Commercial Lawyer Melbourne | Burke & Associates Lawyers

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Commercial Internationally Based Professionals & Businesses Disputes International Disputes – Litigation and Alternative Dispute Resolution

Access to US Located Documents for Australian Legal Proceedings

A party to a legal proceeding outside the United States is now entitled to apply to a US court for the purpose of obtaining evidence to be used in that non-US proceeding. This encompasses both arbitration and court proceedings. Until...

Commercial

AICD Essential Director Update at Melbourne Convention Centre

Meghan Warren of Burke & Associates Lawyers recently attended the AICD’s Essential Director Update at the Melbourne Convention Centre. The essential update, led by Graham Bradley and Angus Armour, focused on directors’ key duties and responsibilities, key developments in focus,...

Property & Development Commercial

Amendments to the Retail Leases Act 2003 (Vic) – What does this mean for Landlords?

Amendments to the Retail Leases Act 2003 (Vic) – What does this mean for Landlords? On 22 September 2020, The Retail Leases Amendment Act 2019 (Vic) (“Amendment Act”) received Royal Assent. The Amendment Act introduces amendments to the Retail Leases...

Commercial Internationally Based Professionals & Businesses Disputes International Disputes – Litigation and Alternative Dispute Resolution

American Bar Association – A New Dawn for Worldwide International Mediation

The United Nations Convention on International Settlement Agreements Resulting from Mediation – also known as the Singapore Convention on Mediation (“the Singapore Convention”) was held in Singapore on 7 August 2019. To date, 46 countries are signatories to the Singapore Convention...

Disputes Commercial

Are Dispute Resolution Clauses Binding?

It is common practice to include dispute resolution terms in commercial agreements. Such terms provide parties with a road map to follow in the event a dispute arises under the agreement. In a decision of the Supreme Court of Queensland...

Commercial

Are Restraint of Trade Clauses Enforceable in Employment Contracts?

The Supreme Court of Victoria again recently considered the issue of whether a post-employment contractual restraint of trade is enforceable. It was held that such restraint of trade provisions will only be justified if they are reasonably necessary to protect an employer’s legitimate...

Commercial

Are you aware of your new obligations under the Privacy Act?

Australian businesses are subject to stringent obligations of compliance under the Privacy Act 1988 (Cth) (‘the Act’). From 23 February of this year, all Australian businesses have a statutory obligation to report any data breach involving personal information to the...

Commercial

ATO New Draft Guidelines: Profits by Professional Services Firms

The Australian Taxation Office (‘ATO’) is set to release and implement new guidelines from 1 July 2021 which will set out how the ATO proposes to apply compliance resources in examining the way profits by professional services firms are allocated...

Commercial

Australian Commercial Contracts: Good Faith

When parties enter into a contract, the parties often agree to ‘act in good faith’. But what does this mean? Below is a short summary of the position of ‘good faith’ in contracts in Australia. What businesses need to know...

Commercial Contracts

Australian Contract Termination

In Australia, termination of a contract can be carried out in the following ways: by performance of the parties’ obligations under the contract; by an agreement between the parties that they no longer wish to continue with the contract and...

Commercial Banking and Finance

Becoming a private lender – What do you need to know to set up a new business

Starting your own private lending business can be an exciting time. While it is not uncommon for investors to eventually expand into private money lending due to the benefits and given that legally almost anyone can be a private money...

Commercial

Business Decisions

Depending on the structure of your business, business decisions are ordinarily governed by your company’s constitution, owner agreements such as a shareholders agreement, unitholders agreement or partnership agreement and, where relevant, statute and common corporations law. Where your business is...

Commercial

Business Evaluation – Government Support: Can you benefit?

Under the Federal Government’s Entrepreneurs’ Program, eligible businesses can gain access to a business evaluation action plan written by an independent and skilled business advisor. The action plans are tailored to a business’ specific needs and informs business leaders about...

Commercial Succession Planning

Business Succession & Asset Protection

The business structure of any small or medium enterprise (“SMEs”) plays a critical role in successful succession planning. To the extent possible, the correct business structure should be chosen at the outset, taking into consideration factors such as: implementation and...

Commercial Business

Changes to Director Resignations

In February 2020, the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 (Cth) (Phoenixing Act) was passed by Parliament which introduces amendments to the Corporations Act 2001 (Cth). The Phoenixing Act is aimed at assisting regulators and liquidators to combat...

Commercial

Changes to the Australian Consumer Law set to expand Consumer Protection

Written By George Hanger The Federal Government has recently announced changes to how the Australian Consumer Law defines a ‘consumers’ in the legislation. Critically, this means that far more goods sold in Australia must now comply with this consumer protection...

