How do I enforce my payment claim under BIFSOPA?

Tips on what you can do to receive payment

The new BIFSOPA act is now in effect, which means your business practices must change with it. In this blog post, the MDL Construction Law team run you through how you can enforce your payment claim to comply with the new procedure.

An example of when you must enforce a payment claim         

In this example, let’s say you issued a 14-day invoice and you haven’t been paid after 15 days. Another five days go by, and you’ve now realised that the developer hasn’t issued the payment schedule. What do you do?

In this scenario, the developer has missed his opportunity to defend an adjudication – but the clock is now ticking on you. If you don’t act quickly, you’ll lose your payment claim adjudication entitlement for this month.

What you must do to enforce a payment claim

Because there is no longer a 2nd notice warning under BIFSOPA, you must issue a letter of demand stating that your contract time has expired without payment.

This letter of demand should state that the debtor’s 25 days for payment schedule delivery is about to expire, leaving you with only 5 days to commence proceedings or adjudicate. They should either pay you or face legal action.

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If you don’t send this letter of demand (on day 26) and let the five days lapse, then you will have to go back and issue a NEW payment claim – yet you can’t issue a new claim again in the same calendar month.

For this reason, you must act within 5 days, or you’ve lost a month’s cash flow – which can be crucial for your business.

You’ve enforced your payment claim under the Act within the time limits of the legislated 25-day payment schedule.

Got questions about BIFSOPA? Talk to MDL

If you’re not sure how the new BIFSOPA will affect your business, McCarthy Durie Lawyers can help. Contact our experienced Building and Construction Law team on 3370 5100 or fill out the contact form here. 


What you need to know about the Australian Financial Complaints Authority (AFCA)

The new ‘mega ombudsman’ for complaints regarding financial disputes

If you feel you’ve been treated unfairly by an insurer, bank or other finance provider, there is now one place to go in Australia for consumers and small businesses to submit complaints regarding financial disputes.

From 1 November 2018, the Australian Financial Complaints Authority (AFCA) has been ready to receive complaints from consumers and small businesses. In its first year alone, the organisation is expecting to receive 55,000 complaints.

So, what is AFCA, what does it do and how do you submit complaints? This article by CANSTAR gives you all the details.


What is in a typical franchise agreement?

5 things your franchisor must provide you

So you’re thinking about purchasing a franchise business and taking the exciting step of becoming a small business owner.

You’ve met with your prospective franchisor, and things are looking good. You’re happy to take the next step since you’ve looked at their business model, and can see a future for yourself and your family.

What’s the next step?

If you’ve expressed your interest at this stage, your franchisor will send you a letter of offer or intention, and a disclosure document. You’ll pay your initial deposit (which may be refundable depending on the particular franchise), and then the franchisor will send you the franchise agreement for you to sign.

But before you do take that next step, it’s important that you understand exactly which documents your potential franchisor must provide you.

Here’s a list of the five important pieces of information that must be included in your franchise agreement.

What documents should a franchise or licence agreement include?

1) Your rights and obligations when operating the franchise

When you’re operating a franchise, it’s important to understand that you’re in a working partnership with the franchisor. Like any partnership, both parties will need to “do their bit” to ensure success.

That’s why you need to know the rules that govern the relationship – both what you have to do, and what your franchisor must do – now, so that you don’t find out down the track that the relationship is one-sided or onerous.

Your rights and responsibilities may include:

  • The need to operate within your territory (and what recourse you have to protect it)
  • Your responsibility not to add products or services that are not approved by the franchise group – or whether you have any scope to do so
  • How much you need to pay for marketing and promotion
  • How to resolve disputes between you and the franchisor
  • Any standards for staff uniforms and presentation
  • …and more.

2) All the fees that you’ll have to pay

Of course, you’ll need to make sure you have enough financial backing to cover your business’s costs – especially in the establishment phase of the business. That’s why you’ll need to fully understand the fees you’ll be liable for.

For example:

  • Annual fees
  • % of sale
  • Annual licence fees
  • Marketing fees
  • Rental/lease fees (if applicable)

Pro Tip: Take note of the way fees are calculated and how they increase over time – whether that’s according to CPI increases, a fixed percentage increase, or another formula.

Some fees will be calculated according to a specific formula, taking into account sales volume or other factors. If you don’t understand this formula, you could end up paying more than you anticipated.

That’s where having a lawyer to help you “translate” this document can be a big help. They can help you to see the real effect of these fees on the profitability (or otherwise!) of the franchise business.

3) A copy of the franchise code

The franchisor must provide you with a copy of the franchise code, which outlines all the laws in relation to franchising in Australia.

4) Financial and legal certificates

Franchisors will usually require you to seek independent financial and legal advice. These certificates, when signed off by your advisers, will demonstrate that you’ve done so.

5) A copy of the lease (If applicable)

If your franchise business is on a premises, you’ll need to enter into a lease with the landlord.

