With the enactment of the new laws, all current company Directors and anyone who wishes to become one, will be required to obtain a unique Director identification (Director ID) number. This will be administered by a new national registry service, the Australian Business Registry Services (ABRS). Unlike the previous system which allowed any natural person to register themselves as a Director in a database maintained by ASIC, this new registry will assist regulators to accurately identify Directors with verified identification documents, which will assist with enforcing accountability if they commit offences or engage in misconduct, and prevent illegal phoenix activity.
Who should apply for Director ID and when?
All natural persons who are currently registered as a Director, or want to be registered as a Director, of a legal entity under the Corporations Act 2001 (Cth) must apply for Director ID through the new service called the Australian Business Registry Services (or ABRS). Relevant legal entities include a company, corporate trustee (including a self-managed super fund), charity or not-for-profit organisation, registered Australian body, or a foreign company registered with ASIC carrying on business in Australia.
The deadline for applying for a Director ID depends on when you were appointed as a Director:
- If you are already a Director on or by 31 October 2021, you must apply for Director ID by 30 November 2022.
- If you become a Director between 1 November 2021 and 4 April 2022, you must apply for Director ID within 28 days of your appointment.
- If you become a Director from 5 April 2022, you must apply for your Director ID prior to your appointment or registration of a company.
Failure to apply for Director ID by the required date may result in criminal or civil penalties of 5000 penalty units, which equates to up to $1.11 million. From the date you receive your Director ID, it will be attached to you permanently, even if you cease to be a Director, move interstate/overseas or change your name.
How do you apply for Director ID through the ABRS?
You must apply for Director ID yourself as you must verify your own identity. However, a staff member at Etheringtons Solicitors can assist you to understand the new Director ID requirements and provide support throughout your application. To apply, you must:
- Set up your MyGov ID login, ensuring you achieve standard or strong identity strength, and download the relevant phone application.
- If you are unable to do this, you can complete your application for Director ID through a slower phone application or paper form which will be available in November 2021 but you must still complete step 2.
- Prepare your documentation as evidence of your personal identification. This documentation must be verifiable by the ATO and will include the following:
- Tax file number (TFN),
- Residential address as held by the ATO, and
- Any two of the following personal information documents:
- Bank account statement
- ATO notice of assessment
- Superannuation statement
- Dividend statement
- Centrelink payment summary
- PAYG payment summary.
If your legal entity has an Australian Business Number (ABN), you will be required to confirm whether that organisation is registered as a company with ASIC (with an appropriate Australian Company Number), as an Australian Body (with an appropriate Australian Body Number (ARBN)), or as a foreign company (with an appropriate ARBN).
- Once you have a myGovID you can log in and apply for your director ID. If you can’t apply online you can use a downloadable form instead – Application for a director identification number (NAT75329, PDF, 306KB).
How Etheringtons Solicitors can help
A solicitor or other staff member at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. If you need further advice or assistance with business law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
The Treasury Laws Amendment (2021 Measures No. 1) Bill 2021 (“the Bill”) was passed by Federal Parliament on 10 August 2021 and became effective from 14 August 2021. The Bill amends section 127 of the Corporations Act 2001 (Cth) (“Corporations Act”) to facilitate the electronic processes and execution of documents and allow businesses to carry on “as usual” as much as possible whilst navigating the challenges of COVID-19. The changes made will remain in effect until 31 March 2022, providing a sense of stability.
Australian Institute of Company Directors CEO and Managing Director Angus Armour has welcomed the changes, saying;
‘This reform provides greater certainty for companies to make disclosures to the market, without the apprehension of speculative class actions challenging this disclosure with the benefit of hindsight, and that is in everyone’s interest. We are hopeful that over time these changes will also help to rebalance skyrocketing insurance premiums’.
Apart from amending the Corporations Act to allow companies to execute company documents electronically, the Bill also allows company meetings (including general meetings) to be held virtually, by electronic means. Finally, companies may send notices of meetings through electronic communications or by providing sufficient information to allow electronic access to the notice.
