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Litigation & Dispute Resolution
  • 08-Aug-2018 / Posted by Ben Seccombe

    Industry update: Caretaker bullying by bodies corporate

    by Ben Seccombe, Partner & Amelia Hasson, Lawyer Back in 2015, Mahoneys acted for the first caretaker recognised by the Fair Work Commission as a ‘worker’ for the purposes of a workplace bullying action and we continue to lead the way in this area. Since then, we have noticed an..
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  • 26-Jul-2018 / Posted by John Forde

    Franchise agreements, trade marks and Australian consumer law

    A franchise is a business arrangement that allows a person to operate under the name of an already established business. A recent dispute involved an International Restaurant franchisor who terminated its agreements with its Australian franchisees for non-payment of outstanding fees. Th..
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  • 22-Jun-2018 / Posted by Ben Sandford

    Queensland caretakers win again

    Mahoneys secured another victory for caretakers in Queensland recently when the Queensland Civil and Administrative Tribunal handed down its decision in Ultimate Property One Management Pty Ltd v Body Corporate for the Pivotal Point Residential Community Titles Scheme 33550. The body cor..
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  • 23-Mar-2018 / Posted by John Forde

    Development Approval - enforcement orders

    by John Forde, associate In Pike v Tighe [2018] HCA 9 (14 March 2018) the High Court held that the Development Approval condition attaches to the land and binds the owner, the owner’s successors in title and any occupier of the land. The matter concerned the subdivision of land in To..
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  • 30-Jan-2018 / Posted by John Forde

    Vicarious liability

    by John Forde, associate A common problem faced by employers is vicarious liability and their duty of care. A recent Supreme Court of Queensland decision acts as a timely reminder for our workplaces in 2018. The defendant company (which I will call the Company) conducted a road freight..
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  • 17-Jan-2018 / Posted by Ben Seccombe

    Recent victories for managers

    by Ben Seccombe and Mitchell Downes Towards the end of 2017 we secured a number of victories for our clients in various situations and in various forums. We have maintained and will continue to maintain our policy of never acting for a body corporate in a dispute with a resident manager. ..
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  • 22-Dec-2017 / Posted by Mitchell Downes

    Mahoneys secures important – business saving – Christmas victory for caretaker

    Mahoneys is currently acting for a caretaker in a termination dispute with a body corporate. Earlier in the dispute, Mahoneys secured (by consent of the body corporate) an injunction restraining the body corporate from terminating until the QCAT trial. However, with the trial some 8 month..
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  • 01-Nov-2017 / Posted by John Forde

    What an affidavit is and how is one taken?

    An affidavit is the evidence of a witness in written form. It is a document that is sworn on oath or affirmed and made before a person who is authorised to take an oath or affirmation. An Oath is a solemn promise made in the name of God, or to some other revered deity, that statements made a..
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  • 23-Oct-2017 / Posted by Mitchell Downes

    Exciting changes to bankruptcy to promote entrepreneurial activity

    by Mitchell Downes, Partner Readers may remember the Commonwealth government previously announcing a plan to reduce the term of an ordinary bankruptcy from three years to one year. On 19 October 2017, the bill to give effect to this plan was introduced to parliament. The key features of the..
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  • 05-Oct-2017 / Posted by Ben Sandford

    Game-changing decision for body corporate debt recovery

    by Ben Sandford, Lawyer A recent decision of the District Court in Townsville has seriously changed the legal landscape for bodies corporate who seek to recover levies from lot owners. In BC for Mount Saint John Industrial Park CTS v Superior Stairs & Joinery Pty Ltd [2017] QDC 245..
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  • 12-Sep-2017 / Posted by Mitchell Downes

    Companies and directors rejoice – "Safe Harbour" and "Ipso Facto" becomes law

    by Mitchell Downes, Partner Late last night (11 September 2017), the Senate passed into law the Treasury Laws Amendment (2017 Enterprises Incentives No 2) Bill 2017. The legislation amends the Corporations Act 2001 to create a “safe harbour” for company directors from personal liabilit..
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  • 24-Aug-2017 / Posted by Mitchell Downes

