Author: admin

With mobile phone detection cameras deployed, a number of drivers complain that they have been penalised even when the phone is not in use. The penalty itself is contained in section 300 of the Transport Operations (Road Use Management – Road Rules) Regulation 2009 https://www.legislation.qld.gov.au/view/html/inforce/current/sl-2009-0194 – otherwise known as the “Queensland Road Rules”. Section 300 provides that a driver must not use a mobile phone while the vehicle is moving or is stationary but not parked.  The Transport Operations (Road Use Management) Act 1995 defines “Park” as meaning “incudes stop the vehicle and allow the vehicle to stay, whether or not the driver leaves the vehicle”.  There is a question over whether a vehicle has to be turned off to be “parked” in particular a manual vehicle. Also it should be noted that there are further restrictions for drivers on provisional licenses. In any event, section 300 clarifies that: There are further provisions in section 300 relevant to using the phone for the production of identification or to obtain or use money (eg in a drive through situation), or for uses of bicycles or personal mobility devices.  So is a smart watch a mobile phone? Unfortunately the regulation does not say what is or is not a mobile phone. It excludes a CB or two way radio, so it clearly isn’t intended to be limited to a traditional telephone. And a smart watch performs the same functions as a mobile phone – calls, texts, emails, media player. And it could be every bit as distracting. So if one then assumed that a smart watch is a mobile phone, would wearing one offend section 300? Well it isn’t in the driver’s hand. Is it “resting” on the driver’s body, if it is strapped to the wrist? If it is, then wearing a smart watch while driving would be using a mobile phone. Oddly enough, it has been reported that Queensland Road Rules do not deal with smart watches. that would not necessarily be consistent with a literal reading of section 300, and assumes that a smart watch is not a mobile phone. The miscellaneous provisions of the road rules (sections 288 to 300E) cover a number of other interesting situations including:

In February 2023, the Queensland Government announced proposed changes to Body Corporate legislation which would “make it easier for units to be redeveloped”.  The background is that, when looking to sell all units in a Body Corporate complex so that a developer can redevelop the site, it is common for there to be a small number of “hold outs” who will refuse to sell, whether at all or at a particular price. Hold outs may not necessarily be acting out of greed or opportunism.  Often, people are particularly happy with a modest apartment due to its location, and could not afford to buy elsewhere in a similar location.  Some people might have a sentimental attachment to a building that they are in, and it might meet their needs perfectly.  Further, there are a number of reasons why contracts usually proposed by developers for the assembly of a development site (ie for all of the units in a building) might not necessarily be attractive.  They generally contain terms which favour the developers.  Most will be subject to conditions such as the obtaining of satisfactory development approvals, which might not be achieved for a few years.  Then they would generally be conditional upon the settlement of all other lots, a condition which might fail for any number of reasons.   As a consequence, an offer to buy a unit by a developer – even if for a price premium – will often involve very unattractive terms, and lead to significant uncertainty such that the owner would be unable to plan for some years not knowing whether or not the contract would settle.  Furthermore, a price that was attractive at the time of the signing of the contract might be particularly unattractive one to three years later once all conditions are satisfied.  In addition, even if the contract is unconditional, many are entered into by special purpose vehicle companies with no assets meaning that if the contract fails and the buyer does not settle, the seller is left with no remedy. Against those matters, the Queensland Government is proposing to amend the Body Corporate legislation to allow (indirectly) for owners to be compelled to “sell”.  I’ve put the word “sell” in inverted commas because that is not what is proposed.  Instead, what would happen is that, if 75% of owners or more supported the termination of the scheme itself on the basis of an agreement that it is more financially viable for lot owners to terminate rather than to maintain or remediate the scheme, then the scheme is terminated which has the result that the freehold interests are lost, and the Body Corporate itself then is the owner of the entire site which it can sell.  This would have the result that (say) a scheme in which there had been 50 lots, all individually owned by different owners will have (post termination) 1 lot with those 50 owners all holding as tenants in common proportionate to their interest schedule lot entitlements.  If the owners could not agree on the sale, then an external trustee would have to be appointed to facilitate the sale, with the owners to eventually receive their share of the proceeds after expenses.  The proposed amendments (which have not been published) would need to deal with transparency and allow for remedies to be available to allow for an independent assessment of what is or is not financially viable.  The draft legislation is not yet available. For advice in relation to community titles scheme and contracts generally, please contact Peter Muller at peterm@qbmlaw.com.au, Jessica Murray at jessicam@qbmlaw.com.au or Megan Hanneman at meganh@qbmlaw.com.au

