Contract


December 2, 2016 4:28 PM | Posted by Hayley Tarr | Permalink
When commenting on the trade mark case Dick Smith Investments Pty Ltd v Ramsey [2016] FCA 939, Mr Smith is supposed to have said: “[t]his is an example of the ridiculous cost of the law, we’ve spent $550,000 on this case so far, and Aussie Mite has spent something like $400,000.”  His criticism is fair. Intellectual property rights are costly to enforce.  In this post, we consider a possible solution to this problem. read more
November 8, 2016 11:51 AM | Posted by Tony Middleton | Permalink
In a relatively recent flurry of decisions, the Federal Court examined a variety of agreements purporting to give exclusive rights to various licensees to exploit patents under the Patents Act 1990 (Cth) (Act). These decisions consider whether a purported exclusive licensee of a patented article is actually entitled to the rights of an exclusive licensee under the Act. read more
September 6, 2016 5:02 PM | Posted by Caitlin Murray and Hannah McLeod | Permalink
When negotiating a settlement agreement keep in mind the general principles of contract formation. It is essential to ensure that your client's intention concerning when, and under what circumstances, it has agreed to be bound, is clearly communicated to the other party. In particular, if you intend that the terms of the settlement to be conditional upon execution of a formal document you should make this clear in your correspondence.
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July 11, 2016 4:45 PM | Posted by Nicole Reid and Louisa Ashton | Permalink

In 2015, according to Sensis, 56% of large and 31% of small-to-medium sized Australian businesses had a social media presence of some kind. Of these, more than half reported measuring the success of their social media investment by their numbers of 'likes', followers and subscribers.

But how do businesses go about getting 'likes' – and does the law ever become involved with regulating this?

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June 17, 2016 10:00 AM | Posted by James Patto & Paul Kallenbach | Permalink
In a week where the Victorian Government plugged a loophole in transport legislation to stifle Uber's quest for the sharing economy 'holy grail' (namely, legislative recognition and legality), the Victorian Supreme Court has put another dampener on the sharing economy by ruling that two tenants had breached their lease with their landlord by renting their leased apartment out using the popular home sharing website, Airbnb. read more
April 26, 2016 9:00 AM | Posted by James Patto | Permalink
When Neo consulted the 'oracle' in the Matrix movies, he was left confused and uncertain as to whether the Morpheus-led campaign to name him the 'chosen one' was true.  One of the oracle's more famous quotes was that 'we are all here to do what we are all here to do' ... a sentiment that Oracle Corporation of Redwood City, California, may well agree with ... read more
February 3, 2016 7:01 PM | Posted by Paul Kallenbach | Permalink

We are pleased to announce the publication of our inaugural cyber security survey report - Perspectives on Cyber Risk.

Our survey results reflect that cyber attacks are occurring on a regular basis, across all organisations types, and in almost every industry; that cyber security is front of mind for many Australian organisations; and that for many (though not all) organisations, cyber resilience is considered a whole-of-enterprise challenge.

Our survey also found that many organisations perceive they have a satisfactory understanding of, and a satisfactory capability to prevent and deal with, cyber attacks. Unfortunately, this perception is not always reflected in the practical measures that organisations are adopting to mitigate cyber risk and increase their cyber resilience. 

You can download the report here.

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December 16, 2015 8:00 AM | Posted by Katherine France | Permalink

Purveyors of small print terms beware. 

Business-to-business transactions will start being caught by the unfair contract terms regime under the Australian Consumer Law and the Australian Securities and Investments Commission Act 2001  from 12 November 2016.

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December 15, 2015 12:44 PM | Posted by James Patto & Paul Kallenbach | Permalink
July 22, 2015 9:57 AM | Posted by Rebecca Bedford | Permalink

It is not uncommon for parties to contract negotiations to agree to many of the terms while using the phrase 'subject to the execution of the contract' (or something similar).

However, a recent decision of the Supreme Court of Queensland highlights that the mere use of such a phrase will not of itself mean that a contract has not been formed, despite no formal execution.  The formation of a contract requires an analysis of the totality of the conduct of the parties to objectively determine the intention of the parties to be bound.

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May 5, 2015 2:15 PM | Posted by Timothy Gorton & Paul Kallenbach | Permalink
In 2012, this blog discussed the High Court's decision in Andrews v ANZ [2012] HCA 30 and how it changed our understanding of the penalties doctrine in contract law.  A recent decision of the Full Federal Court has again shifted the goalposts in the area, with potential ramifications for technology contracts. read more
March 31, 2015 10:08 AM | Posted by Paul Kallenbach | Permalink

Technology contracts (like other commercial agreements) often contain an express right for a party to terminate the contract in the event of a 'material breach' by the other party. 

But what degree of non-compliance with the contract is necessary to constitute a 'material breach'? Until recently, this has been somewhat ambiguous, with different jurisdictions taking different approaches. However, a recent case has aligned the position in Victoria with those of New South Wales and Queensland.

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February 19, 2015 4:29 PM | Posted by Scott Chesterman & Harry Aitken | Permalink
Be wary of including clauses in memorandums of understanding (MOU) that only require the parties to negotiate a formal agreement.  Such an obligation may not be enforceable. read more
August 7, 2014 2:32 PM | Posted by Loren Blumgart | Permalink
On 26 June 2014, the European Commission (EC) released the 'Cloud Service Level Agreement Standardisation Guidelines' (the Guidelines) to assist EU businesses in using cloud services. The Guidelines were developed as part of the EC's Cloud Strategy, which aims to increase trust in cloud services, by improving the clarity in understanding the technical and legal aspects of services described in cloud service contracts (known as service level agreements (SLAs)). Contributors to the development of the Guidelines include Google, IBM, Microsoft and SAP, which marks the first time that large cloud service providers have agreed on common guidelines for SLAs. read more
June 10, 2014 4:38 PM | Posted by Loren Blumgart & Anthony Borgese | Permalink
The ACCC has commenced proceedings against a total of ten Harvey Norman franchisees in New South Wales, Western Australia, Queensland, Victoria and Tasmania, for making false or misleading representations to consumers regarding their guarantees and rights under Australian Consumer Law (ACL). read more
March 17, 2014 3:58 PM | Posted by Gilbert Tsang | Permalink
The Federal Court has recently explored new territory in considering the statutory right to terminate a contract under section 145 of the Patents Act 1990 (Cth), finding that a licensee was not able to invoke the statutory right because only some, and not all, of the licensed patents relating to the invention had expired. read more
February 13, 2014 11:42 AM | Posted by Paul Jeffreys and Paul Kallenbach | Permalink
Contracts are used to allocate risk between the contracting parties.  One mechanism for doing so in a contract is by using limitation and exclusion of liability clauses. read more
December 17, 2012 12:00 AM | Posted by Post by Paul Kallenbach | Permalink
We've previously commented on the High Court's landmark decision in Andrew v ANZ [2012] HCA 30, which concerned the law of contractual penalties in the context of various fees and charges levied by the ANZ bank on its customers. read more
June 16, 2011 3:55 PM | Posted by Jessica Childs | Permalink
The High Court recently handed down its decision in Insight Vacations Pty Ltd v Young [2011] HCA 16, in which it dismissed Insight Vacations Pty Ltd's (Insight Vacations) appeal against Australian traveller, Mrs Young. read more
December 15, 2010 4:54 PM | Posted by Kaela Snibson | Permalink
In many technology and outsourcing agreements, the right to terminate is triggered when a party is in 'material breach' of the contract.  But what does this actually mean?  More specifically,  what degree of non-compliance in this context satisfies the 'materiality' requirement? read more