Litigation & Dispute Resolution

Security of Payment for contractors in WA – change coming for the construction industry

After being passed by the Legislative Assembly, on 26 May 2021 the Building and Construction Industry (Security of Payment) Bill 2021 was introduced to the Legislative Council for final review.   The Bill is expected to pass through Parliament this year and come into effect.  

The Bill is a reform of the existing Construction Contracts Act 2004 (WA).  It will make the WA security of payment laws more consistent with other Australian states and territories, and adopt some of the best practice recommendations from the Commonwealth Government’s 2017 national review.  

The Bill is not intended to have retrospective effect, so there will be a transitional period between the old system and the new amendments.  Contractors should not assume they are covered by the new system.

Among other things, the Bill includes measures such as:  

• increasing the statutory protections available to contractors and shortening the time for payment of contractor claims.  Contracting parties will need to be aware of these changes when drafting their contracts, and 'payers' should be aware of the shortened timeframes for voicing disputes and providing associated details;
• an adjudication review process (in essence, an appeal process) that was not previously available outside of the court system;
• protecting retention money in the event of insolvency through a deemed trust scheme that applies across the contracting chain; and
• expanding the powers of the Board to take action against building service providers who fail to pay court and adjudication debts, and to exclude those with a history of financial failure from holding a registration.

For more information on how these changes may affect you, or if you require any assistance, please contact Dominique Engelter of our office. 

Williams + Hughes Earns Recertification in Meritas, the Leading Global Alliance of Independent Business Law Firms

Williams + Hughes is pleased to announce that it has been awarded recertification in Meritas, a global alliance of independent business law firms. Williams + Hughes joined Meritas in 2014 and, as a condition of its membership, is required to successfully complete recertification every three years. 

Meritas is the only law firm alliance with an established and comprehensive means of monitoring the quality of its member firms, a process that saves clients’ time validating law firm credentials and experience. Meritas membership is selective and by invitation only. Firms are regularly assessed and recertified for the breadth of their practice expertise, client satisfaction and high standards of cybersecurity to keep legal information safe. Meritas’ extensive due diligence process ensures that only firms meeting the tenets of Meritas’ unique Quality Assurance Program are allowed to maintain membership. The measurement of the firm’s performance, based on input from clients, is reflected in a Satisfaction Index score, which is available online on the Meritas website.

“Our values of quality service and client satisfaction align with the Meritas mission to provide a safe and responsive global offering to clients,” said Damian Quail, Director. “We’ve successfully collaborated with colleagues in many jurisdictions around the world to solve client issues and help them seize opportunities outside of this market. We look forward to keeping those vital connections through membership in Meritas.”

The recertification process Williams + Hughes completed to maintain its membership status included exacting self-assessment, peer review by other law firms and client feedback.  

“Businesses trust the Meritas alliance of law firms for top-tier quality, convenience, consistency and value,” said Sona Pancholy, president of Meritas. “Williams + Hughes has demonstrated its commitment to world-class legal standards, and therefore has successfully earned its recertification in Meritas.”

For more information about our our membership in Meritas, please see here

About Meritas 

Meritas’ global alliance of independent, market-leading law firms provides borderless legal services to companies looking to effectively capture opportunities and solve issues anywhere in the world. Companies benefit from local knowledge, collective strength and new efficiencies when they work with Meritas law firms. The personal attention and care they experience is part of Meritas’ industry-first commitment to the utmost in quality of service and putting client priorities above all else. Founded in 1990, Meritas has member firms in 259 markets worldwide with more than 7,500 dedicated, collaborative lawyers. To locate a Meritas resource for a specific need or in a certain market, visit Meritas.org or call +1-612-339-8680

Meritas Welcomes DMAW Lawyers, Adelaide, to the Membership

Leading Adelaide commercial Firm, DMAW Lawyers has been selected to be South Australia’s representative firm for Meritas, the premier global alliance of independent law firms.

DMAW Lawyers will become an integral part of the Australia & New Zealand network of firms as well as the worldwide network of 191 law firms located across 96 countries.

This alliance will enhance DMAW Lawyers’ ability to support South Australian business interests both nationally and internationally.

