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Many people find themselves in a situation where there is a judgement debt against them without their knowledge. A judgement debt is an enforceable Court order, and can affect your credit rating. It might be the case that you did not receive the original claim in the post, and therefore were unaware of the proceedings, or it might be the case that you have a reasonable excuse for not having complied with the timeframes or procedures, and have an arguable case against the judgement debt. If you are aware of a judgement debt that has been made against you, it is very important to act urgently and seek legal advice. You may be able to apply to set aside a default judgement if you can prove the following: You have an arguable case on the merits; andYou have a reasonable excuse for not having complied with the rules with respect to filing a defence within the 21 day time limit. A reasonable excuse must be one which illustrates why you could not or did not file your defence on time. There may be many reasons for this, such as not receiving the claim, moving address, are on holiday, an error with respect to the address for service, the claim being posted to a company, agent, or accountant, or otherwise...

Earlier this year it was announced that the two remaining locations of Hog’s Breath Café in South Australia were being forced into liquidation. This resulted in outrage from the wider community, with the sudden nature of the announcement causing significant inconvenience and turmoil to employees of the franchise and those who had made prior reservations at the restaurant. In a swift turn of events, Hog’s have announced that they will re-open their doors at Glenelg under new management in hope of reigniting the success that the restaurant chain have known in the past. This incident is a stark reminder that when entering into a franchise, due diligence must be carried out in relation to any legal documents you are signing as well as the Franchise Agreement. A franchisee typically has significant obligations under the agreement in an insolvency event, and those obligations can extend to the individual through personal guarantees. A senate inquiry into the operation and effectiveness of the Franchising Code of Conduct produced a report earlier this year. This report advised that it is vital for a prospective franchisee to obtain ‘professional and informed legal and accounting advice before entering into a franchise agreement or contracts related to a franchise opportunity’. (Parliamentary Joint Committee on Corporations and Financial Services – Fairness in Franchising March...

An investigation by the Australian Consumer Watchdog and subsequent interim report by the Australian Competition and Consumer Commission (ACCC), focusing on the warm climate regions such as the Riverland in SA, has revealed concerning practices. These range from disputes over quality assessments to some wine grape growers experiencing wait times of up to 9 months in order to receive payment for their grapes. There is typically a significant disparity between wineries and growers. The ACCC noted that this imbalance is restricting the growth of the Australian wine industry. 4 key points were highlighted in this interim report: Quality assessment - the lack of an objective measure for quality assessment is causing difficulty for growers on delivery. Uncertainty on pricing – the lack of certainty in pricing causes difficulty for growers in managing profitability for their vineyards. The ACCC has recommended implementing indicative pricing for growers. Nevertheless there may be legal ramifications to winemakers by way of price signalling. Long term payments - the Wine Industry Code of Conduct implements a staggered payment method, which takes into consideration both the timing for growers cash flows, and also the timing for wine production after delivery and for orders from retailers and distributors. The ACCC’s report has identified many growers are waiting for periods...

It is common for businesses to provide a warranty against defects to consumers such as to the nature, quality or performance of the Goods or Services. Warranties can be provided in documents, advertisements in your business premises, or in discussions with the customer.  In such situations the warranty document you provide must comply with specific Australian Consumer Law (ACL) requirements. The ACL requirements override anything else you state. You may say that you will: Repair or replace goods (or part of them) Resupply or fix a problem with services (or part of them) Provide compensation to the consumer if any fault arises within 12 months of the purchase of the goods or the supply of services or a combination of goods and services by saying ‘1 year warranty’. In such circumstances the ACL may still give the consumer rights if defects occur after 12 months. Furthermore the ACL sets out what you need to state in a document about warranties, such as procedures to be followed. There is also what is referred to as the Mandatory Text requirement. This is essential for you to state. It is specified in the ACL. The text relates to the guarantees that cannot be excluded. The text specifies the circumstances when the consumer has the choice to have goods or services repaired,...

For many, preparing a Will can be a daunting task. There are often concerns about the time involved or even thinking about death. However, given the rising number of inheritance disputes, having a professionally drafted Will is more critical than ever. Your Will ensures that your assets are distributed in accordance with your wishes. Take for example a couple who have been dating on-and-off again for 3 years but then the relationship ended. The law may conclude on the facts that they were in a de facto relationship for a time. As such, even though the relationship ended, the surviving individual may claim against the family and the estate will be in litigation for sometimes several years. DIY Will kits are relatively inexpensive to purchase. However the money you save upfront can be far outweighed by the issues faced by your loved ones upon your passing. If errors are made within the document, including whether the strict witnessing rules are adhered to, then the document could be deemed invalid. DIY Will kits are unable to provide you with options and guidance regarding complex situations including blended families, trusts or self-managed super funds. Neglecting to attain expert advice could leave your assets vulnerable to unnecessary tax and prolong the grant of probate.  Making sure your...

