Uncategorised

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.

Like most other states and territories across Australia, Queensland introduced a temporary regulation, namely the Justice Legislation (COVID-19 Emergency Response – Wills and Enduring Documents) Regulation 2020 in early May 2020. Later that month, the Queensland government introduced the Justice Legislation (COVID-19 Emergency Response – Documents and Oaths Regulation 2020 (Qld)) (the Regulation), which was an updated version of the original Regulation. The Regulation commenced on 22 May 2020 and, at this stage, is set to expire on 31 December 2020. Importantly, it allows for varying documents to be made and executed electronically as well as witnessed via video link. The documents that are dealt with under the temporary Regulation are affidavits, affirmations, declarations, deeds, end of life documents (wills, enduring powers of attorney (EPOAs) and advanced health directives (AHDs)), general powers of attorney, mortgages and oaths. So, what generally does the new Regulation allow? Creating and executing documents: The Regulation provides that affidavits, declarations, deeds, and general powers of attorney may be made and signed electronically if they are done in accordance with the Regulation. The creation and execution of documents may be done electronically without the consent of any signatory, witness or any other relevant person. Affidavits and declarations Deeds End of Life Documents Wills, enduring powers of attorney (EPOA) and Advanced Health Directives may be witnessed over video. Importantly, however, the obligations under sections 44 and 49 of the Power of Attorney Act 1998 must still be followed. This includes the responsibility of the witness for EPOAs and AHDs to confirm the capacity of the signatory. It also extends to the additional certification by a doctor (or nurse under the Regulation) that is required to confirm the capacity of signatories when making an AHD. General powers of attorney Mortgages Witnessing documents: The only people authorised to witness documents (excluding declarations) via video are special witnesses. Special witnesses are: Australian legal practitioners; Notaries public; Justices of the peace or commissioners for declaration (if approved by the chief executive); Justices or commissioners employed by a law practice that prepared the document; or Justices or commissioners employed by the Public Trustee if the Public Trustee prepared the document. When witnessing a document, the special witness must be sure that: They can observe the signature of the person signing the document; The audio and video are clear enough to see the person sign; The person signs the document while on video; The person signs each page of the document (excluding affidavits and declarations); The person signing the document is doing so voluntarily; The person signing the document is correctly identified; and The name in the document is the same name as the person signing.  Where the person signing the original document is a substitute signatory, the special witness has greater obligations to fulfill in addition to the standard ones mentioned above. For all documents (excluding affidavit and declarations), special witnesses are required to complete a certificate which clearly identifies that they have followed the correct procedure under the Regulation. Where there is more than one witness, only one is required to be a special witness and complete a certificate. The special witness is also required to confirm the documents that they have witnessed, a process which the special witness should familiarise themselves with before they agree to witness anything. If you need assistance with anything mentioned in this article, please do not hesitate to contact our office on 07 5574 0111. 

Legislation amending the Criminal Code to make wage theft a crime has been introduced to Queensland parliament. At the time of making this post it has not yet passed. Interestingly – and inconsistently with Victorian wage theft legislation – there is no mention of directors’ liability for wage theft as a result of which there is at least some question as to whether company officers would have criminal responsibility for the theft by their company. Regardless, the laws are very strict and may make criminal minor delays in payment and potentially honest mistakes or oversights. While the section does require that the the underpayment is fraudulent, there will be instances where an omission might seem intentional (and fraudulent) when it was perfectly benign.