March

"The Ordinary Course of Business" during the least ordinary of times: The High Court decides on Laundy Hotels - The High Court has held that a contract for the sale of a business may still be completed and found a seller to be operating in the "ordinary course of business" despite a global pandemic making business anything but ordinary.
ASIC continues to bring down the hammer on greenwashing, so superannuation trustees should check their disclosures now - ASIC is looking for any statements, images, diagrams or other information in PDSs, public advertising, member communications, websites and media which contain false or misleading statements and which have no reasonable basis, including in respect to any sustainability-related claims.
Beware of greenwashing: navigating the ethics of your sustainability agenda - Greenwashing crackdown reaches a new height as ASIC announces its first court proceedings against Mercer Superannuation (Australia) Limited in a landmark case.
Caboolture West CWISP – the solution to Queensland's housing crisis? - Queensland's new Caboolture West Interim Structure Plan (CWISP) contains bold deliverables for social and affordable housing, along with interim constraints and prohibitions to buy time for infrastructure planning.
Continuous disclosure obligations of Court proceedings: how far it goes, and how regulators could assist - Changes made to the Federal Court Rules in early January 2023 with respect to the access to court documents have provoked continued media commentary concerning the effect that the changes will have on the adequate disclosure of court proceedings, particularly proceedings brought by regulatory authorities.
Cost of living, unfair practices and anti-competitive conduct as key ACCC compliance and enforcement priorities for 2023 - At her first annual address at the helm of the Australian Competition and Consumer Commission (ACCC), Gina Cass-Gottlieb outlined the agency's compliance and enforcement priorities for 2023/24.
Defamatory Google search results make it liable once again as a secondary publisher - Once given notice of defamatory URLs and sufficient detail to identify them, search engines and online publishers of third-party material should take a proactive approach to removing them.
Environment and Sustainable Development 5 Minute Fix 35: climate triggers, Dutch hydrogen deal, koalas, PFAS - The Environment and Sustainable Development 5 Minute Fix is a snapshot of need-to-know news on a range of ESD issues nationally. This edition focuses on the latest in climate change, waste, energy, resources, major projects and environmental protection.
Environment and Sustainable Development 5 Minute Fix 36: IPCC synthesis report, e-products, National Sustainable Ocean Plan - The Environment and Sustainable Development 5 Minute Fix is a snapshot of need-to-know news on a range of ESD issues nationally. This edition focuses on the latest in climate change, waste, resources, energy, sustainable development, major projects, planning and environmental protection.
Foreign investment trends in the October 2022 quarter, and their implications - Treasury has released its second quarterly report (for the period 1 October 2022 to 31 December 2022) (Q2) on foreign investment in Australia. This quarterly report illustrates key trends in foreign investment and compares the most recent data with the data captured within the first quarterly report for July 2022.
From Red to Black 2023 - Welcome to the 2023 edition of "From Red to Black", our annual review of significant developments and topical issues in the Australian restructuring and insolvency market.
IRS' and ATO's latest views on hot tax issues for multinationals - Both the ATO and IRS are focused on similar tax topics in reviewing multinationals, but execution of their compliance programs diverges. A multi-jurisdictional tax dispute resolution strategy is essential, not an optional extra.
Is that you? Deep dive into deepfakes part 1: What is a deepfake? - While they may seem harmless and just a bit of fun, the AI technology behind deepfakes also lends itself to more nefarious applications, which has the potential to expose both businesses and individuals.
Is that you? Deep dive into deepfakes part 2: Legal issues and regulatory landscape - As with many breakthrough technological advances, the legal framework which currently applies to deepfakes lags far behind what the technology is capable of, with the potential for deepfakes to be exploited, causing serious damage to businesses and individuals.
It is not over yet: Gomeroi files a Notice of Appeal in the Federal Court against FADA decision - A successful Future Act Determination Application (FADA) made by proponents will not necessarily mean the end of the native title challenge to the grant of a tenement.