Commercial Property & Development

Commercial Leasing Issues and the Mandatory Code During COVID-19

Changes for Landlords and Tenants Tony Burke is joined by Burke and Associates Director, Meghan Warren and Special Counsel, to discuss some issues facing both landlords and tenants during the Covid-19 Pandemic. Topics covered in this discussion include: Mandatory Code of...

Commercial Property & Development

Commercial tenancy relief scheme – why you should enter into a deed of variation of lease during COVID-19 to document the terms of your rent relief agreement

Benefits of entering into a Deed of Variation of Lease Certainty: Creates more certainty for the parties, for example making it clear that mandatory obligations contained in the Regulations form part of the Lease and the Lease is so varied...

Commercial

Company Deadlock

Company directors and shareholders are regularly required to vote on important matters of business that the company owns and operates. Issues can arise, however, if a matter is put to vote, there is a deadlock and there is no agreed...

Commercial

Coronavirus & Your Business: Valuable Tips for Business Owners

What is Coronavirus? It is alleged that Coronavirus was first reported in the Chinese city of Wuhan in December 2019 and was declared as a public health emergency of international concern by the World Health Organisation on 30 January 2020....

Commercial

Countering Illegal Phoenix Activity

Illegal phoenix activity is defined as a step to establish a brand new company to continue operations of an already existing organisation purposely dissolved in order to avoid payment of that organisation’s debts (including taxes, credits and employee benefits). This...

Property & Development Commercial

COVID-19 Commercial tenancy relief scheme – regulations governing the variation of eligible leases in Victoria

The Victorian government was quick to pass new regulations following the introduction of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) on 24 April 2020 (Act). The detail of the new leasing requirements is contained in the COVID-19 Omnibus (Emergency...

Commercial

COVID-19: Relief for Directors

International and domestic governments are currently implementing a range of economic measures in an effort to mitigate the effects of COVID-19. There is no doubt that this virus has had, and will continue to have, an adverse impact on global...

Commercial Disputes

Creating a business website. What you need to know.

When creating a website for your business for the first time there will always be some legal considerations that should form part of your website planning and design. Starting a new business can be an exciting time and sometimes a...

Commercial

Don’t Miss Out! Protect Your Company! – Temporary Restructuring Relief Until 31 March 2021

The Australian Government implemented temporary restructuring relief in March 2020 as part of its national economic assistance efforts following the global COVID-19 pandemic. The aim was to aid companies so that they could get through the pandemic, keep their operations...

Commercial

Electronic Signatures. When can they be used and what restrictions apply.

With advancements in IT, the evolution of digital tools and COVID19, signing documents electronically has now become the norm but have you ever noticed how some electronic signatures look nothing like your handwritten one? So, what can you now sign...

Commercial

EMPLOYEES vs CONTRACTORS vs LICENSEES?

It is crucial to be clear at the outset about how a party (say, an employee, contractor or licensee) is entering into any relationship agreement with your business. Conducting relationships on “hand-shake” agreements or ignoring the differences in the different...

Commercial

EMPLOYEES, CONTRACTORS OR SOMETHING ELSE?

Written agreements offer clarity and certainty. Verbal agreements, however, are often not accurate as memories fade, one party’s version may be different from the other’s and, as time lapses, circumstances change and parties’ intentions change too. When the terms of...

Commercial Internationally Based Professionals & Businesses Disputes International Disputes – Litigation and Alternative Dispute Resolution

Enforcement of Foreign Arbitral Awards and the New York Convention: An International Commercial Dispute Resolution Method

International arbitration is an approach to cross-border transactions requiring the use of alternative dispute resolution in the interests of avoiding litigation in court. An arbitration is a legally effective adjudication of a dispute otherwise than by the ordinary procedure of...

Commercial

Entrepreneurs Programme: Australian Businesses Receive $9.7 million

The Australian Government’s flagship initiative, the Entrepreneurs’ Programme provides assistance to businesses to launch innovative products, processes and services into domestic and international markets through four elements: Commercialisation of novel products, services and processes; Business management by providing access to...

Commercial Internationally Based Professionals & Businesses Disputes International Disputes – Litigation and Alternative Dispute Resolution

Expected Trends in International Disputes

The international dispute landscape has undergone significant change in the past year. Being an integral part of the global economy, it is important for Australian business to consider these changes carefully in moving forward. In this article, we take a...

Commercial Property & Development Commercial Leasing

Extension Announced To Covid-19 Rent Relief Provisions

The State Government has elected to extend COVID-19 rent relief provisions for eligible commercial tenants to 28 March 2021. This sparks welcome relief for tenants that continue to suffer adverse effects of the COVID-19 pandemic on their business but has...

