Our office will be closed from 4pm on Friday, 22 December 2017 and will re-open on Monday, 15 January 2018.
We wish you a very merry Christmas and a happy and prosperous new year ahead in 2018.
Our office will be closed from 4pm on Friday, 22 December 2017 and will re-open on Monday, 15 January 2018.
We wish you a very merry Christmas and a happy and prosperous new year ahead in 2018.
So, what is AUSTRAC and what does it do?
The Australian Transaction Reports and Analysis Centre (AUSTRAC) is tasked with enforcing compliance with the Financial Transaction Reports Act 1998 (FTR Act) and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (AML/CTF Act).
One of the purposes of the FTR Act and AML/CTF Act is to seek to ensure that instances of tax evasion, money laundering and the potential financing of terrorists are reported to the appropriate authorities.
The AML/CTF Act
The AML/CTF Act imposes obligations on entities that provide ‘designated services’ (such as account/deposit-taking services, cash carrying/payroll services, currency exchange services, life insurance services and lending).
Entities that provide one or more designated services under the AML/CTF Act are ‘reporting entities’.
Threshold transactions
Reporting entities must submit a Threshold Transaction Report (TTR) to AUSTRAC within 10 business days after the entity provides a customer with a designated service involving a ‘threshold transaction’.
Threshold transactions involve the transfer of physical currency or e-currency of AUD$10,000 or more (or foreign currency equivalent).
International funds transfers
The ‘sender’ of an International Funds Transfer Instruction (IFTI) transmitted out of Australia, or the ‘recipient’ of an IFTI transmitted into Australia, must report the instruction to AUSTRAC within 10 business days after the day the instruction was sent or received.
Suspicious matter reports
A reporting entity must submit an Suspicious Matter Report (SMR) to AUSTRAC within 24 hours after forming the relevant suspicion if the suspicion relates to terrorism financing (or otherwise within 3 business days) if it is suspected on reasonable grounds that:
The FTR Act
Where an entity is covered by the AML/CTF Act (which was enacted years after the FTR Act), they are generally not covered by the FTR Act.
The FTR Act covers cash dealers include financial institutions, corporations that provide financial or insurance services, trustees and managers of unit trusts and a person who carries on a business of operating a gambling house or casino. The obligations of solicitors are also prescribed by the Act.
Where a significant cash transaction takes place (a cash transaction involving AUD$10,000 or more (or foreign currency equivalent including transactions which, when aggregated, exceed that amount), a Significant Cash Transaction Report (SCTR) is to be lodged with AUSTRAC.
Cash dealers who are a party to a ‘suspect’ transaction must report that transaction to AUSTRAC. The cash dealer must submit a suspect transaction report (SUSTR) to AUSTRAC as soon as practicable after forming the suspicion.
The objective of the FTR Act is that by preparing the reports to AUSTRAC, businesses can more easily identify their customers and are therefore more likely to reduce the incidence of fraud.
WHAT IS AN INDEMNITY CLAUSE?
An indemnity clause is a common clause in contracts, whether for the supply of goods, terms and conditions of the provision of services, leasing of assets or the sale of property.
The indemnity is intended to assign responsibility for risks in performing the contract to a particular party – it either confirms or alters the position at common law which would otherwise apply to determine responsibility for such events.
COMMON EXAMPLES
When drafting an indemnity, the nature and types of losses that may arise need to be considered.
Common areas that you may want an indemnity clause or limitation of liability cause to cover may include: negligence; injury to or the death of any person; loss of or damage to property; infringement of third party rights, such as intellectual property rights; duties and taxes; and legal costs and disbursements.
REMOTENESS & REASONABLE FORSEEABILITY
The common law (extending back to the 1854 case of Hadley v Baxendale) basically provides that if a head of damage wasn’t contemplated by the parties at the time of contracting (wasn’t reasonably foreseeable) or didn’t arise naturally arises from the breach according the usual course of thing (is too remote) – it may not be a recoverable loss.
Accordingly, if the damages that you may want the other party to wish the other party to bear on the occurrence of a certain event are considered remote, then they would probably not be recoverable at common law and therefore, you may wish to specifically provide for them in the clause.
The other party may not agree, so the negotiation would then begin and the parties will ultimately have to agree on what is a reasonable compromise in the circumstances.
DRAFTING THE INDEMNITY
Commonly, indemnity clauses are drafted such that where a right to indemnity arises, the liability reduced to the extent that the party benefited by the clause caused or contributed to the loss, that is reduced proportionally.
The extreme in indemnity clauses is where the liable party is liable absolutely (ie, there is no carve out to reduce the liability proportionally). This type of clause, given its strict nature, is usually only agreed to where the event is wholly within the control of the indemnifying party.
