news update feb 14 issue 61 in this issue changes in the ... this issue page 1 changes in the...

in this issuepage 1 Changes in the Building

Industry

page 2 Loan ProtectionInsurance

Our February chuckle

page 3 Restraint of Trade inFranchise Agreements

Profile - DarrenRobinson

page 4 Disclaimers of Liabilityand Fitness Classes

page 5 Disclaimers of Liabilityand Fitness Classescontinued from page 4

Changes in the BuildingIndustrycontinued from page 1

page 6 Changes in the BuildingIndustrycontinued from page 5

page 7 Changes to Directorsand other Officer’sLiability

page 8 An interesting piece ofhistory regardingMacrossan & Amiet

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Local people. Local expertise. Industry leaders.

Liability limited by a scheme approvedunder professional standards legislation

In November last year, theGovernment passed the first inwhat is likely to become a seriesof legislative reforms affecting thebuilding and construction industry.

Queensland Building andConstruction CommissionThe first change was a change ofname of the Queensland BuildingServices Authority (QBSA) to theQueensland Building andConstruction Commission(QBCC). Its responsibilities, asextracted from its new website,are as follows:

• To implement theGovernment’s 10 Point ActionPlan for the building industry;

Decide the strategies andoperational, administrative andfinancial policies of theCommission

• Ensure the performance of itsfunctions in a proper, effectiveand efficient way

• Provide guidance andleadership to theCommissioner andCommission staff

• Establish Key PerformanceMeasures with theCommissioner

• Provide advice to the Minister

• Consult with the buildingindustry and consumers.

Essentially, the QBCC will performthe same functions as itspredecessor, the QBSA, however,it will have a greater focus onlicensing, certification, disputeavoidance and management, asoutlined in the 10 Point Action Plan.

The Queensland Building ServicesAuthority Act has also changednames and is now known asQueensland Building andConstruction Commission Act(QBCCA).

Changes to LicensingRequirementsThe second change eases theregulatory burden for someengaged in commercialdevelopment or building work.This change is effected by achange to section 42 of theQBCCA and inclusion of a newSchedule 1A to the Act. Section42 requires anyone who carriesout, or undertakes to carry out,building work to have a licence ofthe appropriate class. Schedule1A provides some exemptions tothis rule.

news update feb 14 > issue 61

Catherine Webster

Continued on page 5

Changes in the BuildingIndustryBuilding & ConstructionBy Catherine Webster

2 | Macrossan & Amiet – Leading the Way


news

If you borrow money from theCommonwealth Bank to purchasea house or land or some otherasset, there is a good chance youwill be contacted by a bank officerand asked if you would like totake out loan protection insurance.

Loan protection is an insurancecover offered to CommonwealthBank borrowers to provide coverin case of death, some medicaltrauma events and terminal illness.The aforementioned cover iscalled Loan Cover. LoanProtection also includes adisablement benefit and anunemployment benefit under whatis called Loan Repayment Cover.

If you are interested in this type ofinsurance you will be sent a Policydocument and Product DisclosureDocument and be given a 14 daycooling off period to considerwhether or not the policy suitsyour needs. The 14 day cooling offperiod is designed to providecustomers with time to read thepolicy terms and conditionscarefully including therequirements in order to be eligibleto receive unemployment anddisablement benefits.

If you die, the CommonwealthBank’s insurer CommInsure willimmediately seek to obtain a copyof all of your medical records.

CommInsure will not pay out theloan protection cover if your deathis as a result of:1. any illness for which youhad symptoms or receivedprofessional medical adviceor treatment within 12months before your coverstart date;

2. intentional self-inflictedinjury or infection; and

3. your use of alcohol or drugsnot taken under thesupervision of a doctor.

When an insurer declines toaccept liability under a contract ofinsurance there is generally theopportunity to have the decisionreviewed internally by the insurer.

