by Katrina Brown | Feb 19, 2013 | Commercial Law
Did you know that electronic marketing (for example, SMS and/or email campaigns) can result in spam penalties of $220,000 per day? Developments in technology have increased the ways in which businesses can communicate with existing or potential customers. The risk of inadvertent spam violations is real and realised, but accommodation of legislative requirements is easily achieved with minimal planning.
The Spam Act 2003 (Cth) (‘the Act’) prohibits the sending of commercial electronic messages (spam) unless certain conditions are complied with.
The Act provides the following at section 16:
“A person must not send or cause to be sent a commercial electronic message (including SMS or email) that has an Australian link and is not a designated commercial electronic message, unless the recipient has consented to doing so.”
An electronic message is defined in section 5 as:
“(1) For the purposes of this Act, an electronic message is a message sent:
(a) using:
(i) an internet carriage service; or
(ii) any other listed carriage service; and
(b) to an electronic address in connection with:
(i) an e-mail account; or
(ii) an instant messaging account; or
(iii) a telephone account; or
(iv) a similar account.”
As such, an electronic message includes, primarily, messages sent by email and SMS. Section 6 of the Act defines further a “commercial electronic message”:
“(1) For the purposes of this Act, a commercial electronic message is an electronic message, where, having regard to:
(a) the content of the message; and
(b) the way in which the message is presented; and
(c) the content that can be located using the links, telephone numbers or contact information (if any) set out in the message;
it would be concluded that the purpose, or one of the purposes, of the message is:
(d) to offer to supply goods or services; or
(e) to advertise or promote goods or services; or
(f) to advertise or promote a supplier, or prospective supplier, of goods or services; or
(g) to offer to supply land or an interest in land; or
(h) to advertise or promote land or an interest in land; or
(i) to advertise or promote a supplier, or prospective supplier, of land or an interest in land; or
(j) to offer to provide a business opportunity or investment opportunity; or
(k) to advertise or promote a business opportunity or investment opportunity; or
(l) to advertise or promote a provider, or prospective provider, of a business opportunity (m) to assist or enable a person,
by a deception, to dishonestly obtain property belonging to another person; or
(n) to assist or enable a person, by a deception, to dishonestly obtain a financial advantage from another person; or
(o) to assist or enable a person to dishonestly obtain a gain from another person; or
(p) a purpose specified in the regulations.”
The Act provides at section 16 above that a commercial electronic message does not contravene the spam act if it is a “designated commercial message”. A designated commercial message is defined in section Schedule 1 as an electronic message that:
1. Contains factual information only;
2. Is from a government body, political party or charity; or
3. Is from an educational institution.
Most commercial electronic messages will fall outside the definition of a “designated commercial message” for the reason that its primary intent is to market goods or services to an existing or prospective customer.
It seems then that senders of commercial electronic messages must rely on the last element of section 16: “…unless the recipient has consented to doing so.” This means that if the recipient of the commercial message has consented to receiving the message, then the sending of the commercial electronic message does not contravene the provisions of the Act.
The Act provides as section 2 that consent can be given expressly, or implied:
“For the purposes of this Act, consent means:
(a) express consent; or
(b) consent that can reasonably be inferred from:
(i) the conduct; and
(ii) the business and other relationships;
of the individual or organisation concerned.”
Express consent applies where a person has specifically requested messages from you, such as if they have subscribed to your electronic advertising mailing list, or they ticked a box consenting to receive messages from you, or they have personally requested these messages be sent by you.
Inferred consent can be established from an existing relationship. Assuming that no express consent has been given, consent can be inferred in a number of situations. Some examples provided by the Australian Communications and Media Authority (“the ACMA”) are:
1. When purchasing the goods, an email address was provided with a general expectation that there will be follow-up
communication;
2. Where the email address was provided for day-to-day transactions it may be used for additional communications (such
as notification of related services or products);
3. Where the contact details were supplied by way of online registration of a product or warranty;
4. When the email address has been conspicuously published – where an email is published (such as advertised on a
website) there is deemed consent to emails being sent relating to the employment or business of the person publishing
the email address. This means that if an electrician is posting their email address online, you are welcome to send them
commercial messages regarding electrical products. This applies unless there is something stated near the email
address that specifies that no spam is to be sent; and
5. Where a business card is given with an email address, with the expectation that messages would be sent. However, if
the card is provided in the course of business, then they cannot be deemed to have consented to messages that are
unrelated to their employment or business.
