2024 is here, El Niño is not…

For those in Melbourne we had a lovely (albeit fleeting) experience of some of the weather we will hopefully have over Summer. It fell over the AFL Grand Final weekend which, despite the result (no Collingwood fans in this office!) made for a very enjoyable long weekend for us all. Yee then quickly jetted off to Japan and is currently having a three-week family holiday including a bike-ride (see Diversions below for more information). The photo for this edition of the newsletter was taken by Yee on the Shimanami Kaido while they were riding.

Though the weather has reverted back to Winter, we have been keeping busy with some M&A and capital raising transactions on the go. We have also launched our Member Portal for Alliance clients which we hope will be a useful resource for our valued Alliance members

Best Wishes

Andrew, Roxie, Yee, Dani & Ash

2023 Snapshot

At the beginning of 2024, we would like to look back on the year that was 2023. Here is a snapshot of our year in numbers:

  • assisting our Alliance members with more than 250 business-as-usual tasks including contract reviews and corporate matters, plus reviewing 70 NDAs
  • advising clients on 5 business sales (two advising the buyer, three advising the sellers)
  • advising clients on 5 capital raises.

We were also very pleased to welcome four new Alliance members over the year as this service continues to grow.

Alliance – Member Portal Update

Our new Alliance Member Portal was released in the last quarter of 2023. This portal contains guides, templates and other legal information we think Alliance members will find useful, including on creating and managing companies, shareholders and equity (including ESOPs), employment, capital raising, commercial contracts, intellectual property and buying/selling businesses.

Recently added content includes our Guides on asset sales, unfair contract terms and open source software.

If you are a current Alliance member and haven’t yet received a logon email (or you need help accessing the portal) please email alliance@elevate.legal. We’d also really appreciate feedback and requests for further content.

If you are interested in joining our Alliance subscription service please contact us at alliance@elevate.legal.

Legal briefing


Unfair Contract Terms – Australian Law catches Foreign Companies and Contracts

As we have detailed in previous newsletters, there have been updates to the unfair contract terms (UCT) regime under the Australian Consumer Law (ACL). Whether the UCT regime applies to overseas suppliers of goods and services under contracts made outside Australia has recently been addressed by the High Court of Australia having implications for both local and foreign companies that carry on business in Australia.

The Court in the case of Karpik v Carnival plc [2023] HCA 39 (Karpik case) unanimously held that the UCT regime will apply to standard form consumer contracts entered into outside Australia by Australian companies and foreign companies who are carrying on business in Australia. It also held that there is no requirement for any further territorial connection with Australia meaning the regime will apply even where contracts do not involve the acquisition of goods or services in Australia, and even if the governing law of the contract is not Australia.

The Karpik case involved the terms of a contract under which a consumer bought tickets for a cruise operated by Carnival through a Canadian travel agent – meaning the contract was made outside Australia. The terms of this contract included:

  • a choice of law clause applying the general maritime law of the United States, and to the extent not applicable, the laws of the State of California (USA);
  • an exclusive jurisdiction clause in favour of the Courts of Los Angeles; and
  • a class action waiver clause, which stated that any arbitration or lawsuit needed to be litigated individually and not as a member or part of a class or representative action, as well as expressly waiving any legal entitlement to participate in a class action.

The cruise was disrupted by the outbreak of COVID-19, and several passengers (including this consumer) sued Carnival in the Federal Court. Carnival attempted to stay the proceedings for this consumer as well as the 695 other passengers based on the exclusive jurisdiction clause and relying on the class action waiver clause.

The court determined that the UCT regime applies extraterritorially and therefore declined to stay the proceedings because:

  • the class action waiver clause was an unfair term and void under the ACL (this is different to the USA where these clauses are not considered to be fundamentally unfair); and
  • the enforcement of the exclusive jurisdiction clause would fracture litigation between Australia and the USA, wasting resources and running the risk of producing conflicting outcomes in different courts.

Based on this case, it is therefore important for businesses to be aware that the UCT regime will apply even where the contract has been entered into outside Australia or involves a foreign company.

New Rules for Fixed Term Employment Contracts

The rules for engaging employees on fixed term contracts changed on 6 December 2023. The new rules include a requirement for employers to give all employees being engaged on a new fixed term contract a copy of the Fixed Term Contract Information Statement which is available to download here.

