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The forms for both enduring powers of attorney and advance health directives change effective 30 November 2020. Until that date the forms current as at 30 September 2020 should continue to be used. Powers of attorney correctly made before 30 November 2020 will continue to be valid on and after that date. Advanced Health directives which are validly made as at 29 November 2020 will continue to be valid except to the extent of any appointment of a service provider for a residential service in which the appointor is resident. The legislation also provides for other changes, including quite significant changes concerning transactions in which the attorney has a conflict of interests with the principal. These conflicts can arise frequently, and innocently, and thought should be given to those matters when preparing the enduring powers of attorney.

Amendments to the Building Industry Fairness (Security of Payment) Act 2017 (“BIF Act”) came into effect on 1 October 2020. The amendments relate to the making of a payment claim, consequences for not paying the certified amount by the due date, and the introduction of the concept of payment withholding requests if an amount has not been paid pursuant to an adjudication decision. These amendments affect all contractors in the contractual chain in the building and construction industry and are designed to improve the flow of cash throughout the industry. Contractors should ensure that they are aware of the new amendments. The amendments include a significant change to the documentation required when submitting a payment claim – the commencement of the security of payment process.  A contractor who has one or more subcontractors below it, when lodging a payment claim, must include with the payment claim a declaration that all subcontractors have been paid all amounts they are owed.  If a subcontractor has not been paid, the supporting statement will need to specify the amounts that remain unpaid. The second significant amendment concerns the making of payments pursuant to a payment schedule.  A party who fails to make payment pursuant to an amount certified for payment pursuant to a payment schedule, is now exposed to being fined an amount equivalent to 100 penalty units. The third significant change relates to paying adjudicated amounts.  A respondent is now required to pay the adjudicated amount within 5 business days after receiving the adjudicator’s decision.  If a respondent fails to do so, it is now liable to a fine of 200 penalty units. In order to assist claimants to obtain payment pursuant to an adjudicated decision, the new amendments entitle a contractor to serve a “payment withholding request” on a party above it in the contractual chain to secure payment of the adjudicated amount.  Once the principal is served with the notice, it is obliged to retain the amount. Justin Mathews – who is a partner of our firm specialising in building and construction – is now a registered Adjudicator under the Security of Payment legislation both in Queensland and the Northern Territory.  He can assist you in all aspects of adjudication pursuant to the Security of Payment legislation. Please do not hesitate to contact Justin, a Queensland Law Society Accredited Specialist in Commercial Litigation, on (07) 5574 0111 or email justinm@qbmlaw.com.au.

A number of retailers have moved away from traditional shops to online retailing.  This move has accelerated due to COVID-19 issues, however it has been a trend for a number of years and shows no sign of reversing. We have recently come across this situation where an online retailer intended to take premises in a commercial/industrial centre from which to operate their business.  The entirety of the business would be operated from that premises, but it was not intended for customers to visit those premises as all transacting is done online.  It became necessary to determine whether the premises were a “retail shop”.  Quite apart from anything else, if the lease is for a “retail shop” as defined by the Retail Shop Leases Act (Queensland), then there are a number of safeguards for the tenant including prohibitions upon the recovery of certain costs and outgoings, including land tax. The Retail Shop Leases Act merely provides that a lease is a retail shop lease if it is a lease of a retail shop (section 5A).  The section goes on to identify certain circumstances in which case what would otherwise be a lease of a retail shop is not defined as such. Section 5B of the Act defines a retail shop as premises that are either situated in a retail shopping centre, or used wholly or predominantly for the carrying on of a retail shop business.  In other words, subject to certain exclusions, all premises in a retail shopping centre (which has its own definition) are retail shop leases, but individual premises are also retail shops if there are wholly or predominantly used for carrying on a retail business.  Section 5C of the Act goes on to identify that a retail business is a business prescribed by regulation as a retail business.  The Retail Shop Lease Regulation identifies at section 8 that a business is a retail business if it is a business mentioned in the schedule, or its whole or predominant activity is the sale, hirer or supply of goods or services mentioned in the schedule.  It clarifies that the wholesale sale of goods is not a retail business.  The schedule to the Retail Shop Lease Regulation then identifies a number of activities individually said to be retail businesses.  There are around 200 individual activities identified under general categories of: antique and use goods retailing; bread and cake retailing; clothing retailing; dine in retailing; domestic appliance retailing; domestic hardware and household goods retailing; fabric and other soft goods retailing; floor covering retailing; flower retailing; footwear and footwear repair retailing; fresh meat, fish and poultry retailing; fruit and vegetable retailing; furniture retailing; household appliance installation and repair services – electrical; liquor retailing, for off-premises construction; miscellaneous retailing; music and video hire and retailing (obviously done prior to streaming); newspaper, book, stationary, arts and crafts retailing; pharmaceutical, cosmetic and toiletry retailing; photographic equipment retailing; specialised food retailing; sport and camping equipment retailing; supermarket and grocery stores retailing; takeaway food (ready for immediate consumption) retailing; toy and game retailing; watch and jewellery retailing. There is no requirement in either the Act or the Regulations for the business to be involved in the operation of a “shop” as such – ie there is no requirement that the premises are used for direct contact between the customer and the business at which money is exchhanged for goods or services.  This is different to the definition  in some other states which would suggest that transactions with customers are an element. As a consequence, it is at least arguable that in Queensland, a premises from which a wholly online retail business is operated is a retail shop lease and entitled to the protections and disclosures under the Retail Shop Leases Act. For enquiries relating leasing, including Retail Shop Leases, please contact Kayla Davison at kaylad@qbmlaw.com.au or Peter Muller at peterm@qbmlaw.com.au

QBM Lawyers are happy to announce that their Partner, Justin Mathews, has just been registered as a qualified Adjudicator with the Queensland Building & Construction Commission.  As well as being registered in Queensland, Justin is also a registered Adjudicator in the Northern Territory. The role of adjudicator in building disputes is an important one, allowing for the prompt and efficient determination of entitlements of building contractors by adjudication, without the necessity of engaging in months or years of litigation. That time and cost saving can mean the survival of a business which might otherwise fail. Since the commencement of the Security of Payment Legislation in Queensland, Justin has acted in numerous adjudication matters including preparation of adjudication applications and responses for applicants and respondents in adjudication matters in New South Wales, Queensland, and the Northern Territory.  After extensive experience in litigation under the Building Industry Fairness (Security of Payment) Act concerning decisions made by adjudicators – both at first instance and which have been subject to challenge – it was therefore a natural progression that Justin should achieve qualification and obtain a certificate in adjudication to enable him to make binding decisions on adjudication applications in the building industry.