The ACMA has ruled that consent can reasonably be inferred from a relationship where a person has purchased goods or services which involve an ongoing warranty and service provisions. However, one-off purchases where there is no warranty or continuing relationship are less likely to infer consent to the receiving of commercial electronic messages.
In sum, it is important to understand how the addresses intended for the sending of commercial electronic messages are gathered by the sender. When collecting personal information from a customer it would be advisable to include an option or a “tick box” which “I consent to receiving updates about [Company] and [Company’s] products from time to time” or something of a similar nature. This rules out any propensity for the misunderstanding of implied consent and thus greatly reduces the chance of a breach of the Act occurring.
Alternatively, ACMA provides that your business may send a message to the address, requesting confirmation that messages should be sent there in future. The message should contain a 14 day period for a response to be received from the recipient. If the addressee does not respond within that time, they should be removed from the contact list.
However, even if consent is provided, a commercial electronic message must follow two further guidelines. Section 18 of the Act provides that the commercial electronic message must contain a functioning unsubscribe facility. The facility needs to be easily visible and simple to use, with wording such as “click here to unsubscribe”. The withdrawal of consent will take effect after five days and email addresses should be removed after this time. The customer should not be required to log in or create an account or go through any process to unsubscribe from the emails.
Section 17 of the Act provides that commercial electronic messages must contain details of the sender and contact details for the sender. The business that is responsible for sending the message must be easy to identify. Details which should be contained within the message are:
1. Business name;
2. Address details;
3. Email addresses;
4. Phone details; and
5. Anything that can help the recipient identify you.
A business that is found to be in breach of the Act may be subject to a Court imposed penalty of up to $220,000 for a single day’s contraventions. If, after that finding, the business contravenes the same provision, they may be subject to a penalty of up to $1.1 million.
If you are not sure whether your electronic marketing strategies comply with the provisions of the Act, or if you want more information about how to ensure compliance with the Act, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.
by Katrina Brown | Feb 14, 2013 | Body Corporate Law, Commercial Law, Credit Management, Litigation Process
In Queensland, “where” you lodge a Claim and Statement of Claim is dictated by the Uniform Civil Procedure Rules 2001 (“UCPR”).
Queensland has three different categories of Courts, which are essentially organised in terms of the matter types which each decide, as well as the level of dollar value to be considered:
1. In the Magistrates Court for amounts up to $150,000.00;
2. In the District Court for amounts from $150,000 – $750,000.00; and
3. In the Supreme Court for an unlimited amount.
Once we determine the category of Court, we then need to decide which Registry in which to lodge your matter. Unfortunately, the decision as to which Registry is chosen, does not necessarily have any correlation to your location. The Claim and Statement of Claim should filed be in the Registry closest to one of the following:
1. The Defendant’s location; or
2. The location in which the incident or contract giving rise to the Claim took place.
Selecting a more convenient “Registry” for you, may result in an Order for Costs against you if the Defendant successfully argues you have not complied with the Rules, with the inevitable change of venue for the proceedings. Therefore, to avoid this expense, we strictly comply with the Rules in selecting the Registry.
The “Registry” grounds the location of your proceedings for the balance of the case. For instance, if you have to attend Court, you will attend the Court associated with the Registry. There are exceptions to this, and on occasion you can attend by telephone, but largely your case is tied to that Registry location.
A copy of the Claim must be served on each Defendant, each of which has 28 days from the day of service to file a defence or attend to the matter (such as payment of the debt). (Please see our Articles for discussions on Service.)
If the Claim is disputed or a Defence is filed, a copy of must be served on you. You are then provided 14 days to lodge a Reply.
If the Claim is paid in full or you no longer wish to proceed, a Notice of Discontinuance should be filed with the Court. Alternatively, if no Defence is lodged (or alternative satisfaction of your Claim made), then you may opt to lodge a Default Judgment.
If you have any questions or enquiries about lodging a Claim in Queensland, we welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.
Submitted by: Nautilus Law Group
by Katrina Brown | Feb 12, 2013 | Body Corporate Law, Commercial Law, Credit Management, Litigation Process
After a Claim and Statement of Claim have been lodged with the Court and returned to us, the next step is to “serve” the documents on the Defendant in accordance with the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
Rule 105 of the UCPR states:
(1) A person serving an originating process must serve it personally on the person intended to be served.
Service on an Individual:
Personal Service is performed by giving the document to the person mentioned in the document. If the person refuses to accept service, the Rules permit the service agent serving the document to place the document down in the person’s presence and then explain what has been placed by the person.
