On 10 November 2008 Brennans solicitors and migration agents are moving to new premises:
Innovation Parkway Drive
Kawana QLD 4575
It is a 10 minute drive from the present office.
See http://www.brennanlaw.com.au/ for directions or more details
In this Issue
Your darkest hour-10 tips to avoid legal disaster in a financial crisis
Everybody gets more jumpy in a financial turndown. Your debtors will blame your service or even the way that you asked them for the money in order to delay or avoid payment. Your creditors will aggressively pursue you for payment to maintain cash flow.
Here are 10 legal tips to help you survive:
1. Make sure you pay your business rent or your landlord will throw you out, very quickly.
2. Don’t panic and use your credit cards to pay your existing debts, you may need that credit for essential items as the situation gets worse.
3. A threat to be sued is not the same as being sued and sometimes suing or being sued can be a slow process.
4. Check the mail at your registered office. Legal missiles can slip under the wire such as a statutory demand which can wind up your company.
5. Be first in, if people owe you money, this is difficult and it is human nature to avoid confrontation, you will get over it.
6. Get money on account, people will be more understanding than you think.
7. Don’t lend money. If you are a bank don’t lend money on the security of sub prime properties (I am probably a bit late with this advice).
8. Secure any debt with a mortgage or charge, if you can.
9. Have terms and conditions referring to what happens if the customer goes “belly up”.
10. Be nice to your spouse or they may use this opportunity to clear out the bank accounts and do a runner;
You have got enough to keep you going without engaging in unnecessary disputes. It is a time for turning the other cheek and focusing on what is important to you and your family.
Best of luck
You are the man. Stolen domain names
You have a thriving business which you have built up from nothing called “theman”. Even your own mother calls you “theman”. Then you find out that your competitor the “xman” has bought the “theman.com” domain name.
You and your mother are outraged.
You hear of ICANN, an international dispute procedure which will deal with your claim quickly and cheaply. You will go to any lengths to get your name back. You find out it costs $2,000. You hesitate but decide to proceed. Yes, you are willing to bet the bank. You pay $2,000 but your competitor pays nothing. Who worked that one out?
The starting point is first come, first served. Your lawyer will helpfully point out that you could have avoided all this if you had registered it first.
You need to show three things:
1. Is it identical or confusingly similar.
2. Your competitor has no legitimate interest in the domain name. You are “the man”, he doesn’t even use it in his business. If he does, you will probably lose.
3. Your competitor is up to no good. For instance, he registered it to disrupt your business, steal your customers or wants to sell it.
It is a paper procedure with no physical hearing or meeting. You fill out a complaint, it is sent to the offender who has 20 days to respond and a written decision is issued 14 days later. The cases are helpfully reported on the website. In Australia this is all done by www.auda.org.au.
It is decided on the information that you supply. Many applications fail as the application or the response do not contain enough detail. Get a lawyer if you feel strongly about it and don’t want to lose or DIY if you are not bothered.
Crazy inventors and a director’s rights
Inventors are the first to admit that they are oddballs.
However, you are impressed with an inventor’s dedication over the years and note that his family and friends are backing him. You are seduced by the potential of his invention and you have the business skills to bring his product quickly to market.
You invest in the company in exchange for shares and a directorship.
Within weeks, you find that it has taken years because he is a control freak with a towering ego, caught in a loop. He has taken his friends and their money hostage. Your advice and requests for information are ignored. Your money is long gone.
As a director, you have a right to inspect the financial records and documents of the company but cannot ask for reports to be compiled. The raw financial information or any other company documents should be made available or located on request.
The method of obtaining information is to make an appointment to inspect the records.
But, he uses his majority shareholding to vote you off the board. As a mere shareholder you basically have no absolute right to obtain information and you feel snookered.
Your choice is to sit back and watch or take a court action to wind the company up as you are a “minority shareholder” being “oppressed”.
Generally, oppression means being treated unreasonably, for instance he promised you a say in the management and then kicked you off the board.
Inventors may be crazy but are not that crazy and you will find yourself voted back onto the board in no time.
A shareholders agreement can set out your role and the procedure for you to sell your shares in the company. However if it is drafted by the inventor’s lawyer do not expect it to do you any favours.
Launch of Unleasing the Dogs of Law
Behind every great legal dispute there is often a lawyer advising against it.
The first rule of litigation is don’t. But if you must, be strategic, don’t just throw yourself up against the wire.
This month is the launch of the latest eBook by Paul Brennan.
The eBook outlines strategies to deal with your legal conflicts in a financial crisis or just a plain old downturn.
When times are hard people and organisations are quick to sue debtors. Driven by fear there is a lack of trust. It is easier to make legal mistakes yourself or fall victim to the legal assault of others.
The eBook not only covers court actions but fights with government departments, multi nationals, club committees, your spouse, neighbours and all sorts of other people and organisations that wind you up. It gives you the bottom line on getting money that you are owed.
Most importantly, it deals with how to avoid disputes in the first place which is often the most effective but least popular option.
It is intended for a worldwide audience. The types of legal issues that people have are universal. The laws may try to be different but when it gets down to it they are dealing with the same problems. A legal case can turn on a single word but the big picture strategies to avoid, win or at least not dig too deep a legal hole, are very similar.
Paul Brennan is a lawyer practising in Australia with a diverse legal career spanning the UK, North America and Asia. He draws legal cartoons for the Australian Financial Review and is the author of several books including “The Law is an Ass…Make Sure it Doesn’t bite yours!”.
Apek Publications PO Box 27, Mooloolaba, Queensland 4557
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