At Forum Law we know that it's vital to stay up to date with the latest legal developments that are relevant to your industry, workplace or personal circumstances. In our Forum Law News we describe some of the recent cases that may be of interest, and link to the full outlines of the cases and how their decisions affect the relevant laws, on our website.

Chat to us about the upcoming effects of the Personal Properties Securities Act 2009

Annette Fontana and Andrew Lozynsky, senior solicitors of Forum Law, recently presented a paper on the new Personal Properties Securities Act 2009 to a group of lawyers and clients.

This significant new legislation will be commencing in October 2011 and will have the effect of superseding or changing the operation of over 70 Acts and 70 Securities Registers Australia-wide including the ASIC Charges Register and REVS. This new regime will override the effect of Retention of Title clauses in contracts and on invoices and have other far-reaching effects on every day transactions where companies and individuals take a security interest over property including their own property which is in the possession or control of another party (like a lessee/bailee/consignee).

Contact Forum Law for a copy of our paper and to have a chat about any concerns you might have about this new legislation.

The new Australian Consumer Law

A wrap of the latest on the changes to Australian consumer laws effective January 2011

The new Australian Consumer Law (ACL) is designed to protect consumers and improve business efficiency in our modern economy, one which involves a greater level of anonymity.

Unfair terms
Consumers are generally now protected in acquisition of goods, services, financial products and services or interests in land for personal use where standard from contracts are used. This has been achieved by the 'unfair terms' provisions that will allow any unfair terms to be challenged by consumers while not affecting transactions between businesses and thus ensuring business efficiency.

Consumer guarantees
The new consumer guarantee provisions are driven towards increasing business efficiency. While the consumer guarantees are not able to be restricted by suppliers, a consumer is required to establish a major failure in the goods being fit for their purpose, of acceptable quality or services provided with due care and skill before a refund will be required. While this does not afford the same protection to consumers as the previous Trade Practices legislation it will improve business efficiency.

Impact on businesses
The introduction of the ACL saw the consolidation of 17 statutes aimed to protect consumers throughout Australia. In reality, though, many pieces of State legislation are still in operation; be especially aware of 'recreational services' that tend not to be uniform across states.

Further, suppliers of consumer goods and product-related services are now required to report if they become aware of any death, serious injury or illness caused by the use, or foreseeable misuse, of a consumer good to the ACCC.

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Subcontractors rights have been expanded under the Building and Construction Industry Security of Payments Act 2010

Contractors need to be aware of unscrupulous subcontractor tactics

Under changes to the Act effective from 28 February 2011, subcontractors have obtained direct rights against principal contractors for payments due from contractors. This basically means that where a subcontractor is owed money, they may seek out money owed from the principal contractor to the contractor which has yet to be paid. This increases the project risk for the principal contractor and may be a reason for greater interest in the contractual relationships between contractors and subcontractors.

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The Disability (Access to Buildings – Premises) Standards 2011

Designed to improve access for people with disabilities

These standards commenced on 2 May 2011 and will apply to all applications for building approval for new and existing public buildings. They apply in all states; each state is passing complementary building standards.

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Planning power reverts to councils and other authorities

Part 3A of the Environmental Planning and Assessment Act 1979 is being repealed

The State Government will be repealing Part 3A of the Environmental Planning and Assessment Act 1979 situation which limited the role of councils, communities and environmental authorities by requiring the Minister for Planning to approve 'major projects'.

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Amendment to the exception on duties for senior citizens

The age to qualify for exception from duties for new home purchases has been reduced from 65 to 55

The Duties Amendment (Senior's Principal Place of Residence Duty Exemption) Bill 2011 will come into force on 1 July 2011 and will extend the exemption from duty for new housing purchases to those above the age of 55 years, previously only 65 years, where the property purchased is to be the principal residence of the person.

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Removal of the Torrens Assurance Levy

The transfer fee on properties above $500,000 will be abolished

The Torrens Assurance Levy was introduced in New South Wales in the 2010-2011 state budget on all property transactions above $500,000. The Levy imposed a transfer fee on a sliding scale of up to 0.25% of the value of the property to be paid by purchasers on top of any other stamp duty payable. This will be abolished from 1 July 2011.

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Correctly exercising options for renewal of leases

Landlords have to be as careful as tenants in complying with the correct procedure to allow a tenant to exercise their option on a commercial lease

The recent case of Westpac Banking Corporation v Kurobe Holdings Pty Ltd & Karovel Nominees Pty Ltd in the Supreme Court of NSW highlights the importance of strict compliance with lease terms when exercising options for renewal of commercial leases.

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Shedding obsolete easements with the Conveyancing Act

Recent decisions of the Supreme Court of NSW give insight into the circumstances in which the Court may exercise discretion to remove obsolete easements from the title of the land

In Rosedale Farm (NSW) Pty Limited [2010] NSWSC 1321 an easement used for a period of 46 years, providing the only convenient access to a town was extinguished after a period of non-use of about 35 years. The Court found that the original purpose of the easement was no longer relevant and was displaced by a new access road. The Court made no reference to a provision in the Act that allows the extinguishment of an easement after a period of non-use of 20 years, looking at the purpose of the easement itself.

In Betty Campbell v Peter Douglas Baigent & Ors [2010] NSWSC 1348 it was held that a 40-year old metropolitan right of way for a driveway which had never been used would be allowed to stand. The court applied the same three tests as in Rosedale but noted that in this case the plaintiff failed.

Clients should be aware that while on the face of it an easement may seem to be unused, this will not necessarily mean it will pass the statutory tests. It is also clear that the courts will be cautious in exercising any discretion in this area.

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Ensure your customer guarantees are valid

They will need to be enforceable if a customer fails to pay their debts

Forum Law has been representing a client who is a respondent in an appeal to the Supreme Court regarding a case where a supplier has relied on our client's purported personal "guarantee" to underwrite the liability of a customer company.

Under the new Personal Properties and Securities Act 2009 due to take effect in October 2011, creditors/suppliers would be well advised to consider registering their security interest in customer's personal property or risk losing priority to any personal property in favour of a liquidator or trustee in bankruptcy.

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