Commercial Internationally Based Professionals & Businesses Disputes Dispute Resolution & Litigation International Disputes – Litigation and Alternative Dispute Resolution Contracts

Fair Contracts: Termination in Consumer Contracts

Have you ever found yourself in a contract and wondered how you got there? Felt like the agreement was unfair and you didn’t have any power in the situation? Australian Consumer Law regulates unfair contract terms. Recently, the ACCC enforced...

Commercial

Federal Court discretion in ordering the wind up of a company – relief for unfairly treated director

A recent decision in the Federal Court considers judicial discretion to order the winding up of a company in a situation where it is the only course of relief for an unfairly treated director. The case of Miao v I...

Disputes Commercial

Foreign Company Online Activity : The Risks Of Litigation

Corporates are subject to increasing risk of being exposed to or otherwise dragged into unnecessary litigation in maintaining the same websites and sharing the same social media points with subsidiary companies based in foreign locations. Technically, these foreign located corporations...

Commercial

Handcuffs: Restraints of Trade

When buying a business, it is critical to consider how to protect the worth of your investment. If the previous owner establishes the same business next door then the price you paid for any goodwill in the business is likely...

Commercial Business Disputes Dispute Resolution & Litigation

Henclo Investments Pty Ltd v. MSB Capital Holdings Pty Ltd [2020] VSC 775

In the recent case of Henclo Investments Pty Ltd v. MSB Capital Holdings Pty Ltd [2020] VSC 775, a wind up application was refused by the Supreme Court of Victoria on 25 November 2020 on the basis that an outstanding...

Commercial

How to Get the Best Deal! Negotiation Tips and Tricks

The classic Hollywood one-liner you will all be familiar with is, “we do not negotiate with terrorists!”. Unfortunately, the reality of that statement means that you have to negotiate with everyone else! In day to day business, negotiation is unavoidable...

Commercial Health & Medical Law Disputes International Disputes – Litigation and Alternative Dispute Resolution Dispute Resolution & Litigation

International Arbitration: A Way Forward For Patent Contract Dispute Resolution

With rapidly increasing contract disputes, international arbitration is an effective resolution strategy in the life sciences sector. Identifying and carefully navigating the legal minefields early is key for professionals and businesses in life sciences when faced with such complex commercial...

Commercial

Jams 2 Pty Ltd v Stubbings

In the matter of Jams 2 Pty Ltd v Stubbings, the Victorian Supreme Court of Appeal clarified key principles of unconscionability. The Lenders were found by the trial judge to have acted in an unconscionable manner in arranging an asset-based...

Health & Medical Law Commercial Disputes Dispute Resolution & Litigation

Major Medical Centre Operator’s Failure to Comply with Award Requirements

Idameneo Pty Ltd (Idameneo) (otherwise known as Primary Health Care), a major medical centre operator has been found to have underpaid its employees in the amount of more than $15 million. Further, in late 2018, Idameneo’s parent company, Healius Limited,...

Health & Medical Law Commercial Technology

Melbourne based start-up to personalise health information for patients

HealthAide, a new Melbourne-based health technology firm, is developing a free online resource and tailored email newsletters to provide patients with reliable information on healthcare and health technology. Physiotherapist Barry Nguyen and GP Dr Khurram Akhter (who set up HealthAide...

Commercial Business Contracts

New Consumer Contracts Wording Mandated as of 9 June 2019

Are you a business supplying goods and / or services to consumers? Effective as of Sunday 9 June 2019, new mandatory wording to be included in consumer contracts will come into effect. These new requirements aim to: Protect the consumer...

Commercial Business

New Director Identification Number (DIN)

The objective of a new Director Identification Number (“DIN”) for company directors is to assist with identifying company conduct that involves dummy directors and phoenix transactions. Recently, the Treasury Laws Amendment Act 2020 (“the Act”) was passed with the aim...

Commercial

New Regime: Can a Contract be Terminated if a Party is Insolvent?

In summary From 1 July 2018, a party to a contract will no longer have an automatic right to terminate that contract if the other party suffers an insolvency event (“Reforms”). An “insolvency event” may include voluntary administration (that is,...

Health & Medical Law Commercial

Pathology Sub-Leasing – Key Considerations

1. Offer to lease Ordinarily during pre-contractual negotiations, you may be presented with an “Offer to lease”, a “Terms sheet”, “Letter of offer” or “Heads of Agreement”. These are just some of the terms used that essentially refer to the...

Commercial Health & Medical Law

Payroll Tax Obligations: Spotlight on Medical & Healthcare Businesses & Providers

Recent High Court Decision The High Court recently supported the judgment delivered in Commissioner of State Revenue v The Optical Superstore Pty Ltd [2019] VSCA 197 under which payroll tax was applied by the Victorian State Revenue Office (“SRO”) on...

