When did you start at Sierra Legal?

In December 2021.

What were you doing before Sierra Legal?

I have been working in the non-profit sector in youth development across Africa for the past 8 years and still work in that sector one day a week.  I now run programmes in South Africa for budding entrepreneurs, teaching our youth how to start and run their own successful micro-businesses.  With 75% youth unemployment in South Africa, it is critical that we equip the youth with the skills to generate their own income.

What do you do with your time when you aren’t advising on M&A deals and reviewing contracts?

I recently moved to Cape Town in South Africa (previously I was in Johannesburg for eight years) and so I love the mountains and the hiking I’m able to do here.  I have Table Mountain literally on my back doorstep, so I’m very blessed.  My number one favourite pastime though is spending time in Kruger National Park, viewing Africa’s amazing wildlife.

What was your first job?

I started my working career as a police officer in South Australia at the age of 18 years.  Talk about being forced to grow up in a hurry! It’s not an easy job on so many levels and I think the most important thing is learning how to cope (in a healthy way) with the things you see and must deal with daily.  Sadly, I lost several friends to suicide who just couldn’t cope with the pressure.  I think the psychological support that police officers get these days is much better than when I was a police officer many years ago.  In fact, we had no support – you just had to ‘get on with it’.

What was the first thing you bought with your own money?

A Nikon SLR camera.  I have always had a passion for photography and saved up to get a good camera and lenses.  This was back in the ‘old days’ of film. I had a darkroom at home (aka the laundry with black plastic over the windows) where I used to do all my own film processing and printing.  I loved it!  Thirty years later, photography is still a passion of mine although the format has changed to digital which of course makes it much easier for the average person to be a ‘good’ photographer.  Now that I’m living in South Africa, my favourite photographic subjects are the wildlife in Kruger National Park.

What was the last book you read?

Simon Sinek’s “Start with Why”.  The book looks at what separates great companies and great leaders from the rest and why some people and organisations are more inventive, pioneering, and successful than others. I love Simon Sinek, particularly his unconventional and innovative views on business and leadership.  He is the eternal optimist and has deep compassion for the human race and our ability, through working together, to change our world for the better.  Check out his podcast, A Bit of Optimism – it’s brilliant!

Favourite place?

Having lived in South Africa and worked across Africa for the past 8 years, I still think Australia is the best country in the world and it’s still my ‘home’ and favourite place.  A very close second is where I am living now, in Cape Town.  It has so much to offer, from the sea to the mountains, and reminds me so much of Melbourne. I love living here.

Favourite food?

That’s a tough one because I’m such a ‘foodie’. I love good quality, fresh, flavoursome, healthy food.  I’m known as the ‘Salad Queen’ and love making interesting salads and combining different flavours together. I know coffee is not a food but it’s my number one priority when I wake up.

Least favourite food?  

Peas!  I have hated them ever since I was a child.  Although I love snow peas and snap peas – go figure.  So, I guess it’s mushy peas / frozen peas that I dislike intensely.

Best advice you have received?

I try to live by this quote: “I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.” (Maya Angelou).  

I love people and have a genuine interest in people and what makes them tick.  Africa has afforded me the opportunity to work with past African Presidents, highly educated professionals, illiterate rural workers and with people who live in shacks made of pieces of scrap metal in townships.  I treat everyone the same - with respect, compassion and with an ear to listen and learn.  I have found that every single one of us want the same thing – to be seen, to be heard and to feel that what we do matters.

The removal of the following ASIC fees was announced in the 2022 Federal Budget as part of the Modernising Business Registers (MBR) program:

• ASIC company annual late review fees. This is a welcome move, particularly for small companies, which are more likely to incur these fees due to oversight.  Late review fees may also act as a disincentive for companies (particularly small ones), to update their details on the ASIC database if they miss a lodgement deadline, which makes the database prone to being inaccurate and out of date, and therefore less useful.
• ASIC search fees.  The abolition of fees payable by the public to search the ASIC database for information about companies (for example, registration status, registered office address, names of directors and shareholdings) will align Australia with other countries such as the US, UK and New Zealand, where (unlike the current position in Australia) a lot of information about a company can be obtained by anyone from Government databases for free. However, the scrapping of search fees may not good news for third party providers of company search services, who may lose some business.
• Some “ad hoc” company lodgement fees.  The Budget papers did not specify which ones are to be scrapped, but evidently some lodgement fees will continue to apply.

The abolition of the above fees is scheduled to take effect from September 2023, coinciding with the new Australian Business Registry Services (ABRS) platform becoming operational.  Established as part of the MBR program, the ABRS will result in the consolidation of more than 30 ASIC registers and the Australian Business Register (ABR) into one place.

The Budget papers say that the Government will forgo revenue of $64.9 million over 3 years from 2023-24 to streamline fees associated with Australia’s Business Registers, as companies are migrated to the new ABRS platform.

What?

A director identification number (Director ID) is a unique 15-digit number that identifies an individual as a director of an Australian company, registered Australian body or Australian registered foreign company.

All directors need to apply for their own Director ID and they will keep it forever even if they:

• change companies;
• stop being a director;
• change their name; or
• move interstate or overseas.

Why?

The requirement for Director IDs was introduced by the Australian government to:

• prevent the use of false or fraudulent director identities;
• make it easier for external administrators and regulators to trace directors’ relationships with companies over time; and
• identify and eliminate director involvement in unlawful activity, such as illegal phoenix activity (which is where a company is liquidated, wound up or abandoned to avoid paying its debts and then a new company is started to continue the same business activities without the debt, leaving employees and suppliers unpaid).

