Extended Warranties and Misleading Representation

shutterstock_115808962Fisher & Paykel Customer Services Pty Ltd (Fisher & Paykel) and Domestic & General Services Pty Ltd (Domestic & General) have both been hit with a $200,000 penalty after misleading their customers into believing that their products won’t be protected against repair costs after the warranty expires.

The following was part of a statement that was included in the letter sent to customers who had purchased one of the Fisher & Paykel Products:

“Your Fisher & Paykel [appliance] is now a year old, which means that you have 12 months remaining – after that your appliance won’t be protected against repair costs.”

Justice Wigney held “that the letters contained a false or misleading representation to consumers that they would not be protected against repair costs for their appliance after a period of two years from the date of purchase (being the period of the manufacturer’s warranty), unless they purchased the extended warranty. In fact, under the Australian Consumer Law (ACL) consumers may be protected beyond the manufacturer’s warranty period without the purchase of an extended warranty.”

Stop using unfair business tactics

Business It is illegal to persuade or to use unfair business tactics to force a customer into signing an unreasonable contract.

It is important that when you are dealing with customers that could possibly be vulnerable*, that you must ensure that you don’t use their vulnerability as an advantage to your business and always act professionally and with a good conscience**.

*Vulnerable referring to:

  1. Those whom may have a disability;
  2. Don’t speak English well or English is their second language; or
  3. Are classed as low-income earners.

**Good conscience referring to:

  1. Giving customers enough time to read a contract
  2.  Providing questions and answers
  3. Providing advice
  4. Not pressuring the customer in to a contract or agreement
  5. Providing all the correct terms & conditions of the contract/agreement

New Legislation for Queensland Real Estate & Property

New Legislation for Property & Real EstateOn Tuesday, The Property Agents and Motor Dealers Acts was passed by Queensland Parliament which should see a more streamlined purchase process when buying property in Queensland.  This is what REIQ Chairman, Rob Honeycombed had to say “The new laws will also empower consumers as never before, making it easier than ever for them to navigate the entire spectrum of real estate transactions.”

There are also changes to ‘cooling off’ periods coming soon, so buyers are urged to take care when finalising contracts. Ian Brown, president of the Queensland Law Society has said “Under the new laws, a buyer personally can waive their cooling off rights simply through written notice to the seller.”  “Previously, waiving or shortening the cooling off period required a certificate from an independent lawyer which demonstrated that the lawyer has explained to the buyer the effect of the contract, the certificate and the effect of waiving your cooling off rights.”

Read more on the Fraser Coast Chronicle website

If you are looking at buying or selling property contact our team of solicitors who can make this process even easier for you. www.stolaw.com.au

Choosing a Business Name

Registering Business NameIn order to create the right image for your business, choose a business name that will compliment your product or service. Try and be different and decide on a unique name that will differentiate your business from your competitors.

There are a number of registration requirements that you should be familiar with before you decide on a name. It is also good to do a bit of research to see what companies might have the same name as you.

Your business name can be registered nationally with ASICAustralian Securities & Investments Commission. By registering with ASIC, you can operate your business in any Australian state or territory.

If you want your company to trade under another name, then you must also register your trading name with ASIC.

*Please note: Although you have registered your business name with ASIC this does not give you any proprietary rights.

Need some advice, contact our Commercial Team today.

Thinking of starting a business?

Business PlanWhen you think of starting a business there can be a number of different ideas running through your head. You really need to ask yourself a number of questions before you start such as:

  1. will people be interested in buying your service or product?
  2. who are your competitors?
  3. what skills will be required?
  4. do you have the financial capacity?
  5. is your product unique?; and
  6. can the business grown in the market?

By conducting this research you can generate an understanding as to whether your business idea is possible and from here you can start creating your business goals.

If you need assistance with starting a business, contact our commercial department today and they will be more than happy to guide you through the process.

ASIC’s new Business Names Register booklet

On 16th September 2013, the Australian Securities and Investment Commission’s (“ASIC”) released a business names register booklet to assist those with finding registered business names and guidelines for small business operators.

Questions that the booklet will explain include:

  1. What is the national Business Names Register?
  2. How do I register a business name?
  3. How do I renew a business name?
  4. Closing or selling your business?
  5. How do I update my details?
  6. How do I search the register?

The booklet is now available to download for free. Click here for a PDF copy.

If you have any questions about business names, buying or selling a business contact our commercial team today.

What’s on your Bucket List?”

STO-107by Cec O’Dea, Partner

One thing to do before you die….

Studies show that up to 45% of the population don’t have a valid Will.

It’s an outstanding statistic when you consider the consequences of not taking the time to prepare an estate plan and keep it updated.

An estate plan typically involves more than just a Will to provide for the distribution of a person’s property and assets upon their death.

People often don’t appreciate what assets actually form part of their estate  and what assets are “controlled” by their Will.

