In a long fought battle which has been through the Federal Court, Full Federal Court and now the High Court, AFACT’s appeal against iiNet’s earlier wins, has been denied.

In an unanimous decision, the High Court denied the AFACT appeal.

More to follow.

The Federal Court of Australia today found that some fees imposed by banks amount to penalties at law, and as a consequence are invalid.

The case was brought in a class action against the ANZ Bank by approximately 34,000 ANZ customers who were funded by litigation funders. The Court rules that late fees on credit cards were invalid, but ruled that other bank fees were not penalties and remained valid.

The Age Newspaper is quoting a figure of $18million as the potential value of incorrectly charged late fees, but this is an issue which the Federal Court will address next year.

Where a Court determines something is a penalty at law it is invalid and the party making the claim is not entitled to recover these amounts.

Daniel Goncalves a Union County man has been sentenced to a term of 5 years imprisonment for the theft and sale of the domain name P2P.com, in what is believed to be the first domain name theft case of its kind.

It was alleged that in 2006 Goncalves gained unauthorised access to an AOL email account operated by the registrant of P2P.com, in order to authorise a transfer of the domain name. Once the name was transferred Goncalves apparently sold the domain name on Ebay for $111,000. He was later arrested on 30 July 2009 and was indited for a range of offences including computer theft. He plead guilty to those charges in 2010 and was this week sentenced.

The domain name has been returned to its rightful owners and the Court ordered that Goncalves pay an amount in restitution to the victims.

In September 2011, the adult industry will get its own internet ‘red light district’ when the new .xxx top-level domains become available for registration.

ICM Registry, which has been approved by ICANN to administer the .xxx TLDs, has announced a pre-registration ‘sunrise’ period, starting on 7 September 2011 and running for 30 days.
In Sunrise A, members of the adult entertainment industry will be able to pre-reserve their desired .xxx domain names.

In Sunrise B, which will run concurrently with Sunrise A, trade mark owners in non-adult industries will be able to pre-emptively block the registration of a .xxx domain name that matches their trade mark. It’s a defensive measure that ensures that a brand is not associated with explicit or adult-oriented content by removing the associated .xxx domain name from the pool of domain names able to registered.

The important points:
To pre-emptively block a .xxx domain, trade mark owners must file a Sunrise B application between 7 September 2011 and 7 October 2011.
A one-time fee is payable for a filing a Sunrise B application (not yet finalised but expected to be around US$200 to US$300.
The blocked domain name must be the exact match of a nationally registered trade mark – e.g. trademark.xxx can be blocked but not trademark-porn.xxx.
While Sunrise B is the only way a trade mark owner can pre-emptively opt-out of the .xxx domain space, there will be post-Sunrise mechanisms that trade mark owners can use to protect their brands (in addition to the existing UDRP process).
Sunrise B opens soon and will run for a very limited time. Contact trademark lawyers to take advantage of this one-time opportunity to pre-emptively keep your valuable brands out of the .xxx neighbourhood.

Most business people will at some point sell their business. The most common way to do this for small business owners is to engage the services of a licensed real estate agent or licensed business broker.

There are a number of things that you should know when dealing with a business broker / agent:

Term of Appointment

All contracts with business brokers and agents will have a minimum period of appointment, with an additional period called a continuing period after this time. You should consider appointing an agent for a set period with no additional or continuing period, this will make your agent work harder and will help you avoid being locked into a relationship which isn’t working.

Commissions

Business brokers and agents almost always charge their commission on a variable basis, for example 5% of the sale price, but often charge additional fees / charges. You should be clear to find out, before signing an agreement, whether this is the total of the agent or business broker’s fee, or whether there are additional advertising and retainer fees payable. If you don’t ask this question, it can be a costly mistake.