Who?

You need a Director ID if you are a director of a:

• company;
• Aboriginal and Torres Strait Islander corporation;
• corporate trustee, for example, of a self-managed super fund;
• charity or not-for-profit organisation that is a company or Aboriginal and Torres Strait Islander corporation;
• registered Australian body, for example, an incorporated association that is registered with the Australian Securities and Investments Commission (ASIC) and trades outside the state or territory in which it is incorporated; or
• foreign company registered with ASIC and carrying on business in Australia (regardless of where you live).

You do not need a Director ID if you are:

• a company secretary but not a director;
• acting as an external administrator of a company;
• running a business as a sole trader or partnership;
• referred to as a ‘director’ in your job title but have not been appointed as a director under the Corporations Act 2001 (Cth) (Corporations Act) or the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth) (CATSI Act);
• a director of a registered charity with an organisation type that is not registered with ASIC or the Office of the Registrar of Indigenous Corporations to operate throughout Australia; or
• an officer of an unincorporated association, cooperative or incorporated association established under state or territory legislation, unless the organisation is also a registered Australian body.

When?

You can apply for a Director ID now.

If you plan to become a director, you can apply for a Director ID before you are appointed as a director.

For directors under the Corporations Act

When you are required to apply for a Director ID depends on the date you become a director, as follows:

For directors under the CATSI Act

When you are required to apply for a Director ID depends on the date you become a director, as follows:

Criminal offence

ASIC is responsible for enforcing Director ID offences set out in the Corporations Act.  It is a criminal offence if you do not apply on time.

ASIC’s enforcement role covers the following Director ID offences under the Corporations Act:

How?

The Australian Business Registry Services (ABRS) is responsible for administering the Director ID initiative.  The ABRS was established to streamline how people register, view and maintain their business information with the Australian government.

It is free to apply for a Director ID from ABRS (https://www.abrs.gov.au/director-identification-number/apply-director-identification-number).

The following are the various Director ID application options:

For more information, please contact any member of the Sierra Legal team, whose contact details can be found here.

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Engaging an adviser, such as a lawyer, accountant, valuer, mergers and acquisitions (M&A) / corporate adviser or business broker can be a daunting process.  In any given field, there are many advisers and service firms in the market, and it can be difficult to know the best way to find and engage the right one for you – what should you look out for?

This blog sets out some tips for engaging an adviser, which are based on our experience in building good long term working relationships with our clients. As a specialist corporate and commercial law firm, we are not just familiar with the engagement process from the adviser’s standpoint.  We have also assisted clients in engaging other advisers.  

Tip 1:  Experience - find an adviser that has experience and specialises in the things you need

Ideally, find an adviser that specialises in the areas that are important to you.

For example, when it comes to lawyers, there are many areas of law and subsets of law (such as corporate and commercial law, property law, employment law, intellectual property law, family law and dispute resolution). A lawyer that specialises in a particular area:

• will be up to date on any changes to the law in that area;
• are more likely to be doing legal work in that area on a daily basis, and will therefore have considerable experience and expertise in handling similar matters; and
• can identify any legal issues quickly and expertly.

Similar considerations apply to other professional advisers, such as accountants.

It may also be helpful if the adviser has experience relevant to your industry and in dealing with businesses of the same or similar size as yours.  That could be of particular importance when, say appointing an M&A adviser to advise you in relation to the sale of your business, or a valuer to value a business.

You should also ensure that the adviser holds all necessary licences and other authorisations to provide the services you need.  While it may be obvious that your lawyer needs to hold an appropriate practising certificate, it may be less known that a corporate advisory firm needs to hold an Australian financial services licence (AFSL) to provide advice and services in connection with a sale or other dealing in shares and other financial products.  A business broker may need to hold an estate agent’s licence issued by the relevant state authority to sell your business.

It is worth doing your research and checking out an adviser’s website and social media to determine the experience and expertise that the adviser has in a particular area.  A recommendation or referral from a colleague, another adviser or trusted contact can also be a useful way of finding an adviser that meets your needs.

Tip 2:  Scope of Work

Following initial discussions and prior to engaging an adviser, ensure that the scope of work for the services you need is clear and you are also clear on any carve-outs, exclusions or assumptions as this will ultimately affect the fees that will be charged. 

For example, if you engage a law firm to prepare a business sale contract for you, is the quote just for the initial draft of the document or does it include further drafts following your comments and questions?  Does the quote include assistance with completion/settlement?  Does the scope of work include assistance with ancillary documents as part of the transaction?

If in doubt, ask the adviser to clarify the scope of work with you.

Tip 3:  Fees

Professionals such as lawyers and accountants typically charge fees on an hourly basis - although some may cap fees or charge fixed fees for particular work. 

Capped or fixed fees for a particular scope of work provide some certainty as to the invoice you expect to receive at the end of the matter.  If an adviser provides a fixed fee, as noted above in Tip 2, ensure that you understand the scope of work for that fixed fee as work outside the agreed scope may be charged at the adviser’s standard hourly rates.

For large matters, it is often a good idea to obtain regular updates on the fees incurred to date so that you can keep track of the work that has been done and the fees incurred.