Litigation 101: Arbitrations - Arbitration can offer a flexible and commercial option to parties seeking to tailor the dispute resolution process but it is important to weigh up the pros and cons.
Litigation funders watching for certainty on common fund orders in class actions - The power of the Federal Court to make a common fund order in the context of class actions remains in question but the Full Federal Court decision may provide clarity, which might reassure litigation funders keen to step into the jurisdiction.
Major Projects & Construction 5 Minute Fix 112: payment schedule timeframes, the Design and Building Practitioners Act duty of care - Get your 5 Minute Fix of legal trends in Major Projects and Construction. In this edition: business days: SOP Act v Contract, ensuring a payment schedule is delivered within the required timeframe; formality is key when certifying completion; even a hopeless insolvent can recover amounts payable under the SOP Act; and the duty of care owed by contractors under the Design and Building Practitioners Act 2020 (NSW) is extended to include all building classes.
Major Projects & Construction 5 Minute Fix 113: separable portions and practical completion, Qld statutory trust roll-out - Get your 5 Minute Fix of legal trends in Major Projects and Construction. In this edition: informal creation of separable portions found to be ineffective; international arbitral award upheld; a stay application declined despite concurrent proceedings in NSW; the Queensland Government pauses its statutory trust roll-out until 2025; and (another) SOP Act wrap-up.
Media Release: Clayton Utz advises JARE on A$200 million capital investment and priority supply agreement with Lynas Rare Earths Ltd - A Clayton Utz team has advised Japan Australia Rare Earths B.V. (JARE) in relation to further strengthening its partnership with Lynas Rare Earths Australia (Lynas), including an injection of A$200 million to support the funding of capital projects aimed at meeting global demand for rare earth materials. The new agreements between the two parties were formally signed on 7 March.
Media Release: Clayton Utz advising Wyloo Consolidated on $760 million takeover offer for Mincor Resources - Clayton Utz is advising Wyloo Consolidated (Wyloo), a member of the Wyloo Group, on its $760 million on-market takeover offer for all of the shares in Mincor Resources NL (ASX: MCR) that are not already owned by the Wyloo Group. The takeover offer was announced to the market today.
Media Release: Clayton Utz congratulates Sydney Metro on the signing of the Systems Frameworks package for Sydney Metro West - A Clayton Utz team has advised Sydney Metro on two key contracts for the new 24-kilometre Sydney Metro West line - one of the four metro lines that will comprise the Sydney Metro network.
Media Release: Clayton Utz partner Nikki Robinson appointed to Property Council of Australia Board - Clayton Utz Real Estate partner Nikki Robinson has been appointed to the national Board of the Property Council of Australia.
Media Release: Clayton Utz recognised as a WGEA Employer of Choice for Gender Equality - Clayton Utz has again been recognised as a Workplace Gender Equality Agency (WGEA) Employer of Choice for Gender Equality (EOCGE) given our demonstrated commitment to improving gender equality in our firm and the wider business community.
Media Release: Clayton Utz to co-host Australian and US tax regulators in conversation, with dispute management on the agenda - Clayton Utz has teamed up with US firm Greenberg Traurig LLP to bring together our respective countries' tax regulators — the Australian Taxation Office (ATO) and Internal Revenue Service (IRS) — to share their insights into their current priorities, and approach to cross-border tax disputes.
Miners and manufacturers have until 17 March to comment on Federal Government's National Battery Strategy - The Federal Government's National Battery Strategy puts the Australian minerals and energy sector clearly at its core. If you are in these sectors and have not made a submission, you have until 11:59PM AEDT on 3 March 2023 to do so.
New Register of Foreign Ownership of Australian Assets to commence from 1 July 2023 - The Australian Taxation Office has announced that the new Register of Foreign Ownership of Australian Assets is expected to come into effect on 1 July 2023.
NSW Court of Appeal confirms the broad application of the statutory duty of care under the NSW DBP Act - All builders, developers, designers, manufacturers of building products and other stakeholders involved in the construction of a "building" in NSW now owe a statutory duty of care to owners and all successive owners of land.
