This presentation will focus on the legal and practical issues which legal advisors and their clients should consider when addressing the topic of business succession planning for private businesses. In particular, this session will cover the following key topics:

• The value of an effective and well drafted buy/sell agreement for multi-owner businesses.
• Key terms of a buy/sell agreement.
• Funding issues and structuring insurance arrangements.
• Issues with superannuation policy ownership.
• Tax implications arising from buy/sell arrangements.
• Other stakeholder agreements (such as shareholder agreements, partnership agreements and unitholder agreements).
• Employment / management succession plans.
• Intergenerational family succession planning.

At the most basic level, an employment relationship is a contractual relationship between an employee, who promises to perform duties for an employer, and an employer, who agrees to remunerate the employee for that service.  An employment contract may be verbal or in writing, and when in writing it can be constituted by one document or a series of communications.  It is best practice to have a comprehensive, written contract of employment in place for all employees, but unfortunately not all employment contracts are created equal.

In this presentation, we will cover:

• what should be included in a written contract in relation to an employee's duties, types of employment, hours of work and location;
• how an employee's remuneration and other financial and non-financial benefits should be dealt with in the contract;
• why it is important to include effective confidentiality restrictions and intellectual property protections;
• how to deal with the termination of the employment relationship and related issues;
• how to prepare and draft effective post-termination restrictions; and;
• how an employment contract interrelates with relevant modern awards, enterprise agreements, the National Employment Standards, and company policies and procedures.

Disclosure and obligations of good faith - Some recent cases concerning breaches of the Franchising Code of Conduct prosecuted by the ACCC and what we have learnt concerning obligations of good faith and disclosure.

Civil Penalty Provisions - Powers of the Court to impose civil penalties on directors or officers that do not act in accordance with the Franchising Code of Conduct.

Advising franchisees/franchisors.

Issues concerning the exercise of options to extend the franchise agreement.

Issues concerning the restraints contained in a franchise agreement and how that may be impacted by Section 23 of the Franchising Code of Conduct.

Matters concerning territorial breaches and parties’ obligations to observe a territory that forms part of the franchise agreement.

Dealing with operational breaches of a franchise.

Occupancy of premises by a franchisee and their inclusion in the franchise agreement.

At the heart of large construction and engineering projects are the risk allocation arrangements. As part of that, principals usually require contractors to provide performance bonds/guarantees. There was a growing trend in the case law that these performance bonds were prima facie to be regarded as risk allocation devices such that when a dispute broke out, the party providing the bond was the one to be out of pocket until the dispute was resolved. 

This constituted an obstacle to those who provided these bonds in obtaining interim injunctions restraining calls on them. Eye watering amounts are involved in these types of cases with bonds often denominated in the scores of millions of dollars so the approach to construction has serious real world impact. However, the NSW Court of Appeal may have signalled a step back from that position in Kawasaki Heavy Industries Ltd v Laing O’Rourke Australia Construction Pty Ltd [2017] NSWCA 291; (2017) 96 NSWLR 329, namely that the correct way to approach the true construction of clauses providing for such bonds is on general principles relating to the construction of commercial contracts. 

This is an approach that now appears to have been taken up by at least one other intermediate appellate court, namely JKC Australia Lng Pty Ltd v CH2M Hill Companies Ltd [No 2] [2020] WASCA 112. Kawasaki also considered the impact of an arbitration clause on what interim relief (if any) a court ought provide. This presentation will take a brief look at where we have come from in this regard, where we are now and what the future trend in this area is likely to be.

Charles Colquhoun, Barrister, Tenth Floor Chambers

Bradley Smith, Barrister, Tenth Floor Chambers

1. Introduction – why is it important to know about frustration and force majeure?
2. Force majeure
3. Doctrine of Frustration

Court proceedings have been transformed by the impact of the COVID-19 pandemic. This seminar will begin with a synopsis of the current Commercial List approach to online hearings and case management during the pandemic.

The seminar will also address the key practical aspects of Commercial List proceedings, from filing a list statement; procedural case management; the operation of Practice Note SC Eq 11; preparing a court book; objections; preparing for hearing; and of course running the hearing. The presenters will also analyse a recent decision of the New South Wales Court of Appeal concerning the principles of contractual construction (as they apply in commercial cases).

David Sulan, Barrister, Banco Chambers

Ryan Jameson, Barrister, Banco Chambers

This pre-recorded webinar was originally presented as part of Specialist Accreditation Week 2020

Police questioning is happening in laneways, homes and in hospital beds. With the rollout of new technology, police are now frequently questioning people at the scene of their arrest using body worn video. 

These persons may be orally cautioned but this does not go so far as to “provide for the rights of a person so detained” in accordance with the objects of Part 9 of LEPRA. 

Persons interviewed this way are not afforded the opportunity to receive legal advice prior to questioning. The Custody Notification System for Indigenous persons is not utilised. Part 9 rights are vitiated by this policing technique. 

Practitioners are confronted with the admissibility of evidence gathered in this way. The prevalence of this technique and its use in domestic violence offences are matters of professional concern. 

This presentation will explore whether this evidence should and can be the subject of objection and how to go about making objections.

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This pre-recorded webinar was originally presented as part of Specialist Accreditation Week 2020

This session will explore developments in advocacy and the administration of justice from both a pre and post COVID-19 pandemic perspective.  

It will examine the policy and operational context of the criminal justice system in NSW pre COVID-19.  Specifically, it will outline how the business of the District Court and the Local Court, and the prison population have been effected by the drivers of the sustained growth in the number of matters brought before the courts, the District Court backlog initiatives, and the raft of legislative reform including the EAGP, sentencing and parole, high risk offender, and Table offence reforms. It will consider how some legislative reform operates disproportionately against the most disadvantaged people in our community.  

The session will then examine the criminal justice system in NSW post COVID-19.  It will look at the safety measures that have had an impact on advocacy in the criminal courts, as well as legislative changes, and consider how they might affect the criminal justice system in NSW into the future.  

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This pre-recorded webinar was originally presented as part of Specialist Accreditation Week 2020

This session gives an overview of the operations of the Office of the Director of Public Prosecutions (NSW) including structure, workflow and workload. The session explores some of the challenges faced by the ODPP including the impact of legislative reform and this risk of vicarious trauma to their staff. Some examples of the work being done to meet these challenges are highlighted. This leads to a discussion around the role of the Prosecutor, the Prosecution Guidelines and how they translate into day to day operations. There are also insights into dealing with the ODPP productively and effectively.

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