Some advisers, such as M&A advisers, may charge break fees if the client terminates their engagement before the transaction to which the engagement relates proceeds (or if it does not proceed), or may be entitled to their fee if the transaction subsequently proceeds.  It is important that you understand these fees, and the circumstances in which you could be liable to pay them.

Tip 4:  Obtain multiple quotes

It can be a good idea to obtain multiple quotes for the work required.  However, if you do so, you will need to consider those quotes in detail as it is often not a matter of comparing ‘apples with apples’.  It is important to assess the scope of work, charge-out rates for future work, whether the fees are an estimate or a fixed fee, any assumptions or exclusions, and the relative experience of the respective advisers. 

For some advisers such as lawyers, keep in mind that a cheaper upfront price will not necessarily mean a cheaper price overall, particularly if the initial scope of work is limited, and the matter becomes more protracted.

Also, it is worth asking the adviser to clarify who in their firm will be engaged in your matter and their hourly rates.  To keep fees low, some professional services firms (such as legal and accounting firms) often use junior staff to produce the work, which may not be the same quality as a practitioner with more experience.

Tip 5:  Communication and rapport

With everything else being equal (i.e., experience, scope of work, fees, etc), you should consider whether you have a good rapport with the adviser you are engaging (and whether that adviser is a good communicator, both with advice and returning your calls and queries in a satisfactory and timely fashion).

As a business owner, it is important to surround yourself with first-class experts you can trust - from legal advice to accounting and financial strategy.

Communication, trust and respect are important for building a long term adviser-client relationship, and for ensuring that you are kept up to date as your matter progresses.

Tip 6:  When to appoint an adviser

In some cases, it may be obvious when to engage an adviser.  For instance, you would appoint an M&A adviser or business broker before you offered your business for sale.

However, from experience, when it comes to lawyers, we know many people believe that it will be cheaper if they are engaged at the last minute of a transaction.  Nonetheless, it can often be more efficient, and costs can be saved, if lawyers are involved from the commencement of the matter - they can then be up-to-speed on the entire transaction from the start, and can ensure that a matter is correctly structured (which could save costs in the long run if parts of a transaction need to be unwound due to lack of advice).

About Sierra Legal

Sierra Legal is a boutique corporate and commercial law firm that specialises in assisting their clients with buying and selling businesses, corporate structuring, capital raisings and general corporate/commercial matters.  Sierra Legal has lawyers in Melbourne, Brisbane and the Gold Coast. All of our lawyers are at Director or Special Counsel level with at least 13 years’ experience in medium to large local and international law firms.

How does Sierra Legal charge for work?

We work with our clients to develop fee arrangements that are the most appropriate for each matter.  Our fees are structured in flexible and innovative ways, including fixed or capped fees, blended rates, and, for some transactions, success-based fees. 

Our pricing is transparent, and we always provide our clients with certainty on the legal costs related to their matters.  The vast majority of our work is performed on a fixed or capped fee basis, making it easy for you to budget for legal costs.

For ongoing legal work, clients can also obtain greater price certainty by selecting a Sierra Legal Monthly Plan.  Please see Sierra Monthly Plans.

Other legal specialties and advisers

While Sierra Legal specialises in corporate/commercial legal matters, we have contacts at a number of other firms with expertise in other areas of law, such as property law, dispute resolution and employment law.  We may also be able to put you in contact with other advisers, and assist you in the engagement process (e.g., reviewing their terms of engagement).  We are always happy to have a chat, so please do not hesitate to contact us should you not know the type of lawyer required for a matter, or you need a recommendation for an area of law outside of our specialisation or for another type of adviser.

You’ve probably heard it before: “We just need you to sign our standard NDA first. We’ll send it through. You just need to sign and send it back.”

Is it OK to sign the other party’s standard non-disclosure agreement (NDA) (also commonly known as a ‘confidentiality agreement’)? Will your company’s standard NDA be the right fit for the discussions you are about to have? Maybe, but it’s probably best to understand the NDA and whether it is suitable for the circumstances first.

Contrary to what some people may think, not all NDAs are the same. Here are some issues to think about:

What ‘Confidential Information’ will be covered?

The obligations under a typical NDA are based around protecting what is defined as ‘Confidential Information’. It is common to see very broad definitions of ‘Confidential Information’, so that the agreement covers essentially everything provided by one party to the other, or everything about one party that is known to the other party, except for information in the public domain. This may be appropriate, but you need to be aware that it may mean that a very wide range of information is covered by the agreement, so it may be very onerous or simply impractical to fully comply.

If there is only a small range of information that really needs to be protected, it may be best to define ‘Confidential Information’ much more specifically.

‘Approved Purpose’

It is usual for a NDA to set out an ‘Approved Purpose’ or ‘Permitted Purpose’, which is the only purpose for which the receiving party is permitted to use the Confidential Information. It is important to get this right.

Responsibility for accuracy of information

It is common for standard NDAs to include a clause that seeks to exclude the disclosing party’s responsibility or liability for the accuracy or completeness of the information disclosed. Sometimes we see the opposite: a clause providing that the disclosing party guarantees the accuracy and completeness of the information.

Care and consideration should be given to these clauses before agreeing to them. What if the whole purpose of your dealings with the other party is that they are giving you materials that you should be entitled to rely on? Or the opposite, are you doing the other party a favour and want to minimise your liability in relation to the information, but you have just signed up to an agreement with a specific warranty of accuracy and completeness?

Who can be given the information?