INSURANCE COVERAGE
Just as the strength of a personal guarantee is in the financial standing of the guarantor, you also need to be satisfied that the party providing the indemnity has the means to meet any claim if called upon. Often, a party is required to have insurance to support any indemnity but they fail to investigate the extent of their cover and are often not insured at all.
FURTHER INFORMATION
Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to any contract negotiation, agreement drafting issue commercial dispute, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.
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(Note this 2017 blogpost is outdated as of 01 October 2026 when the surcharge ban comes into play). If your business charges customers a surcharge on transactions, be aware that from 1 September 2017, all businesses that impose payment surcharges on card transactions need to comply with the the Competition and Consumer Amendment (Payment Surcharges) Act 2016 which bans ‘excessive’ payment surcharges.
The new laws cover surcharges on typical card payment methods:
*Note that the benchmarks will not apply to foreign-issued cards. American Express proprietary cards (issued by American Express directly) are not covered by the ban, nor are BPAY, PayPal, Diners Club cards, UnionPay, cash or cheques.
The purpose of the legislative ban is to stop excessive surcharges – those charged at a price more than the actual cost of accepting that payment method. The cost to a business of accepting each payment method known as the ‘cost of acceptance’ for that method and is determined according to the Reserve Bank of Australia (RBA)’s standards set by the RBA Payments Systems Board.
A payment surcharge is generally considered excessive if it exceeds the ‘cost of acceptance’.
If your cost of acceptance for Visa credit cards is 1%, then you can only charge a maximum of 1%, not 2% or 3%.
The cost of acceptance can include merchant service fees, fees paid for the rental and maintenance of payment card terminals, any other fees incurred in processing card transactions, fraud prevention services, insurance etc but these must be able to be verified by contracts, statements or invoices.
Businesses cannot include any of their own internal costs when calculating their surcharges (for example, labour or electricity costs).
The Australian Competition & Consumer Commission (ACCC) is responsible for enforcing the ban and can:
Receiving such a penalty would be a disastrous hit to small business, so make sure you comply with the payment surcharge changes. Ask your financial institution to let your know what the average cost of accepting cards is and review it annually so you don’t get caught out.
You may also need to update your business’s Terms of Trade.
Westpac notes costs of acceptance here, NAB here and ANZ here
FURTHER INFORMATION
Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to business law, litigation and dispute resolution or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.
What is a franchise?
A franchise is a business system controlled by the franchisor, using the franchisor’s symbol or trade mark for a fee, subject to rules/restrictions/restrictions as stated in the relevant Franchise Agreement.
Given the bargaining power of the franchisor and franchisee being very different, the relationship of franchisor/franchisee is regulated to help ensure fairness in their dealings.
The Australian Competition & Consumer Commission (ACCC) regulates the Franchising Code of Conduct (Franchising Code), which is a mandatory industry code that applies to the parties to a franchise agreement.
Franchising Code
The Franchising Code is in Schedule 1 to the Competition and Consumer (Industry Codes – Franchising) Regulation 2014 made under s. 51AE of the Competition and Consumer Act 2010. The Franchising Code applies from 1 January 2015 and replaces the previous 1998 code.
In short, the Franchising Code:
Disclosure Document
An important requirement of the Code is the requirement for the franchisor to provide a prospective franchisee with a “Disclosure Document”.
The purpose of the Disclosure Document is to provide prospective franchisees, and existing franchisees that wish to renew or extend their existing agreement, with information about the business and the franchisor to allow the franchisee to make an informed decision about the franchise and obtain current information regarding the franchised business.
The Disclosure Document must provide information on the business, including:
If you are purchasing a franchise, before entering into an agreement, you should seek legal and accounting advice.
FURTHER INFORMATION
Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to buying/selling businesses, franchises or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.
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Jury service plays an important role in our justice system. Juries are used to ensure that legal verdicts are impartial and in line with community standards of behaviour.
In criminal trials, a jury hears evidence, applies the law as directed by the judge, and decides if a person is guilty or not guilty of a crime, based on the facts. A jury does not participate in the sentencing process.


WHY HAVE A BUY/SELL DEED?
A Buy/Sell Deed is an agreement between the owners of a company or unit trust that upon the death or permanent disablement of a director or key person associated with a shareholder/unitholder, that shareholder/unitholder must transfer its shares to the remaining shareholders in exchange for payment.
The method of determining the price is agreed and the funding of that payment usually comes from the proceeds of insurance policies to be taken out for those risks by the shareholders/unitholders.
A Buy/Sell Agreement is not a general Shareholders Agreement or Unitholders Agreement so it does not regulate all dealings in relation to the company.
