Welcome

It’s our Fifth Birthday…with a delayed party!

Yes, Elevate Legal turned 5 this October!

Hard to believe; but then again, it does seem like a lifetime ago.

Thank you to all our clients over that time who have given us the opportunity to help them on their journey. We’re so grateful to be able to work with genuinely good people doing some amazing things.

The never-ending Covid Lockdown has scuppered our plans for a face to face celebration – at least for now – stay tuned for 2022…

On a personal note, I’d especially like to thank Yee and Roxie for their loyalty and service. Yee took a risk on Elevate Legal when it was just an idea; and Roxie joined pretty soon after we got started.

In other team news, from the end of this month we reluctantly say mar sin leat (that’s Scottish Gaelic for farewell) to Jackie Donald, who joined us a year ago in Perth, in the depths of the (first) Covid lockdown. Despite not having met any of the team face to face, Jackie quickly became a valued team member. We will miss her and we wish her all the best for her next adventure, with colleagues she can meet with in person (!)

On the flip side, we have welcomed James Dance, a paralegal who started with us in May. James, based in Melbourne, finishes his law studies this month and we look forward to helping him achieve his lawyer union ticket over the coming year.

We’ve also recently welcomed Ash Rozario, a highly experienced commercial lawyer, as additional freelance support, with particular expertise in IT, software and SaaS contracts.

It’s been a very busy quarter for us, with several transactions on the go as well as our Alliance service for business as usual commercial contracts. While the Covid Lockdowns have certainly added some challenges, we’re grateful that: we have work; we have homes; and we can work from home!

Best wishes to all of you as we hopefully get back to something like normal life…

Take care

Andrew

Client spotlight

In this edition, we’re proud to feature Rollercoaster Digital.

Rollercoaster Digital, led by founders Chris Shackleton and Andrew Snell, delivers SaaS solutions designed to let clients easily manage the booking of assets, facilities and venues. Their mission is to build capability to make life easier and add value to their clients and their stakeholders. The focus of Rollercoaster Digital is to develop solutions that save time, energy and money so that their clients can better service their own customers and stakeholders.

Elevate began working with the Rollercoaster Digital team in early 2021 and we look forward to continuing to help them, as an Alliance client, as they progress their business.

https://rollercoasterdigital.com/

What’s keeping us busy

Here’s some projects we’ve worked on with our clients over the last few months.

• Helping many clients with capital raising – term sheets, SAFE notes and issues of ordinary and preference shares to VC investors
• Advising several clients on potential purchases and sales of businesses
• Software / SaaS contract terms – more than we can count
• Lots of reseller and distribution agreements, teaming agreements
• Heads of Agreement / MoUs for development agreements and joint ventures
• Intellectual property licences, assignments and other transactions – including spin-outs from Universities into new companies
• Preparing, reviewing and advising on lots of commercial contracts and NDAs
• Preparing documentation and setting up ESOPs
• Preparing corporate documentation such as Shareholder Agreements and Constitutions

If you’re looking for similar solutions please get in touch.

Legal briefing

oneNDA to rule them all

oneNDA offers a simple, standardised non-disclosure agreement (NDA) which is available for free on an open-source model. It can be downloaded from the website https://onenda.org/the-onenda and includes a cover page explaining what it is and why it makes sense for the other party to also use it.

We think this is a great idea and can help us all stop wasting time and effort negotiating NDAs for everyday commercial purposes, and recommend that you start using it!

Post-employment Restraints – yes, they are enforceable

A recent case in the Supreme Court of New South Wales (Employsure Ltd v McMurchy; Employsure Ltd v Kumaran [2021] NSWSC 1179) has found that a 9-month post-employment restraint of trade was reasonable in order to protect the previous employer’s confidential information. In this case two senior employees breached their contractual and fiduciary duties by taking up employment with a direct competitor of their previous employer in the HR software market.

The court found that despite some differences, the two employers (Employsure and ELMO Software) had similar products and operated and aimed these products at the same or similar markets making them competitors for the purpose of the restraint. The court considered injunctions to be appropriate to restrain the two employees from using their acquired knowledge and their familiarity with Employsure’s confidential information.

This case highlights the importance of having restraints of trade in employment contracts, and that even a longer period can be considered reasonable depending on the circumstances.

Director Identification Numbers

As part of the 2020 Budget Digital Business Plan, the federal government announce the full implementation of the Modernising Business Registers program being implemented by the Australian Tax Office. This included the introduction of director identification numbers.

From November 2021 all directors will be required to verify their identity as part of the new director identification number requirement when applying for their director identification number. The director identification numbers will be a unique identifier for a director which they will apply for once and will then keep forever. Applications will be made through the Australian Business Register.