If a person’s financial and family affairs are fairly basic, their Will may be all that is required for that individual.  This, however, seems to rarely be the case with various considerations usually needing to be addressed such as:-

  1. How are jointly owned assets (such as the family home, shares and bank accounts) to be dealt with?
  2. How are assets held in a private family company to be treated?
  3. Who is to end up in control of assets held in a family trust?
  4. What is to occur if a surviving spouse was to remarry?
  5. Who will receive the proceeds of any life insurance?
  6. How can a person “guarantee” that children will be looked after?
  7. How can a person provide for a spendthrift or disabled beneficiary?
  8. How should the various competing interests caused by a second marriage and other “blended family” arrangements be dealt with?
  9. What will happen to a person’s business interests?

In particular, clients are often surprised to learn that their superannuation (irrespective of whether it is within a self-managed fund or not) does not form part of their estate. It should usually be dealt with by a Death Benefit Nomination.

In one recent case the Court held that the daughter of the deceased had not acted improperly by taking control of what was essentially her father’s self managed superannuation fund and refusing to pay benefits from the fund according to
wishes expressed by her father. A properly completed nomination could have avoided this outcome.

In many cases, superannuation represents a significant proportion of a person’s assets as people seek to accumulate wealth for retirement in the tax favourable superannuation arena.

Superannuation will continue to be increasingly relevant in light of recently proposed legislation to incrementally increase the Superannuation Guarantee rate from 9% to 12% in coming years.

Even where a person has only been in the workforce for a short period of time and their employer contributions are viewed as minimal, there may be an insurance component attaching to a person’s superannuation of several hundred thousand dollars which is also payable in the event of their death.

Problems can also often arise in estate matters where there has been a breakdown of a relationship and a person’s affairs have not been updated.

People often misunderstand the effect of being separated but not divorced from a spouse.

A lot of the problems that are often encountered in estate matters can usually be avoided so make sure one of the things on your “bucket list” is the important step of having an up to date estate plan.

Where there’s a will….

24.09.10 25By Michael Callow

A Will must be in writing, signed by the person making the Will (or someone else in the presence of the Will maker and at their direction), with the signature to be made (or acknowledged) in the presence of two witnesses who must then sign the Will in the Will maker’s presence.

The Queensland Supreme Court recently was called on to decide whether a document which did not satisfy those conditions could still be a valid document determining the distribution of the assets of an Estate.

The deceased had made a Will in November 2000, which the Court described as a “complicated Will” naming a number of different beneficiaries including various friends, a hospital foundation, the Red Cross, together with various associations or foundations supporting vision impairment (as the deceased was vision impaired).

In the later years of the deceased’s life she apparently became “increasingly difficult to get along with” with the Court observing that “many of her friends and acquaintances distanced themselves from her as a result”.  However three of the deceased’s friends continued to maintain contact with the deceased, both by visiting her and maintaining telephone contact.

While cleaning the deceased’s house after she had passed away a piece of paper was found, dated 10 October 2009 which stated “because I can’t get to my solicitor I want to change my Will to leave my house to Barbara Castiglione and my shares to Robert and Val Klauke” (being the friends who had maintained contact with the deceased).  The document was signed with the deceased’s name. The Court was obliged to determine whether that informal document was a valid addition to the deceased’s earlier Will.

The Court has power, under the Succession Act to dispense with the formal requirements in relation to a Will if it is satisfied that the document was intended to form the Will, or part of the Will (or alteration of the Will), taking into account the evidence as to how it was signed, and of the person’s testamentary intentions (i.e. how the person proposed disposing of their assets).  The Court was satisfied that the document identified changes that the deceased wished to make to her Will, it being clear that she wished to leave her property to her friends.  The people identified in the document were those friends who had maintained contact with her, with the Court being satisfied that the document was “consistent with what might be anticipated to be her testamentary intentions”.

The Court was also satisfied that the wording of the document constituted a Will, rather than simply being a “note of instructions or a draft Will or a trial run”.  The Court was satisfied that the document represented the deceased’s testamentary intention and ordered that the disposition of those assets proceed in accordance with that document.  I expect the Court was somewhat swayed by medical evidence that the deceased retained capacity to make her own decisions at all times and the Court was therefore prepared to recognize the document as her intentions to provide a gift to those people who had continued to provide support to her in her later years.

Big Fines for Hiring Illegal Workers

The Federal Government has recently announced plans to introduce new laws next year which will impose massive fines on employers who hire illegal workers.  Under the proposed legislation, an employer found to have engaged a staff member who is not entitled to work in the country, could be exposed to a fine of as much as $50,000.00.

In the current economic climate, there has been a growing temptation for employers to reduce costs by engaging workers who are not legally entitled to work in the country, but who are prepared to do so for less than the minimum wage.  On the other hand, there is a growing sense that available jobs need to be protected and made available to Australian workers.

While I can understand the sense of national self interest that has seen these laws introduced, there does seem to be a much bigger issue at play.  Increasingly, businesses (and especially those in the manufacturing sector) are finding it difficult to compete internationally with other businesses who have access to a cheaper workforce and lower costs. In recent decades, Australians have enjoyed an increasingly high standard of living and all of the trappings that come with it.  On the other hand, our businesses that compete in international markets are now being asked to do so against a headwind of high labour costs that their competitors are able to avoid.  If the mining boom ends any time soon, I suspect that something is going to have to give in our labour market if we are going to be able to maintain a reasonable balance of trade!