    When a judgment isn't the end

    by Mitchell Downes, Partner On 17 August 2017 in the matter of Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28, the High Court ruled (by a 4:1 majority) that a bankruptcy court may “go behind” a judgment if the debtor raises sufficient reasons for impeaching the original debt. ..
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  • 20-Jul-2017 / Posted by Mahoneys

    Body Corporate Debt Recovery Changes: Good or Bad?

    by Jason Fletcher, Lawyer In February 2017, the Commercial and Property Law Research Centre issued its Final Report on a myriad of proposed changes to body corporate legislation. This article will focus on one area: the recovery of body corporate debts. After years of consulting ..
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  • 14-Jun-2017 / Posted by Ben Sandford

    Bodies corporate may now have a tougher time recovering costs

    Recently, Mahoneys appeared for the appellant before Judge Butler SC of the District Court of Queensland in the matter of Thompson v Body Corporate for Arila Lodge CTS 14237. The matter involved the appeal of a summary judgment obtained against the appellant in the Magistrates Court by the b..
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  • 22-May-2017 / Posted by Mahoneys

    Mahoneys secure massive win for managements rights industry

    A recent decision by the Queensland Court of Appeal has clarified the way in which management rights operators can charge their clients for services performed pursuant to their appointment. Mahoneys ran the appeal for Peterson Management Services Pty Ltd against the Office of Fair Trading be..
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  • 19-May-2017 / Posted by Mitchell Downes

    What is accessorial liability?

    by Mitchell Downes, Partner Accessorial liability in the civil context goes back (at least) as far as Selbourne LC's speech in Barnes v Addy (1874) LR 9 Ch App 244: [S]trangers are not to be made constructive trustees merely because they act as the agents of trustees in transactions &he..
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  • 05-May-2017 / Posted by Mitchell Downes

    Dealing with breach notices

    by Mitchell Downes, Partner Breach notices and remedial action notices should be taken seriously and acted on immediately. Whilst this may sound obvious our litigation team has been surprised in recent times at how some managers who receive such notices treat them – sometimes ignoring them a..
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  • 03-May-2017 / Posted by Ben Seccombe

    Another big management rights win for Mahoneys

    Trojan Resorts v Body Corporate for the Reserve CTS Mahoneys has reaffirmed its position as the leader in management rights litigation with a strong victory for our caretaker client in the appeal tribunal. Trojan Resorts holds the management rights to a large complex at Varsity on the Go..
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  • 13-Oct-2016 / Posted by Ben Seccombe

    Bodies Corporate and the obligation to act reasonably

    by Ben Seccombe - Partner & co written by Max Walker The concept of ‘reasonableness’ and what amounts to acting ‘reasonably’ are questions that often vex bodies corporate, committees and lot owners. This week the High Court handed down its judgment in the matter of Ainsworth & ..
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  • 29-Sep-2016 / Posted by Mitchell Downes

    Unfair contract terms outlawed when dealing with small business

    by Mitchell Downes - Partner & Richard Seneviratne - Senior Lawyer On Saturday 12 November 2016, a new law will come into effect. One that prohibits unfair contract terms in standard form contracts when dealing with small business. It will apply to any standard form contract entered int..
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  • 25-Aug-2016 / Posted by Mitchell Downes

    Kleenmaid director sentenced to 9 years jail

    The Kleenmaid group of companies suffered a high profile collapse in 2009. A former director of one of the Kleenmaid group of companies, Bradley Wendell Young, has been sentenced to 9 years jail this month after being found guilty by a jury of 18 offences. Remarkably, the trial ran for 71 d..
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  • 05-Aug-2016 / Posted by Mitchell Downes

    Late payment fees upheld by High Court

    On 27 July 2016 the High Court handed down the much anticipated judgment in Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28 (Paciocco). The case considered if late payment credit card fees were penalties (and thus unenforceable at law) or were unconscionable, unjust or u..
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  • 18-Jul-2016 / Posted by Ben Seccombe

    High Court to determine unreasonableness test

    by Ben Seccombe, partner Mahoneys are again at the forefront of judicial decision making in a body corporate dispute soon to be determined by the High Court of Australia. Our client, the owner of an apartment in a complex at Noosa, wanted to extend the deck area of his apartment. Doing s..
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  • 07-Jul-2016 / Posted by Mitchell Downes

