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We are delighted to share with you that Tin-Lok Shea has been made Partner effective 8 December 2023. Tin-Lok began his journey with us during his law school days. His fluency in Japanese, as well as his innate understanding of both Australian and Japanese ways of conducting business and applying the law, has made him a valuable member of our firm. After graduating, Tin-Lok began his professional career at KPMG specialising in corporate tax for about 6 years. He then made a move to Deloitte advising clients in state taxes and FIRB matters. He was promoted to Account Director within 4 years there before making a big decision to return to H&H Lawyers in 2017. We are grateful for his return as our firm and clients have immediately reaped the benefits of his skills and knowledge. He quickly made great contributions, looking after our clients in all facets of their legal needs. Tin-Lok’s legal expertise, especially in corporate and commercial matters, is second to none. He is in high demand for his calm yet determined approach in a number of litigious matters. One of Tin-Lok’s long-term clients sent us this meaningful message on his promotion to Partner: “Congratulations to Tin-Lok on his promotion to partner. He has been of enormous support to Kumon Australia for many years now, so much so, that we consider him a part of our team. We have been guided by his sage and expert advice on a wide range of matters. He provides thorough service and demonstrates genuine care and interest in our business. He is deserving of his success. We look forward to his ongoing support.” Being able to speak fluent Japanese has also been a great asset of Tin-Lok. He represents many Japanese corporate clients and advises them on setting up and operating their businesses in Australia. We look forward to witnessing Tin-Lok further cultivate our firm’s Japanese practice as he works closely with Mr Hayashi and the Japanese team. Tin-Lok’s temperament and meticulousness in his legal work also make him a popular senior lawyer and mentor in our firm. He has been instrumental in developing and helping our junior lawyers and staff achieve their potential. We wholeheartedly congratulate Tin-Lok on this well-earned promotion and look forward to his ongoing leadership in our corporate and commercial team and Japanese practice.
08 Dec 2023
Commercial & Corporate
Key Takeaway Points: •There has been increasing scrutiny over the use of standard form contracts containing unfair contract terms. •Unfair contract terms are those that (a) cause a significant imbalance in the parties' rights and obligations; (b) are no reasonably necessary to protect a party’s legitimate interests; and (c) would cause detriment to the other party if given effect. • New and increased penalties (which could be up to $50 million) will start applying from 10 November 2023. On 4 April 2023, the Australian Securities and Investments Commission (ASIC), filed a case in the Federal Court against Auto & General Insurance Company Limited (Auto & General) over a contractual term which is alleged to have aided in Auto & General being able to unfairly reject consumer claims. Under the contract in question, customers were required to notify Auto & General “if anything changes about [the customers] home or contents”. ASIC came to the view that the clause: • imposes an obligation on customers to notify Auto & General if ‘anything’ changes about their home or contents, which would have been too onerous, vague and/or impractical; • suggests that Auto & General has a broader right to refuse claims or reduce the amount payable under claims if the customer does not meet the notification obligation, than is available under the Insurance Contracts Act 1984; and • could mislead or confuse the customer as to their true obligations and rights under the contract. Accordingly, ASIC alleges that the contract term is unfair under the Australian Securities and Investments Commission Act 2001 (ASIC Act). What are ‘unfair contract terms’? An ‘unfair contract term’ is unenforceable in an Australian court. Whether a term is “unfair” is determined by applying a 3-limbed test set out in the ASIC Act or the Australian Consumer Law (contained in Competition and Consumer Act 2010) (ACL) as follows: 1. The term will cause a significant imbalance in the parties’ rights and obligations under the contract; and 2. The term is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and 3. The term would cause detriment (whether this be financial or otherwise) to a party if the term was applied or relied on. The ACL specifically protects consumers and small businesses from unfair contract terms contained in ‘standard form contracts’. ‘Standard form contracts’ refer to those where there is an imbalance in parties’ bargaining powers, the contract is based on a template with little scope for negotiations or amendments, and/or are presented on a “take it or leave it” basis. There is a presumption that a contract is a standard form contract, in that the person who prepared the contract has the onus of proving that it is not. Recent amendments to the unfair contract term provisions The Auto & General case follows recent amendments which significantly expand the ambit of the unfair contract terms provisions contained in the ACL and the ASIC Act, both of which demonstrate the government’s focus on enforcement (and in turn the need for businesses to review their legal documentation). A key change is the introduction of civil penalties under the ACL and ASIC Act for breaches of the unfair contract term prohibition, reinforced by significant increases in maximum penalties for breaches under the ACL. These penalties will take effect from10 November 2023, and addresses the issue of the unfair contract terms provisions having largely been “toothless” until now. A brief summary of the key changes to the law can be seen below: Current Law New Law The unfair contract terms protections apply to a small business contract where one party is a business employing less than 20 persons and the upfront price payable under the contract is under $300,000, or $1 million for contracts lasting more than 12 months. Under the ACL, the unfair contract terms protections will apply to a small business contract where one party is a business employing fewer than 100 persons or has a turnover for the last income year of less than $10,000,000. Under the ASIC Act, the protections will apply to a small business contract if the upfront price payable does not exceed $5,000,000, and one party employs fewer than 100 persons or has a turnover for the last income year of less than $10,000,000. No pecuniary penalties. For corporations, increased penalties up to the greater of: • $50,000,000; • 3 times the value of "reasonably attributable" benefit obtained; or • 30% of the corporation's adjusted turnover during the period it engaged in the conduct. $2,500,000 for individuals. Where a court determines a term in a standard form contract to be unfair, it is automatically void. The court can also make orders for the whole or any part of a contract or collateral arrangement, including that the contract is void. The orders can only be made when a person or class of persons has suffered, or is likely to suffer, loss or damage. The court can make orders for: • a whole contract or collateral arrangement, including to void, vary or refuse to enforce the contract, if this is appropriate to prevent loss or damage that is likely to be caused (i.e. there is no need for actual loss or damage). • on the application of the regulator, preventing a term that is the same or substantially similar in effect to a term that has been declared as unfair, from being included in any future standard form small business or consumer contracts; • on the application of the regulator, to prevent or reduce loss or damage which is likely to be caused to any person by a term that is the same or substantially the same in effect to a term that has been declared unfair. How does this affect you and how can we assist? Sarah Court, the Deputy Chair of ASIC, stated that: ‘Contract terms need to be proportionate, transparent and clear, so any obligations are easily understood and able to be realistically adhered to by customers. They must accurately describe the actual rights and responsibilities of the parties under the contract.’ It is not long until the amendments kick in. As such, we strongly recommend that you review your standard form contracts to ensure no issues arise regarding any unfair contract terms. Please contact us if you are unsure whether your contracts are standard form contracts containing unfair contract terms.