Electronic execution of documents
We have written previous articles on how legal documents such as a Will or an Affidavit can be witnessed electronically and the witnessing of the fixing of seals can be performed electronically via audio-visual link. However, in signing or witnessing the document electronically, it must be stated within the document that the fixing of the seal has been observed by electronic means.
Documents can also be executed using separate copies, providing that the copy includes all the original document’s contents and the signing method must identify the signee, record their intention to sign and must be reliable for the circumstances of the signing, for each of the signatories.
Notices to Shareholders
Whilst previously the default position was to send hard copies of notices of meetings (and shareholders can still elect to receive physical copies), it is now sufficient to provide them electronically via email or by sending an electronic address from which the material may be downloaded.
The Bill introduced new emergency powers of relief that allow the Australian Securities and Investment Commission (ASIC) to grant companies temporary relief from certain Corporations Act requirements. Notably, ASIC can now make a determination to extend the timeframe for public companies to hold an AGM on a class basis where extraordinary circumstances (such as COVID-19) would make it unreasonable for such meetings to be held.
The changes also allow companies or registered schemes to hold virtual meetings, even if their company constitution does not allow it, where ASIC considers it would be unreasonable to expect them to conduct in-person meetings. Importantly, such relief cannot be in place for more than 12 months after it commenced.
Whilst these reforms are great news for the 2021 fiscal year AGM, if companies wish to continue using virtual mediums to conduct shareholder meetings, it is prudent to update the company constitution to reflect this. Further, companies will still need to be cognisant of their obligations to allow shareholders to speak and ask questions orally as well as in writing within the virtual AGM format. Therefore, the platforms used by companies will need to offer a two-way audio exchange such as video conferencing platform Zoom.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide clarification of the relevant law in relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with a variety of Business and Company Law matters. If you need further advice or assistance understanding your company’s obligations, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
A trade mark that distinguishes one trader’s goods from another is a valuable asset, however a recent Federal Court case concerning craft beer has demonstrated that registered trade marks are not always protected from cancellation in a trade mark dispute.
In the case of Urban Alley Brewery Pty Ltd v La Siréne Pty Ltd  FCAFC 186, Urban Alley Brewery Pty Ltd’s (Urban Alley) appeal was dismissed and their trade mark “Urban Ale” was cancelled under section 88(1)(a) of the Trade Marks Act 1995 (Cth). This was an important case which determined that a trade mark registration must be cancelled or rejected if it is deceptively similar to another registered trade mark.
- Urban Alley was a craft brewery in Melbourne which produced a beer product called “Urban Ale”.
- La Siréne also operated as a craft brewery in Melbourne and produced a beer product under a similar name “Urban Pale”.
- La Siréne first sought orders to cancel the Urban Alley’s registered trade mark under the Trade Marks Act 1995 (Cth) s 88(1)(a).
Significance of the Case
This case demonstrated the importance of adopting a trade mark which is sufficiently distinctive from other existing trade marks and ahead of prevailing trends. Further, difficulties may arise when descriptive words are used. It was concluded that the terms “urban” and “ale” were too descriptive of beer to be distinctive from other goods or services. Therefore, the key terms of Urban Alley’s trade mark had become descriptive as a result of prevailing trends, causing Urban Alley’s trade mark to be deemed invalid for lack of distinctiveness and deceptive similarity.
As there was no factual distinctiveness, they upheld the primary judge’s finding that Urban Alley’s trademark should not have been registered, and thus it was cancelled.
Trade Marks Distinguishing Goods or Services
The key point is that a trade mark must be capable of distinguishing an applicant’s goods or services. It was found that Urban Ale was not “inherently adapted” to be capable of distinguishing its beers from those of other producers. This decision was based on evidence that the term “urban” was commonly associated within the industry with beer products and breweries.