Adelaide Franchise Lawyers - Muffin Break backlash for unpaid work Buying a franchise can be a highly rewarding venture both personally and financially. However, as we have seen in a recent incident with Muffin Break, there are a number of important factors that must be considered before signing on the dotted line. In an interview with Muffin Break’s General Manager Natalie Brennan that was posted over the weekend on www.news.com.au, comments that she made regarding Millennials and unpaid work were released. These comments have gone viral, receiving significant backlash from the community. When you buy into a franchise, you are paying for the benefits that come with that brand. Unfortunately you are also exposed to any negative publicity or other risks that the brand incurs. It is important to consider that if you want to sell a profitable business, and there is negative publicity which you have not caused, you may still have issues. We recommend buyers to research the brand, talk to current franchisees, and seek professional advice. Existing franchisees who experience negative publicity should also seek advice as to strategies to mitigate that risk and the legal options available to you. For any advice or assistance in relation to franchising, speak to one...

Co-parenting – Nesting Arrangements Nesting is a concept emerging from cases where parents have concerns about the negative impact a separation has on their children and they wish to maximize their children's stability. Nesting refers to an arrangement whereby the children remain in the family home and the parents take turns living in the home with the children. In our society, it is more common for the children to shuttle back and forth between the parents in their new separate residences, but some families either in the short or long term prefer not to impose such an arrangement on their children. In most situations, parents adopt this approach as a temporary measure either during the early stages of their separation or in some cases to enable a child to complete their high school education without disruption. Benefits The children have continuity and their routine is not disrupted. There is an ease of reconciliation in the event that the parents are only trialling a separation, whilst ensuring that both parents can maximize their time with the children. The children have stability. The children can live in their familiar environment while they get used to the reality of the separation. The parents have an opportunity...

The Law Society of South Australia - BULLETIN ARTICLE OCTOBER 2018 Tips for Young Lawyers Practicing in Family Law By Erica Panagakos, Senior Associate, Belperio Clark  I remember my first family law file well. Whilst my other files sat neatly in their tidy manilla folders, the family law matter was spread across my office floor in a series of archive boxes. One of my first tasks was to inspect and copy subpoena material from the Department for Child Protection. I arrived at the Registry expecting to find a few documents and was somewhat stunned when the clerk asked me which box I wanted to look at first. I spent most of the next two weeks sifting through the boxes of material which contained all kinds of hideous and confronting information. Family law is often complicated and stressful. However, it is interesting and rewarding and there is never a dull moment. As a newly admitted lawyer, I was fortunate enough to have good support around me at my office but no one can manufacture years of experience. I have put together some basic tips which I don’t profess to be exhaustive but you might find them helpful if you are a young lawyer practising in...

[caption id="attachment_2953" align="alignleft" width="1024"] Lawyers “fuelling family conflict”[/caption] Written by Bev Clark Lawyers “fuelling family conflict” I am very pleased to read the article in The Australian Newspaper on 31 October 2018 with the above heading. It was pointed out that a family law Judge has hit out at “horribly aggressive lawyering” driven by profit that is driving up costs in divorce proceedings and fuelling conflict between parents. Whilst it was highlighted as occurring especially in Sydney, it is my view that this also occurs in other states, including Adelaide. Lawyers are traditionally trained to be gladiators for their clients and to fight for their clients desires. It has always been the view at Belperio Clark that a gladiator approach is unhelpful. We prefer to see ourselves as lawyers acting as wise guides for clients when they are going through the worst time in their lives. Our philosophy mirrors the concern that has been raised by Federal Circuit Court Judge Harman. To quote Judge Harman “their job (meaning the lawyers) is to be problem solvers, to help people find resolution of conflict, rather than to generate conflict, to fuel it, to create it where it didn’t previously exist”. In a book released by mediator Zoe Durand...

  COMMERCIAL LEASES When: Wednesday, 10 October 2018 at 5:30PM – 7:00PM Registration through: Eventbrite (https://www.eventbrite.com.au/e/commercial-leases-tickets-49074267455) or Belperio Clark Lawyers Venue: Don Pyatt Hall, 175 The Parade, Norwood SA 5067 If you are running a small business, you will likely need to negotiate a commercial lease at some stage. Commercial leases are a significant cost and ongoing liability to small business. Landlords often have significant bargaining power when negotiating the lease. Understanding the basics and what to look for in a lease will assist small business owners in avoiding detrimental terms and managing risk when negotiating rent. Belperio Clark Lawyers presents this free information session outlining negotiating commercial leases, understanding the lease agreement, and what to do when you have a problem.   FRANCHISEE RIGHTS AND THE FRANCHISING CODE When: Wednesday, 14 November 2018 at 5:30PM – 7:00PM Registration through: Eventbrite (https://www.eventbrite.com.au/e/franchisee-rights-the-franchising-code-tickets-49074410884) or Belperio Clark Lawyers Venue: Belperio Clark Lawyers, 94-98 Sturt Street Adelaide SA 5000 When buying into a franchise, it is important to have clear expectations on the franchisor and the relationship. Franchise contracts often place significant obligations on franchisees, but can be quite hard to navigate. The 2018 Senate Inquiry into franchising has highlighted many issues surrounding franchisor conduct and disputes in franchising. It is crucial for franchise owners to understand how franchising works and their options...

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