For more information, including how to apply see https://www.abrs.gov.au/director-identification-number

Virtual AGMs – extension of time from ASIC

A short update about virtual AGMs. ASIC has formally extended the time public companies have to hold their AGM (extension of their no-action position).

• all public companies with balance dates between 21 February 2021 and 7 July 2021 have an additional two months to hold their AGM, and
• public companies limited by guarantee with balance dates between 24 January 2021 and 7 April 2021 have an additional four months to hold their AGM.

This extension has been made to allow companies flexibility while the restrictions on movement and gathering continue due to Covid-19.

Liability for Comments on Business’ Social Media Accounts

A recent High Court case (Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27) has confirmed that when posting content about Mr Voller on their respective public Facebook pages, each media company was liable for the publication of allegedly defamatory “comments” posted by third party Facebook users in response to their content. The media companies were considered to be the publishers of the “comments” on their content even though they had not posted them.

This decision means that it is possible for any company or business with a public Facebook page to be held liable for comments posted in response to their content or posts despite not directly posting the content or endorsing the comments.

It is recommended that businesses develop policies and employee training on monitoring social media compliance and the use of work-related social media. It will also be the responsibility of businesses to monitor the information they post to social media and potentially restrict comment activity from the public.

Unfair Contract Terms – Proposed Changes

A draft Bill has been proposed by Treasury which would amend the Australian Consumer Law and the Australian Securities and Investments Commission Act 2001 to extend and broaden the remedies and penalties that will apply to unfair contract terms.

If it is passed the Bill will:

• extend the protections so that they apply to a small business contract if one party is a business that employs fewer than 100 employees (excluding casual employees unless they work on a regular and systematic basis and part time employees will be counted in the appropriate fraction of the full time equivalent) or has a turnover for the previous income year of less than $10m;
• allow courts to impose pecuniary penalties if a person proposes, applies, relies or purports to apply or rely on an unfair contract term;
• in a proceeding, presume that a contract term is unfair unless proved otherwise if the term is the same or similar (in effect) as a term that has been held to be unfair in a separate proceeding. This will only apply if it is the same person who proposed the term that was found to be unfair or the contract is in the same industry as that of the one that contained the unfair term; and

retain current automatic voiding provisions so that terms held to be unfair (for consumer or small business contracts) will be considered void under law with no need for further action or orders.

Diversions

A selection of things taking up time outside work:

• Daisy Jones and the Six, Taylor Jenkins Reid – a book about a fictional band (that has similarities with Fleetwood Mac) written in the form of interviews with each member meaning recollections of events during the height of their fame vary from member to member (Roxie).
• Cricut machine (pronounced ‘cricket’) – I have recently purchased a Cricut machine to take my love of crafting to the next level! A Cricut is an electronic cutting machine that can cut all sorts of designs from materials like paper, vinyl, card stock, leather, wood and iron-on transfers. This has helped keep me busy during lockdown! (Yee)
• The Wars of the Roosevelts – regular readers may recall my fascination with the Roosevelts (mainly Teddy, but now also Franklin). This is a pacy, easy to read account of the broader Roosevelt clan and the feuds between their family branches. My opinion of Teddy has certainly dimmed since learning that he had his brother Elliott committed to an asylum – for fear that Elliott’s drunken antics would embarrass Teddy’s political career – and that he was prevented from seeing his only daughter, Eleanor (who went on to marry her 5^th cousin Franklin, and hated her uncle Teddy). Oh, and there was at least one illegitimate child born to a housemaid. And Franklin died while away on a dirty weekend with his long time mistress. Gilded Age Gold! (Andrew)
• The Warburgs – an epic biography of the Warburg family by Ron Chernow, who also wrote the acclaimed biographies of Alexander Hamilton, U.S. Grant and John D. Rockefeller. The Warburgs were a prominent family of German Jews who established a banking business in 1798, which still continues (in various forms) today. Fascinating account of how the family split between Hamburg and New York (on different sides in WWII) and how they coped with the fallout. (Andrew)
• The Bunker – written in 1978, this is an account of the last days of WWII of the Hitler regime in their Berlin bunker. The author, James O’Donnell, was a WWII American intelligence officer and one of the first Americans to get access to the bunker after Berlin was liberated by the Russians. Lots of detail from interviews with people who were in the bunker, including their accounts of how they tried to escape, and were mainly captured by the Russians. (OK, yes I realise this is definitely a niche interest…) (Andrew)
• Nothing to See Here – for some comic relief – this is a lovely, funny, warm-hearted novel about twin kids who catch on fire (yes, really). A great reminder of how strange parenting can be; and how love can sometimes not be easily put into words. (Andrew)