Most of the time an NDA will be entered with a company. But when the information is disclosed, which individuals within the company receiving the information should be allowed to access it?

It is usual for an NDA to provide, at a minimum, that the information can only be shared within the company with individuals who have a need to know the information in relation to the Approved Purpose and that the company is responsible for ensuring that the individuals comply with the terms of the NDA. This may be appropriate, but you may also want to consider a more restrictive approach if you are the “disclosing party”. For example, this could include an obligation on the receiving party to ensure that all individuals to whom it provides access to the confidential information sign a personal confidentiality undertaking which is provided to the disclosing party.

Putting the right templates in place

Your organisation can more efficiently enter into suitable NDAs by having the right templates in place that take account of these and other issues in accordance with your organisation’s circumstances and needs.

Please feel free to contact any member of the Sierra Legal team to discuss how we can assist.

Your decision to buy a business and your negotiations with the seller over the price and other terms and conditions of the purchase will be influenced by information provided by the seller.  For example, the seller is likely to provide you with financial statements of the business.  The seller may also be willing to share internal forecasts and budgets.  Other information and documents relevant to the business may be disclosed by the seller as part of your and your advisers’ due diligence investigations of the financial, operational and legal aspects of the business. 

It is, of course, prudent for the purchaser to check the information the seller provides for accuracy and (in relation to any forecasts and budgets provided by the seller) reasonableness.  For instance, this could be done by a review or audit of the financial statements (where they are unaudited special purpose accounts) and, if possible, independent verification by searching public records and registers.  However, budgetary and time constraints and the nature of much of the information provided by the seller will rarely allow you to undertake a complete investigation of all aspects of the target business, and to independently verify all information provided by the seller. 

This is why it is common for the purchaser to require the seller to provide warranties about the business in the contract for the sale and purchase of the business.  The warranties will generally be about specific aspects of the business and may be used to confirm information provided by the seller.  If the warranties are later proved to be incorrect, or misleading (depending on the wording of the warranty provisions in the contract), the purchaser will be entitled to recover any resulting loss from the seller.

The following are some key points about seller’s warranties from the purchaser’s perspective:

Warranty limitations: The seller is likely to want to limit their exposure under the warranties.  One common limitation is to seek to exclude warranty claims based on information or matters which the seller disclosed to the purchaser before the sale and purchase contract was signed (the principle being that if the seller has disclosed a risk to you before you legally committed to the purchase, you should not be able to sue them for any loss if that risk later eventuates). 

Although that is not generally unreasonable, if you are prepared to accept a limitation based on seller disclosure, the extent of the limitation should be clearly stated in the contract.  For example, you may want to stipulate that only full and fair disclosure of a matter which may give rise to a future warranty claim, or only full and fair disclosure against specified warranties (in a disclosure letter or similar document given by the seller before the contract is signed), will limit your right to claim under the warranties.  Otherwise, the seller may argue that a general and non-specific disclosure of information during due diligence (which may have been insufficient to enable you to identify a risk of a warranty breach) will preclude you from making a warranty claim afterwards. 

Other common limitations include a monetary cap on the seller’s liability for warranty claims and a time limit within which the purchaser is allowed to bring a claim for breach of warranty.

Co-warrantors: If the seller is a company, the sale proceeds may, a short time after the sale of the business completes/settles, be distributed to the company’s shareholders, leaving no more than a shell company with no, or no substantial assets.  That would make a later warranty claim by the purchaser against the seller company fruitless.  Therefore, you may want someone of some financial substance, in addition to the seller company, to give the warranties under the sale contract.  That will often mean the directors of the seller company being required to give warranties jointly and severally with the company.

Hold-back of funds/escrow: Even so, there may be no opportunity for the purchaser to assess the financial standing of the directors or other co-warrantors when entering into the sale contract, in particular, their financial standing in the future when a warranty claim may need to be made.  To ensure that there will be some funds readily available to meet a claim later on, you may try to negotiate for some of the sale price to be held back at completion/settlement, or placed in escrow (i.e., held by a third party stakeholder or your lawyer in trust), for part or all of the warranty period.

If you have any questions on seller warranties, or any other legal aspect of buying or selling a business, please do not hesitate to get in touch with one of the Sierra Legal team.

Unfair Contract Terms regime

The Unfair Contract Terms regime in the Competition and Consumer Act applies to "standard form contracts" which are either "consumer contracts" or "small business contracts".  If a court or tribunal finds that a term in these types of contracts is ‘unfair’, the term will be void (i.e. the term will not be legally binding on the parties).  The rest of the contract can continue to bind the parties to the extent it is capable of operating without the unfair term.  For further background on the unfair contract terms generally, you can read our previous article on this topic.

Recent updates

Updates/consultations in relation to the Unfair Contract Terms regime include:

• the extension of the Unfair Contract Terms regime (since April 2021) to certain types of insurance contracts (including common forms of insurance contracts such as car insurance, house and contents insurance, travel insurance and life insurance); and
• the ACCC consultation on enhancing the Unfair Contract Terms regime further to potentially include making unfair contract terms illegal and attaching penalties, strengthening powers of regulators, and changing the threshold for what constitutes a small business.  Draft legislation on the potential updates has yet to be released but you can view the responses submitted in connection with the consultation and further updates via this link: https://consult.treasury.gov.au/consumer-and-corporations-policy-division/enhancements-to-unfair-contract-term-protections/

Fuji Xerox case

We previously wrote (October 2020 Article) about the ACCC’s legal action in the Federal Court against Fuji Xerox Australia, where the ACCC alleged that Fuji Xerox’s template/standard form contracts included contract terms (including automatic renewal terms, excessive exit fees and unilateral prices increase) that were unfair under the Unfair Contract Terms regime in the Competition and Consumer Act.