In some cases, the franchisor will enter into the lease with landlord and then sub-lease that premises to you. You’ll be agreeing to take over the responsibilities under that lease.

In other cases, (usually with smaller franchise businesses) you will be required to negotiate and enter into a lease directly with your landlord.

If that’s the case, make sure you:

  • Keep the duration of the lease consistent with the franchise agreement.
  • Understand your obligations to pay rent (and how much)
  • Are aware of any annual rent increases
  • Understand your outgoings, and what that entails (including utilities, garbage, rates, water, and land tax in some cases)

Before you sign a franchise agreement, talk to MDL for advice

As you can see, there are many different issues to consider before you sign a franchise agreement. That’s why it can pay to have an expert on your side.

If you need advice or assistance with interpreting a franchise agreement, a conversation with McCarthy Durie Lawyers can help. We’ll take the time to understand your situation, and offer you straightforward advice about your options and the best way forward. Contact the Business Law team at McCarthy Durie Lawyers on 07 3370 5100 or email info@mdl.com.au


Anderson Brady Lawyers Join McCarthy Durie Lawyers

McCarthy Durie Lawyers are proud to announce our acquisition of Anderson Brady Lawyers,
a Brisbane based firm located in the heart of the CBD. This is an exciting time for us, as we
integrate the experience and skillset of the AB team. The incorporation of Anderson Brady
Solicitors into McCarthy Durie Lawyers is a continuation of our commitment to provide
excellent legal solutions and client focused outcomes.

We are very happy to welcome Ross Anderson and Lyndon Huang to MDL. Ross brings with
him almost 40 years as a practicing lawyer and joins the team as Special Counsel. Since the
mid 90’s Ross has focused most of his attention on Commercial Property matters, Property
Developments and Estates. Lyndon joins MDL’s conveyancing department, adding his 11
year of industry experience and vast knowledge in off-the-plan and developer conveyancing
to the collective.

You can find both Ross and Lyndon based in our Brisbane City office, or if it is more
convenient, you can arrange a time to meet at any of MDL’s locations across Brisbane and
the Redlands.

McCarthy Durie Lawyers
Level 9, 239 George Street
Brisbane QLD 4000
07 3370 5100
info@mdl.com.au
conveyancing@mdl.com.au
GPO Box 789
Brisbane Q 4001


Workers' compensation changes come a step closer

Significant changes are soon to be introduced that will impact the way in which workers seek compensation for injuries sustained while on the job. The Workers' Compensation and Rehabilitation and Other Legislation Amendment Bill 2015 was passed by Parliament on September 17 and is now seeking assent before it becomes legislation. Its introduction is likely to leave many of the nation's businesses in search of an employment lawyer as they discover how it will impact their operations.

Among the changes is that the current limitation on workers' entitlement to seek damages would be lifted. At present, a permanent impairment of at least 5 per cent must be demonstrated for all injuries sustained at work.

Further amendments also mean firefighters will be able to claim if they suffer from one of 12 specified diseases, providing it has been obtained through their line of work. Potential employees will no longer be required to supply evidence of the history of their compensation claims when applying for roles.

The Chamber of Commerce and Industry Queensland (CCIQ) has suggested that some of the measures could have a negative impact on small business operations. It reflected on legislative changes brought into force in 2013, which the group believes had more of a positive impact on the corporate landscape. Two years ago, a threshold was introduced for common law claims.

CCIQ Director of Advocacy Nick Behrens said: "This undoubtedly had a positive impact on average premiums payable by employers through the scheme, which ultimately encourages small business in Queensland to invest in their business and employ more staff."

If you are interested to learn how this Bill is going to affect your operations, speak to the legal experts at McCarthy Durie Lawyers. We are up to date on all the latest legislation and can help your business stay on the right side of the law.


CCIQ welcomes Brisbane's new commercial contracts policy

Brisbane City Council's Innovative Proposals Policy (IPP) will provide small and medium-sized enterprises (SMEs) with greater opportunities to commercialise their ideas, a leading industry organisation has claimed.

The Chamber of Commerce and Industry Queensland (CCIQ) said the scheme would enable businesses to overcome one of the biggest hurdles when getting new ideas to market – securing contracts.

CCIQ Stephen Tait claimed the IPP would allow local government and businesses to work together more closely.

"Brisbane City Council's new IPP is a significant step in the right direction and will assist businesses looking to enter a commercial relationship with council to provide an innovative service or product," he added.

"Not only does the IPP open the door for business opportunity, it adds rigour and expertise to enable businesses to take advantage of the opportunities to work with council."

Companies should contact a commercial lawyer before entering into any new contracts to ensure they are fully aware of the terms of an agreement. An experienced law firm can take you through every step of the process, including ways to protect your intellectual property (IP).

