Compliance & regulatory advice lawyers Sydney

Staying compliant with the latest laws and regulations can be a challenging task, especially for businesses operating in highly regulated industries. But with Heathfield Grosvenor, you can have peace of mind knowing that you have a team of experts on your side.

Our services include but are not limited to:

  • Advising on the latest compliance and regulatory requirements and best practices
  • Reviewing and updating company policies and procedures to ensure compliance
  • Representing clients in investigations and enforcement actions by regulatory bodies
  • Providing training and education on compliance and regulatory matters
  • Assisting with the development and implementation of internal controls and compliance programs

 

At Heathfield Grosvenor, we understand the importance of being proactive when it comes to compliance and regulatory issues. Our team of experts will work closely with you to understand your unique business needs and provide tailored solutions that meet your specific requirements.

Don’t let compliance and regulatory issues slow down your business. Contact us today to schedule a consultation with one of our experienced lawyers. We are here to help you navigate the complexities of this area of law and ensure that your business stays compliant and protected.

Related insights

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Shareholder Agreements – Avoiding Shareholder and Director Disputes

Table of Contents Shareholder and director disputes At the outset of a new business venture the risk of a dispute may seem far fetched.  However, the practical reality that we often see is that disputes in one form or another frequently arise over time for example due to differences of opinion.  These differences can easily result in complete deadlock in decision making. The prevailing desire for ultimate control over a prospering enterprise frequently results in oppressive conduct against minority shareholders for example by way of dilution of shares, exclusion from management, and so forth.  These risks are elevated in the case of smaller “quasi-partnership” businesses with 50/50 shareholders and directors.  Directors may find themselves in a position of conflict between their fiduciary duties on the one hand to the company, and duty of care to shareholders, and their personal interests.  This may also result in causes of action or claims becoming available for the company against those directors who have breached their duties.  Where there is a trust involved, beneficiaries may also claim that directors have been involved in a breach of trust, or the directors may be liable to the corporate trustee arising from their conduct contrary to the corporate trustee’s obligations as trustee for the relevant trust. The risk of expensive and protracted litigation is rife, despite the fact that it can frequently be avoided. Shareholder agreements You will find that the importance of a carefully crafted shareholder’s agreement cannot be emphasised more by any corporate lawyer.  It frequently avoids the vast expense, stress and wasted opportunities that arise from and accompany bitterly fought disputes between shareholders / directors / beneficiaries.  Shareholder agreements do so by making provision for various scenarios and circumstances which would otherwise be inadequately specified in the company’s constitution or under the Corporations Act 2001 (Cth).  Key issues typically covered include: More clarity on decision making of the business, reporting, and tailored voting rights Procedures and requirements for the payment of dividends Clearer obligations and responsibilities of each key personnel The direction and strategy for the business Share options and vesting of shares over time Procedures in the event of breaches or disputes Ultimately, mechanisms designed to prevent disputes but also providing for the sale / purchase of shares in various common scenarios, and dispute resolution procedures which can avoid substantial costs of litigation. In the absence of provision in this regard, the parties will be left to try to negotiate on a solution.  Frequently, there are disputes over the terms e.g. the sale price of the shares, who the seller or buyer will be, etc.  In the absence of agreement, the parties will need to consider administration or otherwise seek relief from the Court. Winding up on just and equitable grounds; a remedy of last resort Common actions include: Proceedings for oppressive conduct under the Corporations Act 2001 (Cth) where the applicant can show that the conduct of a company’s affairs or an actual or proposed act or omission by or on behalf of a company or a resolution, or a proposed resolution, of members or a class of members of a company is either: contrary to the interests of the members as a whole; or oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members whether in that capacity or in any other capacity. Proceedings alleging breaches of director’s statutory and common law duties or obligations under the constitution. Statutory derivative actions on behalf of the company against officers e.g. to recover money misappropriated and/or to liquidate the company if necessary. Proceedings seeking a broad range of other remedies including for the purchase of shares by any person, the appointment of a receiver, an injunction preventing the doing of an act, or an order for the company to be wound up on “just and equitable” grounds. In Re SP Private Holdings Pty Ltd [2021] VSC 142 (23 March 2021) the Victorian Supreme Court were fairly robust in the management of the timetable.  Briefly, a 50% shareholder and director in a group of companies sought relief from oppression alleged to have been caused by the other 50% shareholder and director.  The application was amended less than one month before judgement to seek the appointment of a provisional liquidator, relying on the just and equitable ground for winding up. In short, there was evidence of an extremely dysfunctional relationship between the parties, a bitter dispute, clear deadlock, and deep acrimony.  Whilst the Court will be reluctant to wind up a solvent company (this being a rather drastic and last resort measure), there was no impediment to a just and equitable winding up in the circumstances.  There was clear deadlock, deep acrimony, thereby rendering the continuation of the enterprise futile.  There was no utility in a provisional liquidator being appointed and a winding up was ordered efficiently and in keeping with the overriding objective of the Court to facilitate the just, quick and cheap resolution of the real issues. contact us Contact our corporate lawyers for assistance in relation to the above. Our commercial lawyers, business lawyers, and disputes lawyers provide expertise in corporate and commercial advisory services as well as litigation and dispute resolution, and specifically shareholder disputes. HEATHFIELD GROSVENOR Level 21, 133 Castlereagh Street Sydney NSW 2000 Australia T: +61 2 8005 7388 E: contact@hglaw.com.au www.hglaw.com.au The information provided in this article is provided by way of general information only. It does not constitute legal advice, and should not be relied upon as such. Specific independent legal advice should be obtained before deciding to act, or not to act, upon the views expressed or information contained in this article. Trustpilot Book Online Related services Related documents Get bespoke legal documents tailored by a lawyer quickly.  Complete our intake form to get started so that one of our lawyers can contact you within 24 hours. Free startups and business essentials guides We have collated some free helpful guides containing key important considerationsClick Here to download our guides