If the insurer declines to reversethe decision to reject the claim thematter can be referred to theFinancial Ombudsmen Service.The Financial OmbudsmenService will attempt to have theparties negotiate a resolution. Ifthe Financial Ombudsmen Serviceis required to adjudicate on thematter and makes a direction thatthe insurer is liable to honour thecontract of insurance, then thisdecision is binding on the insurer.If the Financial OmbudsmenService does not make a directionthat the insurer is liable to honourthe contract of insurance thatdecision is not binding on the

party complaining about theconduct of the insurancecompany.

A dissatisfied party is then left tocommence an action for breach ofcontract through the courts.Where an insurance companyrelies upon an exclusion clause,the onus of proving the breach willrest on the insurer.

Paying insurance premiums forthis type of insurance is of novalue unless you die. Dying issomething which most of us aretrying to avoid. If you have beenpaying insurance premiums andthen die and then your Executorshave your insurance claim rejectedit is even more distressing.

An offer of insurance that does notinvolve a medical examination ordisclosure of your completemedical history may not be whatyou think it is, and may beworthless unless you read theProduct Disclosure Document andPolicy closely or obtainprofessional advice with respect tothe same.

Loan Protection InsuranceInsurance By Gene Paterson

Gene Paterson

ATTORNEY: Doctor, before you performed theautopsy, did you check for a pulse?WITNESS: No.ATTORNEY: Did you check for blood pressure?WITNESS: NoATTORNEY: Did you check for breathing?WITNESS: No.ATTORNEY: So, then it is possible that the patientwas alive when you began the autopsy?

WITNESS: No.

ATTORNEY: How can you be so sure, Doctor?

WITNESS: Because his brain was sitting on mydesk in a jar.

ATTORNEY: I see, but could the patient have stillbeen alive, nevertheless?

WITNESS: Yes, it is possible that he could havebeen alive and practicing law.

Our February chuckle: We like to have a laugh at ourselves ...It can be hard keeping a straight face as a court reporter ...


Proudly supporting the local community.

news & profile

Thinking of buying a Franchise,then make sure you read the fineprint … otherwise it could bite you!

In Australia there are over 1100Franchisor Business Formats andan estimated 73,000 FranchiseeBusinesses operating. Thecontract binding the Franchisorand Franchisee is known as aFranchise Agreement and is anagreement between the parties todevelop and run a business. Thechoice of which Franchise mayvary from the Butcher or Baker orCandle Stick Maker … and yesthere are candle businessopportunities.

The basic concept of a Franchiseis that for a fee which is usually apercentage of turnover aFranchisee (ie the business owner)becomes part of a large groupwhich increases buying power andalso, gives the owner the benefitof well established and provenbusiness models and collectiveadvertising and promotion.

The downside is that often,especially in regional areas, thebenefit of being a Franchise owner

is sometimes not that great.Often, the business owner asksthemselves whether or not it isworthwhile to remain as part ofthe Franchise structure or whether it would be better to goout on their own. By doing that itwill save the cost of the Franchise fees.

We are sometimes asked to lookat a Franchise Agreement at apoint in time when the Franchiseemay wish to get out of theAgreement or simply not exercisean option to extend the FranchiseAgreement which may have expired.

Most Franchise Agreementscontain a Restraint of Trade clausewhich prevents the Franchiseebusiness owner from going out ontheir own in a similar business fora period of time after theFranchise Agreement either isterminated or expires. That canmean that the business owner isconfronted with the situation ofhaving to either continue with theFranchise Agreement or potentiallyhave an argument with the

Franchisor and this can be costlyand expensive. This may serve asa negative inducement to remainin the Franchise arrangement.

The Courts will consider manyfactors when determining theenforceability of the Restraint ofTrade clause, such as thebusiness site location, catchmentarea for the business, customergood will, the terms of theRestraint of Trade, geographicallocation, Franchisor options topurchase the business andexisting Franchise businesses inthe area. These are just a fewmatters when considering theenforceability of the Restraint of Trade.

Being part of a Franchise structurecan be very beneficial. It can alsohave unforeseen and expensiveconsequences and that is why youmust carefully consider the prosand cons before signing such an Agreement.