The court considered the following factors:
- The term “urban” is not significant regarding the beer style or flavour, and has been used by numerous Australian businesses, including in La Siréne’s “urban pale” without improper motive. Instead it is used to describe the location of the brewery, as used by many other traders and journalists.
- On Appeal, it was found that the terms “urban” and “ale” were descriptive of the goods (beer) and should be interpreted with their common meaning.
- Urban Alley could not produce sufficient evidence that they had established a reputation based on the “urban ale” trade mark.
The Test for Deceptive Similarity
The relevant test for deceptive similarity is to compare between a trade mark and the recollected impression retained of another previously registered trade mark. A side by side comparison of trade marks may not convey the same meaning or idea, however, they may when imperfectly recalled under this test. Furthermore, the trademark must be viewed in its entirety, unlike the substantially identical which requires the examination of individual trade mark elements.
Etheringtons Solicitors can assist you with enforcing your trade mark
Etheringtons Solicitors can advise you throughout the development and adoption of your trade mark to ensure that it is distinguishable from other goods and services and to avoid future trade mark disputes.
We can assist you with registering a trade mark in Australia and advise on whether your trade mark includes any descriptive qualities which could affect its validity. We may advise you to consider securing other versions of trade marks which have the potential to cause a challenge risk.
If you need further advice or assistance regarding trademarks or other intellectual property matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
The advantage of registering a trade mark is that it confers far more benefits than registering a business name, company name or domain name. Marketing is an important business tool, and a registered trade mark is crucial in allowing you to protect any value or credibility which you have built on your brand.
What is a trade mark?
A trade mark identifies a product or service, distinguishing it from the goods or services of other entities in the same sphere. A registered trade mark protects any branding element within a business including letters, numbers, words, phrases, sounds, smells, shapes, logos, pictures and aspects of packaging. Registration alone of a business name, company name or domain name does not give you that kind of protection.
Registering a trade mark allows the owner of the trade mark to commence legal action to stop others using it. Trade marks can be used to help build market position and stop others from imitating your brand. The registration of a trade mark is effective for 10 years and can be renewed for further 10 year periods thereafter.
Registration of a trade mark covers the entire Commonwealth of Australia. For worldwide protection, an application can be filed with each country in which the trade mark will be used, or a single international application can be filed through IP Australia nominating the countries in which protection is required.
Applying for a trade mark
Trade marks are registered in specific classes relevant to the description of the goods or services for which the mark will protect. The application for registration must nominate one or more classes of goods or services for which the mark is intended to be used and associated. If the mark applies to more than one class, the wider the protection that mark has once the trade mark is registered.
Before making an application to register your trade mark, the following should be considered:
- Identify the relevant class of goods or services for which the mark will apply. Schedule 1 of the Trade Marks Regulations 1995 prescribes the available classes and describes the types of goods of services specific to each class. A search should be carried out before applying to register a trade mark to check that a similar trade mark is not already registered in that class. An application to register your trade mark could be rejected if there is an identical or similar trade mark already registered which covers similar goods or services.
- Only minor changes can be made to a trade mark once an application has been filed and published.
- A trade mark registration is for the goods and services you actually trade in or intend to trade in in the near future. Once an application is filed and registered, goods and services cannot be added. Therefore, you should clearly define the marketplace you trade in to ensure the best possible protection.
- Your trade mark must be something that is capable of distinguishing your goods and services. Exclusive rights are difficult to register over everyday language, names and descriptions of products and services
Once you are happy with your trade mark, you can apply to register it through the IP Australia website. You can also request an assessment of the likelihood of your trade mark achieving registration through TM Headstart.
The cost of applying for a trade mark will vary depending on the scope of the application. Generally, the minimum cost to apply is $120 for each class of goods and services. In Australia there are 45 different classes of goods and services and each additional class costs an extra $300.