08 Jun 2023
Legal News
Applications required for all company directors under new business registry regime. Background The Federal Government is in the process of rolling out the Modernising Business Registers (‘MBR’) program. The MBR will consolidate various ASIC registers and the Australian Business Register, and establish the new Australian Business Registry Services (ABRS). As a part of the MBR program, the Directors Identification Number (‘DIN’) has been introduced. From November 2021, directors of an Australian company, registered foreign company, registered Australian body or Aboriginal and Torres Strait Islander corporation are required to apply for their DINs. When you need to apply You can apply for a DIN from November 2021. If you are planning on becoming a director, you can apply before you are appointed. When you must apply for your DIN depends on the date you become a director. Date you become a director Date you must apply On or before 31 October 2021 By 30 November 2022 Between 1 November 2021 and 4 April 2022 Within 28 days of the appointment From 5 April 2022 Before appointment Please note that there may be civil or criminal penalties and/or you may be issued with an infringement notice if you do not meet your obligation to apply within the above timeframe. How do I apply for the DIN? To apply for a DIN, the most straightforward way is by using myGovID. The myGovID app is available from the Apple App Store or Google Play. Have your ID documents/information ready and follow through with the instructions within the app. If for some reason you cannot set up a myGovID, you may apply by phone or with a paper form. Once you have set up your myGovID, you can complete your application for a DIN online at ABRS website. What ID documents/information would I need to provide? To set up myGovID, you will needat least two of the followingAustralianidentity documents: driver’s licence or learner’s permit passport (not more than three years expired) birth certificate visa (using your foreign passport) citizenship certificate ImmiCard Medicare card You will also need to have the following ID information that matches the information kept at the ATO: your tax file number (TFN) your residential address as held by the ATO information from two documents, such as: Bank account details Notice of assessment Super account details Dividend statement Centrelink payment summary PAYG payment summary What if I do not have sufficient ID documents/information? If you are a non-Australian citizen, non-resident director, the chances are that you do not have most of the abovementioned ID documents/information. If you do not have sufficient ID documents/information, you would have to apply with a paper form attaching certified copies of one primary and one secondary identity document. Primary documents Overseas birth certificate Overseas passport Secondary documents National photo identification card Foreign government identification Driver’s licence, as long as the licence address matches the address details on your application Marriage certificate (N.B. if this document is used to verify your change of name, it cannot be used as a secondary document). If you have changed your name, you must provide an additional document showing the change, such as a: marriage certificate deed poll change of name certificate. Please note that if your identity documents are not written in English, you must arrange for them to be translated into English by an approved translation service (such as NAATI - National Accreditation Authority for Translators and Interpreters) and certified as a true and correct copy. How do I certify my documents outside Australia? The following people are authorised to certify your identity documents outside Australia: notary publics staff at your nearest Australian embassy, high commission or consulate, including consulates headed by Austrade honorary consuls. An authorised certifier must, in the presence of the applicant, certify that each copy is a true and correct copy of the original document. This involves: sighting the original document stamping, signing and annotating the copy of the identity document to state, ‘I have sighted the original document and certify this to be a true and correct copy of the original document sighted' initialling each page listing their name, date of certification, phone number and position. Disclaimer: The contents of this publication are general in nature and do not constitute legal advice. The information may have been obtained from external sources and we do not guarantee the accuracy or currency of the information at the date of publication or in the future. Please obtain legal advice specific to your circumstances before taking any action on matters discussed in this publication.
03 Nov 2021
Press
Tin-Lok Shea, special counsel at H & H Lawyers, was recently quoted in an article inNikkei Asiaregarding the prospective sale ofAusNet Services, an Australian energy company, to a foreign investor. The deal is significant because it weighs the importance of economic security, critical energy infrastructure and therefore national security, and foreign ownership of Australian assets. The result of this transaction could serve as a litmus test for the immediate future of foreign investment in Australia."It's a big case. If approved, it will be the first time since January that a 100% stake will be changing hands," said Tin-Lok. "I think there will be concern if this one got rejected because it would then send out a message as to Australia's appetite for investment."View the full article here:
22 Oct 2021
Legal News
The Australian Government has implemented significant amendments to the Franchising Code, with most changes effective 1 July 2021. To find out more about these changes, please refer to the following link.
01 Oct 2021
Firm News
H & H Lawyers is delighted to announce the following promotions. Congratulations to Tin-Lok Shea, Reiko Reynolds and Jeanie Lee.
01 Jul 2021