Restraint of Trade inFranchise AgreementsFranchising, Restraint of Trade By Darren Robinson

Darren Robinson

Darren Robinson has returnedback to the Whitsunday area aftermany years away and recentlypurchased a home for his familyand gorgeous one year olddaughter, Stella who is a bundle of energy.

Darren was previously a DetectiveSergeant in the Queensland PoliceService. When he left the PoliceService he went on to study at theJames Cook University where hecompleted his Bachelor of Law.Whilst at James Cook University,

Darren was selected to representthe university at the NationalMooting Competition whichinvolves all Law Faculties acrossAustralia competing in the area ofCivil Advocacy. The competitionlasted for five days and was agreat experience.

Darren’s father Allan and youngerbrother Wayne also call theWhitsundays home and have beenchipping in and helping out withthe baby sitting duties.

Darren closely follows the AFL and

barracks for the Brisbane Lions.Although the wins have been lean,things are about to change withLeigh Matthew at the helm andthe Lions should be returning tothe winners circle. When he wasyounger and fitter Darren playedfor many years with theWhitsunday Sea Eagles andMackay City Hawks.

Darren also enjoys motor-bikeriding and completed an 11 daytrek that involved riding fromCooktown to the Tip and back.


news4 | Macrossan & Amiet – Leading the Way

With the start of the New Year Iam sure that many people areeither recommencing their fitnessregimes or alternatively, perhapsstarting one that is long overdue.Whilst not immediately apparentfrom my physical appearance Ihave been doing some regularexercise over the last few months.I recently completed aquestionnaire and signed adisclaimer before starting somefitness classes. Going through thisprocess I asked myself:

1. Why is it necessary tocomplete and sign aquestionnaire and disclaimerbefore starting an exerciseprogram?

In Queensland, the statutory lawrelating to civil liability for personalinjuries is contained in the CivilLiability Act 2003 (CLA).

Section 19 of the CLA states thata person will not be liable innegligence for harm suffered as aresult of the materialisation of anobvious risk of a dangerousrecreational activity.

An “obvious risk” is a risk thatwould have been obvious to areasonable person in the injuredperson’s position. Obvious risksinclude risks that are patent or amatter of common knowledge,risks where the probably of itoccurring is low and risk that arenot prominent, conspicuous orphysically observable.

A “dangerous recreational activity”means an activity engaged in forenjoyment, relaxation or leisurethat involves a significant degreeof risk of physical harm to aperson. Participating in anexercise program or fitness classhas been held to constitute a“recreational activity”.

Questionnaires and disclaimersused by fitness service providerssuch as gyms usually state, atleast in general terms, some of therisks involved in partaking in theprovider’s services. They saythings like, “I acknowledge thatthe programs and classes held bythe gym may expose me to risksincluding accidents, injury, illnessor death”.

By requiring persons to completea questionnaire and sign adisclaimer when they sign up to agym or register to participate in aclass, fitness service providers areattempting to limit their liability forpersonal injuries under the“dangerous recreational activity”protection in section 19 of theCLA.

2. How thorough should thefitness service provider be inrelation to the completionand signing of the form? (i.e.is it good enough for amember of staff to give you aform to sign, complete andreturn without sitting downand running through the form).

When a person signs up at a gymor registers to participate in fitnessclasses, a member of staff should

run through any forms, such asquestionnaires and disclaimers,which they are expected to sign.

It is important that fitness serviceproviders are fully aware of anymedical conditions or injuriessuffered by the person at theoutset before they start exercisingand that persons understand thefull nature of the risks involved inpartaking in the services provided.

This is illustrated in the New SouthWales case of Belna Pty Ltd vIrwin [2009].

In that case the Plaintiff dislocatedher left knee when carrying out alunge exercise during a PTsession at a gym. In thequestionnaire the Plaintiffcompleted when she joined thegym, she said that she hadsuffered an injury to her left knee3-5 years previously but that shehad had no further problems withthat knee since.

