I Am Engaging A Building Contractor: Any Homework To Do?

This article aims to briefly discuss some of the points that a would-be building owner needs to consider prior to engaging a building contractor and signing a contract. The list is not meant to be exhaustive and the building owner is strongly recommended to seek legal advice.

Is My Building Contractor Licensed?

It is not unusual that a building owner may be given a few names, or introduced to a few contractors who are said to be builders with qualifications. There is nothing wrong to spend a little money or time to conduct your due diligence to confirm the veracity of the information you receive. This is not to suggest that the information provided is unhelpful or untrue. It simply pays to verify and ensure that any information you receive is current, valid, and qualified for the purpose it is sought. In Queensland, you are able to conduct a search through Queensland Building and Construction Commission or QBCC. The search section in their website called QBCC license search is to be used to search the builder and the company they may be associated with. This is to ensure that the builder you are about to engage is qualified and licensed by QBCC.

My building contractor is licensed, what is next?

Now that you have verified that the building contractor is licensed, the next thing to ensure is to learn what the company’s status is. This is to learn, among other things, when the company was established, who the current directors are, and whether any of the directors named in the company is or was insolvent or disqualified to hold the director position in the current or former company(s). You are able to do this search through the website of the Australian Securities & Investment Commission, commonly known as ASIC. A search of the company’s current extract will show who the current directors of that company are.

How Can I Ensure That The Builder Is Solvent?

You could only do so much at a time to find out if the builder is solvent when you are about to sign a contract with the builder or its company. Let’s call this stage one of the builder’s solvency fact-finding. The ASIC search referred to above will show if the company is officially insolvent (i.e. a liquidator or administrator is or has been appointed). As this only shows the official position, once a company has officially been declared insolvent, it does not give any information regarding potential insolvency. You should research the building company to see if there are any reports or indications that it might be in financial difficulties. However, you are strongly recommended to seek legal advice to find out how you may be able to reasonably protect your interest.

What To Do With A Dispute Over The Quality Of Builder’s Work?

There is something in common law called “duty of care”. In essence, the person who owes this duty to another, whether morally or legally, is obliged to ensure that he/she takes into account the well-being and interest of that other person to whom the duty is owed to. Likewise in this context, the builder owes a duty of care to a building owner or the person who contracted the builder to perform building works, to perform such works to the standard of a reasonably competent builder. What is reasonable is a question of fact and turns on its own merit. The duty raised here will be breached if the builder fails to ensure that the building or repair works carried out were not performed in a workmanlike and competent manner. The question that needs to be answered when the quality of works performed is in dispute is to identify first whether the defective work is structural or non-structural.

Any time limits to bring in structural or non-structural defect claims?

In Queensland, the QBCC provides that a structural claim must be made within 6 years and 6 months from the date (whichever is earlier) of paying the insurance premium on a property, entering into a contract, or work starting. Non-structural defects claim must be made when you become aware of the defect within 6 months after the day the work is completed in which case you need to lodge the claim within 7 months of the day the work is completed.

Can My Builder Vary The Contract That We Already Agreed?

This question is better answered if we consider whether the variations have been agreed between the builder and the building owner in writing and whether the variations to the contract complies with section 40 of Schedule 1B of the Queensland Building and Construction Commission Act (the Act). The gist of the section is that the building contractor must give the building owner a copy of the variation in writing before the first of the following happens; (a) 5 days elapse from the day the building contractor and the building owner agree to the variation; and (b) any domestic building work the subject of the variation starts. Section 40(5) of Schedule 1B to the Act also states that, the building contractor must not start to carry out any domestic building work the subject of the variation before the building owner agrees to the variation in writing.

For advice or assistance with all building contract disputes, contact the Litigation Law Team at Aylward Game Solicitors today on 1800 217 217

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Article Source: Contractor Engaged 

Cyberbullying in Australia: Contemplating Countermeasures

This article aims to briefly examine the cyberbullying issue in Australia and what can be done to minimize or eliminate its interference with the daily life. The recommendation(s) are not meant to be exhaustive, nor intended to be a substitute for any form of protection or safety. If you are subject to any form of cyberbullying, it is highly recommended to immediately seek professional help/advice as may be appropriate to your circumstances.

What is cyberbullying and how do I know if I am being bullied online?

