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Injunctions & Family Law

The Family Law Act of Australia gives Courts wide powers to prevent married or defacto couples from harassing each other or to restrain a party from entering into specified premises or from disposing of or otherwise dealing with a property or financial resources such as superannuation. Such powers are called injunctions.

Injunctions can not only affect the parties to a marriage but can also affect other people whose finances are linked to the parties. For example: a party to a marriage or defacto relationship could be ordered not to dispose of property pending a final property hearing even though such an Order may affect another person who has a half share in the property.

Injunctions can also be made to prevent persons from dealing with bank accounts, superannuation, shares, motor vehicles and all sorts of other property.

An injunction may be sought to give a party to a marriage or defacto relationship sole use and occupation of a property where the Court thinks it is appropriate.

Such circumstances might arise where parties to a marriage or defacto relationship are separated under the one roof and circumstances have arisen where such an arrangement is intolerable because of the behaviour of one or both of the parties.

Applications for injunctions can sometimes be made on an urgent basis without notification to the other party if there is a clear and demonstrated need to quickly protect property or restrain certain behaviour.

Injunctions are only considered where it is important to protect property or restrain certain behaviour. If injunctions are not complied with then the Court has wide powers to punish one of the parties including fines, bonds, and imprisonment.

Whyte Just & Moore Family Lawyers have experience in such matters. Please contact one of our Family Lawyers for advice if you believe an injunction may be required.

Ross Brown
Accredited Specialist - Family Law

Retail Leases - Know What You Are Signing Up To

When business owners find suitable premises, whether it be to run an existing business or to set up a new business venture, they are often keen to move in as quickly as possible to "set up shop". This eagerness can lead to the hasty signing of a formal Lease.

Without properly considering their rights and obligations as Tenants and how the Lease conditions could impact their business, some business owners may find themselves bound to a lengthy Lease of a premises which is unsuited to their needs and an unavoidable hurdle to the development of their business.

Prior to the formal execution of a Lease, it is common for a "Letter of Offer to Lease" to be prepared by a real estate agent (if a managing agent is involved). This will set out the terms upon which the Tenant is prepared to Lease the premises. Once the offer is submitted to the Landlord, there is usually a period of negotiating before the terms of the Lease are agreed to by both Tenant and Landlord.

A common "sticking point" for Landlords and Tenants alike are the works and alterations that the Tenants want completed at the premises before they move in, particularly if part of the Premises is in need of repair.

Where an Offer to Lease sets out the Landlord's works as agreed by both parties, it is crucial that these terms outlined in the Offer are the terms reflected in the signed Lease and the Landlord's works are done to the Tenants' satisfaction and as agreed.

Should Tenants find themselves with premises in disrepair, the law does not impose an obligation on the Landlord to undertake repairs, unless the premises is so damaged that it can not be used for the permitted use.

The remedies available to Tenants are limited. Under most circumstances, a court will rarely order a Landlord to carry out repairs and neither party can, generally speaking, terminate the Lease. This leads to disgruntled Tenants bound to a multiple-year Lease of premises which is sub-standard and can be damaging to their business.

Always seek legal advice before entering into a Lease. Understanding the terms of a Lease and your rights and obligations as Tenants can play a significant part in the success or failure of your business.

Lauren Smyth - Lawyer

Unfair Contracts

From 1 January 2011, the Competition and Consumer Act 2010 ("CCA") replaced the Trade Practices Act 1974 ("TPA"). Now under the CCA, the Australian Consumer Law ("ACL") applies to conduct by both individuals and corporations.

Part 2-3 of the ACL relates to unfair contract terms in "standard form contracts". A contract is a "standard form contract" unless proven otherwise. A major, but not the sole, factor that may determine if a contract is a "standard form contract" is each party's ability to negotiate the terms of the contract. The unfair contract terms came into effect on 1 July 2010 and do not apply to contracts formed prior to that date unless the contract is varied or renewed after that date.

If a term in a Consumer Contract has been found to be unfair, then that term is found to be void and therefore unenforceable. The rest of the Consumer Contract will continue to bind the parties if it can continue to operate without the unfair term.

The ACL also provides a list of examples of unfair terms. Generally these examples are ones which give a power to one party, but not the other e.g. the ability for one party to vary the contract, but not the other.

The ACL sets out a three part test for the Courts to use when deciding whether a term is "unfair".

The unfair contract provisions will not apply to certain terms of a consumer contract, such as those that set out what the contract is about, those that set out an upfront price payable, or those terms required, or expressly permitted, by Law. It will also not apply to some contracts.

In light of these changes to the consumer protection law in Australia, we would strongly recommend that our clients take this opportunity to review all documents they use to ensure their compliance with the CCA. Any one of our WJM commercial lawyers would be pleased to assist you with such a review.

Helen Buchan - Lawyer

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