Issue 5 - June 2004

• www.wmdlaw.com.au - Warren McKeon Dickson launches Website
• Commencement of the State Revenue Legislation Amendment Act
• Is there a concluded agreement?
• Bankruptcy proceedings - an effective way to obtain payment of debts
• Who is the legal owner of what your employees make at work?
• WMD Seminar Series

Access past WMD Newsletters and information on all areas of our practice www.wmdlaw.com.au - Warren McKeon Dickson launches Website

Since launching the WMD Newsletter earlier this year, we have received many requests for access to past editions, inquiries on the services we offer and other questions about our staff and their experience. wmdlaw.com.au contains all of this information and much more as well as links to many courts and government departments. We invite you to take the time to look at our website and our newsletters (in the publications section) by clicking on the following link www.wmdlaw.com.au. You can also browse our site by clicking on the links at the top of this Newsletter. Notices of upcoming events in the WMD Seminar Series will also be available through this newsletter and on our website.

Please pass this email newsletter on to any family, friends or business colleagues you think may benefit from receiving free and regular updates on the law. For anyone wishing to link to our site or to make any queries or suggestions regarding the site, please telephone email Kevin Dwyer at kevin@wmdlaw.com.au.

Obtain a copy of our report on the NSW Property Tax Changes Commencement of the State Revenue Legislation Amendment Act

The State Revenue Legislation Amendment Act commenced on 1 June 2004 and accordingly, the new vendor duty now applies for the first time in relation to the sale of land in New South Wales.

The Act will revolutionise revenue law and its effects will be far-reaching. If you would like to download a copy of our report on the effect of the Act, please click on this link - WMD Report.

If you would like any more information in relation to the effects of the Act or how it may affect your transaction, please telephone Rebecca Flynn or email rebecca@wmdlaw.com.au.

Are the parties in agreement? Is there a concluded agreement?

When persons negotiate to reach agreement, 2 questions may arise if there is a dispute as to whether an agreement was concluded. The first is whether the parties to the contract intended to make a concluded agreement. The second is whether they succeeded in doing so.

As to the first question, there is little value in the subjective views of the parties as to whether they have made a legally enforceable agreement. The objective facts must be looked at. There are 4 situations in which the parties may find themselves:

The parties may intend to be bound immediately and express a desire to draw up their agreement in a more formal document later; or 
They intend to be bound immediately but wish the operation of a particular term to be delayed pending the drawing up of a more formal document (or performance of the whole contract is conditional upon execution of a formal document); or 
There is no intention to create a concluded bargain at all until there is a formal document; or 
There is a provisional contract but the parties intended to make a further contract in substitution for the first, containing additional terms, in due course. 

The existence of these 4 categories has been recognised in numerous legal cases.

As to the second question, subject to the decision made in relation to the first question, all that is necessary is that the essential terms of the contract have been agreed. That is, the terms must be both unambiguous and sufficiently comprehensive and in this event, a concluded agreement will have come into operation.

If you require any further information about when an agreement is concluded or if you need advice on any contractual matter, please telephone Bob Warren or email bob@wmdlaw.com.au.

The most common act of bankruptcy is failing to comply with a Bankruptcy Notice  Bankruptcy Proceedings - an effective way to obtain payment of debts

Due to the stigma associated with being declared bankrupt and because of the adverse effect of bankruptcy on a person's credit rating, many debtors (individuals but not corporations) do not wish to be declared bankrupt. 

Accordingly, commencing bankruptcy proceedings can be an effective way of obtaining payment if you are a creditor.

Before a person is declared bankrupt, the Court must be satisfied that the person has committed an "act of bankruptcy" in the 6 months before the commencement of the bankruptcy proceedings. The most common act of bankruptcy is failing to comply with a Bankruptcy Notice.

After obtaining a judgment against the debtor, the creditor obtains and serves a Bankruptcy Notice issued by the Insolvency and Trustee Service of Australia, which requires the debtor to pay the debt within 21 days of service. If the debtor does not dispute the validity of the Bankruptcy Notice or pay the judgment debt within that period, then the debtor will have committed an "act of bankruptcy" and the law will presume the debtor to be insolvent, entitling the creditor to commence bankruptcy proceedings by having the Court issue a Creditor's Petition.

For any enquiries in relation to the bankruptcy process, please telephone Craig Pryor or email craig@wmdlaw.com.au.

Federal Court finds employee's invention created outside scope of normal duties Who is the legal owner of what your employees make at work?

If your employees invent a product using your resources do you receive a benefit, a share, or full legal ownership. The answer could be any of these depending upon the terms of the employment contract between you. To find the answer you would firstly want to ascertain whether the invention was made in the course and scope of employment

In the case of Spencer Industries Pty Limited v Collins a machinist used his employer's time and materials and the assistance of his co-workers in the creation of an invention. There was no term in his contract of employment specifically dealing with the issue and the Federal Court found that the invention was developed outside the scope of the employee's normal duties. This devastating result for the employer could have been easily prevented by an appropriate clause in the contract of employment.

To receive advice upon the limitations of your contracts of employment or to have your employment contracts revised and updated please contact kevin@wmdlaw.com.au.

Register your interest now for the next seminar in the WMD Seminar Series  WMD Seminar Series

In conjunction with Law Week in May, we launched the first week of seminars in our ongoing WMD Seminar Series. The Revenue Law & Risk Management Seminars were convened by the WMD Property Group and focused on the recent revenue law changes which affect property in New South Wales.  We originally anticipated having one seminar, however as the response was so overwhelming we ran four breakfast seminars over four separate days during Law Week. The content of the seminars provoked much discussion and questions from the participants on what are currently very topical issues. We were pleased to receive favourable reports from participants and thank all those who attended for their support and contribution.

Following the success of the Property Law seminars we will be conducting a seminar titled "Employment Law for Employers" in the week beginning 23 August 2004. 

Please email dean@wmdlaw.com.au to register your interest. Given the response we received for the Property Law seminars, we recommend that you register your interest as soon as possible to secure your place.

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