Contracts

Finally when you find a buyer and the deal is ready to be done, you need to sign a contract of sale of business (and in some cases a share sale agreement). Many business brokers and agents use a standard form document, while these documents are generally suitable for a very small number of businesses, they can’t always address the complexities of each individual sale. You should never rely on a business broker or agent to prepare a contract for you, lawyers commonly see a number of mistakes that business brokers and agents make, for example:

1. they change the standard form contracts, which can lead to unintended consequences;

2. in most cases special conditions need to be drafted, business brokers and agents are not lawyers, they do not understand the legal complexities of contracts and are not qualified to draft special conditions – lawyers have seen many examples of poorly drafted clauses which have the reverse legal effect to what the client had actually wanted;

3. clients suffer severe tax consequences as a consequence of contracts that do not properly consider tax and corporate planning issues.

Before you sell your business you should always speak to your lawyers and accountants to obtain the right advice.

A lot has been written on the huge financial impact sickness, work place accidents and the like have on the business community. However, very little attention has been given to the effects a breakdown of marriage has on a person’s office productivity. Up to 40% of marriages now end in divorce, with the trend increasing. Accordingly, a very large percentage of the workforce is directly affected and involved. Indirectly, virtually everyone is involved in some way in the process, whether as a family member, confidante, or sympathetic work colleague.

There are the obvious and immediate effects to the business, such as absenteeism. Then there is the distraction of the staff member seeking support from within the office during those difficult times. Less obvious are the mistakes that are made due to being distracted, lack of motivation, sometimes for long periods of time, and lack of positive initiative. When a senior and valued executive is effected in this way, the effects on the organisation can be devastating. There are even instances where a separation of top level executives or proprietors has created doubts in the minds of all employees as to the long term viability of the business concerned, with the resultant debilitating consequences. The legal process of divorce proceedings can also be quite stressful. Several attendances at Court may be required as well as counselling in certain circumstances, particularly when children are involved.

Given the above, a concerned employer would observe that it is important to see that the process is carried through quickly and efficiently. Appropriate and sensitive support from the
organisation would be beneficial. At the very minimum, the staff member should obtain competent counselling and legal advice. Whilst legal action may not be contemplated and
indeed may not even be necessary, at least in this way many popular misconceptions regarding the ramifications of the separation can be disabused. If action is required for the
benefit of the employee, then it can be taken sooner rather than later. It is appreciated that different people react differently to the stress of a divorce. By pointing the person in the right direction, the prospects of a speedy recovery can be greatly enhanced. This is particularly so if the work environment provides sympathetic and positive support during these difficult times.

In our view, if your organisation has not yet given consideration to pro-actively providing assistance, it would be advantageous to do so. The message to the recipient is one of care
and concern for their welfare. For the organisation, the end result would be a speedier return to a balanced and settled work environment, with improved productivity. The Family Law
Department at Moores Legal is well aware of the need to ensure speedy and efficient service, conscious of the concept that “time is money” both for the organisation and for the
staff member concerned.

Personnel managers in your organisation may wish to give consideration to the possibility of contacting us to provide first consultation advice as part of their services to the staff. If there are any inquires in that regard, or regarding counselling and other support services, please do not hesitate to contact us.

Article By Peter Szabo, Principal, Moores Legal

Peter Szabo, is a Principal and member of Moores Legal’s Family Law Group. An acknowledged leader among Family lawyers throughout Australia and an Accredited Family Law specialist, Peter is particularly expert in handling financial issues and taxation/estate planning within property settlements. He was the key lawyer in the famous High Court case of Ascot Investments and Harper which remains the definitive case on third party rights in the Family Court. Peter is also experienced in international aspects of Family Law and is a member of the International Academy of Matrimonial Lawyers. Peter is engaged by clients, financial advisors and national financial planning institutions to assist with financial,
tax and estate planning strategies and how those strategies are affected by marital breakdown.
9 Prospect St, Box Hill Vic 3128 Telephone: (03) 9898 0000 Facsimile: (03) 9898 0333
Lvl 10, 350 Queen St. Melbourne Vic 3000
info@mooreslegal.com.au www.mooreslegal.com.au

DISCLAIMER This article is intended to provide general and useful information. However, it is not proposed to be comprehensive legal
advice. Readers are advised that before acting on any matters arising in this article they should seek specific legal advice about their
situation.

