• Enterprise Legal - Commercial or Retail Lease Dispute: When is it Time to ‘Lawyer Up’?

    So you have followed our top tips for entering into a commercial or retail lease, but things haven’t exactly gone to plan. How do you know what the next step is?
    And how do you know when it is time to get expert lawyers involved?

    At Enterprise Legal, it is our view that most disputes are best handled early on before little problems become big problems. Whether you are a landlord or tenant, the best way to resolve a lease dispute is to ensure that it is handled properly from the start.

    The following are ‘red flags’ that indicate that it’s likely time to chat with the Enterprise Legal team:

     

    1. A Notice to Remedy Breach Has Been Issued

    If you are a tenant and have been issued with a Notice to Remedy Breach, stop what you’re doing and come chat to a lawyer! Breach notices need to be issued in a particular way to be valid under law, and the reality is that most landlords (and even some lawyers) don’t get this right. If a Notice is incorrect, it will likely be invalid. If you engage a lawyer at this point not only can you ensure that any issues with a Notice can be resolved, but you may also find that your lawyer can help you negotiate an outcome with your landlord.

    If you are a landlord and need to issue a Notice, don’t go at it alone! It is so easy to make a mistake when preparing and issuing a Notice to Remedy Breach so it is worth engaging a lawyer so that you can ensure that everything is correct. If a Notice is not valid you will ultimately end up spending more time and money than you would have if you had a chat to a lawyer to begin with.

     

    2. You Are Not Getting Along With Your Landlord/Tenant

    While disagreements between parties may just seem like straightforward interpersonal concerns at first, we all know that these things can escalate quickly! By chatting to a lawyer early on, you may be able to resolve your concerns, put your mind at ease, and ultimately avoid a prolonged dispute. Sometimes a simple letter from a law firm can make a real difference. If it doesn’t, you will have a record of your concerns and can point to your attempts to resolve issues later on down the track, which will assist your prospects significantly!

     

    3. You Have Been Locked Out (Or You Want to Lock Out Your Tenant)

    Landlords - hold your horses! Locking out a tenant is pretty serious, and you need to make sure that you have followed the appropriate steps before you escalate matters. If you don’t, you are at a real risk of ‘repudiating’ the lease (which is bad!) and being liable for the tenant’s damages.

    Tenants, if you are locked out, it is time to chat to a lawyer pronto! You do have options here, including obtaining an injunction to regain access to the premises. If you are unlawfully locked out, you may be entitled to claim damages from your landlord or claim that they have repudiated the lease. Either way it is imperative to make sure that you act quickly!

     

    4. You Just Want to End Your Lease

    If you want to terminate your lease early, there may be options available to you. If you want to terminate and minimise your risk, you’re going to want to speak with a lawyer first to work out how to properly terminate your lease, minimise your risk, and perhaps even resolve the concerns leading to termination of the lease.

     

    5. Something Just Doesn’t Feel Right But You’re Not Sure What

    Maybe something relating to your lease just doesn’t feel right and you want to get a sense as to whether it’s okay or not. The law is a confusing beast, and without the experience and expertise of a lawyer, it might not always be clear if something is okay and if you can proceed. If you are ever unsure, it may be a sign that it is time to chat to the Enterprise Legal team. If something is amiss, we will be able to quickly identify any issues and whether something can be done, or alternatively be able to set your mind at ease.

     

    While you can’t always avoid a dispute, the best way to avoid significant costs and a lengthy legal battle is to act quickly. To resolve your concerns swiftly, engage the expert Enterprise Legal Disputes team to help you with your lease dispute.

    ☎️ (07) 4646 2621

    ✉️ Submit an Online Request

  • A Letter Of Demand Can Help You Recover Your Debts | Enterprise Legal

    A Letter Of Demand Can Help You Recover Your Debts

     

    Minor Debts Are Not Minor Problems

    Minor debts can be the cause of many sleepless nights for small to medium business owners. The problem is that while an amount owed to you might cause inconvenience to you should you not recover it, it might not be so large a sum that you want to incur further costs engaging a lawyer or a debt recovery agency to collect your money, especially when that might cost more than the actual debt!

    In some aspects, it is simply easier to write the debt off. However, those minor debts can add up and if you are consistently writing off $5,000.00 to $10,000.00 every other month, this will cause significant detriment to the viability of your cash flow and business.

     

    Good Reasons to Send a Demand Letter

    Having a formal Letter of Demand issued by a law firm sends a clear message that you are serious about recovering the debt and will not be so easily dismissed. The purpose of the Letter of Demand is also two-fold - first, it puts the debtor on notice of your intention to commence legal proceedings unless payment is made within a stipulated time frame. Secondly, the Letter can be used as evidence in subsequent court proceedings as written proof of your attempt to settle the matter early.

