New country of origin food labelling from 1 July

Businesses that sell food in retail stores in Australia need to know about the new country of origin food labelling laws which will apply from 1 July 2016.

The new requirements regarding country of origin food labelling will vary depending on:

  • the type of food product and
  • whether it was grown, produced, made or packed in Australia or another country.

Even though the new laws come into effect from 1 July, there is a period of 2 years within which businesses will have the time to implement the changes – so products that are packaged up until 1 July 2018 will still be able to contain labelling that complies with the previous legal requirements under the Food Standards Code (administered by Food Standards Australia New Zealand).

What businesses (and consumers!) need to knowMade in Australia

  • All food that currently needs to be labelled with a country of origin will continue to do so.
  • Most food that is made, produced or grown in Australia will need to carry a label that also includes a kangaroo symbol, as well as text and a bar chart indicating the percentage of Australian ingredients.
  • Labels for most products packed in Australia that contain imported foods which have undergone no or only minor processing in Australia will carry a ‘packed’ statement, as well as text and a bar chart indicating the percentage of Australian ingredients. They will not carry the kangaroo symbol.
  • Imported food will continue to show where it was grown, produced, made. If the food was not grown, produced or made in a single country it will need to indicate where it was packed and that it is of multiple origins or comprises imported ingredients.

What other businesses need to know this information?

As well as the actual manufacturers, importers, distributors and retailers of the food products, this information is crucial for anyone involved in the package design and marketing of the products (such as graphic designers and marketing).

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Contact the team at Shire Legal on 95263444 or info@shirelegal.com.au if you have any questions about the new requirements, or any other aspect of consumer laws.

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The new 2016 Contract for the Sale and Purchase of Land

Largely because of legislative changes, the Law Society of New South Wales periodically reviews and reissues the standard clause pages for the contract used when selling a property.

Despite the last edition being released only 2 years ago, there is another edition about to be released, mostly because of the introduction of legislation requiring purchasers to withhold part of the purchase price when the vendor was not an Australian resident.

Law Society

What were the major changes in the 2014 edition?

More room provided in pages 1 and 2 to include all required information.

Space for the nomination of a buyer’s agent – a change that was requested by the Real Estate Institute.

In light of the new concept of unfair terms in contracts introduced by the Australian Consumer Law (sections 24 and 25), clause 8 was amended to give the purchaser a right to terminate the contract.

Dealing with the use of deposit bonds – this includes specifying the process to be followed with providing and returning the deposit bond.

Dealing with the common practice of vendors attaching to the contract a form of requisitions to be asked, and often the form of the answers.

The use of electronic certificates of title (e-CTs).

Clauses dealing with electronic conveyancing (aka PEXA).

What are the major changes in the 2016 edition?

Amendments to deal with the Foreign Resident Withholding Tax – such as a space for the entry of the duty assessment number allocated by the OSR.

Changes to terminology – e.g. the Registrar General division of LPI will become the Office of the Registrar General.

The obligation on the vendor to provide either a Certificate of Compliance or Certificate of Non-Compliance if the property has a swimming pool.

Introducing an obligation on the vendor (not the purchaser) to obtain a land tax certificate which is current for the year in which it is served on the purchaser.

Referring to an off-the-plan vendor’s obligation to comply with the newly introduced legislation governing a vendor’s right to rescind the contract during the sunset period (following the court’s decision in Jobema Developments Pty Ltd v Zhu and Ors [2016] NSWSC 3).

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If you require assistance with the sale or purchase of property, contact the team at Shire Legal on 95263444 or info@shirelegal.com.au.

Are you buying a property with friends or family members? What you need to know about co-ownership.

Rising house prices across Sydney have made it difficult for people trying to enter the property market. In response to this we are seeing more and more people buying property with friends or family members rather than trying to go it alone.

This can be a great solution because sharing the costs of buying and holding property puts owning property within reach for many who otherwise wouldn’t be able to afford the current property market.

But what happens if these friends have a falling out?  What do you do when one of you wants to sell but the other doesn’t?  Trying to resolve these kinds of situations can end up costly and time consuming for all parties.

So how do you avoid this and best protect yourself should things not work not the way you had hoped?

Put in in writing!

We cannot say this enough when it comes to entering into any kind of financial relationship with someone else.  Having a written agreement in place from the outset will save plenty of headaches later.  Whilst everyone may have every intention of harmoniously sharing property with others, things can happen and circumstances can change – which is when having a written agreement in place, addressing what happens in these instances, is invaluable.

House

Some of the main things to consider when purchasing property with other people are:

What proportion of the property will each person own?