How careful are you when it comes to contracts? Do you always check to make sure you’re agreeing to something that is fair for you? If you sign up for a credit card without finding out the card’s terms and your responsibilities, you’re not being careful with contracts. Yes, a credit card agreement is the same as any other legal contract.

When you apply for a credit card, think past the low interest rate or your high limit. What happens at the end of the low interest term? Or if you make a late payment? Or if you go over that high limit? You can find all this information in your credit card agreement.

If you don’t see the answers to these basic questions, STOP! Look through the information the credit card company sends you. If you still can’t find the answers, call the credit card’s customer service department. The representatives should be able to answer your questions, but if they can’t, ask to speak to someone who can. When you get an answer, ask where you can find the information in your printed material. You’ll want to make sure you have the details in writing.

Find out as much information as you can before you apply for the credit card. It’s better to find out something you don’t like before you go through the trouble of filling out an application than after you’ve received your card. Closing out credit card accounts can lower your credit score, so be careful when you choose a new credit card. You’ll want to keep the account open for a long time.

Sometimes credit card companies make changes to their terms, and they will send you a notice. Be sure to read any notices you receive about your credit cards. Ask questions if there?s something you don’t understand. Surprises are nice but not when it comes to credit cards.

Another helpful bit of Credit Card advice from Credit Cards Heaven. Because no-one understands Credit Cards like we do.

The ICANN Board has just approved the release of new IDN ccTLD domain names, and paving the way for the creation of the controversial .xxx domain names.

The IDN ccTLD domain names approved by ICANN are:

• CNNIC (China Internet Network Information Center)
• HKIRC (Hong Kong Internet Registration Corporation Limited)
• TWNIC (Taiwan Network Information Center).

This announcement comes hot on the heels of the recent release of the Russian and Arabic IDN ccTLD, which we announced with great fanfare.

The contraversial .xxx domain was allowed to pass with ICANN saying:

The ICANN board also voted to allow the application for the controversial .XXX top-level domain (TLD) to move forward. The ICM registry applied for the .XXX sponsored top-level domain as a potential community site for the adult entertainment industry. The Board approved a detailed set of next steps for the application, including expedited due diligence, negotiations on a draft registry agreement, and consultation with ICANN’s Governmental Advisory Committee.

The .xxx domain was first discussed in 2000 as a dedicated domain for the Adult industry, but fierce debate from supporters and detractors has raged since then. In 2007 the ICANN Board rejected a proposal to progress the .xxx, but in more recent times members of the ICANN board have expressed support for it.

The challenge for brand owners is to take advantage of the sunrise period to protect their brands by registering domain names within the new extensions.

We are currently working on some new business law articles and hope to bring them to you shorty.

If you have a special request for a business law article please let us know.

The Businesslaw.com.au Team

By the BusinessLaw.com.au Team

The Federal Government’s most recent reviews of the Franchise Code have suggested a number of reforms aimed at protecting franchisees against unscrupulous franchisors.

In proposals arising from a chain of government reviews, it is proposed that the ACCC have the power to name and shame dodgy franchisors, and to conduct audits and impose fines for unconscionable conduct.

Despite a push by franchisee groups and others to expressly include an obligation of good faith in all franchise agreements, this is unlikely to appear any legislative reforms. The obligation is an one where the parties deal with each other in a reasonable, fair and cooperative manner.

The need for the various government reviews arising from the conduct of some franchisors, which has led to franchisees franchises being terminated, and franchisees being ripped off.

In addition to increased powers for the ACCC, the other suggested changes include:

1. Bolstering fines for unconscionable and misleading/deceptive conduct, by increasing fines for individuals to $220,000 and $1.1 Million for corporations;
2. Amending the Franchising Code to allow the ACCC to undertake audits of franchisors;
3. Public advisories, warning franchisees of ‘dodgy’ franchisors;
4. A requirement that Franchisors clarify to Franchisees, what happens at the end of the term of an agreement, including mediation to resolve disputes;

It is hoped that by the end of this month (January 2010) that the expert panel appointed by the government will report back with other suggestions for amendment to the Franchise Code and a definition for unconscionable conduct.

The changes appear to be coming some 9 years after the introduction of the last amendments to the Franchise Code in 2001.