The NSW Court of Appealunanimously agreed that the gymbreached its duty of care to thePlaintiff in failing to makeadequate enquiries into the historyof her injury and failing to properlywarn her of the risks involved inthe exercise.

Disclaimers of Liability and Fitness ClassesPersonal Injury, Exclusion of Liability By Andrew Telford

Continued on page 5



3. If I did suffer some medicalcondition or injury as a resultof participating in exercisewhat rights would I haveagainst the fitness serviceprovider?

Generally speaking, a fitnessservice provider is under a duty toexercise reasonable care in theprovision of its services.

Where a person suffers injury as aresult of the careless conduct ofanother, that person can seekcompensation for their losses atcommon law through the tort ofnegligence.

In broad terms, for an injuredperson to bring a claim fornegligence they must prove:

a) that the person owed a dutyof care to them;

b) that the person breachedthat duty of care; and

c) that they suffered loss ordamage as a result of thatbreach.

As discussed above, the relevantlegislation in Queensland is theCLA. Persons who have beeninjured in the course ofparticipating in exercise programsor fitness classes at a gym or

other fitness service providershould obtain legal advice as totheir prospects of bringing a claimfor personal injuries under the CLA.

The CLA also provides a numberof defences which may be reliedupon by a gym to reduce or avoidliability. In addition to theprotections provided by section 19of the CLA where a complaintrelates to the failure to warn of anobvious risk, a gym or otherfitness service provider may avoidliability where an injured personfailed to take reasonable care forhis or her own safety (contributorynegligence). An example of thismay be where a person injuresthemselves attempting to liftweights which are clearly tooheavy for them.

4. If I did have any rightsagainst the fitness serviceprovider would I lose thoserights by virtue of havingsigned the disclaimer?

A person does not automaticallylose their right to bring a claim forpersonal injuries where they havesigned a disclaimer. The courtsare reluctant to allow contractualclauses such as those containedin disclaimers to actually exclude

liability where they are at all vagueor ambiguous.

In the Belna case discussedabove the NSW Court of Appealheld that the wording contained inthe disclaimer signed by thePlaintiff did not sufficiently warnher about the risk involved in theactivity, and was thereforeineffectual. The Court said that thewording in the disclaimer was sovague as to be meaningless andtherefore did not exclude the gymfrom liability.

In short, a gym or other fitnessservice provider’s ability to rely ona disclaimer will depend onwhether a court considers that thedisclaimer has provided properand adequate risk warnings andthe enforceability of those clausesin the disclaimer seeking to limitits liability.

Andrew Telford

The new exemptions apply to thefollowing:

• A person who enters into acontract to carry out buildingwork, provided that the work isnot residential constructionwork or domestic building work,and the work is to be carriedout by a person who islicensed to carry out buildingwork of the relevant class.This exemption applies even ifthe person “directly or indirectlycauses the building work to be

carried out” by an appropriatelylicensed contractor or “entersinto another contract” with anappropriately licensedcontractor to carry out thework. However, if the personcauses or allows any of thebuilding work to be carried outby a person who is notappropriately licensed to carryout the building work, then theexemption will cease to apply.

• An unlicensed person whosubmits a tender to carry out

building work provided that thework is not residentialconstruction work or domesticbuilding work and the actualwork is to be carried out by aperson who is licensed tocarry out building work of therelevant class.

• A “special purpose vehicle”that undertakes to carry outbuilding work under a “public-private partnership” providedthat the actual work is to becarried out by a person who

Changes in the Building IndustryContinued from page 1

Continued on page 6



news - Changes in the Building Industry Continued from page 5

is licensed to carry outbuilding work of the relevantclass. This exemption applieseven if the special purposevehicle “directly or indirectlycauses the building work to becarried out” by an appropriatelylicensed contractor, or “entersinto a contract with” anappropriately licensedcontractor to carry out thework. Again, if the specialpurpose vehicle causes orallows any of the building workto be carried out by a personwho is not appropriatelylicensed to carry out thebuilding work, then theexemption will cease to apply.