If each person is contributing to the purchase costs equally then it’s common for the parties to own the property as tenants-in-common in equal shares (that is, 50/50).  If one party contributes a larger amount than another though, then the parties’ shares in the property can reflect this difference.  For example rather than owning the property equally, the parties may decide that an ownership of 60:40 is more appropriate given the parties’ contributions in purchasing the property.

How will the property be used or occupied?

If all parties will be living in the property then this is relatively straightforward.  It becomes more complex however, if not all of the parties will be living in the property and things such as who will be responsible for the maintenance and upkeep of the property and the apportionment of rates will need to be considered.

What if one party can’t pay their share of the expenses?

Life can throw curveballs and it may be that at some point one of you may not be able to cover their share of the rates or the cost of unexpected repairs or maintenance. So what happens then? If another party pays it for them when and how will this be paid back? Will they be compensated? Will it be treated as a loan with interest be payable?

What if a party wants to sell their share?

The sale of an interest in a jointly owned property is usually not something that can be readily sold on the open market.  Particularly if the joint owners live together, then the remaining owner would no doubt wish to have a significant say in who is able to purchase the outgoing owner’s interest – ideally, with a right of first refusal (that is, the right to purchase the outgoing owner’s interest) and then if the remaining owner does not wish to purchase the share, then the outgoing owner should have the right to force the sale of the entire property.

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Whilst the above list is not exhaustive, it certainly is indicative of the types of issues that need to be discussed between the joint owners, and the agreement recorded in writing – ideally before the property is purchased.

If you have any questions about joint ownership, please contact the team at Shire Legal on 95263444 or info@shirelegal.com.au

Appointing a compulsory strata manager

Section 162 of the Strata Schemes Management Act 1996 (NSW) provides that a Fair Trading Strata Schemes Adjudicator can order for the compulsory appointment of a strata managing agent to exercise all of the functions of an owners corporation, or only specified functions, as well as the functions of the other officeholders (that is, the chairperson, secretary, treasurer or executive committee).

Why would a compulsory strata manager be appointed?

The Adjudicator has the power to make such an order if it is satisfied that “the management structure of a strata scheme … is not functioning or is not functioning satisfactorily” (section 162(3)) or if the owners corporation has not performed its duties (section 162(3A)).

Who can ask for a compulsory strata manager to be appointed?

  • any person who has obtained an order requiring the owners corporation or other officeholder to comply with a duty, and it has not been complied with; or
  • a person having an interest in a strata scheme (e.g. a lot owner); or
  • someone having the benefit of a positive covenant that imposes a duty on the owners corporation; or
  • a judgment creditor who is owed money by the owners corporation (section 162(7)).

Property law

“The basis for such allegations does not appear to have been made out on any reasonable basis by the evidence which has been advanced”

Shire Legal recently assisted a lot owner within a 3 lot commercial strata scheme in response to an application for a compulsory strata manager to be appointed.

Up until last year, all 3 lots were owned by our client’s family, and the strata scheme was self-managed.  Once the front lot was sold, a strata manager was appointed.

Shortly after, our client had an altercation with the other lot owner and police were called.  Other incidents took place between our client and the other lot owner.

Against that set of background facts and circumstances, the other lot owner applied to Fair Trading for a compulsory strata manager to be appointed, on the grounds that the strata scheme was not functioning satisfactorily.

The grounds on which the other lot owner’s application was based on were:

  • there was significant hostility and bad feeling between our client and the other lot owner; and
  • the other lot owner was unable to maintain a functional relationship or to communicate effectively with our client.

A technical difficulty that the other lot owner encountered was that his application referred to our client as “the Majority Owner”, and references to the alleged behaviour by our client was not clarified as behaviour by our client in his capacity as a lot owner, or as a member of the executive committee.

Significant points made by the Adjudicator in its decision were:

  • it is the applicant who bears the obligation of demonstrating, on the balance of probabilities, that the facts alleged should be accepted as being more probable than not as the basis for findings to be made by the Adjudicator;
  • the Adjudicator cannot make such findings where the persons alleged to be in breach of the Management Act are not identified with precision as to their identity, or whether they act in their independent capacities, or as officers of the Owners Corporation.
  • the mere allegation of conduct which alleged amounted to a breach of a by-law was no basis for concluding that the management structure of the strata scheme is not functioning at least satisfactorily.
  • the breach of the Management Act by our client (in not providing enough notice for an AGM) were “procedural in nature” and that “any defect, irregularity or deficiency has caused no substantial injustice to be suffered by any interested person”.

In finding that it would not be in the best interests of the owners corporation to compulsorily appoint a strata manager, the Adjudicator noted:

“… the impediment to the satisfactory functioning of the management structure of the strata scheme that is able to be found on this evidence is the conduct exhibited by [the other lot owner] himself.”