Fuji Xerox applied for a summary dismissal of the ACCC’s case on the basis that the contracts in question were merely template contracts and the ACCC’s case did not identify or focus on any actual contract between Fuji Xerox and a particular customer.

In March 2021, the Federal Court of Australia rejected Fuji Xerox’s application for summary dismissal.  Although a final decision has not yet been made on whether the terms in Fuji Xerox’s template contracts are actually unfair under the Unfair Contract Terms regime, the activity involving the Fuji Xerox case (as well as the ACCC consultation) is a good reminder to ensure any standard form or template contracts are regularly reviewed to ensure that they do not contain any terms that could be considered to be unfair under Unfair Contract Terms regime. 

If you have any questions on unfair contract terms and how they apply to your business please get in touch with one of the Sierra Legal team.

Congratulations to Kenneth Gitahi on his promotion to Director and Samantha Khoo and Troy Mossley on their promotions to Special Counsel.

Ken, Sam and Troy all specialise in mergers & acquisitions, shareholder arrangements, IPOs and other capital raisings, private equity investments, and general corporate and commercial advice and have been invaluable members of the Sierra Legal team!

Joint ventures/business arrangements are commonly structured as proprietary limited companies with 2 or more shareholders.  While it may not seem essential at the start of the business relationship, having an agreement between the shareholders has a number of key benefits including:

• having a clear agreement on the rules that will govern the company/business and the shareholders’ relationship with each other; and
• ensuring that the rules about potentially difficult or sensitive matters including transfers of shares, dispute resolution and exit events are put in writing while the relationship between shareholders is amicable – this may help to avoid difficult, emotional and stressful disagreements in the future.

If you require a shareholders’ agreement, it is important that it is tailored to the shareholders, to the business, and to the future plans of the company.  The following are a few key issues to consider prior to having a shareholders agreement prepared: 

Structure of the agreement: Consideration should be given to the short to mid-term plans of the company as this may impact the terms and structure of the agreement.  For example, if it is expected that the company will look to raise funds by issuing ordinary or preference shares to parties other than the existing shareholders, the agreement should be appropriately drafted so that amendments are not required at the time of issuing those shares.   

Decision making: How will decisions of the company and the business be made?  For example:

• Will certain day-to-day decision-making powers be delegated to a CEO or Managing Director?
• What matters can be decided by the directors (and will such decisions be by majority vote (50%), special majority vote (generally 75%) or unanimous vote (100%))? 
• What matters will be reserved as decisions of the shareholders (and will such decisions be by majority vote (50%), special majority vote (generally 75%) or unanimous vote (100%))?  

Funding and share issues:

• Shareholders will need to consider how the company will be funded and whether it will be by way of debt (i.e. loans from shareholders or external financiers), equity or a combination of both.
• If additional funding is required, how will this be structured – i.e. will there be an obligation on shareholders to contribute in their respective proportions?

Transfer of shares:

• The agreement should typically include a pre-emptive rights process under which a shareholder wishing to transfer any of its shares must first offer their shares to the other shareholders (before offering them to third parties). 

• Shareholders should consider whether there should be provisions that automatically trigger a forced sale of a shareholder's shares, for example, where a shareholder:
• dies, becomes permanently incapacitated or of unsound mind;
• becomes insolvent;
• has not remedied a breach of the shareholders agreement; or
• who is also an employee, ceases to be an employee of the company. 
• Shareholders should consider how the rights of pre-emption and forced sale trigger events impact the process for transferring shares – are longer timeframes or different mechanisms required to allow existing shareholders to acquire the shares being transferred so that the existing shareholders can maintain control of the company?
• Do there need to be tag along and/or drag along rights (i.e. the ability for minority shareholders to tag along and sell their shares if a majority shareholders sells its shares to a third party, or the ability for a majority shareholder to drag along the minority shareholders by requiring them to sell their shares to a third party along with the majority shareholder)?

Employment arrangements:   

• Will any of the shareholders also be employees of the company and be required to sign up to formal executive services agreements or employment agreements, and what are the terms of those arrangements?
• Consideration should also be given to the manner in which the company (or its board) can terminate the employment of any shareholders (or their associated persons) who are also employees, and whether this should trigger a forced sale of any shares held by the employee shareholder.  

Restraints:  Restraints are provisions that protects the business if any shareholder leaves. Care must be taken to ensure these provisions are not drafted in a way that may result in them being unenforceable or contrary to law (e.g. under the cartel/exclusionary provisions in the Competition and Consumer Act 2010 (Cth)).

Resolution of deadlocks:

• Consider whether a resolution process to resolve deadlocks at board/shareholder meetings is required (e.g. where a significant decision is raised but is not passed because there is no unanimous vote or special majority vote, depending on which voting threshold applies).
• Deadlock resolution provisions could also provide that where a certain number of deadlocks occur (e.g. 3 times in 3 months), an agreed deadlock resolution process should be followed which may include mediation, a forced sale or exit, a pre-emptive rights offer, or a winding up of the company. 