NSW surcharge stamp duty and land tax found to be inconsistent with certain international tax treaties - Revenue NSW has determined that the New South Wales surcharge stamp duty and land tax provisions are inconsistent with Australia's international tax treaties with New Zealand, Finland, Germany and South Africa
Planning Bill 2022 (ACT) – a move towards outcomes-based planning - The Planning Bill, accompanied by a new Territory Plan and district strategies, represents a significant overhaul of the ACT's planning framework.
Queensland Government opens the valves on hydrogen pipeline regime – make a submission now - Pipeline operators, hydrogen users and project proponents have until 5:00pm AEST on 3 April 2023 to make a submission on the Queensland Government's proposed Gas Supply and Other Legislation (Hydrogen Industry Development) Amendment Bill 2023.
Real estate 5 Minute Fix 21: unfair contract terms; build to rent, PEXA, rent abatement withdrawal, developer regulation - Unfair contract terms regime expanded to small businesses; find out if you're affected by the Security of Critical Infrastructure Act; the ATO explores explore emerging models of build-to-rent; e-signing; PEXA mandates and reviews; planning reforms in the ACT; Queensland Property Law Bill introduced to Parliament.
Reputation and consumer confusion in trade mark infringement proceedings: the High Court weighs in - In an unanimous decision the High Court has confirmed that the reputation a registered owner has in a trade mark is not relevant in determining whether that mark has been infringed, even if that reputation arguably diminishes the likelihood of consumer confusion.
Restraints of trade in the employment context 03: Understanding non-solicit clauses - This article will go into further depth on the second type of restraint clauses – non-solicit or non-dealing clauses.
Review your whistleblower program now to meet ASIC's new good practice guidance - ASIC's Report 758 details the findings of its review into good practices for handling whistleblower disclosures, and calls on entities who are required to apply the whistleblower protections under the Corporations Act 2001 (Cth) to reconsider the current state of their whistleblower regimes.
Senate Committee recommends a "right to disconnect": what does it mean and what do employers need to prepare for? - In the wake of recent litigation about reasonable work hours, the Senate Select Committee on Work and Care has released their final report, recommending that the government introduce a new right for workers to disconnect.
The "cryptic crossword" of Australian cartel laws still unsolved: An update on criminal cartel prosecutions - To date, the success of the Commonwealth Director of Public Prosecutions in cartel cases has resulted from guilty pleas; it has been less successful where charges were defended.
The rise of natural capital fuels Australian biodiversity markets - Business support for a biodiversity market in Australia is growing as companies recognise its potential to mitigate the risks from nature loss – and generate returns. But investing in nature-based solutions (whether combined with carbon products or not) comes with risk as well as opportunity.
The Western Australian class action regime is now live - WA's class actions regime will most likely be used for WA-related mass claims, with the Federal Court continuing as the leading forum of choice for class actions in Australia.
Top six greenwashing red flags to pay attention to in 2023 - The filing of ASIC's historic first greenwashing civil penalty proceeding against a Superfund yesterday is a reminder to boards, executives and legal advisors across industries that "green" product specifications and decarbonisation plans and greenhouse gas emissions targets will continue to be subject to intense regulatory and shareholder scrutiny in 2023.
UFOs and corporate fraud: How the science of refuting UFO sightings catches corporate fraudsters - The same science that refutes UFO sightings and matches bullets to guns is making it cheaper to catch corporate fraudsters.
US Court finds in favour of Hermes in NFT Birkin stoush - A U.S. jury has decided in favour of the luxury brand Hermès in its claim of trade mark infringement against Mason Rothschild's use of MetaBirkin in relation to NFTs.
Using Mum or Dad's YouTube account has its risks – YouTube advertising and alcohol - To avoid the cost and potential public relations embarrassment or backlash that may follow a failure to comply with the ABAC Code, alcohol producers and their marketing teams ought to consider the risks that may flow from advertising on YouTube.

Disclaimer

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.