Finally, the Adjudicator stated:

“It is clear that [appointing a compulsory strata manager] is very invasive to the management of a strata scheme; is analogous to the appointment of a provisional liquidator to the affairs and undertaking of a corporation; and is similarly a drastic step take only on comfortable satisfaction upon the balance of probabilities by evidence which demonstrates that the exercise of the discretion so to order is properly to occur.”

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Contact Shire Legal on 95263444 if you have a question about the management of a strata scheme.

Love thy neighbour – especially if you’re renovating! Using easements to your advantage.

There are a number of reasons why it’s a good thing to know your neighbours and be on good terms … but one situation that may not come immediately to mind is when you want to renovate or develop your property.  Having a good relationship with your neighbour can be the difference between a quick, hassle free project or a long, drawn out and sometimes costly experience.

More often than not when renovating or building, you or your contractors will need to access the neighbouring land to carry out works on your property.   Access onto adjoining property is commonly sought for construction purposes including, erecting scaffolding, a crane swing over the airspace of the adjoining property, drainage, electricity and roads.

This access is normally only temporary and access is only required during the construction or maintenance being carried out.  In order to access this land you will need to obtain consent.  This is when it pays to be on good terms with your neighbours!

But I can’t get consent!?!

If your neighbour is not agreeable to granting access other avenues are possible including obtaining an access order under the Access to Neighbouring Land Act 2000, or an easement under section 88K of the Conveyancing Act 1919 (NSW).

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Neighbouring land access order

Under the Access to Neighbouring Land Act, the Local Court may order a “neighbouring land access order” or a “utility service access order” or both. When access is only required on a temporary basis then this is normally the preferred method.

Before granting orders, the Local Court must be satisfied that:

  • access to the adjoining land is required for the purpose of carrying out work on your land (this applies when a neighbouring land access order is sought, as outlined below), or
  • access to the adjoining land is required for the purpose of carrying out work on or in connection with the utility service located on the adjoining land (this applies when a utility service access order is sought, as outlined below), and
  • a reasonable effort to reach agreement with every person whose consent to access is required has been made, and
  • there has been at least 21 days’ notice of the lodging of the application and the terms of any order sought to the owner of the adjoining land and to any person entitled to use any utility service on which work is proposed.

Where an application for a neighbouring land access order is not available then you may need to apply for an easement.

Application for an easement under section 88K

If you need to obtain access through neighbouring land on a permanent basis for things such as drainage or utilities, you can apply to the Supreme Court for an order imposing an easement over the adjoining land, under section 88K(1) of the Conveyancing Act. However, you will need evidence to satisfy the court of:

  • Reasonable necessity – the easement is reasonably necessary for the effective use or development of the land. Importantly, “reasonably necessary” does not mean “absolutely necessary”. The easement must be the preferred approach, when compared to the use or development without the easement.
  • Public interest – the use of the land will not be inconsistent with the public interest. That is, the grant of the easement will not prevent or impact adversely upon any activity of the public.
  • Compensation – the owner of the adjoining land and each other person having a registered interest in the land (such as a tenant or mortgagee) can be adequately compensated for any loss or other disadvantage that will arise from imposition of the easement.
  • Negotiation – all reasonable attempts have been made to obtain the easement but have been unsuccessful.

The power of the court to grant an easement is discretionary, meaning that the court itself will need to be convinced that it is appropriate to grant the easement. In doing so, the court has generally approached its decisions by observing the burdening nature of section 88K, that is, the provision interferes with existing property rights of a landowner.

What if I have received an easement request from my neighbour?

If your neighbour has asked you to grant an easement over your land (such as an easement allowing them to run stormwater pipes through your property, for the benefit of their property), you do not have to consent – however if you unreasonably reject such a request, then the Courts may still be able to impose the easement, under the process outlined above.  Sometimes the Court will also impose the easement at some cost to you.

In the 2014 case of ABI-K Pty Limited v Frank Shi [2014] NSWSC 551, the property owner was approached by the neighbour to provide an easement for pipes to be laid along one boundary.  The property owner asked for an amount of $250,000 to be paid by way of compensation, which the neighbour refused.  The matter ultimately went before the Court, which not only ordered that the easement could be granted, but also found that the property owner was entitled to only $21,500 by way of compensation.  Further, the Court held that the property owner had unreasonably refused the initial request, and because the initial compensation offered was deemed adequate, the property owner was also ordered to pay the costs of the neighbour in making the application to the Court.

Costs

Court applications may be more costly than a negotiated agreement. The general rule when applying for an easement or an access order is that the costs are payable by the person seeking the easement or access so it definitely pays to reach an agreement with your neighbour if at all possible.

If you would like more information about easements or access orders please contact Shire Legal on 9526 3444.

 

 

Smaller businesses are not immune from the ACCC

So, as a smaller business, do you think you are immune from the wrath of the ACCC?  Think again.