If you have any questions on shareholders agreement or need a shareholders agreement prepared for your company, please do not hesitate to get in touch with one of the Sierra Legal team.

If you’re not in the business of supplying to retail consumers, you could be excused for thinking that the consumer guarantees under the Australian Consumer Law (ACL) were not something you needed to worry about.

However, given the definition of “consumer” in the ACL, the consumer guarantees already apply to a number of business to business transactions (in addition to business to retail consumer transactions), and from 1 July 2021 they will apply to a lot more.

The definition of “consumer” already applies to supplies (including to business customers) of goods and services:

• of a kind ordinarily acquired for personal, domestic or household use of consumption; or
• for a price of $40,000 or less,

but from 1 July 2021 the $40,000 threshold will increase to $100,000.

This means that any business that supplies goods or services to another business where the value of those goods or services is less than $100,000 will need to comply with the consumer guarantee regime in the ACL.

(There is no change to the exclusions from this regime, including for goods purchased for re-resupply or use in production or manufacture.)

There are 9 consumer guarantees that apply to goods and 3 consumer guarantees that apply to services. These include, for example: guarantees for goods relating to acceptable quality, fitness for purpose and compliance with express warranties and guarantees for services relating to fitness for purpose and being performed with due care and skill.

Among other available remedies, “consumers” (including business customers) can potentially claim uncapped compensation from a supplier (including for consequential losses) if they suffer loss or damage as a result of breach of a consumer guarantee (for example, for business losses resulting from goods or services that are found not to have met a guarantee relating to fitness for purpose.)

In many circumstances, however, a limitation of liability clause that meets the very specific requirements of the Australian Consumer Law can be effective.

Sierra Legal can assist by reviewing your standard terms to ensure that an appropriate limitation of liability clause is in place and advising on the consumer guarantees and other relevant obligations under the Australian Consumer Law.

It is now six months since Senior Consultant, Michael Abrahams, joined us in a part time capacity (while continuing his other role as General Counsel, Company Secretary & Integrity Officer at Essendon Football Club).

We sat down with Michael to talk about his observations on returning to private practice after almost 15 years as an in-house lawyer.

What are the key differences between working in-house and advising clients in private practice?

As an in-house lawyer, you have a range of internal clients, but you are a part of the organisation itself, so you develop a deep understanding of the organisation, its priorities and how it thinks and you also have an opportunity to influence and improve the organisation from the inside.

Private practice lawyers aren’t usually embedded in the client’s business in the same way, but you do get the opportunity to work with a wider range of clients in different industries and have the benefit of working alongside other senior lawyers (which you don’t necessarily get to do in-house).

Based on your experience, are there opportunities for businesses and their lawyers to get more out of the relationship by thinking in different ways?

Absolutely! In my experience, businesses often look at contracts and other legal matters on an individual basis and only involve their lawyers when more significant matters come to their attention.

Sometimes these matters take up a lot of legal resources and can arise when the client is already practically committed to the transaction (so are no longer in the best bargaining position).

Alongside this, the business will inevitably be entering a significant number of other contracts all the time (which may not be very formal or obvious, such as when buying on a supplier’s terms) and these might get no attention from a legal or risk perspective.

I think there is huge scope for businesses to address this by using the right external lawyers to help them identify their true key risks and create the systems, procedures and templates to address them in a systematic and efficient way.  Technology can play an important role in this and it’s exciting that at Sierra we are able to offer an extra element to this service through our contract automation service, Arreis Automation.

Personally, moving back into a private practice as a senior lawyer, it’s great to have the opportunity to take what I have learned in-house and make a difference for a range of clients and not just my one employer.

Sierra Legal is pleased to announce that Davide Cavalleri has joined the firm as Special Counsel.

Davide is a highly experienced corporate and commercial lawyer who specialises in mergers and acquisitions, corporate advisory and general commercial law.

As part of Davide joining the team, we ask him all the tough questions…

What were you doing before Sierra Legal? I was a special counsel in the corporate/commercial team in a mid-tier firm.  Prior to that, I was a principal in a smaller boutique commercial law firm in Melbourne.  I also owned and ran a small manufacturing business for a time in between, which got me out of the legal ivory tower – it helped me appreciate a little what some of our business clients have to deal with on a daily basis.

What do you do with your time when you aren’t advising on M&A deals and reviewing contracts? I took up running about 12 years ago.  I really enjoy it, both to keep fit and as a form of stress release.  I also like pottering about the garden, although that can be a challenge with Melbourne’s weather.

What was your first job? A sales clerk in an electrical components wholesaler.  After a while, I knew the names and specifications of a vast quantity of stock items, without having a clue as to what most of them were actually used for.

What was the last book you read? “A Promised Land”, Barack Obama’s memoir.

Favourite place? Port Douglas, in far north Queensland.  As a Melbournian, I suspect I’m not alone in saying that.  There are plenty of ex-southerners living up there!

Favourite food? I confess I have a soft spot for a good pizza.  I limit my intake these days though, as it has to be followed up by a very long run to burn off the calories!

Least favourite food? Dairy and cheese (although I make an exception where it’s a pizza topping).

If you were stranded on a desert island, what 3 things would you want with you? A satellite phone and 2 fully charged backup batteries, so I can call for help and be rescued.

Best advice you have received? “To live in the moment”.  It’s easier said than done, though.

Welcome to the team Davide!