Commercial Internationally Based Professionals & Businesses Disputes International Disputes – Litigation and Alternative Dispute Resolution

Production of Evidence in the State of New York, USA

In almost every legal proceeding, it is mandatory that the parties adhere to important rules regarding evidentiary standards. This principle applies to both Australian and United States jurisdictions. In this article, we discuss the types of evidence and rules relevant...

Commercial Intellectual Property Business

Protect your Business and Register a Trade Mark

Your clients or customers regularly identify or associate your business with its branding, including its business name, logo or slogan. Therefore, whether you are starting a new business or running an established business, it is important that you protect your...

Commercial Health & Medical Law

Realising the future of medical innovation today

When it comes to firsts in Australia, the state of South Australia is a pioneer as delegate, US Consul General Michael Klein reminded us, during this year’s AmCham Trade Mission held in Adelaide 28 & 29 April. This pioneer spirit...

Commercial

REMINDER – Don’t let your PPSR Registrations Expire!

What is the PPSR? The Personal Property Securities Register (“PPSR“) is the official government database of registered security interests over personal property in Australia. The PPSR is most commonly used by a party to: 1. Register a security interest to...

Commercial

Service Contracts and Application of Payroll Tax – Important Changes

In the very recent decision of JP Property Services Pty Limited v Commissioner of State Revenue, the Court found that contracts entered into for the performance of incidental services to a business do not attract the employee agency payroll rules,...

Commercial

Starting a New Business? 5 Reasons why Written Agreements are so Important

In “Starting a Startup? For Entrepreneurs and their Advisers“, we discuss a number of tips for embarking on the adventure of starting a new business. An exciting time for those involved however, common views of the “boring” or perceived “expensive...

Commercial

Starting a Startup? For Entrepreneurs and their Advisers

Startups are not for the fainthearted. It takes talent, ambition and persistence to add value and to be successful, whilst navigating the legal and compliance which often threaten to suppress the innovation. Some quick tips below for advisers of startups...

Commercial Property & Development

Tenant, Resident or Licensee?

Whilst a lease and a licence may appear to be very similar, there are several key and critical differences from a legal perspective. A lease allows for a proprietary interest in land and a tenant is accordingly entitled to exclusive...

Commercial Health & Medical Law

The Australian Federal Budget in Health

The 2020-21 Federal Budget was recently announced by the Morrison Government which predicted a $213.7 billion deficit. Treasurer, Josh Frydenberg, described the deficit to be a “monumental task” for Australia. Importantly, the medical and health sector related budget items announced...

Commercial

The Good Oil on Small Business

When you have been a small business lawyer for decades, when you have run your own small business for decades, when you have helped resolve literally hundreds of small business disputes and when you have helped hundreds of small businesses...

Commercial Disputes Dispute Resolution & Litigation Business Contracts

The Lost or Missing Employment Contract

A recent decision of the New South Wales Court of Appeal serves as a strong reminder to employers of the importance in both drafting and maintaining copies of their employees’ contracts of employment. In Agha v Devine Real Estate Concord...

Commercial Banking and Finance

The Relationship between Property Developers and Private Lenders

Property Developers in Australia. Setting the scene. “No money, no project!” is a frequent issue for Property Developers in Australia. While the Government has introduced a number of initiatives to assist businesses, workers and home owners, the relationship between property...

Commercial Internationally Based Professionals & Businesses Disputes International Disputes – Litigation and Alternative Dispute Resolution

Uncertainty: US Discovery of Evidence in International Commercial Arbitrations

United States power in proceedings all over the world? Section 1782 of the United States Code allows an interested person in a non-US proceeding to request discovery of evidence from a US-based entity for use in a foreign legal proceeding....

Commercial Business

Update – Relief from Bankruptcy and Insolvent Trading

In response to the COVID-19 crisis, the Australian Government (“the Government“) introduced the Coronavirus Economic Support Package Omnibus Act 2020 (Cth) back on 24 March 2020 which provides, amongst other things, for the temporary relief to both individuals and businesses...

Commercial

Victorian Government’s Lockdown Recovery Aid: New Business Support Package

Following issues raised by the business in Victoria, Premier Daniel Andrews recently announced a relief package with an aim to improve the State’s economy during the prolonged COVID-19 “lockdown”. Under the package, Victorian businesses will be able to access a...

Commercial

Victorian Small Business Commissioner today discusses consequences of the CB Cold Storage decision

In an article published by the Law Institute of Victoria today, the Victorian Small Business Commissioner, Judy O’Connell discusses IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd (in which we represented the successful tenant) and its consequences...

Commercial

What is the Business Support Fund and who can access it?

The Business Support Fund has been established to provide grants to small businesses in Victoria that have been impacted by the restrictions imposed by the Victorian Government as a result of the coronavirus (COVID-19). How much is the grant? On...

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