How to tackle a dispute

“I’ll see you in Court!”…is a famous quote that you do not only hear in the movies, but in fact is a saying I hear clients throw around day-to-day when they are in a dispute.

However, before you (in Trump’s words) unleash “fire and fury”, you best be checking what the agreement between you and the other party says – as many will have a “Dispute Resolution” clause.

These clauses dictate the process for how the parties agree to engage with one another in the event of dispute – neither can just race off to Court! Usually, the procedure will involve staged forms of alternative dispute resolution.

For example, a standard type of dispute resolution process will look as follows:

  1. the aggrieved party must give the other party notice of the dispute, the concerns and outcome sought;
  2. the parties (or in the case of bigger companies, the CEOs or Managing Directors) must meet to try to negotiate a mutually acceptable outcome; and
  3. if negotiation fails, the parties must undertake mediation.

After mediation, it may be free for all to apply to Court, OR the dispute resolution process may provide for arbitration.

Obviously it would be great if the dispute could be resolved through the dispute resolution processes, however even if it cannot, the aim is to also narrow the number of issues in dispute. That is, you might start off with 10 and be able to narrow the issues down to 2 after the mediation.

The dispute resolution clause will often provide for certain timeframes for steps in the process to occur and dictate who pays for the costs of the mediation etc.

Despite this, there may still be an ability under the agreement to apply to the Court for an urgent injunction – to stop a party doing something they are not supposed to be doing under the Agreement or force them to do something. An injunction does not determine the outcome of the dispute – rather it just keeps the status quo or ensures things keep functioning as they should whilst the dispute is going through the processes.

Ultimately, the dispute resolution process is very helpful in nipping disputes early – without the expense, stress and time involved in litigation.

It is important to be aware of what is required under a dispute resolution clause and ensure you comply – otherwise you could find yourself in breach of the agreement!

Suzanne Brown is a Principal of McKays and Mackay’s only QLS Business Law Accredited Specialist. She can be contacted on (07) 4963 0820 or sbrown@mckayslaw.com.

 

 

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Debt Collection 101

Getting paid in a timely manner for your business’ hard work is critical for the long term success of your business. Good cash flow is after all your best friend in business. If you don’t get paid, then you can’t pay your bills – and we can all see where this is going – the flow on effect is disastrous to everyone in the supply chain.

Reviewing your credit management processes could be the key to solving your problems.

A good starting point is to always have an established credit policy.  A workable policy is one that establishes written guidelines for granting credit.  It should also outline a clear debt collection procedure that tells accounts staff of your business what to do, when to do it and how to do it.

The primary goal of getting payment as quickly as possible must be balanced with maintaining customer goodwill.  It is important to exhaust all avenues in negotiating an outcome rather than immediately threaten legal proceedings.  This does not mean you give debtors the opportunity to get away with excuses for why they cannot pay, as that would increases costs of recovery – after all, each time an account is handled, there are administrative costs which probably cannot be recovered.

Some important tips to effectively collect debts include:

  1. Establish a sound credit policy and commit to it in writing;
  2. Ensure your customers know your credit terms;
  3. Take timely and decisive action with outstanding accounts;
  4. Always enforce the ‘payment-in-full’ strategy; and
  5. Be consistent and persistent – show you mean business!

Sometimes a stubborn debtor will leave you with no option but to take legal action to recover an unpaid account.

The McKays debt collection team can assist you with the various options available to recover your debts. We offer a cost effective debt collection service assisting you with issuing letters of demand, drafting Queensland Civil and Administrative Tribunal Applications (QCAT), or Court proceedings for more complex matters,  negotiating and drafting  repayment plan agreements. We can also help with reviewing your credit management processes and setting up systems to assist with recovering payment on time.

Debt collection can be a time consuming task for your employees. There is also that tricky balance between maintaining customer goodwill and getting the respect your business deserves

Kristy Dobson is a Senior Solicitor at McKays and can be contact on (07) 4968 5409 or kdobson@mckayslaw.com

Executor’s Commission

For most, being appointed as an executor of a loved one’s estate is a service of honour and love. However, did you know that executors actually have the ability to apply to the Court to be ‘paid’ for administering an estate?

In Queensland, the Succession Act allows an executor to apply to the Court for remuneration and/or commission for their ‘pains and troubles’. The award of commission is assessed on a case by case basis and is totally at the discretion of the Court.

To save time and costs to the estate, where all beneficiaries are of age and have capacity, the executors may (and should) seek to reach agreement privately with the beneficiaries as to an appropriate payment of commission.

Ultimately, any payment of commission to an executor comes out of the estate – hence reducing what the beneficiaries will receive.