    The Letter will also clearly set out the parameters of the dispute and may even account for any offset due. The Letter should attach a copy of any agreement, invoices or relevant text messages to assist any reader to identify the transaction and the liability to pay. This often assists in reducing the scale of the dispute to something more easily managed and addressed.

    It is also our experience that you as a client feel emotionally better about the situation, after having decided to send a Letter of Demand. Having a trusted and knowledgeable advisor to discuss the problem with puts the problem into perspective. Often just having a plan and set steps to follow removes the stressful burden of figuring out what to do next by yourself. 

     

    What are the Possible Outcomes from Sending a Letter of Demand?

    The best result is receiving prompt payment from the debtor, with a side benefit of tightening up your trading terms and conditions to reduce the risk of debts arising again.

    Another outcome is the creation of ‘industry reputation’. It may be to your benefit for your general customers to know that you are serious about being paid for your services and that you are willing to engage legal assistance when required. This perception is worth every metaphorical penny, as it can weed out the time wasters and non-payers from the very beginning.

    Frequently though, no response nor payment is received. This at least crystallises your available options and we can let you know the costs associated with each subsequent step. The true power of a demand letter is being prepared to act on the foreshadowed step of commencing proceedings, otherwise the debtor may simply be calling your bluff.

    Our highly experienced Disputes team at Enterprise Legal provides a full debt recovery service and can assist you from reviewing your contracts and debts, to sending Letters of Demand (at fixed fee rates) all the way through to commencing proceedings and obtaining Judgments, a winding-up Order or sequestration (bankruptcy) orders against a Debtor.

     

    If you need assistance, Enterprise Legal will work collaboratively with you and financial advisors to assist to limit the damage whilst also ensuring your legal rights and interests are protected.

    Contact EL’s Principal Legal Advisor – Disputes, Kirsten Woolston to discuss your options today: 

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request

  • Enterprise Legal - How to Avoid a Lease Dispute

    At Enterprise Legal, we always say that ‘prevention is better than cure’. So when it comes to commercial, industrial or retail lease disputes, the best way to prevent them is to ensure you understand what you are signing up for in the first place and to negotiate some protections at the time of entering into your lease. After all, a lease is typically one of the biggest financial obligations that your business may need to commit to, keeping in mind that you are usually committed to your obligations for a minimum of three or five years!

    Whether you’re a Landlord or Tenant, here are our top five tips to keep in mind when entering into your next lease:

     

    1. Heads of Agreement/Letter of Offer Terms

    Quite often, before a lease is prepared, the parties will sign a short document or letter outlining the key terms of the deal. This document is usually referred to as a ‘Heads of Agreement’ or ‘Offer to Lease’ and is often prepared by the real estate agent managing the deal.

    Although usually an Offer to Lease is not binding on the parties, it forms the basis of the formal lease terms. This stage of lease negotiations is the best time to negotiate key terms, before either party incurs the expense of preparing and negotiating formal lease documents. If either party seeks to amend terms that are agreed in a Letter of Offer after formal lease documents have been prepared, it can create friction between the Landlord and Tenant at a very early stage in their association.

    We recommended that you seek legal advice on the terms of an Offer to Lease, to ensure a smoother lease negotiation process and to avoid the potential for a dispute.

     

    2. Permitted Use 

    A frequent issue in lease negotiations is whether a Tenant will have the exclusive right to operate their business type (specified as the ‘permitted use’) in the centre/complex. This means that it’s very important for a Landlord to consider whether any Tenant’s proposed use conflicts with any rights the Landlord has already given to existing Tenants in the centre/complex.

    A more commonly overlooked issue around permitted use is which party is responsible for ensuring that the intended use can lawfully be conducted from the premises. The widely accepted position in leasing matters is that the Tenant is responsible for all aspects of ensuring their intended use can be carried out from the relevant premises. A Landlord will typically include protections in the Lease under which the Landlord expressly states they do not warrant or guarantee that the premises will be fit for the Tenant’s intended use, and further that the Tenant is obliged to obtain all necessary consents/approvals (i.e. liquor licences, council approval etc) to run their business from the premises.

    Landlords should always ensure this protection is included in their Lease and Tenants should understand that it is a matter for them to ensure that the premises will be fit for their specific purpose. To avoid disputes, a Tenant should make enquiries early (prior to signing a lease!) to ensure they can lawfully conduct their business from the premises. Failure to do this can result in having to comply with notices from applicable authorities (eg. Council), which can be extremely expensive!