In fact, IP is one of the key areas the new innovative proposals initiative is expected to strengthen. The plan is to streamline the council's current procurement processes so that it can benefit from cutting-edge business tenders in a more transparent way, while still protecting business's IP.

"Currently there are no set guidelines for dealing with tenders classified within the 'innovative' category, and this proposal will give businesses more clarity as to how their ideas will be considered and what they will be assessed on," said Lord Mayor Graham Quirk.

He said the IPP would help cement the council's reputation as a progressive destination for new ideas and partnerships with the business community.

If you would like to know more about commercial arrangements and public-private joint ventures, please talk to our expert legal team.


5 steps to starting a new business

Setting up a business is an exciting time for entrepreneurs, but there are a number of steps individuals must complete before opening their doors to trade.

The best way for potential business owners to ensure they are thoroughly prepared from a legal perspective is to contact commercial lawyers in Queensland. In the meantime, here are five steps the state government recommends undertaking to get up and running.

1. Secure licences and registrations

New businesses will often need specific licences or registrations, including health and safety credentials or environmental permits. The specific documentation required is based on various factors, including industry, number of employees, business structure and location, among others.

2. Register a business name

The process for registering a name differs depending on the organisation's business structure. However, all businesses – including companies, partnerships, sole traders and trusts – must register with the Australian Securities and Investments Commission.

3. Tax registration

The Australian Taxation Office is usually the next stop, which is where owners must register their business for tax purposes. Again, the type of business and number of employees will have an impact on tax obligations. However, Goods and Services Tax and Fringe Benefits Tax are two of the most common charges.

4. Register a trade mark

Trade marks ensure a business's goods and services are easily identifiable. Words, phrases, logos, letters, sounds and a range of other distinguishing attributes can become trade marks. A registered brand has more legal protection should anyone infringe on their trade mark.

5. Domain name registration

Most modern businesses need a website, which means they must register a unique domain name. There are various domain name types – including .com.au, .net.au and .org.au – some of which have specific requirements.

If you would like to know more about setting up a business in Queensland, please get in touch with expert commercial lawyers to discuss your needs.


Small Business Week is nearly here

Queensland companies are encouraged to network with experts, government and other organisations during small business week, which kicks off next week (September 1-6).

Queensland has around 410,000 small businesses, according to the Queensland Government Business and Industry Portal. A small business employs fewer than 20 people. These organisations are an integral part of all Queensland's industries, making up 96 per cent of the total number of businesses in the state and providing employment for 50 per cent of private sector workers. 

The portal states that small businesses involvement in the events will help them "become more productive, sustainable and resilient". There are more than 200 free or inexpensive events organised throughout Queensland next week. 

There were 4,500 people involved in 91 activities and events at the 2013 Queensland Small Business Week. The business and industry portal said that 70 per cent of attendees last year were owner-managers, 53 per cent had been in business for more than 10 years and 13 per cent were start ups.

Reasons for attending the event included networking (20 per cent), learning (18 per cent) and wanting to expand operations (14 per cent). 

A selection of the events will be hosted by the Queensland Minister for Tourism, Major Events, Small Business and the Commonwealth Games Jann Stuckey. One of these events is Are you a Small Business Tiger? How Do You Become One?

This event will include a panel of experts who will talk about how businesses can significantly increase revenue in the next year. This can be achieved through management of cash flow, recruitment and selection, business expansion and how the growth of a business is financed. High-growth start ups will also be discussed.

If you are a small business in Brisbane or Redlands, a commercial lawyer can discuss any legal issues surrounding commercial agreements and contracts.


Two experts to discuss local business structures

Two local experts will be discussing how Redland City business owners can achieve the "right fit" for their business, without all the complicated jargon. 

McCarthy Durie Lawyers partner Jon McCarthy and Robins Accountants partner Trish Hale, will conduct a workshop on how to structure a business in order to optimise profits, minimise tax and maximise protection of personal wealth. To achieve these goals it is important to understand your business, your goals, possible obstacles and the opportunities your business can create. 

Both Mr McCarthy and Ms Hale will be available following their presentations to answer questions from the audience and generate discussion on business structures in Redland City. 

The aim of the workshop, which will be run by the Redland City Chamber of Commerce, is to help local business owners understand appropriate business structure options for their enterprises without all the complicated terminology. 

Mr McCarthy is a commercial and property lawyer with a wealth of experience in property development law. His experience includes community title schemes, retail and commercial property development and taxation planning. He also specialises in company and trust law. Ms Hale specialises in accounting and taxation for small-to-medium sized businesses and is a member of the National Institute of Accountants. 

If you are interested in talking to an commercial lawyer in Redland City about how to structure your business or need tips for improving it, here is your chance to come along and engage with two local experts.

The workshop is to be held at the Alexandra Hills Hotel on Wednesday July 30 2014 from 5:30 to 7:30 pm. The cost is $30 for Redland City Chamber of Commerce members and $40 for non members.