The term “special purposevehicle” means an entityestablished for the purpose ofcarrying out a public-privatepartnership and declared by theTreasurer by gazette notice to bea special purpose vehicle for thepurposes of the QBCC Act.

A “public-private partnership”is an arrangement between theState, Commonwealth or alocal government (or any oftheir authorities or agencies)and one or more private sectorentities with the purpose offinancing, designing,constructing, maintaining oroperating public infrastructure.

• An unlicensed person whoundertakes to carry out buildingwork for a prescribedgovernment project by:- Entering into a contract withthe government entity tocarry out building work forthe project;

- Submitting a tender to agovernment entity to carryout building work for theproject; or

- Making an offer to agovernment entity to carryout building work for theproject,

provided that the work is of aclass prescribed underregulation for the prescribed

government project and is tobe carried out by a person whois licensed to carry out buildingwork of the relevant class. Thisexemption applies even if theperson “directly or indirectlycauses the building work to becarried out” by an appropriatelylicensed contractor or “entersinto another contract with” anappropriately licensedcontractor to carry out thework. However, if the personcauses or allows any of thebuilding work to be carried outby a person who is notappropriately licensed to carryout the building work, then theexemption will cease to apply.

The term “prescribedgovernment project” means aproject, prescribed underRegulation, involving buildingwork to be carried out for, or onbehalf of, a government entityand by one or more privatesector entities.

What Does This Mean?Previously, developers or head-contractors were required to belicensed even if they had orintended to contract another partyto complete commercial buildingwork. This is no longer necessary,provided that the developercontracts with an appropriatelylicensed building contractor tocarry out the building work.

It is important to note that anywork that requires a licencecannot be performed by someonewho does not hold the appropriatelicence and that the exemptiondoes not apply to residentialconstruction work or domesticbuilding work. The work thedeveloper could not personallycomplete themselves includesadministration, advisory,management and supervisoryservices for building work, whichmeans that the developer couldnot (for example) coordinate andmanage trades. The exemptiononly allows the developer to enterinto the contract without thelicence, otherwise, the law

regarding licensing remains the same.

Retention AmountsFinally, sections 67K and 67L ofthe former QBSA Act providedtotal value of retentions underbuilding contracts which are notsubcontracts (s 67K) and buildingcontracts that are subcontracts (s67L) must not be more than 5% ofthe contract price. The differencebetween the two sections is that itis possible to contract out ofsection 67K but it is not possibleto contract out of section 67L.That is, you cannot contract out ofthe limit on retention amountsunder a subcontract.

These two sections have nowbeen changed so that section 67Ldoes not apply to a subcontract ifthe contracting party is a “specialpurpose vehicle” (see thedefinition above). In other words,a special purpose vehicle will beable to contract out of the limit onretentions even under asubcontract. These changes onlyaffect special purpose vehicles.

From HereThe Government considers thebuilding industry to be one of thefour pillars to build a strongeconomy for our State. Thelicensing changes will ease in partthe regulatory burden fordevelopers involved in commercialconstruction.

For those in the industry, however,it is certainly a case of ‘watch thisspace’. It is likely that thesechanges will be only the start tothe Government’s review of thebuilding industry. We can expectmore regulatory and legislativechanges affecting the industry inthe coming months, as theGovernment continues their reviewand seeks to implement their “10Point Action Plan” and the newlyestablished Queensland Buildingand Construction Commissionfinds its feet.



news

The Queensland Parliament hasrecently passed the Directors’Liability Reform Amendment Act2013 (‘Act’). This legislationcommenced operation on 1November 2013 and theprovisions amend a broad varietyof Queensland laws with respectto executive officers and theburden of liability.

Who will be affected by the Act? Although the title of the Actindicates that it relates toDirectors’ liability the Act in factapplies to ‘executive officers’which is a much broader range ofpeople. Executive officer means “aperson who is concerned with, ortakes part in, the corporation’smanagement, whether or not theperson is a Director or theperson’s position is given thename of executive officer.”

