Feinauer - Commercial Lawyers International Attorneys

16/10/2023

At least cars are measured by horsepower 🥲🐎

23/03/2022

We are an enterprising lot. But SMEs in Australia have a very high failure rate. Here are some (not an exhaustive list) issues to consider:

1 Accountants are a key to business success but only if:

a) The books of the business are up to date and the accountant is on top of the business performance. Few businesses have a good handle of what is coming in, what is going out or what lies ahead.
b) Disconnects in real time accounting are avoided. Inadequate controls result in Companies making last minute decisions leaving them vulnerable to knee jerk tax planning. Loan accounts and Div 7A play an all too prominent role in business failures.
c) The accountant understands the usual margins of a client's business which, if not achieved are indicators of fraud etc.

2. Inadequate business contracts:

a) A business might tool up and expand because they enter into a say three year supply contract only to find that there contract can be terminated at will on 30 days.
b) Onerous leases with excessive costs in terms of entering, being in, and exiting the lease.
c) Poor partnership or shareholder relationship planning and inadequate contracts in that regard.
d) Poor terms of trade leaving the business open to disputes as the rules between the customer and the business are not clear.
e) Inadequate Debt collection strategies.
f) Contracts which are unfair but which are entered into as an 'entrepreneurial' risk.
g) Inadequate or irrelevant insurance or like contracts.

3. Consultants

a) Ask who needs to be there. There are legions of people all selling themselves as indispensable. Few are. Many drain cash out of the business for no clear reason or positive result.

b) Like Oysters, the first bad one might be your last: From IP theft to negligence, consultants might be harmful. Make sure you have clear agreed terms before you start and have adequate checks and balances.

With business owner's houses at stake, effort should be applied to avoid the obvious pitfalls to make sure business is living the dream rather than suffering the nightmare.

The odds an Australian start-up launched four years ago is still operating today is almost the same as flipping a coin, and yet business is booming.

22/03/2022

Force Majeure and the definition of 'War' - Putin's Russia takes the view that there is no 'war' in the Ukraine. But does anything turn on the avoidance of the term 'war' for legal purposes including in respect of the laws relating to force majeure clauses? - No.

The Fourth Geneva Convention Relative to the protection of Civilian Persons in Time of War of12 August 1949 (Art2) speaks of "declared war or of any other armed conflict".

The Australian War Crimes Act 1945 defines war as:
(a) a war, whether declared or not;
(b) any other armed conflict between countries; or
(c) a civil war or similar armed conflict;
(whether or not involving Australia or a country allied or associated with Australia) in so far as it occurred in Europe in the period beginning on 1 September 1939 and ending on 8 May 1945.

Substantially, that definition is the universal standard.

Where a force majeure clause is silent as to 'war' or 'armed conflict' then things are more tricky. If you are in this situation seek advice as soon as possible. Doctrines like the law relating to frustration might be invoked.

Instead, ‘special military operation’ should be used to describe Moscow’s assault on Ukraine, according to officials.

27/08/2020

In Palmer v State of Western Australia (No 3) [2020] FCA 1220 (25 August 2020), the reason for why the Federal Court heard an aspect of the s92 case was set out as follows:

“On 16 June 2020, the Chief Justice of the High Court remitted to the Federal Court of Australia for hearing and determination the issue of the reasonable need for and efficacy of the community
isolation measures (that is, the border restrictions) contained in the Directions.”

The findings supported the measures taken in this State of Western Australia:
“The existing border restrictions do not eliminate the potential for importation of COVID-19 from other States or Territories, since they allow “exempt travellers” to enter Western Australia. However, the restrictions have reduced the numbers of people entering from interstate to approximately 470 people per day, compared to approximately 5,000 per day in 2019 and approximately 3,500–4,000 per day in March 2020 (that is, to 9% – 13% of the previous level).
The border restrictions have been effective to a very substantial extent to reduce the probability of COVID-19 being imported into Western Australia from interstate.”

The Federal Court rules Western Australia's interstate border closure is more effective at keeping COVID-19 out of the state than any other measure, after mining billionaire Clive Palmer challenged the legality of the policy.

21/04/2020

Very proud of our long standing involvement with Legalwise.

Search Legalwise Seminars' CPD seminars and conferences and filter by legal, accounting and law for non-lawyer programs.

17/04/2020

The Code mandates: Landlords must offer tenants proportionate reductions in rent payable in the form of waivers and deferrals (as outlined under “definitions,” below) of up to 100% of the amount ordinarily payable, on a case-by-case basis, based on the reduction in the tenant’s trade during the -19 pandemic period and a subsequent reasonable recovery period.

Some Landlords and Managing are using the Code to require financial information about past turnover etc.

There is a misapprehension that are confined to 50%. Instead the requires: Rental waivers must constitute no less than 50% ..... and ... should constitute a greater proportion of the total reduction in rent payable in cases where failure to do so would compromise the tenant’s capacity to fulfill their ongoing obligations under the lease agreement. Regard must also be had to the Landlord’s financial ability to provide such additional waivers.

If a business had to shut then the best evidence of loss are the locked doors.

The idea is for a tenant (and landlord) to survive during and after the pandemic period.

15/04/2020

LEASING UPDATE:

1 The Code applies only to commercial tenancies (including retail, office and industrial) and eligible businesses.

2 The Code prevents a termination of the Lease on the grounds of non payment of rent only.

3 There are stipulations but much is left to negotiation.

We are now seeing landlords asking for accounts, business plans etc.

The first Rule of Covid 19 Code based responses is that there are few Rules. Yet, these need to be followed and cases for rental relief need to be made keeping in mind cost effectiveness and outcome focus. Rigid approaches are misplaced.

There are still considerable other issues and problems relating to franchises.

09/04/2020

The Code is in.

We are well experienced in commercial leasing and can assist both landlords and tenants in negotiations or even formal mediation.



https://www.pm.gov.au/sites/default/files/files/national-cabinet-mandatory-code-ofconduct-sme-commercial-leasing-principles.pdf

09/04/2020

We were one of the first offices to move to remote work during this crisis. If you need to contact us we are taking appointments via Zoom, Skype, FaceTime etc.

17/02/2020

Leases - Do they matter?

Leases do not cost a lot in the scheme of things. But in many cases they are the very essence of a business. Leases can make or break a business.

This week we are putting the spotlight on leasing.

Lease Assignments leave plenty of scope for error. One of the biggest problems is the failure to assign an option. Without that assignment, an option might be irretrievably lost.

Other huge problems present in not drafting a request for an assignment properly. Unreasonable refusals to assign are also a big area of disputes.

Is your business on top of these issues?

The team at Feinauer regularly deals with these types of matters.

23/01/2020

Why does the gig economy struggle with aspects of consumer law? From often incoherent terms and conditions, including often draconian arbitration clauses, through to misleading conduct in reviews, and the advertising of services as per the below, there are some ingrained issues. Some stem from the fact that the gig economy is global and yet law is essentially local. That huge disconnect, which is unlikely to be remedied any time soon, is just one factor. A public willing to accept the idea that digital is better no matter what and the idea of 'disruptors' by definition elevating the human condition, leaves plenty of room for problems.The tide is turning and Australia is increasingly looking at the gig economy for compliance. Local laws will ultimately prevail.

Travel website Trivago misled consumers about cheap hotel deals on its website and in advertising, a Federal Court judge has ruled.