Published in Corporate & Commercial on 20th Apr 2016

Accessing Preferential Tariffs Only those goods which “originate” in either China or Australia will be able to qualify for preferential tariff treatment under the ChAFTA. Goods will be considered “originating” if: they are wholly obtained or produced from wholly obtained goods in China or Australia; or they are produced entirely in China or Australia from materials classified as ‘originating’; or they are produced in China or Australia using inputs from other countries which meet the Product Specific Rules. Wholly obtained goods typically include goods that are sourced directly from natural resources including live plant and animal products, minerals and naturally o...

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Published in Corporate & Commercial on 13th Apr 2016

Is the Foreign Company ‘Carrying on Business’? Foreign companies that do not meet the ‘carrying on business’ threshold in section 21(2) of the Act may not need to register. It is therefore necessary to consider the specific nature of your intended Australian business activities. At common law, courts have interpreted the threshold as a ‘systematic and regular carrying on of business with a view to profit.’ Foreign companies that merely seek to invest funds, collect debts or hold property will generally not be required to register.     Registration If a foreign company is deemed to be ‘carrying on business,’ it is required to register with ASIC in the prosc...

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Published in Corporate & Commercial on 10th Aug 2015

Can a binding agreement be created over email? In the recent decision of Stellard Pty Ltd v North Queensland Fuel Pty Ltd, The Supreme Court of Queensland held that a binding contract of sale existed where parties had communicated via email and intended to later enter into a written agreement.  Stellard Pty Ltd v North Queensland Fuel Pty Ltd North Queensland Fuel (NQF) and Stellard negotiated via email for the purchase of a petrol station. Stellard sent an email to NQF containing the terms of their purchase offer. Notably, a follow up email from Stellard stated “this offer is of course subject to contract” and “[we] need acceptance of our offer immediately so we are in a pos...

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Published in Corporate & Commercial on 26th Sep 2011

Background Luxottica Retail Australia Pty Ltd (“Luxottica”) owns subsidiaries such as OPSM and Budget Eyewear and deals in eye-wear and eye-care. Luxottica, and its subsidiaries, promoted the sale of frames for glasses at a discount on the condition that the customers purchase the lenses that fit the frames at full price. Under the Act the supply of lenses is considered a GST-free supply while the supply of a frame is considered a taxable supply. A dispute arose as to the correct application of GST on the promotion. The inherent circularity of section 9-80 Section 9-80 of the Act contains the equation used to determine the GST payable on mixed-supplies; that is supplies that contai...

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Published in Commercial Agreements on 21st Nov 2021

What constitutes a small business? The legislation defines a small business as a business that employs less than 20 employees. The definition includes all full-time, part-time and even casual employees if they are engaged on a regular basis. What is a standard form contract? Several factors need to be taken into account in determining if a contract is standard form. Generally, standard form contracts are those which contain standardised and non-negotiated terms, are prepared by one party prior to entering into the transaction and are offered on a ‘take it or leave it’ basis.  Contracts will be presumed to be standard form unless a party proves otherwise. Examples of comm...

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Published in Competition and Consumer Law on 26th Mar 2012

Background Mercland Investment Group (“Mercland”) entered into a Contract of Sale with Duncalm Pty Ltd (“Duncalm”) for the purchase of a parcel of land comprising a petrol station and a variety of fast-food outlets (“the Service Centre”). Before its sale Duncalm engaged engineers to advise on the design of the car parks and driveways. Not all the specifications stipulated in the designs were followed. In fact, inferior materials and construction methods were used to cut down on costs. This made the pavements more susceptible to damage and caused the concrete to break upon pressure. The decision to construct the car parks and driveways in this way rendered them unsuitable for...

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