Cyberbullying occurs when someone uses the internet to be mean, or hostile to a child, young person, or even adult person. The initial aim of the person who commits the cyberbullying is to hurt the person who is the subject of the bullying. Sometimes the bully uses the online platform to send and share with third parties hurtful or embarrassing photos or videos that is related to the person who is subject to the bullying. Other forms include using a fake account in the name of the person who is subject to the bullying and sending messages pretending to be from the person who suffers from the bullying act.

What in general does a cyberbully want to achieve?

The likely objective(s) of a person or persons who commits cyberbullying is to get your attention and lure you into engaging with them, however short, so they can either inflict harm upon the person’s interest, hurt him/her in some way, or deceive/defraud the person in order to illegally enrich themselves.

Who is most affected by cyberbullying in Australia?

Research conducted into the digital lives of Aussie teens has reported that as at 2021, 44% of Australian young people reported having a negative online experience in the 6 months to September 2020. The research was based on a survey of 627 teens aged 12 to 17 in September 2020.

How does cyberbullying impact some Aussie teens?

The above research further indicated that 30% of young persons were being contacted by someone they did not know, 20% received inappropriate or unwanted content and 16% were deliberately excluded from events or social groups.

What are some examples of cyberbullying?

Imagine you are online and someone either known or unknown to you, uses some sort of threat to harm you. This form of threat, sometimes not always, involves some sort of blackmailing. For instance, someone might threaten you that if you tell the truth about a common subject that you are both aware of, he/she, in retaliation, will post a photo of you, or share it with a stranger or someone you may know, a private moment of your life, that you do not want to be shared online or with any third party.

There are other forms of online intimidation whereas you are asked to withdraw from a group, team, or association because you are deemed by the bully to be the cause of their loss. That said, humiliating you online using derogatory terms or harmful adjectives to describe your personality, or your action is another form of cyberbullying.

How did Australia address the cyberbullying issue?

In 2015, Australia established eSafety Commissioner (eSafety). The eSafety is Australia’s national independent regulator for online safety. The eSafety drives its powers from the Online Safety Act 2021 which took effect in January 2022. The aim of the eSafety is to help protect all Australians from the most serious forms of online harm.

Is cyberbullying a criminal act?

The short answer is yes. Section 474.17 of the Criminal Code Act 1995 (Cth) stipulates using a carriage service in a menacing, harassing, or offensive way is against the law and thus a crime.

For further information about the eSafety, you may access the information using the following link:

https://www.esafety.gov.au/research/digital-lives-aussie-teens

For advice or assistance with cyberbullying matters contact the Cyberbullying Team at Aylward Game Solicitors today on 1800 217 217

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Article Source: Cyberbullying in Australia

Federal Court Rules on Fujifilm Australia’s Unfair Contract Terms

This article aims to briefly examine the Federal Court’s ruling in relation to the unfair contract terms concerning Fujifilm Business Innovation Australia Pty Ltd.

Who commenced the action?

The Australian Competition and Consumer Commission (ACCC) commenced an action against Fujifilm Business Innovation Australia Pty Ltd (Fuji) alleging that between November 2016 and December 2021, Fuji used 21 identifiable template contract forms as a basis for entering into contracts with consumers. The court documents showed that some 34,000 contracts were entered into or renewed using the template contracts.

What was wrong with the contracts?

In summary, the contracts, among other things, “allowed Fuji to Unilaterally vary either the price charged to the customers and/or the rights and obligations between Fuji and the customer”; it incorporated additional contractual terms by reference to one or more extraneous documents, which documents are difficult for the customer to locate or identify, and which Fuji can unilaterally vary with no obligation to give notice of the variation; and more importantly, the contracts limited Fuji’s liability for any delay in supplying or delivering equipment to the customer in circumstances where the customer has no right to be excused from charges payable for the periods of the delay.

What Fuji agreed to do?

Fuji by consent, among other things, agreed to write to all those customers affected stating that the Federal Court of Australia made orders by consent that some of Fuji’s agreements with small business customers contain unfair contract terms, meaning, that those terms are void and cannot be enforced by Fuji if they were in a small business contract. Fuji also was ordered, by consent, to place a corrective notice on its website and further pay a contribution to the applicant’s costs of and incidental to the court proceeding fixed in the amount of $250,000.