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Unenforceable Penalty Clauses & Agreed Damages in Contracts

Table of Contents When negotiating a contract the parties commonly think about what should happen in the event that the other party breaches a term of the contract. They may also wish to stipulate what should happen upon the occurrence of a certain event (which may not technically constitute a “breach” of the contract). The other party might be required to pay an amount of money or provide some other non-monetary benefit as a result under the contract. Often it is difficult at the time the contract is made for a party to anticipate or foresee exactly what the damage or loss will be in the future if specified event(s) occur. Nevertheless, many contracts do specify what should happen upon the occurrence of certain events. Breach of contract If the parties agree on what will happen in the event of a breach of the contract, then the clause will either be (1) enforceable because it is a liquidated damages clause or (2) unenforceable because the clause is deemed to be a penalty. Primary contractual stipulations with secondary collateral stipulations Where a technical breach of the contract does not trigger what will happen but rather it is some other contractual stipulation / event which triggers payment, the question is “whether the party is restricted by covenant from doing the particular act [by] … payment”.  This might occur for example through the imposition of a collateral contractual stipulation which imposes an additional detriment to the benefit of a party and acts as security for the performance of the primary obligation, or acts as a deterrent to non-performance of the primary obligation. Such a stipulation would be a penalty. Alternatively, the question is “whether according to the true construction of the contract, its meaning is, that the one party shall have the right to do the act, on payment of what is agreed upon as an equivalent[1]” it which case it would be enforceable. Enforceable agreed damages or liquidated damages clauses Generally, the law will enforce a clause which provides for the payment to a party of an amount (or benefit) which is a “genuine covenanted pre-estimate of damage[2]”. Unenforceable penalty clauses In summary, clauses which are in the nature of a punishment for breach of the contract or to deter non-performance of a contractual term can be characterised as penalties and therefore unenforceable. Factors which indicate an unenforceable penalty clause include where[3]: The agreed sum is “extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach”. The sum needs to be out of all proportion to the damage that would normally be awarded by a Court in the absence of the clause (i.e. it is “in terrorem”). This is the most important test and merely because no pre-estimate was made at the time the contract is entered into does not determine that the clause a penalty[4]; or The breach consists only in not paying a sum of money, and the agreed damages are more than what should be paid as a result; or A single lump sum is made payable by way of compensation on the occurrence of one or more events, some of which may occasion serious damage but others insignificant damage. General principles It is important to keep in mind the following: The circumstances and the terms of the contract as at the time the contract was made are relevant, not the circumstances at the time of the breach of contract; The fact that it was difficult or impossible to precisely estimate the likely damage at the time the contract was made does not determine that it is a penalty clause[5]; The substance and effect of the clause must be considered (not merely the way the clause has been described in the contract); and The burden of proving that the clause is a penalty and unenforceable is on the defendant (i.e. the breaching / paying party). Special rules apply where payment is accelerated and damages for loss of bargain are payable (for example which often appear in hire purchase agreements).  These are treated differently and specific legal advice should be sought[6]. A party seeking to rely upon an agreed damages clause would be best advised to draft the clause with the above in mind and to keep a note of the basis for the calculation and estimate of the damages. …………………………….. [1] See Andrews v Australia and New Zealand Banking Group Limited [2012] HCA 30 and Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28 (27 July 2016) [2] Clydebank Engineering and Shipbuilding Co. v. Don Jose Ramos Yzquierdo y Castaneda [1905] A C 6. [3] See Amev-Udc Finance Ltd v Austin (1986) 162 CLR 170 and Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 [4] Paciocco v Australia and New Zealand Banking Group Limited [2016] HCA 28 (27 July 2016) [5] This was the fourth “test” from Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1915] AC 79 [6] See Melbourne Linh Son Buddhist Society Inc v Gippsreal Ltd (No 2) [2017] VSCA 198 (4 August 2017) for a recent application of the principles. contact us Contact our contract lawyers for assistance in relation to the above. Our commercial lawyers, business lawyers, and disputes lawyers provide expertise in corporate and commercial advisory services as well as litigation and dispute resolution. HEATHFIELD GROSVENOR Level 21, 133 Castlereagh Street Sydney NSW 2000 Australia T: +61 2 8005 7388 E: contact@hglaw.com.au www.hglaw.com.au The information provided in this article is provided by way of general information only. It does not constitute legal advice, and should not be relied upon as such. Specific independent legal advice should be obtained before deciding to act, or not to act, upon the views expressed or information contained in this article.