Tip 1:  Know what you are buying – shares or assets

Most people operate their business through a company.  This means that a buyer can either buy:

• the shares held by the shareholders in the company; or
• the assets used by the company to operate the business. 

However, if the business is operated by a sole proprietor or through a trust, then the buyer may be limited to buying just the assets.

The difference between a share purchase transaction and an asset purchase transaction is that:

• a share purchase transaction involves the buyer purchasing all of the shares in the company that operates the business.  When the buyer purchases all of those shares, the buyer becomes the shareholder or owner of the company - including everything that the company owns (i.e. plant and equipment, land and buildings, goodwill, intellectual property and rights and benefits under customer contracts).  Importantly, owning the company also typically means that you inherit any debts or liabilities of the company (which is factored into the purchase price).
• an asset purchase transaction involves buying some or all of the assets that the company uses to operates its business.  These assets may include contracts, plant and equipment, land and buildings, goodwill and intellectual property.  In an asset purchase transaction, the buyer may prefer to purchase just some of the assets that are used to operate the relevant business and leave behind other assets and any of the debts or liabilities with the company.   

The decision on whether to buy shares or assets may become clearer after undertaking due diligence on the target business. There may also be tax reasons why a buyer may to prefer to purchase shares over assets or vice versa, and a buyer should speak to its accountant about this at the outset.

Tip 2:  Negotiate an exclusivity period with the seller

If possible, a buyer should try to negotiate for an exclusivity period during which the buyer has the sole right to conduct due diligence on the target company and business.  This is intended to prevent the seller from trying to solicit other offers from (or negotiate with) other prospective buyers during the exclusivity period.   

Tip 3:  Understand your funding options

Before starting the acquisition process, a buyer should consider how it will fund the proposed acquisition (cash, debt finance from a financial institution, or possibly vendor finance).

If a buyer needs to get a loan to fund the acquisition, the lender may wish to take security over the shares or assets of the target business and review the due diligence on the target business. 

Tip 4:  Undertake due diligence

Due diligence is essentially an investigation into (and an appraisal of) the target business/company, to assess its assets, liabilities and commercial potential. 

From a legal perspective, this would include things like reviewing the business’ material contracts, funding and borrowing arrangements, any current litigation, records of any employees and their entitlements, and conducting searches on any land or buildings owned or occupied by the target business.

A buyer will usually also want to do financial, commercial and possibly tax due diligence on the target company or business (and should speak to their accountant about this). 

Due diligence is important because:

• a buyer should ensure that it knows what it is buying so that it can better manage its risk associated with the purchase of the target business; and
• it will assist a buyer to negotiate the terms of the purchase.  For example, legal due diligence may reveal that there are certain risks in the target business which the buyer may then want to protect against.    

The level of due diligence on the target business will depend on a number of factors including the value of the acquisition and the buyer’s experience in the relevant industry.  Please see our recent article for top tips when conducting due diligence.

Tip 5:  Understand what protections you may need in the documents as a result of due diligence

If the buyer still wants to proceed with the purchase after conducting initial due diligence, the next step is to prepare, negotiate and enter into definitive transaction documents to formalise the proposed sale and purchase of the target.  Sometimes a term sheet or heads of agreement is entered into first for the parties to agree on the key terms that will appear in the definitive transaction documents.

A buyer will need to understand any material issues arising from due diligence to translate those issues into protections sought by the buyer in the sale and purchase agreement.  Examples of buyer protections that are often included in a sale and purchase agreement include:

• having certain conditions precedent that must be satisfied before settlement or completion of the transaction;
• including provisions that require part of the purchase price to be held back or retained until a specified action or result is achieved; and
• including indemnities or warranties from the seller to address specific risks.

If you have any questions on buying a business, undertaking legal due diligence or would like assistance with conducting legal due diligence on a target business, please do not hesitate to get in touch with one of the Sierra Legal team.

Some interesting commentary and insights on mid-market M&A in Australia in 2021 in the latest Mergermarket publication.

We agree with the sentiments in the publication - despite interesting conditions in 2020, during the second half of the year we advised on a number of M&A/private equity transactions occurring across various industries.

The main drivers for these transactions seem to be: (i) owners of businesses that have solid fundamentals (despite current market conditions) seeing it as a good opportunity to exit their business (with buyers equally seeing it is a good opportunity to buy); (ii) competing businesses merging to achieve cost efficiencies and greater stability; and (iii) companies seeking private equity investment for stability and future growth.

If you have any questions on the sale of your business (or if you are a buyer, on buying a business), please get in touch with the Sierra Legal team.

Before buying a business, it is recommended that the buyer undertakes due diligence on the target business.  In conducting due diligence, a buyer should aim to know as much about the target business as it does about its own business. 