The new rules are:

  • a fixed term contract cannot be for longer than two years (this includes any extensions or renewals);
  • a fixed term contract cannot have the option to extend or renew the contract so that the total employment period is more than two years; or to extend or renew the contract more than once; and
  • A person cannot be employed on a fixed term contract if:
    • the contract is for mainly the same work as a previous fixed term contract;
    • there isn’t a substantial break in the employment between the previous and new contracts; and
    • any of the following apply:
      • the total period of employment for the previous contract and the new fixed term contract is more than two years, or
      • the new fixed term contract can be renewed or extended, or
      • the previous fixed term contract was extended, or
      • there was an initial fixed term contract in place (before the previous contract) that: was for mainly the same work, and there was continuity of the employment relationship from the period of time (if any) between the initial contract and the previous contract.

There are certain exceptions to these new rules including engagements for specialised skills, essential work and training arrangements, which can be found here.

If you do not comply with the new limitations (or fall into an exception) the contract’s end date will no longer apply and will instead continue until terminated.

Commonwealth Statutory Declarations

On 17 October 2023 the Statutory Declarations Act 1959 (Cth) was amended to expand the ways that statutory declarations can be executed under Commonwealth law. The amendments took effect on 1 January 2024.

Commonwealth statutory declarations can now be executed in any of the following ways:

  • traditional ‘wet-ink’ signatures and in person witnessing;
  • electronic execution through the application of electronic signatures and witnessing via an audio-visual communication link;
  • digital execution using a prescribed online platform that verifies the identity of the person declaring the statutory declaration through a prescribed digital identity service provider. This digital option does not require the declaration to be witnessed.

The requirements and conditions for digital execution and verification will be prescribed in regulations.




A selection of things taking up time outside work:

  • None of this is True, Lisa Jewell. I flew through this book in one sitting after Christmas. It is a psychological thriller about a woman who finds herself the subject of her own true crime podcast. If you like a book that hooks you in quickly, then I recommend this one as an easy read! (Roxie)
  • Hijack, Apple TV. If you enjoy suspense, then this is the TV show for you! The entire series focuses on one flight from Dubai to London which is hijacked, and it is up to the passengers (particularly an expert negotiator on board played by Idris Elba) to try and take back control of the plane. (Roxie)
  • Lessons in Chemistry, Bonnie Garmus. This book has recently been released as a limited series on Apple TV, but we highly recommend reading the book. You read that right, this is a double recommendation! Set in the 1950s, Elizabeth Zott’s dream of being a scientist is challenged by a society that says women belong in the domestic sphere. Finding herself in need of a job, she accepts a position on a TV cooking show and sets out to teach a nation of housewives way more than recipes. This is a heartwarming read and dives into Elizabeth’s (as well as her brilliant dog ‘Six-thirty’ and daughter Mad’s) life, including struggles with work, relationships, family and societal expectations. (Roxie & Yee)
  • Wonka, directed by Paul King, explores Willy Wonka’s origins with Timothee Chalamet delivering a captivating performance. The film impresses with its visual, emotional depth and standout tunes. Though some plot elements may feel predictable, overall, the movie offers a delightful blend of nostalgia and fresh storytelling. (Yee)
  • Lola In The Mirror, by Trent Dalton. The third novel from Trent Dalton returns to the underbelly of Brisbane, familiar from his first novel Boy Swallows Universe. If, like me, you loved Boy Swallows Universe, I reckon you’ll also love Lola. Vivid imagery, memorable (dare we say cinematic?) characters and a ripping plot – perfect holiday reading. (Andrew)
  • The Libranianist, by Patrick deWitt. This is a delightful, warmly comic and touching novel about growing old, finding and losing love, and, well, being a librarian. Engrossing and poignant. (We also love deWitt’s French Exit and The Sisters Brothers.) (Andrew)
  • Going Infinite: The Rise and Fall of a New Tycoon, by Michael Lewis. The inside story of the incredible rise and spectacular fall of crypto tycoon Sam Bankman-Fried, at one stage the world’s youngest billionaire – until it all fell apart. Lewis once again tells a complicated story simply with a human touch. (Andrew)
  • Atomic Habits by James Clear. This came as a recommendation from a friend for one of my own clients. Essentially, it’s about forming habits and making small changes to enhance daily routines (Dani)
  • How To Not Get Sick And Die by Matty Lansdown. So I came across this podcast as the host (who turned out to be a neighbour!) reached out to me to potentially feature. I don’t agree with all his views or guests’ views, but it does leave you with a perspective from all angles of health and medicine. (Dani)
  • New Amsterdam, Netflix. The third season has been released and I forgot how much I loved this show. Nothing to do with Amsterdam (filmed at Bellevue Hospital), it is a medical drama series that captures the people and the high energy environment of a hospital based in New York City. (Dani)