DMAW’s Lawyer’s Managing Director, Mr Leo Walsh said “One of most attractive benefits of belonging to this network was the opportunity for our lawyers to participate in national and global conversations on business and legal issues. Not only does this expand our thinking, and add to our technical skills, but it help our lawyers build trusted, reliable relationships with lawyers in the regions that matter to our clients. Already we’ve participated in meetings with Insolvency experts across the country and with Senior Partners in Shanghai and Tokyo.”

Mr Mike Worsnop, Partner with Martelli McKegg in New Zealand and Co-Chair of Meritas ANZ: “We are delighted to have DMAW Lawyers join our group. Not only was their quality apparent but they’ve been very easy and responsive to deal with during our discussions.  They clearly demonstrated the type of service clients look for when using a firm in a different market.”

“DMAW Lawyers had to meet the rigorous requirements to become members of Meritas, the only law firm alliance with a Quality Assurance Program that ensures clients receive the same high-quality legal work and service from every Meritas firm.”

Meritas membership is extended by invitation only, and firms are regularly assessed for the breadth of their practice expertise and client satisfaction.

Ms Sona Pancholy, Meritas CEO: “In today’s environment having a commitment to a reliable network is more important than ever. Independent law firms, Corporate Counsel, Business Owners and their Commercial Advisors, all choose their portfolio of trusted legal relationships to match the issues and the markets they want to navigate. For 30 years, Meritas has cultivated a group of the best firms for this purpose.”

About DMAW Lawyers

DMAW Lawyers was established in Adelaide in 2002. The firm has ten Principals and a team of 50 staff. DMAW Lawyers focus on three areas of specialization being Corporate, Transactions, and Disputes for Business Clients.

Website: DMAW Lawyers

About Meritas

Founded in 1990, Meritas is the premier global alliance of independent law firms. As an invitation-only alliance, Meritas firms must adhere to uncompromising service standards to retain membership status. With 192 top-ranking law firms spanning 96 countries, Meritas delivers exceptional legal knowledge, personal attention and proven value to clients worldwide.  

Website:  Meritas 

In Australia and New Zealand, Meritas is represented by leading independent commercial law firms in each of these six major capital cities:

In Australia

Adelaide DMAW Lawyers

Brisbane Bennett & Philp

Melbourne Madgwicks Lawyers

Perth Williams+Hughes

Sydney Swaab  

In New Zealand

Auckland Martelli McKegg

Privacy policies and procedures: Australian businesses may have to comply with European GDPR laws

On Friday 25 May 2018 the EU General Data Protection Regulation (GDPR) came into effect, giving residents of the EU increased control over their personal data. Importantly, GDPR extends far beyond the boundaries of Europe.

Here we have summarized what this means for Australian businesses.

Does it apply to my Australian business?

GDPR can apply to businesses incorporated outside of the EU, regardless of their size.

GDPR applies to Australian businesses that:

• have an establishment in the EU;
• offer goods or services to EU individuals (including where no payment is required); or
• monitor the behaviour of EU individuals e.g. through the use of website “cookies”.

If an Australian company has an office in the EU, sells goods or services to people in the EU, or processes or handles data relating to EU individuals – even if that data processing occurs only in Australia - that is usually enough to bring the company within the scope of GDPR.

The fact that people in the EU can access a website is not enough to bring the company within GDPR. However, using a European language or currency on your website, or mentioning customers or users who are in the EU, can be considered having an intention to offer services to EU individuals. This will bring any data concerning those EU individuals within GDPR, and so the Australian business will need to comply with GDPR.

Who and what are covered?

The GDPR covers the “personal data” of an “EU individual”. The concept of an “EU individual” extends to EU residents, EU citizens and citizens of other countries who are temporarily in the EU. This could include an Australian resident working temporarily in the EU. The scope of “personal data” is broad - it includes any data set which can identify or single out an individual. It is broader than the definition of personal information under Australian legislation.

Importantly, GDPR focusses on the person to whom the information relates, not where the information handling or processing actually occurs.

