, including Evans & Tate brand purchase and transactions with McWilliams
- Acted for the sellers of Perth’s largest independent pathology business (Perth Medical Laboratories) to Australian Clinical Laboratories (private equity owned)
- Acting for buyer of Titan Digital and Titan Brand businesses (120 staff across Australia and South Africa), including all sale and related transaction documents
- Advised sellers of Tier 1 mining and energy software company, including negotiating settlement of pre-existing IP claims against business, advising on IP and IT warranties and indemnities
- Acted for sellers of Conducive, a leading Western Australian systems integrator, selling to ASX listed Empired
- Advised founders of Plexal Group (oil and gas services) on sale to SPIE Oil and Gas Services SAS (France)
- Acted on the sale of the St Ives Group to the Royal Automobile Club
- Acted on the sale of a South Australian medical technology company to an ASX listed Alcidion
- Acting for Craig Mostyn Group in numerous acquisitions and divestments including:
- assisting with aspects of the acquisition of a large interest in V&V Walsh
- acquisition of Jade Tiger, Australia’s largest abalone farm
- acquisition of Australian Seafoods (abalone and rock lobster) in Dover, Tasmania
- acquisition of Fertal rendering business
- divestment of Fataway business
- Acted for Coogee Chemicals on the acquisition of the Townsville Acid Terminal
- Advised Aspermont Limited in relation to a large M&A transaction
- Assisting the purchaser in a $7 million acquisition of a vineyard property and and business located in Margaret River
- Advised sellers of Diab Engineering to BGC Contracting
- Acted for Coogee Chemicals on the acquisition of chlor alkali business of Elite Chemicals
- Acted for the seller of HPC Data Centre to ASX listed Amcom
- Advised Northern Rivers Teatree in relation to Maincamp transaction
- Advised sellers of Stantons International accounting practice
- Advising Perth based software company on acquisition of software product/platform from international oil and gas company
- Advised buyer of Fastvue, a Silicon valley based software business, including reviewing IP ownership arrangements
- Advised sellers of Orelogy, a leading Western Australian mining software company, including tidying up pre-sale IP ownership
- Advised sellers or buyers of numerous software and IT businesses not mentioned above, including Fastart Sdn. Bhd, Maptek and others
- Acted for sellers of Wild Geese International (oil and gas safety and induction training) to ASX Listed Site Group International
- Acted for sellers of Ecologia to ASX-listed RDG
- Acted for buyer of minority shareholders in Bang Online! business
- Conducting audits for various clients as part of due diligence investigations for M&A transactions, including reviewing processes in relation to the creation, exploitation and protection of IP rights