The Take-Home message

It is very likely that the court will declare any contractual obligation which creates a significant imbalance between the parties’ rights and obligations as null and void and if that be the case, the terms declared as void cannot be enforced. There are other factors that in any contract interpretation the court will take into account. For instance, the court in interpreting the wording of a contract, will examine the ordinary meaning of that wording and further will see whether the term viewed objectively would make any commercial sense to any reasonable business individual. Therefore, it is important to seek professional legal advice prior to agreeing to any written contract, and preferably prior to its drafting. This may save some time and money for you and prevent you from agreeing to a contract that may disadvantage you.

Full case of Australian Competition and Consumer Commission v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928 may be accessed using the following link:

Australian Competition and Consumer Commission v Fujifilm Business Innovation Australia Pty Ltd [2022] FCA 928

For advice or assistance with all contract and commercial matters, contact the Commercial Law Team at Aylward Game Solicitors today on 1800 217 217

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Article Source: Unfair Contract Terms

#unfaircontractterms #contractterms #whatarethetermsofacontract #termsinacontract

The difficulty of using the symbol “and/or” in a Contract or a Statement of Claim

 

This article aims to briefly examine the use of the symbol “and/or” in a contract or a statement of claim drafting and why this symbol should be avoided. It is said that by using the symbol, the draftsman is not clear as to the extent of its application to the subject they refer to.

The voice from the bench clearly says “don’t use it”

In common law jurisdictions, it was as early as 1855 that the courts expressed their disapproval of the use of “and/or” in drafting a contract. Alderson B in Cuthbert v Cumming (1855) 24 LJ Ex at 199 examined a contract that used and/or in its content. The contract on the face of the charter party was, that the parties were to “load a full and complete cargo of sugar, molasses, and/or other lawful produce” so that according to the contract, the parties were either to load a full and complete cargo of sugar and molasses, and other lawful produce, or a full cargo sugar and molasses, or a full cargo of other lawful produce, leaving it open in every way by reason of the words “and” and “or” being introduced into the charter-party.

Examples of how the court interpreted “and/or” in a Deed

It was in Neame v Neame’s Trs [1956] SLT 57, that the majority of the court read “and/or” in a deed, as meaning nothing more than “and”. The Lord President, Lord Clyde, said (at 62), “But it would be most unfortunate if a confusing expression such as “and/or” were to become a common feature in Scottish marriage contracts or testamentary settlements”. Lord Russell added that “I would venture to add that in my judgment the phrase “and/or” is at best a loose and ambiguous term which would be better not to be used in formal legal writs affecting patrimonial interests”. Lord Sorn joined the chorus of disapproval when he said, “the expression “and/or” is not a happy one and, if occurring in a simple gift, might give rise to a serious problem of construction”. He further added, “in my opinion, the expression is particularly unhappy when it is used in a statement of claim, which should express precisely the foundation of the proceeding.

Why do the courts disapprove of using “and/or” in drafting a Contract or a Statement of Claim

The disapproval stems from the fact that in the court’s interpretation of “and/or”, the symbol endangers accuracy for the sake of brevity. Fowler J in Employers Mutual Liability Insurance Co of Wisconsin v Tollefsen 263 NW 376 at 377 said, “it is manifest that we are confronted with the task of first construing “and/or”, that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with a view to furthering the interest of their clients. We have even observed the ‘thing’ in statutes, in the opinions of courts, and in statements in briefs of counsel, some learned and some not”.

What does Garner’s Modern English Usage say about the use of “and/or”?

Bryan Garner is of the view that “a legal and business expression dating from the mid-19th century, and/or has been vilified for most of its life – and rightly so. To avoid ambiguity, don’t use it”.

Queensland Supreme Court opines on “and/or” in its judgment

His Honour Justice Martin in PFJV Pty Limited v Bartter Enterprises Pty Limited [2022] QSC 110 in relation to the ambiguity that the use of “and/or” caused in the pleading material said at [16], “that vagueness commences with the use of the term “probability and/or possibility”. I expressed my disdain for the “and/or” conjunction in St Clair v Timtalla Pty Ltd (No 2) [2010] QSC at 480. His Honour further Quoting Barry J in Looke v Parbury Henty & Co Pty Ltd [1950] VLR 94 at 98, whereas the latter said, ‘I agree that expression “and/or” is commonly an indication that the draftsman is not clear in his own mind about the matters with which he has to deal (cf Piesse, Elements of Drafting, pp. 52-57).’

