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Corporate Advice, Business Services & Commercial Contracts
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The ACCC is targeting the Australian Wine Sector- winemakers must update their supply contracts with growers
Post by Amy Knight | Posted 5 years ago on Tuesday, June 18th, 2019
On 3 June 2019 the Australian Competition and Consumer Commission (the ACCC), Australia's competition and consumer protection regulator, released an Interim Report drawing attention to harmful market practices that could be restricting competition in some Australian wine grape growing regions and limiting the potential for growth of Australia’s wine industry. More details can be found on the ACCC's website at Wine Grape Market Study. Stakeholders in the Australian wine industry are encouraged to make submissions on the interim report by 28 June 2019.
Why is the ACCC concerned?
The report identified a number of practices adopted by wine makers when entering into supply contracts with grape growers which were described by the ACCC as concerning, including:
- a lack of transparency and certainty over how grapes are priced and quality assessed;
- exclusive and lengthy supply contracts with automatic and long term extensions;
- lack of price certainty for growers during the supply contract term;
- lack of publicity of prices and strict confidentiality obligations preventing price disclosure by growers, making it difficult for growers to assess whether price offers they receive are competitive;
- delayed payment terms, in some instances up to nine months after grapes have been delivered to a winery; and
- difficult termination clauses.
What has the ACCC recommended?
The ACCC made a number of interim recommendations aimed at addressing the power imbalance between winemakers and growers, including:
- winemakers in warm climate regions should be required to provide indicative and final grape prices to an independent third party for simultaneous public release;
- payment terms for wine grapes should be shortened so growers are paid within 30 days of delivering grapes;
- objective standardised testing for wine grape quality assessments should be developed; and
- the dispute resolution processes in the Australian Wine Industry Code of Conduct (the Code) should be improved.
Wait, we already have a wine industry code of conduct!
The Code was established in 2008 by industry participants in an attempt to address ongoing issues within the wine industry - but participation in the Code is voluntary.
To be an effective mechanism to improve industry practices, the ACCC states that participation in the Code by major winemakers is essential. With that end in mind, the ACCC recommends that Australian winemakers with more than 10,000 tonnes of processing capacity sign the Code. However, the ACCC states that current participation levels are problematic. The ACCC states that if participation levels by major winemakers do not improve the ACCC may recommend to Government that a mandatory code be introduced.
So, what should winemakers and grape growers do?
The ACCC will publish its final report in September 2019. Putting aside for a moment the recommendations that are yet to be implemented, the ACCC has identified a range of contract terms which it considers may be unfair under the Australian Consumer Law (the ACL). The ACL applies to many business to business transactions. While the current ACL unfair contract term regime does not go further than rendering some unfair contract terms unenforceable, the Government recently announced plans to strengthen protections to small businesses from unfair contract terms. As part of this plan, the Government will consult on amending the unfair contract regime to make unfair contract terms illegal and attach fines to breaches.
Winemakers and grape growers looking to get ahead of the curve must review their supply contracts with these changes in mind, especially those contracts that are coming up for renewal or renegotiation. Unfair contract terms should be removed - they can't be enforced, may attract bad press and could, in future, result in a hefty fine.
For further information on how these changes may impact on your business please contact please contact Amy Knight or David Williams on +61 8 9481 2040 or amy.knight@whlaw.com.au and david.williams@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.
New laws imposing mandatory requirements for businesses that supply services: your T&C’s and website must be updated by 9 June 2019
Post by Damian Quail | Posted 5 years ago on Tuesday, June 4th, 2019
Recent amendments to the Competition and Consumer Regulations 2010 impose new mandatory wording requirements in relation to the supply of services and also the supply of goods in combination with services.
The new requirements take effect on 9 June 2019. Failure to comply with the new laws can attract a $50,000 fine.
Australian businesses that have not updated their trading terms and conditions, product manuals, warranty cards, marketing materials, product packaging and websites must act quickly to avoid breaching the new laws.
The new mandatory wording requirements make it compulsory for businesses to inform consumers that any warranties or guarantees against defects that are contained in a business’ documents or website do not override the statutory consumer guarantees provided in the Australian Consumer Law (the ACL).
The new requirements apply in respect of any services supplied at a value of $40,000 or less or in respect of any services of a kind that are usually acquired for personal, domestic, or household use or consumption.
The new laws prescribe mandatory text that must be reproduced verbatim. The specific wording required depends on whether the warranty or guarantee against defects applies in relation to the supply of services or the supply of goods in combination with services. The supply of goods alone is already covered by mandatory text requirements that have been part of the ACL for some time.