COMMON SCENARIOS A BUY/SELL COULD HELP PREVENT
Consider the following and how it may affect you and your company…
CERTAINTY
A Buy/Sell Agreement is designed to bring certainty in relation to the exit from a business as the result of death or permanent disability of a key person – certainty for an ill shareholder, a deceased shareholder’s family, the remaining owners and the company itself. Don’t leave it to chance.
FURTHER INFORMATION
Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to Buy/Sell Deeds, Shareholders Agreements, any or any commercial dispute or issue, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.
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So you have an offer to buy your business. How exciting!
Although there may be agreement on the price being paid and the amount of deposit, what else needs to be considered?
Who does what?
You need good advice. You are great at what you do, but you cant do everything. You need a great team of advisers – this is their thing.
Your lawyer will be required to prepare the legal documents that give effect to the sale (such as Business Sale Contract, Share Sale Agreement, Deed of Restraint, Deed of Consent to Assignment of Lease, Employment Contracts, Deed of Novation, Consultancy Agreements etc… yes, there may be others).
Your accountant can advise on the price apportionment and taxation implications, whether GST is payable or not, and how to make the most of any CGT concessions, exemptions and rollover relief such as those relating to small business and retirement.
Your financial adviser can give you advice on what to do with your cash to make the most of it now or in retirement.
What are you actually selling?
It would seem obvious, but have you considered what you are actually selling? Are you selling your business or, in the case of a company or unit trust, the entity that owns it?
There is a big difference, particularly given that entitlements to income and liability for expenses incurred prior to completion of the sale will remain with the vendor under a business sale whereas in the case of a share sale, the whole lot will be under the control of the purchaser from completion.
This will also affect how much due diligence a purchaser may undertake – as any prudent purchaser would have concerns about potential claims, tax debts etc
The usual things
Assuming a sale of business, not a share sale, some of the other things to consider is what is included in the sale?
Although an exciting time, there are many issues that need to be considered when you are selling your business. The abovementioned items are certainly not an exhaustive list of things to consider and every business is different, but hopefully it gets you thinking about what you may need to consider when selling your business.
FURTHER INFORMATION
Craig Pryor is principal solicitor at McKillop Legal. For further information in relation to buying/selling businesses, intellectual property or any commercial law matter, contact Craig Pryor on (02) 9521 2455 or email craig@mckilloplegal.com.au.
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your legal concerns or objectives.
Stay up to date – LinkedIn | Facebook | Twitter | McKillop Legal Blog
A BUSINESS NAME DOES NOT CONFER OWNERSHIP
Having a business name is a requirement so that people can ascertain the owners of a business they are dealing with. The register of business names is now maintained by ASIC.
Registration of a business name is required before carrying on a business or trade within Australia. Exceptions to registration include:
While a business name is often used as a brand or trademark, having business name registration does not give ownership of that name. Only a trade mark under the Trade Marks Act 1995 (Cth) can provide that kind of protection.
Don’t rely on a business name registration thinking that it gives you any protection – it doesn’t give you any protection at all.
If you register a business, company or domain name, you do not automatically have the right to use that name as a trade mark. The same word(s) may be able to be registered by different people as a business name in other states and territories.
A REGISTERED TRADEMARK IS NECESSARY TO OWN A NAME
If you have a registered trade mark, you do have exclusive use of the trade mark throughout Australia (and other jurisdictions if you obtain registration there also) and you can take legal action for infringement of your trade mark if another person or entity uses it for goods or services like those covered by your trade mark registration.
A trademark can be a word or words, a phrase, a logo or a combination thereof (and even scents, sounds and colours!) which identify and distinguish a business’s goods or services from those of others. You can also trade mark your domain name if it fits within the requirements of the legislation.
There is no legal requirement to use the TM or ® symbols however, the TM symbol indicates that you have a pending application for the brand or that you are claiming some rights in the name without trademark registration whereas the ® symbol indicates that the trademark is actually registered.
After establishing or growing a business, the last thing you would want to do is receive a ‘cease and desist’ letter from the lawyers of a competitor asking you to cease using their client’s trade mark and to account to them for profits you have made, so don’t rely on a business name registration thinking that it gives you any protection, as it does not!
If you or your clients that are trading without a registered business name or under a brand without trademark protection, then they should be referred for advice by an expert in the area.
Similarly, if you have a trademark and become aware of someone infringing on your trademark, such as by using a very similar name or logo or indicating they have some association with your business or products when they do not, you should get advice from a lawyer on sending an appropriately worded letter asking them to cease using it,
FURTHER INFORMATION
For further information in relation to intellectual property, IP licensing or infringement or any commercial law matter, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au
This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.