MERGER

Scanlan Carroll have pleasure in announcing the merger of its practice with Cariss & Company.

Paul Cariss is now a consultant at Scanlan Carroll and he has had 39 years experience as a solicitor, particularly in conveyancing, probate and general litigation.

Paul is also a Notary Public, an ancient branch of the legal profession dating back to Roman times.

Paul was appointed a Notary Public in 1985 by the Archbishop of Canterbury in London through the Court of Faculties. Nowadays, appointments of Notaries are through the Chief Justice of the Supreme Court of Victoria after completion of a Diploma of Notarial Studies at the University of Victoria.

A Notary Public is a public officer and as such is qualified and entitled to witness virtually any document, administer oaths and draw and perform administrative functions for both international and national purposes.

Some of the functions of a Notary Public are witnessing, certification or legalisation of the following:-

1. Adoption applications;
2. Birth, Death and Marriage Certificates;
3. Certified language translations;
4. Certificates of Divorce issued by the Family Court of Australia;
5. Certificates of Incorporation of Australian companies issued by ASIC;
6. Certificates of No Impediment to Overseas Marriages;
7. Change of name documents- Deed Polls;
8. Commercial, corporation documents;
9. Consent to travel documents;
10. Doctors’ and dentists’ applications for overseas appointments;
11. International Affidavits, sworn statements and depositions;
12. Land transfer documents;
13. Notarial Certificates of Good Standing in respect of Australian companies;
14. Notarised copies of Passports, Driver Licences and other identity documents;
15. Notarised Australian original public documents for use overseas;
16. Original university, TAFE and secondary school degrees, certificates and transcripts certified by an authorised officer or copies certified by a Notary Public;
17. Police Certificates issued by State or Federal Police attesting to the absence of a criminal record;
18. Probate, Letters of Administration and deceased Estate documents;
19. Powers of Attorney;
20. Single Status Certificates;
21. Statutory Declarations;
22. Trade Mark Certificates.

Paul is a member of the Society of Notaries of Victoria, one of the oldest and continuous societies in Australia.

Paul is also an Executive Governor of the Australian and New Zealand College of Notaries.

PROPERTY DIVISION

We are pleased to advise that Foula Markos, who worked for a short period with Sharelle some years back, has joined our Firm to assist with our property needs and transactions.

Foula has had some 20 years experience in residential and conveyancing matters.

We are delighted to have Foula on board and are sure that Foula will commit to a timely and efficient service to you.

A MERGER IN 2010

It is with a great deal of pleasure that we advise that Paul Cariss will be merging his Firm with Scanlan Carroll with effect from 1 January 2010. Paul has conducted his legal practice in close proximity to our practice in Kew and is a senior and experienced Practitioner. We are extremely excited about Paul joining our team as he will bring with him a great deal of experience over a range of areas of law in addition to which we will benefit greatly from Paul’s general empathy and solution focused approach.

DIRECTORS’ RESIGNATION

We advise that one of our Directors, Ben Spicer, is no longer with our Firm. We wish Ben well with his future pursuits.

CREDIT CARD FACILITY

As we have had a number of enquiries about payment of our tax invoices by way of credit card, we advise that we are in the process of concluding the installation of this facility with our bank. We anticipate that arrangements will be in place at the commencement of 2010 and that future invoices will include the details necessary to effect payment by that means should it be your preference.

OUR THANKS & WELL WISHES

For most of us the month of December is a fairly demanding and frantic month. It would be remiss of us, however, not to pause and thank all of our valued clients, professional colleagues, and friends for your ongoing support throughout 2009. As you are aware, our business philosophy is underpinned by a commitment to being readily accessible to our clients and providing our services in a timely fashion. We do aspire to partnering with you in your business pursuits and we value your custom and support enormously.

From all of us at Scanlan Carroll we wish you and your families a happy Christmas, a prosperous New Year, and a safe and relaxing festive season.

DISPUTE RESOLUTION

Disputation is an unfortunate fact of life in the business context.

A dispute which descends into the realms of the legal system will nearly always involve a combination of distraction from and opportunity cost to your core business, risk associated with the ultimate resolution of the dispute, delay arising from the procedures involved with the Court system, and legal cost. These factors warrant a considered strategic approach with cost/benefit considerations at the forefront of any course of action or strategy embarked upon.