The application process
Once your trade mark is accepted, it will be advertised in the Australian Official Journal of Trade Marks and the application is open to opposition for a period of 3 months (which can be extended by an opponent for a further 3 month period where there has been an error or omission).
If your application is not challenged, your trade mark will be registered once the registration fee is paid (payment must be made within 6 months from the date acceptance is advertised or your application will lapse).The registration of a trade mark in Australia takes at least 7 months after an application is filed.
Seek legal advice
When applying for an Australian trade mark it is important to ensure your trade mark description and classes accurately reflects of the goods or services you intend to use your trade mark on. By investing in protecting your brand today, you can avoid the costly and uncertain exercise of preventing unauthorised use of your unregistered trade mark in the future. We are experienced in intellectual property matters and can work with you to ensure your trade mark is registered in the appropriate class or classes, and to respond to any opposition to the proposed registration. We are also able to assist with trade mark and copyright disputes.
If you or someone you know wants more information or needs help or advice regarding trade marks, please contact us on (02) 9963 9800 or via our contact form.
A self-managed super fund (SMSF) is a private superannuation where the members are usually also the trustees. Members of the SMSF run it for their benefit and are responsible for complying with the relevant laws.
A SMSF can have up to four members but it is quite common to have just one. But what happens if the sole member loses legal capacity, dies or leaves the country? In this blog, we review common issues that arise in relation to SMSFs when legal advice is not sought prior to the establishment of the SMSF.
Who is a SMSF trustee?
A SMSF trustee is the person responsible for ensuring SMSF is maintained for the purpose of providing retirement benefits. The trustee can be a company or an individual. For a single member SMSF, the member must either be the sole director or have two directors. This other director is either related to the member or another person who is not an employer of the member.
For a single member SMSF, there must be two individual trustees, the other trustee must either be related to the member or be another person who is not an employer of the member.
What are some issues in relation to SMSFs?
Issue 1: losing legal capacity
If the sole member loses legal capacity, then the person who holds an enduring power of attorney for the member may act as trustee of the fund in their place.
If the sole member was also the sole director of a trustee company, then the shareholder of the company will need to appoint a replacement director. If the member was the only shareholder, then the probate of the member’s will needs to be granted before a new shareholder is appointed.
Issue 2: death of a sole member
If the sole member dies, then the other trustee will be left with total control of the fund.
If the sole member was also the sole director of a trustee company, then the same consequences from the first issue will apply.
Issue 3: moving overseas
The SMSF must remain an Australian superannuation fund in order to retain its complying status. Whether the super fund is Australian predicates on satisfying the three tests:
- Be established in Australia
- Have its central management and control ordinarily in Australia
- Satisfy the active member requirement. The fund must have either at least 50% of the fund’s assets linked to active members who are residents in Australia or not have any active members.
Seek legal advice
If you are a single member of a SMSF, you should ensure that you have a valid enduring power of attorney. If you are moving overseas, you should speak to a solicitor about whether your SMSF would still comply with the three tests. Please contact Etheringtons Solicitors if you have any questions about your SMSF by using the contact form or calling us on (02) 9963 9800.
If you are considering buying a business there are many things you need to do from a legal, financial and general business perspective. Getting the right advice from the start is important. The structure of and issues involved in the sale are quite different if you are buying the business assets only, compared with the shares in the company that owns the business.
Making sure you follow the right process before signing any documents is a key component of a successful business purchase.
The main things to do before signing a contract are:
- Get professional advice
- Review & understand all documentation
In this article we will highlight some of the key issues to be considered.
Proper research involves checking the records of the business and other information to ensure:
- Sales are as good as the owner says they are
- The business systems are sound and documented
- The business does not have any problematic legal obligations or liabilities
- All necessary information, rights and assets will be included in the sale
- Cash flow is sustainable
- Employees will be happy with a new owner
- Customers will remain loyal once you take over
- You understand the operation of and opportunities in the market/industry
Research should, where possible, be carried out before you sign any contracts.