Beneficiaries must give informed consent to any private agreement on commission. That is, they must have been provided with all material information so that they can make an informed decision. At the least, this should include:

  • a detailed explanation by the executor as to the work they have performed in administering the estate;
  • a particularised invoice for legal fees to the estate should be provided;
  • a full explanation that the beneficiaries are entitled to have a Court assess the claimed commission; and
  • that the beneficiaries should seek their own independent legal advice.

How much commission can an executor claim? There is no set scale of ‘rates’ as such, but there is case law which provides some guidelines. Generally, the emerging theme has been that executors can claim 1.5-3% of the corpus and 3-5% on the income of the estate.

Despite these indications, any commission claim still needs to be assessed in light of the work ACTUALLY done by the executor and their efforts in administering the estate. Further, commission may be reduced where there has been failures by the executors, particularly where this has impacted on the value of the estate.

It may also be different where the executor is acting in a professional role, such as an accountant or solicitor.

In practice, we see commission claimed very rarely, as most executors are family members or close friends of the deceased and see the role as a service to them, and may even be beneficiaries of the estate themselves.

Suzanne Brown is a Principal of McKays and Mackay’s only QLS Business Law Accredited Specialist. She can be contacted on (07) 4963 0820 or sbrown@mckayslaw.com.

Financial Planning Week

It’s Financial Planning Week! The theme of this year is “Live the Dream”, with the dedicated week running from 21 August – 27 August, 2017.

The purpose of Financial Planning Week is to raise public awareness of both financial planning in general and the potential benefits of personal financial advice.

Everyone’s ‘dream’ will look different. Financial planning is not just about building wealth in the traditional sense. It is about working towards you achieving a ‘rich’ life (whatever that means for you) and having the financial means to do what you want to do. For example, for some this is the ability to travel, spend less time working and more time with family. For others, it may be property or share investments.

New research commissioned by the Financial Planning Association of Australia shows that 80% of working-age Australians are stressed about money and finances, with 1 in 4 indicating serious stress levels. Gen X and Gen Y are the ones most worried.

In any profession, there are a few bad eggs that can impact upon the integrity and reputation of that industry for everyone else! When thinking about financial planners, the word “Storm” probably comes to mind. It is important though to understand that that is the 1% – the minority.

We are lucky enough to have some exceptional financial planners in Mackay, who are genuinely the most upstanding, honest and caring people you would meet. They provide quality advice and build great financial freedom for their clients.

In summary, a financial planner will:

  1. Assess your situation – reviewing your assets, liabilities, insurance cover and investment or tax strategies.
  2. Recommend a strategy – including appropriate products and services;
  3. Implement the Recommendations – including working with your other key advisors, such as your accountant and solicitor;
  4. Review the Plan – as your circumstances, lifestyle and financial goals are likely to change, it is important your plan is regularly reviewed and updated to stay on track.

 As a solicitor, I frequently deal with financial planners to ensure clients’ affairs are in order (particularly for estate planning) and largely, to ensure that what legal measures I am putting in place, compliment the financial plan. From my perspective, financial planners play an integral role.

If you have not taken financial advice before, or your plan is out of date, what better week than Financial Planning Week to set some financial goals and take positive steps to achieve your “dream”.

Suzanne Brown is a Director of McKays and Mackay’s only QLS Business Law Accredited Specialist. She can be contacted on (07) 4963 0820 or sbrown@mckayslaw.com.

Trade Marks Proving Popular

Recently, we have been inundated with savvy business clients who want to ‘trade mark’ their name, logo and other elements of their brand to ensure they are protected from ‘copycats’. Perhaps this stems from some market confidence returning to the business world.

Many people mistakenly think that the registration of their company name or business name is all that they need to keep their name safe. In fact though, it gives almost no protection. The only thing that it does is that it stops someone from registering an identical or nearly identical name. Tiny changes in the name can result in it getting through ASIC, even if it looks or sounds the same. You may think that this is a little ridiculous. However, the registration is not designed to protect you, but rather to protect the consumer. The system is there so that the consumer can know who they are dealing with, it’s that simple.

So, registering a company or business name with ASIC does not:

  • give you the exclusive right to the use of that name;
  • allow you to stop others from using that name in relation to their goods or services; or
  • protect you from claims by others that you are infringing their rights to the use of the name.

These are the functions of a trade mark. A trade mark is the strongest ‘sword’ you can wield against an infringing competitor who is starting to use an identical or similar mark somewhere in Australia, in connection with the goods and/ or services that you provide. It is also a powerful ‘shield’, providing a strong defence against a claim that you have infringed upon someone’s mark.

There are a variety of different things that you can get a trade mark over. Two of the most common ones are the name that the business trades under and its logo. Let’s take Nike for example. Now, unsurprising Nike have more trade marks than you can poke a stick at. These especially include the name “Nike” and their logo, the Nike “swoosh” (the world-famous tick-like symbol).

Similarly, McDonalds have hundreds of registered trade marks including the name; the golden arches logo; the character, Ronald McDonald; the phrase “I’m lovin’ it”; and the jingle, “ba da ba ba ba”.