In recent months, the ACCC has been successful with the following enforcement action:

  • Omniblend Pty Ltd – an online retailer of kitchen applicances – found guilty of resale price maintenance in the Federal Court (penalty of $17,500)
  • Conroys Pty Ltd – a bacon supplier – given an infringement notice for making a false and misleading representation regarding the country of origin of its bacon products (labelled as a product of Australia, when it was in fact made from imported pig meat) ($10,200)
  • Kailis Bros Pty Ltd – manufacturer of frozen prawn meat – were issued with an infringement notice alleging false and misleading conduct by suggesting that the prawns were caught, processed and packaged in Australia, when they were in fact packed and processed in Thailand ($10,800)
  • A Whistle & Co (1979) Pty Ltd – an Electrodry franchisor – engaged in false and misleading conduct by publishing false testimonials on its website (total penalties of $215,000)
  • Clews Holdings Pty Ltd and D Burnz Investments Pty Ltd – retailers of adjustable beds and mobility products – were both issued infringement notices alleging false and misleading representations, by suggesting that the products were approved by the Therapeutic Goods Administration (when they were not) and that they complied with the relevant Australian Standard (when no such standard exists) (penalty of $20,400 each)
  • Clinica Internationale Pty Ltd and Mr Radovan Montague – offered programs for migrants seeking permanent residency – found guilty of false and misleading representations and unconscionable conduct (penalties totalling $1,025,000)
  • Derodi Pty Ltd and Holland Farms Pty Ltd (trading as Free Range Egg Farms) – found guilty of false and misleading representations regarding its claims of its eggs being “free range” (penalty of $300,000)

So if you are concerned that your packaging and/or marketing material may convey a false or misleading representation about your product/service, or if you are concerned about the sales tactics used to sell your product/service, contact Melissa Lammers at Shire Legal to discuss your concerns.

Waltzing Matilda – a trademark?

The media last year picked up on the fact that a Victorian company had applied to IP Australia for a trademark over the phrase “Waltzing Matilda” for goods and services relating to online material, videos, CDs etc.  It was reported that as a result, the town of Winton, which claims it was the birthplace of the song Waltzing Matilda, would be prevented from using the phrase on its promotional and merchandise materials – suggesting instead that it would need to pay for the privilege.

The Mayor is reported as saying:

“We would like not to see it happen, because Winton is the home of Waltzing Matilda and also, Winton is the town that has promoted the song and Banjo Paterson since the 50s, and we’d be sad to see someone is doing this.”

“We’d like to be able to do what we wish with Waltzing Matilda. It is an important part of Queensland and Australia’s history.”

The term “Waltzing Matilda” was actually first trademarked in 1968, by the same Victorian company (WM Productions Pty Ltd) in relation to beverage products and the general film industry.  So over the years, the Victorian company has had to renew the trade mark registration every 10 years, to prevent anyone else applying for its registration.  Nevertheless, over the past 47 years since initial registration, there have been a number of oppositions lodged by other companies interested in securing the rights over the iconic term, usually by claiming that the original trademark holder has not “used” the trademark, therefore the registration should lapse.

Opponents of the renewed trademark have included, amongst others, the Winton Shire Council, the Waltzing Matilda Centre Limited, and Jolly Swagmen Pty Ltd.

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What is non-use?

As the owner of a trademark, you are required to use the trademark in the course of trade.  Otherwise, the trademark registration may be removed because of “non-use”.  Anyone can lodge an application with IP Australia for a trademark to be removed because of non-use – being either:

(a) the fact that the registered owner lodged the original registration with no intention of using the trademark (section 92(4)(a)); or

(b) the fact that the registered trademark has not been used for the 3 years prior to the application being lodged (see section 92 of the Trade Marks Act 1995).

Anyone who opposes the application can lodge evidence as to use of the trademark, warranting its continued registration.

One application leads to another, and another …

Interestingly, on the same day as the above media report appeared, an individual (with a contact address in Winton, Queensland) also applied for registration of the trademark “Waltzing Matilda” in so far as it relates to “paper postcards, picture postcards and postcards” (all within class 16).

And 5 days after the above media report appeared, another individual applied for registration of the trademark “Waltzin’ Matilda” for the same classes of goods and services as WM Productions Pty Ltd has applied for (being classes 16 and 41).

“Show cause”

As it turns out, the Victorian company’s application for the registration of “Waltzing Matilda” in the broader range of products was rejected, and the applicant now has until December 2016 to argue their case.

Watch this space …

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If you have a specific term or phrase that you would like to prevent your competitors from using, you should consider registering a trademark – contact Melissa Lammers on 95263444 or mlammers@shirelegal.com.au to discuss how Shire Legal can help you with the trademark registration process.