     

    3. Repairs to Equipment 

    Another common area of dispute relates to responsibility for fixing certain equipment (such as air-conditioning equipment) in the premises if they need repairing.  

    A lease should cover off on the responsibility of the parties to maintain equipment, and to repair/replace it when it breaks. Typically, a Tenant is responsible for ‘wear and tear’-related repairs, whereas a Landlord will be required to attend to all repairs or replacement that are of a ‘capital nature’ provided that the Tenant has regularly serviced or maintained that equipment during the Term and has not deliberately or wilfully contributed to the damage. However, that will not always be the case and it is important that both parties check the relevant clauses in their Lease to understand their obligations. It is also beneficial (especially for the Tenant) to take steps to understand the condition of any relevant equipment (such as air conditioning) at the time of entry into the Lease.

     

    4. Insurance 

    Tenants in particular should always consider the specific wording of any clause in their Lease that deals with insurance obligations, to ensure the Landlord’s requirements will be commercially acceptable to the Tenant, especially in light of their intended business use.

    Some practical examples are:

    • Where the Lease requires insurance to be taken jointly in the names of the Landlord and Tenant.This seems innocent enough, but the practical reality is that this type of insurance cover can be onerous and expensive for a Tenant to obtain. Realistically, a Landlord generally requires this so that they can receive notice if a Tenant makes a claim on their insurance policy in relation to the Premises. The practical compromise is that the insurance clause should only require the Tenant to note the Landlord as an ‘interested party’, which does not cause extra cost and which requires the insurer to provide notice to the Landlord if any claim is made.
    • Where the Lease requires business interruption insurance. This is a ‘big hitter’ as far as the cost of insurance is concerned. A Tenant should consider whether they really require and whether they can afford this type of insurance, before they agree to be bound by a lease to obtain it.

     

    5. Landlord’s Right to Redevelop/Relocate

    Landlords of multi-tenant centres or complexes (eg. shopping centres or strip-malls) typically include clauses which give them the right to relocate Tenants to comparable locations within the centre/complex, or to redevelop or demolish part of all of the centre/complex.

    Tenants should always carefully consider the specific wording of these clauses and the practical implications. At a minimum, the clause should stipulate that any relocation must be to a comparable location and it should deal with how the rent will be treated in those circumstances, but as a further step, the Tenant should consider whether they want to (where practical) have the right to return to the original location. It is also important to contemplate who will be responsible for the costs of the Tenant’s fit-out in the new location in these circumstances.

     

    A well drafted and well-understood lease will go a long way to avoiding a dispute arising between the Landlord and the Tenant. To avoid a costly dispute, engage the expert Enterprise Legal Business Law team to help you with your next lease negotiation:

    ☎️ (07) 4646 2621

    ✉️ Submit an Online Request

  • Enterprise Legal | Facebook Trolls Be Aware!

    It’s not exactly news that it’s important to be careful when posting on social media, especially when it comes to posting about other people or other businesses. It is, however, news that posting defamatory posts and comments on social media could cost individuals big time.

    In the decision of Webster v Brewer (No 3) [2020] FCA 1343, the Federal Court of Australia awarded $875,000 in favour of Nationals Member for Parliament Dr Anne Webster, her husband, and their not-for-profit organisation as a result of defamatory materials posted online by Karen Brewer. Ms  Brewer posted a series of ‘vile’ and ‘heinous’ Facebook posts that linked Dr Webster to a secret criminal network of child abusers.

    The Court considered the extent of the publication of the posts to be significant. The videos posted by Ms Brewer exceeded 1,000 views, and the published posts received more than 200 reactions, comments and shares. Given the population of Mildura is 54,000, the Court was left with little doubt that the posts had been widely published and were likely to have spread further throughout the local community.

    It was determined by the court that the posts had a detrimental impact on the reputations of the Websters and Zoe Support and that the posts and videos had likely “been believed by a small but not insignificant segment of the Mildura community.”

     

    Key Takeaways

    In making the determination, Justice Gleeson noted that:

    • the Court must consider the ‘grapevine effect’ and acknowledge that defamatory claims and materials can spread beyond the people to whom the materials are published;
    • damages ought to be significant enough to convince an observer that the defamatory allegations are not true;
    • damages must compensate for injured feelings, loss of self-esteem, and sense of indignity, particularly in circumstances where defamatory claims are particularly ‘vile’ and where a plaintiff has a particular reputation based on honesty and integrity;
    • defamatory statements cannot be made about public figures solely because they are in the public sphere;
    • the repetitive posting of the defamatory content was particularly relevant; and
    • in circumstances such as this where the defamatory claims were particularly ‘vile’ or ‘heinous’, it could not be claimed that conduct was justifiable as a defence.