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Online copyright infringement of movies and website blocking by CSPs: Roadshow Films Pty Ltd v Telstra Corporation Ltd [2016] FCA 1503 (15 December 2016)

The Federal Court of Australia has made the first reported orders under the new s.115A of the Copyright Act 1958 (Cth) by requiring numerous Australian carriage service providers to disable access[1], for up to 3 years[2], to various websites whose “primary purpose” is the infringement or facilitation of infringement of copyright. The Copyright Amendment (Online Infringement) Act 2015 (Cth) amended the Copyright Act 1958 (Cth) by introducing s.115A. s.115A provides that the Federal Court of Australia may, on application by the owner of a copyright, grant an injunction to require a carriage service provider to take reasonable steps to disable access to an online location if: a carriage service provider provides access to an online location outside Australia; the online location infringes, or facilitates the infringement of, the copyright; and the primary purpose of the online location is to infringe, or to facilitate the infringement of, copyright (whether or not in Australia). The purpose of the scheme under the new s.115A is to allow a specific and targeted remedy to prevent online locations which flagrantly disregard the rights of copyright owners from facilitating access to infringing copyright content. Knowledge or intention on the part of the carriage service provider is not required; the specific and targeted remedy exists simply to bring an end to access to such online locations without the need for lengthy factual enquiries associated with copyright infringement actions of the kind seen in Roadshow Films Pty Ltd v iiNet Ltd [2012] HCA 16. There is a high threshold test to be satisfied, namely, that the “primary purpose” of the online location must be to infringe. The case[3] provides guidance on the evidence that will satisfy a Court in this regard. The time at which the Court must be satisfied of the elements in s.115A is the time of granting of the injunction. The making of the application for an injunction must be notified to both the carriage service provider and the person operating the alleged infringing online location (unless their identity cannot be ascertained despite reasonable efforts). The rights owners were required to pay the arguably nominal compliance costs of the carriage service providers in complying with the orders (calculated as a sum per domain name), in addition to the carriage service providers’ legal costs. The carriage service providers were not awarded / not all of them sought their costs of setting up and configuring the necessary systems (i.e. website blocking systems) in order to comply with s.115A. s.115A (9) provides that the carriage service provider is not liable for any costs in relation to the proceedings unless the provider enters an appearance and takes part in the proceedings. It would seem that such costs should be quantifiable by reference to “the proceedings”, if considered commercial to spend time undertaking that exercise. ………………………… [1] By implementing DNS blocking, IP address blocking, URL blocking or any other alternative technical means of disabling access to the online locations (outside Australia) of various websites whose primary purpose is the infringement or facilitation of the infringement of copyright [2] Capable of extension for another 3 years in the case of continued infringement [3] As does the revised explanatory memorandum to the Copyright Amendment (Online Infringement) Bill 2015

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Australian Branch Overseas Business vs Australian Subsidiary Company