If it becomes necessary for legal proceedings to be filed, in addition to assessing the merits of the case, the prospects of recovery is an essential consideration.

Central to the role of a legal representative is a duty and obligation to achieve a solution which is in the best interests of the client within the context of the prevailing facts and constraints.

Within the business arena many disputes can be avoided if appropriate documentation is adopted. Suitably drawn contracts of employment, sub-contract agreements, supply agreements, partnership agreements, shareholder agreements, unitholder agreements, sale and purchase agreements can better ensure the avoidance of disputes. Albeit that such documentation does involve legal cost, to reiterate, properly prepared documentation should not only fulfil the function of recording the intentions of the parties to the documentation but should also serve to minimise the prospects or likelihood of legal proceedings being filed due to the terms and conditions prescribed by the documentation.

If legal proceedings are commenced, there are a number of strategies available which can be employed with the aim of achieving a solution mindful of the cost/benefit imperatives. Some strategies that can be adopted with the aim of solving the dispute include the following:

1. Properly preparing and presenting the details of the dispute which will assist the lawyer’s representation of your position on the dispute. This process includes providing oral instructions regarding the dispute, providing copies of relevant documents and a chronology of events, and, most importantly, providing instructions in relation to aspects of the disputes which may be a weakness in the position being taken by you.
2. In most cases, there is a good deal of cost/benefit in a meeting being arranged between the disputing parties and their legal representatives aimed at achieving a resolution by agreement. This process, of course, is heavily dependent upon the quality of the instructions provided by the parties to their legal representatives, the quality of the legal representation, and the parties being prepared to participate in the process in a genuine and bona fide manner.
3. If the dispute appears destined to travel down the legal proceedings path then considerable legal expense can be saved by properly ordering the materials relevant to the dispute. Most if not all commercial disputes involve a process known as Discovery whereby the parties are required to disclose to one another documentation within their power, possession or control which is relevant to the dispute. In large matters, the Discovery process can be the cause of very significant legal cost and the active participation of the client in ordering the materials can result in not insignificant cost saving as well as assisting with a better level of legal representation.
4. In all jurisdictions it is now obligatory for the parties to participate in a Court appointed Mediation prior to the matter proceeding to Trial. This process involves the parties and their legal representatives participating in a meeting which is conducted on a wihtout prejudice and confidential basis aimed at reaching a solution. A Mediator is appointed whose function is to facilitate, but not make, a decision leading to a resolution. Again, the success or otherwise of a Mediation is heavily dependent upon the bona fide participation of the parties with the focus being upon the parties achieving a resolution which is not worse than the best alternative to a negotiated agreement.
5. As a last resort, a Trial of the matter will see a dispute resolved as a result of the Court making a determination in favour of one party over the other party. Resolution of disputes by the Trial process is very much an option of last resort. Trials are expensive, involve risk, and also involve pressures and tensions which should never be underestimated and which cannot be overstated.

In summary, many disputes can be avoided by putting proper documentation in place from the outset and by adopting a mature, sophisticated, and strategic approach to dialogue if a dispute ultimately breaks out.

“RETENTION OF TITLE – LOSING THE BATH WATER BUT NOT THE BABY”

In contracts involving the supply of goods, situations can arise where the payment is not made by the purchaser and the supplier is unable to recover the payment due to the purchaser becoming insolvent.

In circumstances such as the global financial crisis which businesses have experienced both domestically and internationally, safeguarding the financial integrity of a business has taken on something of a new dimension and a review of supply contracts may be warranted.

A key issue in the sale of goods is that ordinarily title/ownership of the goods passes upon delivery. However, by including a retention of title provision in the contract for the sale of goods, the supplier can protect itself from the insolvency of the buyer and defeat the claims of other creditors who may have security of the purchaser’s assets which would otherwise take priority over the claim of the supplier.

Retention of title clauses aim at retaining property in the goods in the seller until payment and seek to create proprietary rights over the assets into which the goods might be transferred or with which they might be mixed.

If a retention of title clause is coupled with a licence to enter premises and seize goods in the event of a default under the payment terms, then a practical remedy can be brought to bear in circumstances where payment is not made.