Businesses have successfully registered a “movement” mark – like the ‘Toyota jump’ trade mark (which involves a woman jumping with her hands in the air). There has even been an attempt to register a “taste” mark – being the unique taste of a glue used on the back of an envelope (that consumers lick to stick it down).

How far does it go? – well Lleyton Hewitt has registered his iconic “C’Mon” snake-like fist gesture in Australia and the Happy Little Vegemite song is successfully trademarked as a ‘sound’.

Generally, we recommend registering at least both the name and the logo of a business. This is because a competitor could take your name but not your logo (or vice versa: your logo but not your name), and it is crucial to protect both. However, each business is different and it is important to consider what trade marks will give the business the best “bang for their buck”. With the fees for registering a trade mark being reduced by IP Australia in October, 2016, now is a great time to consider your trade mark protection. Also, the sooner your protection is in place, the better it is and the stronger your rights. Best part is – it can all be done right here in Mackay!

 

Kane Williams is an Associate at McKays and can be contacted on 0749630888 or kwilliams@mckayslaw.com

Can you record telephone conversations?

Gone are the days of the good old Dictaphone or tape recorder. In this modern age of technology, there are numerous smartphone APPs which will record phone calls (such as Google Voice and ACR) or can even be switched on remotely to record conversations (such as Spy Apps). This is becoming an increasingly popular weapon of choice in family and criminal law matters.

Is it legal? This partly depends on where you live – the laws differ between States.

You may be surprised to learn that Queensland is one of the most relaxed States when it comes to this. In Queensland, it is actually not illegal for a person who is involved in a conversation (either face-to-face or by phone) to record the conversation – even without the other party knowing or having consented to the recording!

However, it is illegal in Queensland to record conversations that you are NOT a party to. For example, if a child was chatting to their father, then it is not lawful for the mother to secretly record the conversation.

However, whilst you can record conversations, there are restrictions on what they can do with the recording. The general rule is that the contents of the recording CANNOT be published or communicated to anyone. However, if you are a direct party to the conversation, it can be communicated/published:

  • to the other party to the private conversation;
  • with the consent of the other party to the conversation;
  • if it is made in the course of legal proceedings;
  • in the public interest;
  • in the performance of a duty of the person;
  • for the protection of the lawful interests of that person;
  • to a person who has an interest in the private conversation;
  • by Government officials in certain circumstances.

If a party obtains a recording in contravention of the law, then it will not be “admissible” (able to be used) in a Court case.

Whilst disturbing, it was totally legal for Gable Tostee to secretly record his Tinder dates. The recordings of what occurred in the hours leading up to Warriena Wright’s death became a crucial part of the evidence used in the case.

Whilst I am a lawyer, even I believe there is often a ‘legal’ answer and a ‘practical’ answer. Whilst it is not strictly unlawful to record private conservations in Queensland, this does not necessarily mean that people should do so. Obviously it would depend on the circumstances of each situation.

Suzanne Brown is a Principal of McKays and Mackay’s only QLS Business Law Accredited Specialist. She can be contacted on 4963 0820 or sbrown@mckayslaw.com.

MORE STRINGENT DRONE LAWS PROPOSED

It’s a bird….it’s a plane….NO…it’s a drone!

But for recreational users, rules could be set to tighten, with CASA wanting to introduce further restrictive regulations and impose a registration system. Whilst CASA encourages people to have fun with their drones, it is obviously concerned that the safety of aviation and the general public must be the first priority.

There are already stringent laws in place for operating drones recreationally and if you don’t comply, you could be hit with a big fine.

Just ask “Tim”, the guy who faces a potential $9,000 fine, for using a drone to pick up a sausage from a Bunnings store BBQ and flying it to his friend, who was waiting in a spa. The note attached to the drone said “Please buy snag and put in bag, here’s $10

The breaches included flying the drone within 30 metres of people, use ‘out of the line of sight’ and use over a populous area.

To learn about the rules for flying a drone, see casa.gov.au.

Some basic tips for recreational users flying small drones currently are:

  • You must fly during the day, not at night;
  • You must only fly by visual line of sight;
  • You must not fly higher than 120 metres above ground level;
  • You must not fly any closer than 30 metres from other people;
  • You must not fly in a prohibited or restricted area;
  • You must not fly over populous areas, such as beaches, parks and sporting ovals;
  • You must not fly within 5.5 km of a controlled aerodrome-one with an operating control power;
  • You must only fly 1 drone at a time; and
  • You must not fly in the area of a public safety operation (such as a car crash, fire or rescue operations).

Suzanne Brown is a Director of McKays and Mackay’s only Queensland Law Society Business Law Accredited Specialist. She can be contacted on 4963 0820 or sbrown@mckayslaw.com.