This article focuses on two frequently used methods for foreign companies to carry on business in Australia. Frequently, foreign companies do so either by establishing an Australian branch of their existing overseas business (i.e. it is the overseas business which trades in Australia) or, alternatively, the foreign company establishes an Australian company as a subsidiary of the overseas company (i.e. it is the Australian subsidiary company which trades in Australia). Australian branch of your overseas business A “foreign company” for the purposes of the Corporations Act 2001 (Cth) (Corps Act) can be a body corporate that is incorporated outside Australia, or even an unincorporated body that does not have its head office or principal place of business in Australia. Register as a foreign company: If your “foreign company” wants to carry on business in Australia, your foreign company must be registered as a foreign company under the Corps Act with the Australian Securities and Investments Commission (ASIC). Carrying on business in Australia: Whether or not a foreign company is carrying on business is a question of fact and depends on the circumstances. Section 21 (3) of the Corps Act provides that a body corporate does not carry on business in Australia merely because it: (a)       is or becomes a party to a proceeding or effects settlement of a proceeding or of a claim or dispute; or (b)     holds meetings of its directors or shareholders or carries on other activities concerning its internal affairs; or (c)      maintains a bank account; or (d)     effects a sale through an independent contractor; or (e)      solicits or procures an order that becomes a binding contract only if the order is accepted outside Australia, or the State or Territory, as the case may be; or (f)      creates evidence of a debt, or creates a security interest in property, including PPSA retention of title property of the body; or (g)      secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts; or (h)     conducts an isolated transaction that is completed within a period of 31 days, not being one of a number of similar transactions repeated from time to time; or (j)       invests any of its funds or holds any property. Registration requirements: The following documents must be provided to ASIC in order to register as a foreign company: Certified copy of a current certificate of incorporation or registration, or a document of similar effect; Certified copy of constitution; List of directors containing personal details of those directors; A memorandum stating the powers of any directors who are resident in Australia and members of a local board of directors; Certain information and documents relating to registrable charges on property of the foreign company; Notice of the registered office of the foreign company in its place of origin (if it has one) or otherwise its principal place of business; and Notice of the foreign company’s registered office in Australia which complies with s.601CT of the Corps Act[1]. Australian registered office, local agent, and public officer: In addition to an Australian registered office, you will need to appoint an Australian local agent / representative[2]. The local agent is personally liable for anything the foreign company is required by law to do. You must also appoint a public officer for taxation purposes. ARBN: ASIC will issue your foreign company with an Australian Registered Body Number (ARBN). Foreign companies must ensure that their ARBN and their name (as registered with ASIC) and place of origin are shown on their public documents. Reporting: There are ongoing reporting requirements to ASIC. Australian company as a subsidiary of your overseas business Foreign companies often choose as an alternative to register a proprietary company (i.e. one with less than 50 shareholders) as a subsidiary of the foreign company. In this scenario it is the Australian company which carries on business and trades in Australia. The requirements are similar to registration as a foreign company in the sense that registration with ASIC is required, there must be at least one Australian director, there needs to be an Australian registered office, and there are ongoing reporting requirements with ASIC. Australian companies must maintain a company register and unless an exemption applies lodge audited financial statements each year. The company will need to separately apply for an Australian Business Number, Tax File Number, and typically register for Goods and Services Tax (assuming GST turnover exceeds $75,000) as well as Pay As You Go withholding (if the business employs employees or contractors with whom the business has entered into voluntary agreements to withhold or if the business makes payments to other businesses that don’t quote an Australian Business Number). Other key associated considerations (a)       Business name and trade mark search If the foreign company or Australian subsidiary company wishes to trade under a name other than its own name (as registered with ASIC) it must register it as a business name with ASIC. Whether or not the foreign company is trading under its own name or some other new name, it is important that a trade mark search is undertaken by a professional so as to minimise the risk of potential infringement of existing registered or unregistered rights in the proposed name and/or misleading or deceptive conduct under the Competition and Consumer Act 2010 (Cth).  See here for further information. (b)      Trade mark registration Trade mark registration in Australia confers a monopoly right upon the holder of the trade mark to use the mark in respect of the goods or services for which it is registered. You should ensure that your chosen name does not infringe the rights of other by commissioning a trade mark search and protect your brand by registering your trade mark in respect of your goods and services without delay.  See here for further information. (c)       FIRB approval of foreign investment Foreign investment approval may be required depending on the value of the investment, nature of the investment

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