The take-home message

Whether you need a contract or intend to prepare a statement of claim, it is imperative that you seek professional legal advice to ensure that your interests are protected. An ill-worded contract or statement of claim can be detrimental, not to mention a vague contract or pleading can be struck out for failing to precisely lay a foundation of the proceeding.

For advice or assistance with all contract and commercial matters, contact the Commercial Law Team at Aylward Game Solicitors today on 1800 217 217

Find Brisbane Commercial lawyers on Google Maps near you.

You may also like to know more information about the related article:

• Fair Work Act Changes - Workplace Bullying | Commercial Law Brisbane
• AGM and Financial Reporting Requirements Following Coronavirus | AGS

Article Source: Statement of Claim

What Should Buyers Look Out For In a Property Contract?

Buying property is such a big purchase and commitment (one of the biggest most of us are likely to ever make) that the contract is not something you want to take lightly. It’s wise to go through it with a “fine-tooth comb” and equally as wise to discuss the finer details with both your agent and a legal representative who deals in property law and conveyancing.

Not only is it important to understand what the various clauses mean, but it’s also very important to understand what’s included in the contract and if there’s anything missing that should form a part of the contract.

Check the Details and Particulars

Even the most basic information on a contract is of vital importance. Check that your full name appears on the contract and that it’s spelled correctly. The name has to be identical to the name that will appear on your mortgage, otherwise, this could delay the finance process as well as requiring a contract amendment.

Is everyone purchasing the property included in the contract with the full name also spelled correctly? All parties must be listed on the contract if there are 2 or more purchasers.

Include Your Solicitor’s Details

Don’t wait for the contract to be signed to make reference to your solicitor. Include those details within the contract. It makes the entire liaison process much simpler.

Finance

If your ability to go through with the property purchase hinges on the approval of finance, then this must be stipulated in the contract. If you don’t, then you won’t be able to terminate the contract in the event that finance is not approved. Include finance amount, lending institution details, and finance date.

Building and Pest Inspections

This is also something that should be written into the contract. There is a section on the contract reserved for this, so be sure to insert the date for building and pest inspection. Failure to do so will likely mean you cannot terminate the contract if any building and pest issues arise upon property inspection. All contracts for property purchase should be the first subject to a satisfactory building and pest inspection.

Talk To A Legal Expert In Property Law

If you are located in and around Brisbane and need legal advice regarding your property contract, then get in touch with your local, experienced experts at Aylward Game Solicitors. We know property law, so you can contact with us.

👉👉 Find Experienced property lawyers Near you on Google maps (AylwardGameSolicitors - Google Search) anytime at Aylward Game Solicitors

Article Source: Property Contract 

Brisbane Best Family Lawyers Near Me – Aylward Game Solicitors

Finding the right family lawyer can be a daunting task, but it’s important to find someone who you can trust to help you through your family law matter. At Aylward Game Solicitors Family Lawyers Brisbane Team, we understand that every family is different, and we tailor our services to meet your individual needs. Aylward Game Solicitors are committed to providing you with the best possible outcome, and we’ll work tirelessly to achieve that goal. Call us today at 1800 217 217  to schedule a consultation.

WE’RE HERE TO HELP YOU EVERY STEP OF THE WAY.

STAY AHEAD OF THE GAME WITH AYLWARD GAME.

Why Hiring an Expert Brisbane Family Lawyer is Important When You’re Going Through a Divorce or facing family law issues.There are a number of reasons why it is important to hire a lawyer in Brisbane. The first is that they will be able to help you with any legal issues that you may be experiencing. This can be anything from family law to divorce or even estate planning. Secondly, finding an Accredited Specialist Family Lawyer with ensuring you’re represented by an expert on the law; they know what the best course of action is for your specific situation. They generally also have access to all different types of resources and information (or people) which will help them make better advice for your case.

A Few Reasons why You Need a Brisbane Family Lawyer on Your Side

There are many reasons why you need a lawyer to guide you through the legal process. The first is that they can provide you with advice on what to do in order to protect your rights. They will also be able to guide you on what documents should be signed and which ones should be avoided.

Some people may not know where they can find a lawyer and this is where online directories come into the picture. These directories help people find lawyers in their area and list the services they offer, as well as their prices.

OUR BRISBANE FAMILY LAW SERVICES

We solve problems, we find solutions, we look after your best interests, and we provide sensible,
practical, real world legal advice – keeping you on the game.

Article Source: Brisbane family lawyers