Occasionally, we may be required to conduct a skip trace to find a Defendant. A skip trace requires the engagement of an investigator to search a wide range of public and private records to find the historical movements of the Defendant. Whilst a skip trace may not find the Defendant, it may bring to light contacts which we can use then to find the Defendant.
If personal service cannot be achieved as a result of demonstrated evasion by the Defendant or it can be demonstrated service can be undertaken by alternative means to personal service (although traditional service attempts have been exhausted), an Application for Substitute Service is the next option. Before such an Application can be considered, we must provide evidence as to all attempts undertaken to date relative to locating and serving the Defendant, as well as evidence to demonstrate that a proposed Alternative is likely to provide notice to the Defendant of the proceedings.
Service on a Company:
If the Defendant in the matter is a company, service is be undertaken by sending the documents by post to the Defendant’s registered office.
After Service:
Pursuant to the UCPR, the Defendant has 28 days from the date of service to file a Defence or reach an agreement with the Plaintiff (such as paying a debt in full or by entering into a payment plan, or engaging in conduct that is required by the Plaintiff of the Defendant in the Claim and Statement of Claim).
If no action is taken by the Defendant following such period, there are a number of options available, but the most logical in cases in which the debt is “liquidated” (i.e. for a fixed amount) is to seek a Default Judgment against the Defendant. Following entry of a Default Judgment against the Defendant, the Plaintiff is then empowered to “enforce” the Default Judgment.
Effectively, service is the second “starting gate” to the process of chasing a matter. Service can take a considerable period in many cases in which the Defendant is an individual, and is quite frankly, the most frustrating part for many of our clients.
We welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au. We thank you for considering Nautilus Law Group.
by Katrina Brown | Feb 11, 2013 | Commercial Law
A Shareholders Agreement is essentially the “Nuptial Agreement” for business partners in a company. Similar agreements exist in each type of business entity type (such as Unit Trusts, Partnerships, Joint Ventures, etc.). The design and topics of the Shareholders Agreement is personal to the partners. Some of the common topics are:
1. Changes in health or availability of key persons – Business interruption as a result of a death or disability of a business partner and/or key person can destroy a company quickly. Structuring for changes of health or availability of key persons requires consideration of whether the partners want to deal with the spouses and “others” of the unwell/deceased partner – and if not, how the partners plan to work through the event;
2. Requirements for funding operational costs and capital requirements – The source of ongoing funding requirements of a business are one of the most common sources of business breakdown. During the planning process, the objectives of the partners are hashed through. Some partners stipulate that additional capital requirements must be funded by the partners, whereas other partners only agree to commence operations on the basis that no further capital requirements are needed – dealing with either of these options requires discussion and detailing of terms of agreement to prevent business disruption;
3. Rules of operation and accountancy – A successful (or unsuccessful) business can be operated with a wide range of management mechanisms. This topic is one of the most critical in staging a viable enterprise, because it is vital that the partners understand and agree to the rules of engagement for staff, spending, development and long term objectives. We recommend a condition of all Shareholder Agreements is that a Financial Business Plan be developed (or at least consented to) each year of operation, and that the Business Plan provide the basis for approved operations and accountancy for each year. When all partners maintain an eye on such matters, they remain connected and agreeable to the “bigger picture”; and
4. Limitation or restriction on new Shareholders – Many partners start a business with a common thread – they like, or at least respect, each other. Something about the relationship from the start is determined to “work.” The partners, however, do not anticipate in many circumstances one of the other partners seeking to exit the business. It is critical that the rights and restrictions in terms of one partner selling out to a third party be considered. Some of the more common solutions include a mandatory first right of refusal to the existing partners and/or a “drag along” right that requires minority holders to “sell out” at a stage and/or “tag along” right that rights the seller to allow the others to participate in a sale on the same terms as the seller. The options relative to this restriction are quite broad, and the discussion of this topic needs to be considered. If done incorrectly, or not at all, the risk of a “minority oppression action” or “wind up” is very real.
Importantly, there is no such thing as an “off the shelf” Shareholder Agreement. If a Shareholder Agreement is not tailored to the business and its partners, the Agreement may result in an exacerbation of issues because one or more of the partners may argue lack of consideration or understanding and seek to have the entire Agreement set aside. Whilst there are threshold burdens of proof in such actions, the issue is that that without adequate discussion and consideration – evidence that all parties knowingly entered into the arrangement can be sufficiently lacking to prevent enforceability.