The ACL also imposes other requirement that warranty documentation and T&C’s must comply with. Now is a good time to ensure your documents and websites are up to date.
For further information on how these changes may impact on your business please contact Damian Quail, Director at Williams + Hughes on +61 8 9481 2040 or damian.quail@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.
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.
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.
Corporate Advice, Business Services & Commercial Contracts
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We provide the full suite of corporate and commercial legal advice to businesses in Australia and overseas. Our experience means we deliver legal advice that is commercially astute. Whether reviewing procurement contracts, negotiating business agreements or planning commercial strategies with our clients, our lawyers deliver legal expertise with commercial acumen.
Our expertise in this area includes advising in relation to:
- Commercial and corporate legal matters
- Contract review and preparation
- Terms and conditions, supply agreements, distribution agreements, etc
- Employment issues and service contracts
- Directors' duties
- Workplace safety
- Intellectual property
- IT contracts
- Buying and selling businesses and companies
- Commercial property and leasing
- Resources and industrial projects
- Capital raisings
- Due diligence for stock exchange listings
- Bank and syndicated debt agreements
- Franchise agreements
- Business and entity structuring and succession planning
- Transport, plant and equipment and logistics contracts
- Construction contracts, including subcontractor agreements
- Contaminated site issues and environmental liabilities
- Competition and ACCC issues
- Insolvency advice
- Debt recovery
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Our notable and relevant experience includes:
- Advising Coogee Chemicals in relation to a multi-decade chlorine supply agreement with major industrial customer, including negotiation of supply and related agreements
- Advising Coogee Chemicals in relation to industrial technology joint venture with CSIRO, including relationship and commercialisation agreements
- Advising in relation to numerous transport and logistics agreements for carriers and customers throughout Western Australia, including Sadliers, Aurizon, Craig McDonald, AGL, Crane Worldwide, Gap Logistics, International Logistics, Damien Cole Group, Faststar, Kreuger Transport, Countrywide, Centurion, Stevens and others
- Prepared and presented an ACCC Compliance Policy and Training Program to senior managers for a large Australian agribusiness across three states
- Advised Coogee Chemicals in relation to long term chemical supply agreements with global titanium dioxide manufacturer
- Reviewing and advising in relation to numerous franchise agreements
- Acted for numerous companies to prepare or review consulting agreements
- Prepared directors and officers insurance, indemnity and access deeds for numerous clients
- Advised numerous clients in relation to redundancy and termination of employment
- Acting for numerous companies to prepare employment contracts for senior executives and line employees
- Acting for Coogee Group to prepare all fuel storage and terminal lease agreements
- Acting for Lionel Samson Group on numerous commercial transactions across transport, wine and packaging sectors
- Prepared plant hire agreements for several clients in Western Australia, including Titan Plant Hire and Coates Hire
- Acted on behalf of clients who were defrauded by their financial advisor, securing a payment from the institution that employed the financial advisor
- Prepared shareholder and partnership agreements for a syndicate that owns several supermarkets
- Advised in relation to various partnership restructurings
- Prepared legal agreements or various business and property investment syndicates
- Preparing terms and conditions (T&C’s) for small, medium and large suppliers across a range of industries, including food services, manufacturing, pork production, seafood, marine services, mining services, marketing, website development and more
- Prepared numerous shareholder and subscription agreements for small and medium business
- Prepared numerous trust deeds (unit trust, discretionary trust, bare trust) for small, medium and large businesses
- Acted as escrow agent for Wave Park Group in relation to capital raising for construction of surf park in Melbourne
- Advised on restructuring of Borello Beef Group
- Numerous M&A deals. For further information see Mergers & Acquisitions
- Numerous contracts and transactions for resources, mining and exploration companies. For further information see Mining, Exploration & Mining Services
- Extensive property and leasing related work. For further information see Commercial Property Sales & Leasing
- Numerous construction related agreements. For further information see Construction Contracts & Subcontracts
Commercial Law & Contracts
Williams + Hughes advise public and private companies and individuals across a wide spectrum of industries. Our range of commercial litigation expertise and experience, coupled with ready access to senior legal personnel and our responsiveness, makes us top choice commercial litigation lawyers in Western Australia.
We recognise that clients often choose their legal advisors based on their knowledge and understanding of the client’s industry. Our lawyers work hard to understand the commercial and technical drivers underpinning our clients’ industries, as this enables us to quickly and efficiently advise on complex and technical matters affecting their businesses.
Get in touch with our top tier commercial litigation lawyers in Perth or Geraldon to see how we can assist you.