What are the amendments tothe liability provisions? The Act makes three majoramendments to the liabilityprovisions previously contained inQueensland legislation, namely:

1. Reduces the number ofexecutive officers’ liabilityprovisions from approximately3,800 to lessthan 300;

2. Removesprovisions thatreversed theonus of proof,which meansthat in mostcases executiveofficers will notautomatically bedeemed to beguilty unless itcan be provedotherwise. The

prosecution must prove thatthe executive officer breachedthe elements of the directors’liability provisions; and

3. Introduces two types ofpersonal liability – ‘type 1’ and‘deemed liability’ provisions.

‘Type 1’ The majority of liability provisionswill fall under the category of ‘type1’. An executive officer willcommit an offence if:

a) The Corporation commits anoffence against an executiveliability provision; and

b) The Officer did not take allreasonable steps to ensure theCorporation did not engage inthe conduct constituting theoffence.

Under the Act, in determiningwhether all reasonable stepswere taken, the Court mustlook at:

- Whether the officer knew, orought reasonably to haveknown, of the Corporation’sconduct constituting theoffence against theexecutive liability provision;

- Whether the officer was in aposition to influence thecorporation’s conduct inrelation to the offenceagainst the executive liabilityprovision; and

- Any other relevant matter. ‘Deemed liability’ The deemed liability provisions willmean where a corporation commitsan offence against a provision ofthe Act, each executive officer istaken to have committed anoffence against the provision if:a) The officer authorised or permittedthe corporation’s conductconstituting the offence; or

b) The officer was, directly orindirectly, knowingly concernedin the corporation’s conduct.

What legislation does the Actnot amend?The Act does not makeamendments to the Work Healthand Safety Act 2011 (Cth) orEnvironment Protection Act 1994(Qld). The executive officer liabilityprovisions contained within theseacts remain unchanged. Conclusion The Act was passed byQueensland Parliament with theexpectation that red tape and theregulatory burden placed onexecutor officers would be reducedwhile still ensuring that they areheld accountable where companiesare involved in offences. Directorsand executive officers must stillensure that they are aware of andunderstand their obligations. It alsoremains important that companiesimplement and operate under riskmanagement systems to ensurethat these obligations arecontinually met.

Changes to Directors andother Officer’s LiabilityCorporations, Directors Liability By Caitlin Roberts

Caitlin Roberts



news & historyIf you have any queriesabout any of the articles inthis newsletter, please feelfree to [email protected] orphone 4944 2000 (Mackay)or 4948 4500 (Whitsundays)to speak directly with theauthor of the article.

Contact usFor further informationabout the services offeredby Macrossan & AmietSolicitors please contactyour nearest office:

Mackay55 Gordon StreetMackay QLD 4740Ph 07 4944 2000Fax 07 4957 [email protected]

WhitsundaySuite 4Whitsunday Business Centre230 Shute Harbour RoadCannonvale QLD 4802Ph 07 4948 4500Fax 07 4948 [email protected]

Proserpine18A Chapman StreetProserpine QLD 4800Ph 07 4945 2388Fax 07 4945 [email protected]

An interesting piece of historyregarding Macrossan & Amiet ...found in an online book entitled,"Queensland and Queenslanders”Incorporating “ProminentQueenslanders” compiled byAustralian History Publishing Co,Brisbane, 1936 (14 mbs) which

can be found on the AustralianNational University website.

The entire 322 page book isavailable to download at

http://ncb.anu.edu.au/sites/default/files/documents/Queensland andQueenslanders.pdf

Macrossan & Amiet Charitable Foundation financiallysupporting local charities ... The Foundation has alreadymade grants, assisting local charities, of over $352,000.00

Consider making a donation to the Foundation. No administrationcosts are met from the capital of the Foundation and are met bythe legal firm Macrossan & Amiet.

All donations to the Macrossan & Amiet Charitable Foundation are tax deductible.Should you wish to make a donation, please do not hesitate tocontact the Secretary, Mr Stuart Naylor on (07) 4944 2000.

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