In this time in which the failure of building companies is quite frequent, it is good to be mindful of the presence of “charging clauses” in credit agreements.  Charging clauses quite often appear in the fine print of director’s guarantees given in favour of credit supply agreements.  As an example, a painter might operate his business through a company, in which he and his wife are directors.  The painting company might run a credit account with a supplier, which commonly will be supported by a director’s guarantee.  Frequently, the director’s guarantee appears fairly innocuous, and will be in very small print, or otherwise be written in a way which is disarming.  For example, the guarantee might have signing provision that says “signature of director” instead of “signature of guarantor” with the consequence that often guarantees are signed by directors who have not properly read the document and do not necessarily appreciate that they are giving a personal guarantee.  The issue however goes further because many of these guarantees contain charging clauses.  These clauses can be quite bland, for example words such as “the guarantor charges all of the guarantor’s land in favour of the creditor to secure payment of moneys owing by the customer to the creditor”. Some clauses are more sophisticated, and will appoint the creditor to be the agent of the guarantor to sign mortgages and register them over the guarantor’s land.  While generally a mortgage – to be registered over land – needs to be witnessed by a qualified person, that is not the case for a charge given under this sort of agreement.  The creditor can lodge a caveat securing its interest under the charge and then start court proceedings to enforce the charge which can include seeking orders to sell the land, which might include the guarantor’s home.  It is important to bear in mind these potential liabilities, and other potential liabilities such as responsibilities for breaches of workplace health and safety laws when deciding who should be a director of a trading company.  In particular, care should be given in nominating a spouse who has no significant role in the operation of the business as a director.  For advice concerning the structuring of businesses and responsibilities under business agreements, please contact our commercial lawyers Peter Muller at peterm@qbmlaw.com.au, Megan Hanneman at meganh@qbmlaw.com.au and Jessica Murray at jessicam@qbmlaw.com.au

Power of attorney duties, often people will appoint a trusted person to act as their attorney for health and financial matters if they lose capacity.  When that person loses capacity (and for the period of time that they have lost capacity, as it is not always permanent), the attorney becomes entitled and responsible to manage the financial affairs of the person appointing them (the principal).  So what are the power of attorney duties in relation to the investments? The Powers of Attorney Act provides that (save for Enduring Powers of Attorney made before the commencement of the Powers of Attorney Act in 1998), the attorney can invest only in “authorised investments” but that if the principal had investments at the commencement of the power which were not authorised investments, then the attorney can continue with them. The Act goes onto identify authorised investments as being investments which would be permitted for a trustee exercising a power of investment under the Trusts Act 1973, or as may be approved by the Tribunal. While historically, the Trusts Act set out fairly rigid types of investments that trustees were permitted to engage in, the Trusts Act now simply provides (at section 21) that unless expressly forbidden by the trust instrument, the trust funds may be invested in any form of investment.  Section 22 then sets out duties of the trustee, including: The trustee is obliged to comply with whatever trust instrument binds them, and must at least once in each year review the performance, individually and as a whole, of trust investments.  Section 23 goes on to preserve principles of law and equity insofar as they are not inconsistent with the trust instrument, including: Section 24 sets out various matters that a trustee can take into account when exercising a power of investment, so far as they are appropriate to the circumstances of the trust.  These include: Section 24 provides that a trustee may obtain and must consider if obtained independent and impartial advice reasonably required for the investment of trust funds and its management from a person that the trustee reasonably believes to be competent to give the advice. So these duties have become the duties of an attorney when investing for a principal. An attorney can be responsible if it breaches its obligations in relation to the management of the fund.  As an example, in the guardianship matter of HLB v Trust Company Ltd [2010] QCAT 40 – where the appointed guardian has similar obligations to those of an attorney under a Power of Attorney – The Trust Company Limited was ordered to compensate their client for failing to comply with their obligations in relation to their management of the client’s funds. In that case, the funds were maintained in a fund paying a low rate of interest for approximately one year when they could (and should) have been invested in investments which were equally safe and having a far greater rate of return. As a consequence, when managing the affairs of a principal, an attorney would often be wise to take advice from a qualified person and have regard to that advice when making investments.  For matters concerning Power of Attorneys, please contact Jessica Murray at jessicam@qbmlaw.com.au or Peter Muller at peterm@qbmlaw.com.au