What we do
Click through the links below for more information on the individual areas of expertise
Damian Quail
PrincipalLLB, B.Com (Acc & Fin) (Hons) MAICD
EXPERTISE
EXPERIENCE
Damian is a Director and Principal of Williams + Hughes. He has practiced as a lawyer for over 28 years in the commercial, resources, agribusiness, software and technology fields. He has managed many large deals, including major investments, farm-ins and JV’s, asset and share sale deals, capital raising transactions and construction matters.
Damian acts for a wide range of clients, including ASX and TSX listed companies, large private family groups and small to medium enterprises. Damian has special expertise in M&A transactions.
Damian adopts a pragmatic approach with a strong focus on ensuring his advice adds value and allows clients to get deals done.
Damian has significant business experience outside of law. This experience helps ensure he does not waste time on legal points that are not commercially important. His past and current roles include:
- Director and Executive Producer at Perpetual Entertainment West and Director at Quail Entertainment, television production companies
- Board member of the Churchlands Senior High School Foundation
- Director of eight unlisted gold exploration companies
- President of The West Australian Mining Club 2019/20; Secretary 2017-2019; Committee Member 2015-2020
- co-founder of four start-ups in space launch, biotech and mobile app sectors
- founding Trustee of the Rotary Club of Crawley Charitable Foundation
- Analyst and Management Consultant at boutique investment bank (3 years)
- Senior Associate at Perth's largest law firm (3.5 years)
Damian is a current member of the Australian Institute of Company Directors, Energy and Resources Law and the Law Society of Western Australia.
Damian is based in our West Perth office. He is a regular legal CPD seminar presenter for the Law Society of Western Australia and Legalwise, where he has presented extensively on M&A topics. He is married with three children and enjoys making TV shows, travelling and playing indoor cricket.
Some of the significant matters Damian has advised on include:
Mining, resources and mining services
- Prepared numerous M&A agreements, farm-in agreements, joint venture agreements, land access and compensation agreements for listed and non-listed exploration companies.
- Prepared numerous subcontractor, procurement and hire agreements for mining services companies supplying to major resources construction projects
- Legal adviser to ASX-listed Image Resources for over 13 years in relation to numerous aspects of its Boonanarring and Atlas Mineral Sands Projects, including:
- negotiating and preparing numerous land access, compensation, option and acquisition agreements relating to mining on private land and on Crown leases.
- general day to day legal advice including FIRB approvals, exploration and mining agreements, petroleum pipeline easements and easements over adjoining properties.
- Australian legal adviser to TSX-V listed Novo Resources Corp. including:
- establishing Australian subsidiaries and serving as a Director 2010-2023.
- negotiating and preparing numerous farm-in, joint venture, sale and purchase and royalty agreements, including due diligence and transaction agreements with Creasy Group, Millennium Minerals, Artemis Resources, Comet Well vendors, Pioneer Resources, Calidus Resources, Northwest Resources, Nimble Resources, Talga Resources, Mesa Minerals and others.
- general legal and contracting work including heritage agreements, split minerals rights agreements, refining agreements, toll treatment, leases, access agreements, DMIRS compliance work, advising in relation to tenements issues, etc.
- legal compliance and advice including company secretarial work, FIRB applications, DMIRS compliance, employment issues, complex stamp/transfer duty matters and general day to day legal advice.
- Legal adviser to ASX listed Middle Island Resources for over 10 years on numerous matters, including:
- purchase of Sandstone Gold Project. Conducted legal due diligence and negotiated Asset Sale Agreement and related documents.
- sale of Sandstone Gold Project to Aurumin Limited. Negotiated Sale Agreement and related documents.
- bidding for Samira Hill gold mine in Niger. Extensive assistance with due diligence, advice in relation to Mining Code of Niger and negotiating sale agreement and related documents.
- proposed purchase of a Moroccan copper project.
- sale of project interests in Burkina Faso, Niger, Liberia and Western Australia, including negotiating farm-in and royalty agreements.
- Legal adviser to Coil Group and JT Metallurgical Services, including toll processing, mill operation and various service contracts.
- Legal adviser to Resource Mining, including in relation to purchase of Goongarrie Gold Project, contract mining agreement and contract variation iss
- Legal adviser to Titan Plant Hire and Territory Plant Hire, including in relation to numerous infrastructure and resources projects in Western Australia and Northern Territory.
- Acted for ASX-listed Apex Minerals in successfully restructuring of $87 million debt facility, including negotiations with security trustees and banks in New York and reset of debt facility, warrant deeds, security trust deeds, etc.