Nautilus’ legal professionals have a wide range of experience in negotiating and drafting simple to complex Shareholder Agreements, including terms of buy/sell, liaising with business insurance brokers for insurances and alike. We consult with clients across Queensland and New South Wales. If you require services outside of these jurisdictions, we can refer you to Firms which can assist you. We welcome you to contact our offices on (07) 5574 3560 or email info@nautiluslaw.com.au.
Thank you for considering Nautilus Law Group.
Submitted by Katrina Brown BA JD ATIA TEP SSA, Senior Commercial and Property Lawyer, Nautilus Law Group katrina@nautiluslaw.com.au
by Katrina Brown | Feb 6, 2013 | Body Corporate Law, Commercial Law, Debt Recovery, Litigation Process
Prior to obtaining Default Judgment, a Claim and Statement of Claim must be filed with the Court on behalf of the Creditor outlining the relationship between the Creditor and the Debtor, the history of the supply of goods or services forming the basis of the Debt Claim, and the amounts outstanding and due (including interest and costs).
The Claim and Statement of Claim must be served on the Debtor (known in the legal documents as a Defendant”. Once the Claim has been served, the Defendant then has 28 days to file a defence or make payment. Quite often, a Debtor will contact our Team to ask for a payment plan. You are free to accept a payment in full (and you can require as a condition the payment of your legal fees), you can accept a payment plan (but are not required) or you are free to allow the matter to stand without prosecution (not recommended).
If there is, however, no contact from the Debtor and/or contact the Debtor provides no Defence, you are in a position to apply for a Default Judgment.
Obtaining a Default Judgment against a Debtor may be the only way to recover what is owed to you. A Default Judgment is an Order provided by the Court, and the Order sets out the amount outstanding owed to the Creditor. Your legal fees (as assessed at Court Scale) are usually granted in the Order.
To apply to the Court for Default Judgment, certain conditions must be present:
– The Defendant must have been served, with greater than 28 days lapsing between service and the date intended to lodge for Default Judgment; and
– No Defence (or Conditional Defence) has been lodged.
Once the Court has granted the Application for Default Judgment, a copy of the sealed Judgment is returned to our Team and we then consult with you to determine what enforcement procedures you wish to take.
We are instructed Credit Reference Agencies receive copies of all lodged Judgments, which gives added pressure to Debtors because their ability to continue credit facilities with their banks and lenders is often impacted, and most certainly they have difficulty in obtaining further credit with an unsatisfied Judgment on their Credit Report.
We welcome you to contact our team on (07) 5574 3560 or email us info@nautiluslaw.com.au. Thank you for considering Nautilus Law Group.
Submitted by: Nautilus Law Group
by Katrina Brown | Feb 3, 2013 | Commercial Law, Debt Recovery
Obtaining Judgment against a Defendant is a step in the process of recovering monies from a debtor – but not the end in many cases. A Judgment is valid for 12 years from the date on which the Judgment is granted. Judgment will adversely affect a debtor’s credit rating; however, that does not mean that your debtor will automatically pay.
Thankfully, there are further options available to the creditor to pursue the recovery of the debt monies.
Enforcement Warrants:
Under the Uniform Civil Proceeding Rules 1999, a Judgment Creditor can make an application to the Magistrates Court for an enforcement warrant to recover a Judgment, including interest at the statutory rate. Enforcement warrants can be issued by the Court for the seizure and sale of the debtor’s property, redirection of a debtor’s wages, and even the redirection of a debt owed to the debtor by a third party to be paid to the Judgment Creditor.
Winding Up:
If the debtor is a corporation and the debt amount is at least $2,000.00, “Winding Up” (otherwise known as involuntary liquidation) is an option. The Winding Up process involves having the corporation deemed insolvent and placed into liquidation. An Administrator is appointed and the company’s assets are assessed and distributed among the company’s creditors, including the Judgment Creditor.
As a last resort, we take more drastic measures…
Bankruptcy:
If the debtor is an individual and the debt amount is at least $5,000.00, Bankruptcy is an option. A Trustee is appointed to collect and distribute the Bankrupt’s Estate, and in the process the Judgment (in whole or part) is satisfied.
In the coming weeks we will address each of the above enforcement options in greater depth providing a review of the process and timelines involved.
Stay Tuned!
We welcome you to contact our offices on (07) 5574 3560. We thank you for considering Nautilus Law Group.
Submitted by: Nautilus Law Group