A good deal of care is required in the drafting of a retention of title clause given the effect and purpose which a supplier wishes such clauses to achieve. However, such clauses are very common to contracts relating to the supply of goods and, accordingly, would ordinarily have no or little impact upon the commercial bargaining relating to the terms and conditions of any supply agreement where they are drafted inadequately. From the supplier’s perspective, the attraction to a retention of title clause is that since the purchaser has agreed to such a provision then any trustee in bankruptcy, receiver, administrator or liquidator would not have the right to seize or sell such goods since the supplier is able to claim property in the goods pursuant to the retention of title clause.

Complications can arise if the goods have become mixed with the purchaser’s goods (eg. food ingredients being mixed with other ingredients culminating in the end food product) since it is a fairly fundamental requirement in endeavouring to enforce a retention of title clause that the goods in question are identifiable.

The enforceability of a retention of title clause depends upon a variety of factors including the drafting of the clause, the nature of the goods themselves, and the treatment that the goods might receive.

A properly drafted retention of title clause can enable the proceeds being derived from the on-sale of the goods for which payment has not been made to be used to satisfy payment. However, it is necessary to be able to sufficiently identify the goods the subject of the unpaid invoices and the proceeds of the sale in such circumstances.

To reiterate, a number of industries have experienced considerable economic stress and strain of recent times. Financial disappointment and pain can be experienced in circumstances where goods are supplied in good faith, payment is not made, and the supplier is left with little or no chance of redress. The suitability and effectiveness of the terms and conditions of supply agreements warrant care and consideration so as to ensure a means by which the baby may be returned to the fold.

RETAIL LEASES

In 2003 the Retail Leases Act commenced which provided major benefits to retail tenants. These benefits include tenants being offered a minimum 5 year term, prohibition on landlords imposing land tax liabilities on tenants in outgoings, greater transparency for prospective tenants in pre lease negotiations by having been provided with disclosure statements, repercussions on a Landlord for the failure to give a disclosure statement and the prohibition againstimposing “key money” in respect of leases, renewals, transfer and options.

One area that often led to confusion is “who is responsible for repairs and maintenance?”. The Act has clearly set out those obligations which can be summarised as follows:

Landlords are responsible for:

• the structure of the premises (including external faces and roof);
• items of a capital nature such as plant and equipment;

Tenants are responsible for:

• keeping the premises in the same condition as at the commencement of the lease;
• replacing glass which has become broken or cracked;
• repairing defective windows, light fittings, doors, locks, inoperative light-globes, keys and key cards,
• maintaining in working order all plumbing, drainage, gas, electric, solar and sewerage installations;
• maintaining any grounds and gardens in good condition free from weeds and well watered;
• maintaining and keep in good repair any heating, cooling or air conditioning equipment exclusively servicing the premises;
• make good any damage caused to the premises save for fair wear and tear; and
• any damage caused to the premises as a result of the negligence of the Tenant in causing such damage.

It is advisable at the commencement of any retail lease that the landlord and tenant procure a Property Condition Report so that there is no doubt as to the condition of the premises at the commencement. It is not unusual, and may be advisable for, a tenant to take photos of the premises as well. We can assist you in obtaining Property Condition Reports.

The above is a summary of the obligations of landlords and tenants under retail leases and should you require anyfurther clarification we would be happy to assist.

INTELLECTUAL PROPERTY

Every business needs to receive clear legal advice to enhance their understanding of intellectual property. Many businesses miss opportunities or are exposed to unnecessary risk because they do not understand their rights and obligations in this area.

Intellectual property law regulates areas as diverse as trade marks, domain names designs, copyright, patents and confidential information. Whether you are starting a new business, developing a new product or undertaking a thorough analysis of your current business strategy, there are a range of legislative regimes and legal intricacies to be navigated in order to maximise intellectual property value and avoid legal complications in the future.

Intellectual property law lends itself to proactive strategising. There are great benefits to be garnered by the informed and prepared business operator and great risks and potentially disastrous consequences for the ill-advised or ignorant.

At Scanlan Carroll we have the expertise to assist clients to:

• Identify and protect intellectual property;
• Effectively license use of intellectual property;
• Assess their freedom to operate by identifying potential conflicts prior to new business or product launch;
• Enhance their competitive advantage and maximise the value of intellectual property assets;
• Educate personnel to better understand the legal framework which regulates intellectual property;
• Protect confidential information and trade secrets;
• Defend against cyber squatters and other unscrupulous online tactics;
• Monitor potential infringement of intellectual property rights.