- Prepared oil and gas services agreements for Plexal for gas pipeline projects in Australia, Bangladesh and Thailand.
- Advised ASX-listed Cougar Metals in relation to Brazilian lithium project.
- Acted for Lime Industries Group in relation to limestone and sand mining.
- Advised ASX-listed Magnetic Resources in relation to acquisition of gold projects.
- Advised ASX-listed Mindax in relation to acquisition of gold projects, including farm-in agreements.
- Acted for ASX-listed Emu Nickel in relation to various minerals projects.
- Advised Australian investment company to set up Limited and General Partnerships in the Cayman Islands for investment in global resources opportunities.
Mergers & Aquisitions
- See above for mining and resources related M&A work.
- Acted for owners of Western Australia's largest hospitality supplies company, Hisco, on sale of business to French owned Reward Group.
- Acted for MBL on purchase of Southcoast Food Services business.
- Acted for INX Software shareholders on sale of majority stake in INX to private equity buyer Tanarra Capital.
- Acted for Perth Medical Laboratories (Perth’s largest independent pathology business) shareholders on sale of company to Australian Clinical Laboratories (private equity owned).
- Acted for buyer of Titan Digital and Titan Brand businesses (120 staff across Australia and South Africa).
- Acted for Craig Mostyn Group in numerous acquisitions and divestments including:
- assisted with aspects of the acquisition of 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
- divestment of Tasmanian seafoods business
- Advised vendor of HPC Data Centres on sale of data centre to ASX-listed Amcom.
- Advised vendors of Orelogy mining software on sale of software business to Maptek.
- Advised vendors of Orelogy Consulting business to Perenti.
- Advised Conducive shareholders on sale of IT services business to ASX-listed Empired Limited.
- Advised Silicon Valley based software company on purchase of Australian software business, including IP due diligence.
- Advised Wild Geese International (oil and gas safety and induction training) to ASX-listed Site Group International.
- Advised sellers of Ecologia to ASX-listed RDG.
- Advised numerous buyers and sellers in private M&A transactions, including involving vendor finance, earn-outs and funds escrow arrangements, including acting as escrow agent.
Pipelines, Tanks and Terminals
- Acting for Coogee Chemicals for many years, including:
- acted for the Coogee Chemicals - Mitsubishi joint venture regarding construction and operation of $100m+ Port Bonython diesel fuel terminal, including FEED study, build, terminal services, terminal lease and shareholders agreements and related documents
- negotiating multi-decade pipeline leases and easements in Kwinana industrial estate.
- negotiating multi-decade chlorine and caustic supply agreements.
- negotiating land access agreements and easements for pipelines, tanks, railway sidings, elevated pipebridges, etc in in Kwinana industrial estate and Kalgoorlie.
- acted for Coogee Chemicals in relation to sale of interst in Port Bonython Fuels
- negotiating industrial leases and licences.
Construction
- Advised subcontractors supplying services and equipment to major resources projects including Inpex Icthys Darwin, Rio Tinto (various Pilbara), FMG Cloud Break, BHP Newman, and Main Roads WA projects (various in Western Australia)
- Acted for the Coogee Chemicals - Mitsubishi joint venture regarding construction Port Bonython diesel fuel terminal- see above.
- Prepared 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, new boilers and new rendering line
- refit of the Group’s head office in Fremantle
- Prepared construction contract documents for Fujitsu for multi site data centre upgrade program across Australia
Software and IT related
- See above for software and IT related M&A work.
- Advised large private company in relation to moving from in-house IT solution to Telstra hosted Cloud environment (production, disaster recovery, backup).
- Advised large industrial company in relation to Oracle software licensing audit and licensing compliance, including compliance with licensing terms and challenging licence fees demanded for virtual machines and multiple software instances.
- Advised IT vendor entering USA market - prepared manufacturing, distribution, branding and licensing agreements.
- Advised ASX-listed property company in relation Microsoft Dynamics enterprise agreements.
- Prepared suite of software licencing, maintenance and support agreements for spatial software developer (Australia and USA).
- Prepared numerous software license agreements, distribution agreements, reseller agreements, EUSLAs, support and maintenance and service level agreements (including SaaS and Cloud Agreements), consulting contracts, etc for numerous Australian software companies.
- Reviewed and advised numerous clients in relation to IT procurement contracts.
- Prepared numerous website and app T&C's
- Advised many software, medical and mobile app start-ups in relation to business structuring, shareholder agreements, terms and conditions, fundraising documents, commercialisation agreements, manufacturing, distribution, branding and licensing agreements.
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