So, an Australian company that uses computer servers provided by third parties to process the personal data of an EU individual (e.g. Amazon or Microsoft Azure servers) is bound by GDPR even if those servers are located outside of the EU. GDPR extends far beyond the boundaries of Europe.

If an Australian company has European customers, then they msut comply with GDPR.

We comply with Australian Privacy Laws, isn’t that enough?

Unfortunately it is not that simple. Although the Australian Privacy Act 1988 (Cth) and the GDPR have similar requirements, some requirements of GDPR are stricter than those under Australian privacy law. For example:

• Active, informed, specific consent must be obtained from EU individuals regarding use, collection and storage of their personal information. Companies cannot rely on pre-ticked boxes, opt-out clauses, bundled consents or employment contracts for consent. Privacy and consent cannot be obtained via clause 65 of a privacy policy on your website.
• Companies must notify EU individuals within 72 hours of a data breach occurring. This is a very short timeframe from discovery of a breach. Companies will need to put in place processes to deal with a breach before any breach actually occurs.
• Specific steps must be taken by a company when transferring personal data outside of Europe or to a third party commercial services provider.
• Companies must implement appropriate technical and organisational measures and processes, including data protection policies, to ensure and be able to demonstrate that data processing and retention complies with GDPR. Importantly, there must be “data protection by design and by default”.
• EU Individuals have a “right to be forgotten” under GDPR which does not yet exist under Australian privacy law.

If GDPR applies to your business, you may need to update your privacy policy and procedures to ensure compliance with these rules.

Alternatively, you may need to implement strategies to remove your business from the scope of GDPR. We can assist in this regard. 

Europe's Regulatory Focus- will non-EU companies be fined?

The processing of employee data, such as payroll data, has been identified by EU regulators as a key area for protection. Any Australian business that seriously breaches GDPR in relation to EU employee information could be the subject of enforcement action by EU regulators. In the event of a serious data breach, fines may be imposed. Fines under GDPR can be extremely high - up to €20 million or 4% of annual worldwide turnover, whichever is greater.

Importantly, European regulators are taking action against non-EU companies. The first company to be fined under GDPR by the UK's Information Commissioners Office (ICO) was a Canadian company with apparently no EU presence. The ICO also issued a formal warning under GDPR in November 2018 to the Washington Post over how it was obtaining consent for cookies on its website. The ICO did not take the matter further at the time, and presumably will not in a post-Brexit world. However, it is clear that European regulators may target companies outside of Europe in sufficiently serious cases.

Also, any EU individual whose data has been compromised as a result of an unauthorised disclosure or data breach can take action directly against an Australian company under GDPR.

Many countries are following GDPR

Legislation similar to GDPR has already been passed in many jurisdictions outside of Europe. Other non-European countries are currently updating their privacy laws as a response to GDPR. These countries include Argentina, Bahrain, Brazil, China and Hong Kong, Iraq, Israel, Kazakhstan, Norway, Panama, Peru, Russia, Singapore, California and the United Kingdom. Australian companies operating in, or with customers in, these countries will need to be sure they comply with those laws.

What to do now

The message is clear. Many Australian companies holding or processing personal data of an EU individual should:

• Review their current data processing practices to understand what data is collected, processed and retained
• Determine whether current information handling, security and retention practices comply with GDPR
• Update privacy policies, practices and procedures if GDPR is applicable
• Put in place measures to deal with a data breach before one occurs
• Obtain formal contractual guarantees from third party service providers (e.g. who host or process relevant data) that they are compliant with GDPR.

For Australian companies that wish to avoid the cost of dealing with GDPR, there are strategies that can be implemented to remove their business from the scope of GDPR.

If you have any questions about your company’s obligations or need help to comply with GDPR or avoid GDPR, please contact Damian Quail in our Perth office.

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.

COVID-19: Temporary relief for financially distressed individuals, companies and directors

The Australian Federal Government has announced temporary amendments to insolvency and bankruptcy laws, effective from 25 March 2020, to lessen the economic impacts of COVID-19 on individuals and businesses and to allow for business continuity. The legislation passed is called the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) (the COVID-19 Legislation).