    While it may go without saying that it is important not to post materials that are so obviously defamatory, Webster v Brewer (No 3) should serve as yet another warning to be careful before posting on social media. This case makes it clear that the Courts will award significant damages for serious, repetitive, and wholly baseless posts and comments that may damage another person’s reputation.

     

    If you are seeking trusted legal regarding online defamation; talk to the Enterprise Legal Disputes team:

    ☎️ (07) 4646 2624

    ✉️ Submit an Online Request

  • Defamation in a Digital Age | Enterprise Legal

    “Words are free. It’s how you use them that may cost you.”

    The monetization of digital social platforms like Facebook, Twitter, TripAdvisor, True Local or other referrer platforms, means that a few ill-chosen online comments can now have global reach and permanent consequences. 

    Opinions and views (informed or ludicrous) are freely published, and such words can significantly harm a person – be it reputational or financial. This is easiest to see in the growing industry of ‘influencers’, where the individual’s reputation is intricately linked to their financial worth. 

    In Queensland, if you are on the receiving end of false and damaging statements (known as Publications), you may have the right to commence proceedings for defamation even if the publication was physically made outside of Queensland.

     

    Defamation

    Defamation occurs when a false statement is published which harms your reputation. Defamation on social media has become a regular occurrence and a growing problem, resulting in recent legislative changes.

    On 1 July 2021, the Defamation (Model Provisions) and Other Legislative Amendment Act 2021 (Qld) came into force and amended the Defamation Act 2005 (Qld). One of the most significant changes is the introduction of section 10A which requires that an individual has no cause of action for defamation unless the individual proves that the publication has caused, or is likely to cause, serious harm to the reputation of the individual.

    For ‘excluded corporations’, which are businesses with 9 or less staff, it must prove the publication has caused, or is likely to cause, serious harm to the reputation of the business, and serious financial loss.

    The new result is that minor or trivial reputational harm alleged to be caused by a defamatory publication will no longer give rise to a cause of action in defamation.

    It is possible to extend a finding of defamation beyond the original publisher. This means that if another person shares or tags the original post, or adds comments to the post, or even ‘likes’ it or responds with an emoji (such as an angry or laughing face), each action can constitute a separate publication and can see each person liable for defamation.

     

    Time Limits

    In Queensland there is a limitation period of 12 months from the date of publication and any court action must be commenced within those 12 months, otherwise the claim is statute barred.

     

    10 or More Staff

    Businesses with 10 or more staff cannot file a claim for defamation and are required to make a claim for ‘injurious falsehood’.

     

    To be successful in an injurious falsehood claim:

    1. actual measurable financial loss attributable to the publications, is required; and
    2. the motive of malice to harm your businesses’ reputation by the publishing party, must be proved.

     

    Don't Panic

    If you or your business has been the target of defamatory comments, we recommend that you make a printed copy of the publication and make a note of the date and time of the online post. You may also wish to do a search of several platforms to see if the comments were limited to one online platform or several and monitor these for several days.

    You can reach out directly to the host of the platform for assistance, but generally limited assistance will be provided.

    The Defence of Contextual Truth is a complete defence to a claim of defamation, so ensure that you undertake appropriate investigations as to the accuracy or falsity of the Publications as soon as you become aware of the publication. Keep notes regarding your investigative process and conclusions. You may also need to speak with your financial advisor to assess sustained financial losses.

    If the post is not removed within several days, please contact us promptly to obtain legal advice as the sooner you act, the better the available outcomes. 

    If there is sufficient harm warranting progressing the matter, then a Concerns Notice under section 12B of the Act will need to be issued before any court proceedings can commence. This is a new requirement of the recent amendments.

    As at the date of this article, section 35 of the Act limits damages for non-economic loss to a maximum of $250,000.00 which is to be awarded only in the most serious of cases. Exemplary or punitive damages cannot be awarded but any awarded damages are to bear a rational relationship to the harm caused.

     

    Do you need professional advice in relation to defamation? Enterprise Legal can work collaboratively with your financial and marketing advisors to assist to limit the damage caused whilst also ensuring your legal rights and interests are protected. Contact EL's Principal Legal Advisor - Disputes, Kirsten Woolston to discuss your options:

    ☎️ | (07) 4646 2621
    ✉️ | Submit an Online Request