We can also assist clients in:

• Negotiating and drafting a range of documents including Licensing Agreements, Sale of Business Agreements, Employment Contracts and a full range of Collaborative Agreements;
• Registration of trade marks and designs;
• Conducting due diligence prior to sale or acquisition of business;
• Resolving disputes regarding use or ownership of intellectual property;
• Managing intellectual property in expansion to foreign markets.

Intellectual property law does not exist in a vacuum and our commercial expertise ensures all commercial and regulatory aspects are considered in providing advice to our clients.

WELCOME TO THE NEW FINANCIAL YEAR

As we launch into the new Financial Year we do wish all our valued clients and referral colleagues our best wishes for 2009-2010. The challenges of resource allocation of resources, cash flow management, and business stabilisation have been significant through most of the last Financial Year and appear likely to remain so during a large part of the new Financial Year. In addition to constantly scrutinising your business and personal affairs professional advisors can contribute to these challenges. Being as conscious as we are of the current economic environment, and as we aspire to be “Your Partners in Business”, we are but a phone call away and are keen to assist with your strategies and concerns across a large range of business and personal issues which might arise during the months ahead.

ANNOUNCEMENT!

A. It is with a great deal of pleasure that we advise that effective from 1 July 2009 Sharelle Staff has become an equity holder and Director of Scanlan Carroll.

Sharelle holds Degrees in Business and Law and is currently undertaking her Master of Laws at Melbourne University.

Sharelle completed her Articles with our firm and has acted in a range of transactional matters which have involved Deutsche Bank private equity interests, the Fairfax Group, the Charles Parsons Group, Schroders private equity interests, and the Dick Johnson Racing Group. In addition to transactional matters, Sharelle has experience in employment law, matrimonial property, deceased estates, and estate planning.

B. From 1 July 2009 Phil Carey will consult to the firm.

EMPLOYERS BEWARE!

As of 1 July 2009 the ability for employees to claim unfair dismissal will broaden.

An employee can claim unfair dismissal if the qualifying period is satisfied, the employee is covered by a Contract, Award, or EBA and falls under the high income threshold ($108,300 per year). The qualifying period is:

(a) one year for small business employers (employers with less than 15 employees);

(b) six months for other employers; and

(c) casuals can also claim if their employment is regular and systematic.

The employee must lodge an Application to the AIRC within 14 days after dismissal.

The issues which you may wish to consider are:-

• Will your employees now have access to unfair dismissal?
• Which categories of employees?
• Are your disciplinary and termination policies and procedures up to date?
• Should you review your contracts/arrangements?

WEBSITE

Scanlan Carroll now has a website: www.sclegal.com.au

WELCOME TO THE NEW FINANCIAL YEAR

As we launch into the new Financial Year we do wish all our valued clients and referral colleagues our best wishes for 2009-2010. The challenges of resource allocation of resources, cash flow management, and business stabilisation have been significant through most of the last Financial Year and appear likely to remain so during a large part of the new Financial Year. In addition to constantly scrutinising your business and personal affairs professional advisors can contribute to these challenges. Being as conscious as we are of the current economic environment, and as we aspire to be “Your Partners in Business”, we are but a phone call away and are keen to assist with your strategies and concerns across a large range of business and personal issues which might arise during the months ahead.

ANNOUNCEMENT!

A. It is with a great deal of pleasure that we advise that effective from 1 July 2009 Sharelle Staff has become an equity holder and Director of Scanlan Carroll.

Sharelle holds Degrees in Business and Law and is currently undertaking her Master of Laws at Melbourne University.

Sharelle completed her Articles with our firm and has acted in a range of transactional matters which have involved Deutsche Bank private equity interests, the Fairfax Group, the Charles Parsons Group, Schroders private equity interests, and the Dick Johnson Racing Group. In addition to transactional matters, Sharelle has experience in employment law, matrimonial property, deceased estates, and estate planning.

B. From 1 July 2009 Phil Carey will consult to the firm.

EMPLOYERS BEWARE!

As of 1 July 2009 the ability for employees to claim unfair dismissal will broaden.

An employee can claim unfair dismissal if the qualifying period is satisfied, the employee is covered by a Contract, Award, or EBA and falls under the high income threshold ($108,300 per year). The qualifying period is:

(a) one year for small business employers (employers with less than 15 employees);

(b) six months for other employers; and

(c) casuals can also claim if their employment is regular and systematic.