The new measures are intended to avoid unnecessary bankruptcies and insolvencies by providing:

• a safety net to help businesses to continue to operate during a temporary period of illiquidity, rather than entering voluntary administration or liquidation;  and
• a safety net to individuals to assist them with managing debt and avoiding bankruptcy.

The temporary amendments that will apply for 6 months from 25 March 2020 until 24 September 2020 include:

• increasing the threshold at which creditors can issue a statutory demand against companies from $2,000 to $20,000, and the time for responding to a statutory demand from 21 days to 6 months;
• relief for directors and holding companies from personal liability for new debts incurred during the period the company trades while insolvent (provided that the debt is incurred in the ordinary course of the company’s business);
• providing targeted relief for companies from provisions of the Corporations Act 2001 (Cth) (the Act) to deal with unforeseen events that arise as a result of the COVID-19 health crisis; and 
• a temporary increase in the threshold for a creditor to initiate bankruptcy proceedings from $5,000 to $20,000, and an increase in the time period for debtors to respond to a bankruptcy notice, as well as extending the period of protection a debtor receives after making a declaration of intention to present a debtor’s position (both of which are extended from 21 days to 6 months).

Statutory Demands (companies)

A failure to respond to a statutory demand creates a presumption of insolvency under the Act, and the company may be placed into liquidation.  The Government has temporarily increased the timeframe for a company to respond to a statutory demand from 21 days to 6 months, thereby lessening the threat of actions that could push a business into insolvency.

The amendments will not prevent the right of creditors to enforce debts against companies or individuals through the courts.  However, creditors will not be able to rely upon a failure to pay to commence winding up proceedings until the expiration of the 6 month period, if the statutory demand is served on or after 25 March 2020. 

Insolvent Trading (companies)

The introduction of a new section 588GAAA into the Act provides temporary relief to directors from personal liability for insolvent trading in respect of debts that are incurred by their company if the debt is incurred:

• during the 6 month period from 25 March 2020;
• in the ordinary course of the company’s business;  and
• before any appointment of an administrator or liquidator over the company (during the 6 month period).

According to the Explanatory Memorandum to the COVID-19 Legislation, a director is taken to incur a debt in the “ordinary course of the company’s business” if it is necessary to facilitate the continuation of the business during the 6 month period.  This could include a director taking out a loan to move some of the business operations online or incurring the debt to pay employees during the COVID-19 pandemic.

While the new provision of the Act provides protection during the 6 month period, a person wishing to rely on the temporary safe harbour in a court proceeding in which unlawful insolvent trading is alleged will bear an evidential burden in relation to that matter.  This means producing evidence to support their reliance on the temporary safe harbour.   

A holding company may also rely on the temporary safe harbour provisions for insolvent trading by its subsidiary if it takes reasonable steps to ensure the temporary safe harbour applies to each of the directors of the subsidiary, and to the debt, and if the temporary safe harbour does in fact apply as a matter of law.  The holding company must establish this by producing evidence to support their reliance on the temporary safe harbour.

Bankruptcy Proceedings (Individuals)

To assist individuals, the Government has made a number of changes to the personal insolvency system regulated by the Bankruptcy Act 1966 (Cth). These include:

• the threshold for the minimum amount of debt required for a creditor to initiate bankruptcy proceedings against a debtor will temporarily increase from $5,000 to $20,000;
• the time a debtor has to respond to a bankruptcy notice is increased from 21 days to 6 months; and    
• the period of protection a debtor receives after making a declaration of intention to present a debtor’s petition is extended from 21 days to 6 months.  

These temporary measures will apply for 6 months from 25 March 2020 until 24 September 2020.

Temporary Powers given to the Treasurer

The COVID-19 Legislation enables the Treasurer to provide short term regulatory relief to classes of persons that are unable to meet their obligations under the Act or the Corporations Regulations 2001 (Cth) by:

• ordering that specified classes of persons are exempt from specified obligations;  or
• modifying specific obligations under the Act to enable specified classes or persons to comply with their obligations during the COVID-19 crisis.

The Treasurer can exercise this power if they are satisfied that it would not be reasonable to expect the persons in the class to comply with provisions because of the impact of COVID-19, or the exemption or modification is otherwise necessary or appropriate in order to facilitate continuation of business in circumstances relating to COVID-19, or to mitigate the economic impact of COVID-19.