    What you must do before going into business

    by Mitchell Downes - Partner Caught up in the thrill of the new, parties often neglect to consider what will happen if things go sour in business. Disputes can erupt over something as simple as one party wanting to exit, a change in personal circumstances (for example, a marital breakdown, ..
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  • 20-Jan-2016 / Posted by Mitchell Downes

    Releases clause - special rules about interpretation

    by Mitchell Downes - Senior Associate In a recent Supreme Court case (IBM Australia Pty Ltd v State of Queensland [2015] QSC 342), the State sued IBM for alleged claims arising from the Queensland Health payroll software fiasco. The State sued the IBM alleging misleading and deceptive conduc..
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  • 19-Jan-2016 / Posted by Mitchell Downes

    Anti-bullying at work laws can apply to bodies corporate and caretakers too

    by Mitchell Downes - Senior Associate Mahoneys regularly field enquiries from caretakers complaining (often quite validly) that they have been bullied, harassed or threatened by committee members or lot owners. Until now, there have only been limited options available to respond to such beha..
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  • 19-Jan-2016 / Posted by Mitchell Downes

    Anti-bullying at work laws can apply to bodies corporate and caretakers too

    by Mitchell Downes - Senior Associate Mahoneys regularly field enquiries from caretakers complaining (often quite validly) that they have been bullied, harassed or threatened by committee members or lot owners. Until now, there have only been limited options available to respond to such beha..
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  • 11-Nov-2015 / Posted by Mitchell Downes

    Bluenergy: secured creditor debt extinguished by deed of company arrangement

    By Mitchell Downes – Senior Associate Deeds of company arrangement A deed of company arrangement (DOCA) is a binding arrangement between a company and its creditors governing how the company's affairs will be dealt with, which may be agreed to as a result of the company entering voluntary..
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  • 11-Nov-2015 / Posted by Mitchell Downes

    Bluenergy: secured creditor debt extinguished by deed of company arrangement

    By Mitchell Downes – Senior Associate Deeds of company arrangement A deed of company arrangement (DOCA) is a binding arrangement between a company and its creditors governing how the company's affairs will be dealt with, which may be agreed to as a result of the company entering voluntary..
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  • 27-May-2015 / Posted by Ben Seccombe

    Privilege and expert reports

    Untitled Document By Damien Freeman - co-author Ben Seccombe - Partner This article revisits legal professional privilege (LPP), with a focus on how LPP operates with respect to expert reports and, in particular, when LPP ceases to attach to reports that are filed. LPP Revisited Jus..
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  • 19-Mar-2015 / Posted by Mitchell Downes

    Release of co-sureties

    by Mitchell Downes - Senior Associate The High Court handed down its decision in Lavin v Toppi [2015] HCA 4 on 11 February 2015. In doing so, the High Court clarified the rights between co-sureties with joint and several liability in respect of a guarantee. Facts The r..
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  • 19-Mar-2015 / Posted by Mitchell Downes

    Release of co-sureties

    by Mitchell Downes - Senior Associate The High Court handed down its decision in Lavin v Toppi [2015] HCA 4 on 11 February 2015. In doing so, the High Court clarified the rights between co-sureties with joint and several liability in respect of a guarantee. Facts The r..
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  • 18-Jan-2015 / Posted by Mitchell Downes

    Key changes to building licensing laws effective on 1 July 2015

    Key changes to building licensing laws effective on 1 July 2015 by Mitchell Downes – Senior Associate Parliament passed laws in 2014 to change the Queensland Building and Construction Commission Act 1991. Some key changes come into effect from 1 July 2015. Licensees should ensure that t..
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  • 18-Dec-2014 / Posted by Mitchell Downes

    BCIPA changes

    By Mitchell Downes – Senior Associate A number of changes to the Building and Construction Industry Payments Act 2004 (Qld) took effect from Monday 15 December 2014. The changes, though originally intended to apply to contracts entered into after 15 December 2014, apply to all contrac..
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  • 29-Apr-2014 / Posted by Ben Seccombe

    Recovery of body corporate levies

    Bodies corporate depend on each owner paying their contributions when due. Parliament recognised the severe financial hardship for bodies corporate caused by arrears in contributions by allowing them to recover penalty interest and reasonable recovery costs from owners. The Court of A..
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