Q&As

'New changes to Building Sustainability Index (BASIX) targets in NSW'

Friday October 17, 2014

The NSW government's proposed changes to the Building Sustainability Index (BASIX) aim for a 20%-50% reduction in water consumption and up to 50% reduction in energy emissions. The BASIX scheme was introduced in 2004 as a water and energy efficiency target requirement for all new homes constructed in NSW. There appears to be significant support of the proposed new BASIX targets and some have even submitted that the proposed new targets need to go further. However, proper consideration needs to be given to the benefits sought to be achieved and whether the proposed new BASIX targets can achieve those benefits practically. Imposing targets that may impact negatively by restraining housing affordability due to cost or limiting the ability to comply due to land area requires further assessment and the availability of alternatives to achieve those targets.
'Do you really need to include that personal information?'

Friday October 17, 2014

A complainant has been awarded $7500 by the Federal Privacy Commissioner as a result of highly private personal information about him being included in an Information Pack for School Council members. The case sends a clear message to schools that they should carefully consider whether to include delicate personal information in School Council Information Packs and to make sure any such information is kept securely and treated in strict confidence. The case also serves as a warning to all public and private sector entities that are subject to privacy legislation, they should carefully consider whether it is really necessary to include personal information in papers prepared for boards or other governing bodies.
'Employment law update: Implied Terms of mutual trust and confidence rejected by High Court'

Friday October 17, 2014

In the recent case of Commonwealth Bank of Australia v Barker [2014] HCA 32 the High Court overturned the earlier Federal Court decision that a term of mutual trust and confidence was implied into employment contracts.
'Not shelved… yet: NSW Court of Appeal confirms shelf orders are valid'

Monday October 13, 2014

In the context of company liquidation, a shelf order allows a liquidator to apply to the court to declare certain transactions made by an insolvent company prior to its liquidation as “voidable transactions” and obtain relief. A recent decision by the NSW Court of Appeal in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher [2014] NSWCA 148 provides much needed reassurance to liquidators that shelf orders are valid. Prior to this decision there was a perception of discord between state courts as to whether or not this is the case. However, the reassurance brought by the decision comes with a slight caveat, with an application for special leave to appeal filed in the High Court.
'Fine print in asset and share sale agreements - you need those warranties, indemnities and guarantees'

Monday October 13, 2014

Prior to executing an asset or share agreement, taking time to negotiate warranties, indemnities or guarantees may prevent an uncomfortable conversation with your lawyer at a later date about why those protections weren’t drafted or properly limited in the first place. While it is common for key terms to an agreement to be negotiated relatively quickly, warranties, indemnities and guarantees provide key components for the risk management and allocation framework of asset and share sale contracts. These risk mitigation clauses should be drafted with thought and caution as they can provide significant protections. Your lawyer can assist you to understand that the value of warranties and indemnities is limited to the capacity of the party giving those assurances to pay for any claims made against them. Guarantees can provide comfort to contracting parties that the warranties and indemnities are worth more than the paper they were written on.
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