This is a temporary provision to facilitate the continuation of business during the coronavirus.

For specific legal advice regarding the new safe harbour provisions, including regarding issuing or responding to a demand to or from your creditors or debtors, please contact Leanne Allison or Cameron Sutton. 

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.

Retail Shop Lease expenditure statements - It can be too late !

In a situation that is not unusual in the commercial retail shop leasing space; particularly with small scale commercial landlords, a tenant has paid the landlord’s operating expenses for many years but subsequently realised that perhaps they should have been provided by their landlord with prior estimates, and subsequent audited statements, of those expenses.  This might mean the tenant is entitled to a refund of the operating expenses they have paid, or that the landlord cannot sue for operating expenses that were invoiced but are unpaid.

To avoid this risk, it is critical that landlords of a retail shop lease ensure they have given an estimate of operating expenses before the end of the year in which those expenses are invoiced and paid.  

The landlord cannot subsequently give an “estimate” of operating expenses after the fact.  Once the quantum of those expenses is a known element, it would be artificial and there is no remaining room for a landlord to retrospectively give an estimate.   In the absence of a valid estimate of outgoings, the outgoings are not payable.

In the Western Australian Court of Appeal decision of Trimat Holdings Pty Ltd v Investment Club Pty Ltd delivered on 28 April 2020: 

• the tenant leased a retail shop for a term of 10 years commencing 1 November 2010;
• the tenant paid its share of the landlord’s operating expenses for 6 years before commencing court proceedings in June 2018 seeking to recover these payments; and
• the tenant claimed the lease was a retail shop lease under the Commercial Tenancies (Retails Shops) Agreements Act 1985 (WA), that section 12 of the Act required the landlord to give estimates of operating expenses and operating expenses statements, and that the landlord had never given compliant statements.

In very general terms, the effect of:

• section 12(1)(d)(i) of the Act is that operating expenses are not payable until one month after an estimate of the years’ (or part years’) expenditure has been given to the tenant; and 
• section 12(1)(d)(ii) of the Act is that the landlord must then give a statement of actual operating expenses within 3 months of the end of the landlord’s accounting period (for example, the end of the financial year), and if it does not do so, the tenant’s obligation to pay operating expenses is suspended during the period of non-compliance.

A defence raised by the landlord was that it could, prior to trial, belatedly comply with section 12 of the Act and thus nullify the tenant’s claim.  The District Court dealt with as a preliminary issue, finding in the landlord’s favour.

The Supreme Court of Appeal took a different view.

In essence, the Court of Appeal determined:

• a statement of expenditure for a year or part of a year in which all expenditure has been incurred and its amount is ascertained would not be an 'annual estimate of expenditure' for the purposes of the Act.  The reference to an 'annual estimate of expenditure' is to an assessment of the annual expenditure prospectively anticipated to be incurred in a year but which has not, at least fully, been incurred.  It is not a reference to a statement of expenditure in a year which has already been fully incurred and ascertained;  
• the landlord cannot neutralise the suspension of payment provided by section 12(1)(d)(i) of the Act by belatedly giving an estimate of expenditure after that expenditure has been fully incurred and ascertained; 
• an operating expenses statement can theoretically be given to a tenant more than after 3 months after the end of the accounting period to which it relates.  However, that does not help a landlord who has not provided a valid estimate of operating expenses beforehand – the tenant’s requirement to pay expenditure will not have arisen if the required estimate has not been given; and further 
• to the extent the operating expenses statement relates to expenditure that requires an auditor’s statement - as to whether or not the total amount of estimated operating expenses exceeded the total actual expenditure by the landlord – the landlord will not be able to give a compliant operating expenditure statement in the absence of a prior estimate.

Landlords of retail shop leases should check their compliance with section 12 of the Act and, if they have not yet given the tenant an estimate of operating expenses for the year, make haste to now do so before that expenditure has all been incurred and finalised.  

For further information or for help in navigating the rights and obligations of your retail shop lease, please contact Dominique Engelter of our office.

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.