The employee must lodge an Application to the AIRC within 14 days after dismissal.

The issues which you may wish to consider are:-

• Will your employees now have access to unfair dismissal?
• Which categories of employees?
• Are your disciplinary and termination policies and procedures up to date?
• Should you review your contracts/arrangements?

WEBSITE

Scanlan Carroll now has a website: www.sclegal.com.au

JUST HANG ONTO WHAT YOU’VE GOT

Notwithstanding commentaries which advocate that a “green roots economic recovery” is evolving, practical and pragmatic facts prevail in business which “continue to” inhibit business operators from being authors of their own destiny, at least to the degree that was the case some two years ago.

Credit divisions of banks are far more risk averse and critical in assessing finance applications, forward orders for services or products are far less certain or predictable (- with consequent impacts on cash flow management and resource allocations), and increasing unemployment (predicted by one commentator to reach 20% in the USA by calendar year end) all add to the complexities associated with conducting our business activities.

In such challenging times and in such a difficult business environment, one important component to any smart business plan should be a strategy addressing asset protection.

Depending upon the structure used to conduct a particular business and/or the nature of the business activity or of a particular industry, there may be steps that warrant consideration or advice in view of the current difficult economic environment.

The assets which business operators may need to protect/preserve are diverse and include:-

• Personal belongings/entitlements such as: the family home, investment properties, superannuation funds, cash at bank, share portfolios;
• Business assets such as: retained profits, loans, plant and equipment, intellectual property, inventories.

Fundamental to asset protection is an analysis of the risks to which those assets may be directly exposed, or the risks to which the business operator/controller, or ultimate beneficial holder of those interests might be exposed. A range of risks are common in the business environment and include:-

• Guarantees, mortgages, and debenture charges provided to financiers;
• Exposure caused by business relationships (eg. due to shareholder or buy/sell agreements not having been effected);
• Generational/matrimonial breakdowns.

Strategies available for asset protection very much depend upon the structure in which those assets are held, namely:-

• Assets held by an individual;
• Assets held by a Trust;
• Assets held by a company.

Means exist by which a greater level of protection can be afforded depending on the structure. For example, ensuring that valuable assets (such as intellectual property) are held by a separate entity with that separate entity licensing/leasing the use of those assets by the operational company, or shareholdings (creating dividend and/or capital entitlements) being held in a structure least exposed to risk than the day to day trading or operational entity.

However, it is important to be aware that in any asset protection strategy care needs to be taken and consideration given the following issues:-

• Taxation consequences associated with relocation of assets (particularly Capital Gains Tax); and
• The possibility that circumstances may exist whereby asset transfers can be “clawed” back by a trustee in bankruptcy or a liquidator.

Branding & Intellectual Property Law

Leading analysts have noted that as much as 70% of the value of major corporations is in intangible assets. How do businesses maximise and monetise this ‘hidden’ value?

Whether you are starting a new business, developing a new product or undertaking a thorough analysis of your current branding strategy, there are a range of legislative regimes and legal intricacies to be navigated in order to maximise brand value and avoid legal complications.

This area of intellectual property law lends itself to proactive strategising. There are great benefits to be garnered by the informed and prepared business operator and great risks and potentially disastrous consequences for the ill-advised or ignorant.

Trade marks (both registered and unregistered), domain names, business names, company names and online search optimisation strategies all benefit from a considered and coordinated approach.

The right legal knowledge and advice will ensure correct and adequate protection of intellectual property rights from inception through to the growth of the business or product.

At Scanlan Carroll we have the experience and expertise to:

• Assist businesses with trade mark, domain name and business name registrations;
• Negotiate and draft Licence Agreements and Asset Sale Contracts;
• Conduct the relevant searches to minimise the chances of inadvertent trade mark infringement or misleading and deceptive conduct;
• Develop strategies to ensure there are systems in place to monitor potential infringement of your valuable IP rights and guard against inadvertent infringement of the IP rights of others;
• Advise in the event that a dispute does arise in relation to alleged trade mark infringement, misleading and deceptive conduct or passing off; and
• Advise in relation to other areas of IP law including confidential information, trade practices legislation, copyright, designs and patents.

If you have any queries or would like to discuss any of the above further, please do not hesitate to contact Rob Rankin of our office.