You should always consider briefing and engaging legal and accounting advisers to assist you in conducting due diligence and documenting the transaction, to avoid legal and financial (including tax-related) “surprises” and arguments down the track.
You might also consider whether there are any industry specific experts that may be useful.
Review and understand the documentation
When purchasing a business there is a lot of documentation to be gathered, read and understood.
The seller may require you to sign a confidentiality agreement to stop you from using confidential information for any purpose other than buying the business. You should make sure you fully understand the agreement before you sign it.
Some of the information you should gather and review is outlined below.
It is sensible to obtain current and historical financial records for the business, including:
- Profit & loss statements
- Balance sheets to identify assets and liabilities
- Lists of debtors and creditors
- Copies of any BASs lodged by the business
List of plant, equipment, assets and stock
You should obtain a list of all plant, equipment, assets (including fixtures and fittings) being sold along with current valuations, proof of ownership and information on applicable warranties and guarantees.
Details of any stock sold with the business and how it will be counted and valued at settlement should be discussed and agreed with the seller.
You should also undertake thorough searches of the Personal Property Securities Register to, for example, ensure that security interests necessary for the business have been registered (such as over sale equipment leased to third parties) and to check whether any relevant security interests are held by third parties.
Lists of customers and suppliers
Customer and supplier relationships form part of the goodwill of the business and a list of all available contact details should be supplied so that you can make contact and ensure an ongoing relationship.
If the business is being purchased as a going concern and the buyer is assuming liabilities for employees then a list should be provided – setting out the employees, their job descriptions, salaries, years of service, any disciplinary issues and accrued entitlements like holidays and long service leave.
Any major contracts necessary for the operation of the business should be provided and reviewed, including copies of the lease of the premises and any plant & equipment leases. Term, assignment, change of control and termination provisions, in particular, should be checked.
If any sale assets are financed the financier’s consent will be necessary.
If the business is a franchise the seller is required to provide a franchisor’s disclosure statement.
Documenting the transaction
After completing your due diligence you will need to have the transaction documented with a legally binding contract. There are many issues to consider.
You will need to decide on the structure of the transaction and it is crucial to get advice on the legal, financial and taxation consequences of the structure you adopt.
The types of things that need to be considered include:
- Whether you are buying the assets of the business or the shares in the company that owns the assets.
- The price to be paid and when it is to be paid.
- Who will the buyer be – an individual, company, trust or partnership?
Deciding on whether to buy the assets or the company is a critical issue when buying a business. There is no simple or right or wrong answer to this question as it will usually depend on the business being purchased and the individual circumstances of both the buyer and the seller.
Things to consider when making a decision include:
- The amount of flexibility and control you want over what you are buying.
- Do you require all of the assets of the business, or all of the employees?
- Do you want to be responsible for past liabilities (known and unknown) of the business which might relate to employees, suppliers or customers?
Price and Terms of Payment
Once the price is agreed you will need to determine how and when the price will be paid.
For additional protection you may want a portion of the price to be held back for a certain period to ensure that information given by the seller is accurate or that profit projections are achieved.
You may not want to pay the price in a lump sum and may be able to negotiate to pay in monthly or annual instalments.
You will need to take into account that the business will probably be continuing right up to the sale date, which means stock, accounts receivable and other items will need to be finalised at a certain time and in an agreed manner.
The main legal document is a contract for sale of business. The sale contract sets out the various terms agreed to by the parties, including for example:
- the rights of the parties if things go wrong;
- the seller’s representations and warranties, which are designed to ensure that:
- the seller remains responsible for the information given to you about the business; and
- you get what you pay for;
- a non-competition provision which prevents the seller from creating a competing business after the sale; and
- (if a lease or franchise is involved) the consent of the landlord or franchisor.
Buying a business can be a complex transaction. You need to make sure you have done adequate research, understand the risks and have received the right advice.
If you are considering buying a business and would like some help please contact us on (02) 9963 9800 or get in touch via our contact form.