The following are some key tips to keep in mind when conducting due diligence on a target business:

• Negotiate an exclusivity period with the seller:  An exclusivity period will ensure that the buyer can devote time and resources to undertake due diligence as the only prospective buyer and without being concerned that the seller is, at the same time, trying to solicit other offers for the target business.
• Engage experienced advisers:  A buyer should engage advisers (such as lawyers, accountants and tax advisers) experienced in advising on M&A transactions to assist in conducting (and reporting on) due diligence on a target business.  Advisers experienced in M&A transactions and conducting due diligence will know what issues to focus on (or look out for) during the due diligence process.  
• Agree on the scope of the due diligence:  Before obtaining detailed information on the target business, the buyer and its advisers (legal and financial) should agree on the scope of the due diligence.  The scope of the due diligence review will depend on factors such as the nature of the business, the size and value of the business and the risk appetite of the buyer.  Often, materiality thresholds are adopted to enable the buyer’s due diligence team to focus (and report) only on matters that exceed the thresholds, making the review of the due diligence materials relevant and efficient.
• Obtain detailed information about the target company:  A buyer should request detailed information from the seller about the target business.  To assist with this, the buyer (or its advisers) should provide the seller with a detailed due diligence questionnaire/checklist that requests information (and copies of documents) about the target business. Ideally, the seller will respond to the due diligence questionnaire/checklist while at the same time collating the supporting documents in an online data room.  The materials in the data room should, as far as is possible, be arranged in folders (and sub-folders) that correspond to the structure of the due diligence checklist to make it easy to locate information in the data room and to make it easy to delineate the sections of the data room that each of the buyer’s experts will focus their review on.
• Conduct a detailed and targeted review:  Once the Seller has completed the questionnaire and uploaded documents into the data room, the buyer and its relevant advisers will review the completed questionnaire/checklist and material in the data room.  Typically, a due diligence review is divided into:
• Legal due diligence:  includes a review of the corporate structure and records of the target company, material contracts, results of searches of registered intellectual property, business names, registrations of personal property securities and other securities, and current proceedings, transfer of employees and their entitlements.
• Commercial due diligence:  includes a review of real property/premises, plant and equipment, stock and inventory, systems and processes, employees, customers, products and services, suppliers, assets, insurance, market trends and issues.
• Financial due diligence:  includes a review of financial performance, financial position, maintainable earnings, debtors, creditors, work in progress, salaries and wages, superannuation, finance facilities, guarantees and bonds, pre-payments, tax returns, liabilities, notices, disputes, penalties.
• Tax due diligence:  includes a review of tax returns, liabilities, notices, disputes, penalties, etc and the tax impact of the transaction (as structured) on the buyer; and
• Obtain formal due diligence reports:  Once the buyer’s advisers have completed their review of the due diligence materials, they should report to the buyer in writing on their findings.  Often, advisers may report to the buyer on an “exceptions basis” only (unless the buyer requires otherwise).  This means that the due diligence report would only mention issues identified from the due diligence exercise whose value or impact would be over a certain materiality threshold.  The recommendations will inform the buyer’s decision on what action(s) to take in relation to the material issues identified during due diligence. 
• Allow sufficient time:  The collation of relevant documents and information by the seller, and the review of those materials by the buyer, take time, so allow sufficient time for proper due diligence to be undertaken as part of the transaction timetable.
• Negotiate relevant protections in the transaction documents:  Following completion of the due diligence process (and provided the buyer wishes to proceed with the transaction), the next step is negotiating and entering into definitive transaction documents to formalise the proposed sale and purchase of the target company.  The material issues identified in the due diligence reports and the respective recommendations of the buyer’s advisers will frequently translate into protections sought by the buyer in the relevant transaction documents, which may include the completion of certain remedial actions as conditions precedent to completion; a pre or post-completion undertaking to take a specific action; an indemnity to protect the buyer from specific material risks; or additional warranties addressing specific or general areas of concern for the buyer.

If you have any questions on buying a business, undertaking legal due diligence or would like assistance with conducting legal due diligence on a target business, please do not hesitate to get in touch with one of the Sierra Legal team.

• Melbourne
• Unique and flexible work environment
• Relaxed, close-knit and supportive team
• Broad range of corporate and commercial work

Are you tired of working in a typical “ivory tower” law firm, or the constant pressure of personal fee budgets?  Do you want to be part of a dynamic and growing team with genuine flexibility around work location and hours? 

Sierra Legal is a boutique legal practice that was formed 10 years ago.  Our current clients, to name a few, include Bingo Industries, Bulla Dairy Foods, Chubb Insurance, Clark Rubber, Edison Growth Fund, Energy Power Systems Australia, Hisense, Medibank, Simoco Wireless Solutions, Straight Bat Private Equity and World Vision Australia.

We have offices in Melbourne and Brisbane, but when our lawyers are not out seeing clients, they are often working from home offices and communicating regularly with each other online.  All our lawyers have come from large firms (including Middletons/K&L Gates, McCullough Robertson, King Wood Mallesons and Clyde & Co) and share a common desire to practise law in a far more flexible workplace environment, but still being part of a friendly, supportive team that does interesting, high quality legal work.  Unlike most if not all other law firms, we do not have personal fee budgets, but are instead focused on the customer, by delivering top-quality and commercially focused legal services for our clients.

Another unique feature of Sierra Legal is its document automation service offering, Arreis Automation.  This involves us coding and hosting bespoke web apps for our clients, which enables them to automatically generate their own contracts and other documents themselves from Sierra Legal’s online software platform (see https://www.sierralegal.com.au/arreis).

Importantly, over the last 10 years, Sierra Legal has demonstrated an extraordinarily high retention rate with its team members, in that only 2 of our lawyers have left the business during that period!

We are looking for a talented Melbourne based corporate/commercial lawyer to join our growing team at Senior Associate or Special Counsel level, to work on a broad range of complex and interesting M&A, corporate and commercial matters. 

You will be working within a close-knit team of experienced commercial lawyers, principally in some or all of the following areas:

• Mergers and acquisitions
• Reverse listings, IPOs and public company takeovers
• Capital raisings and debt restructuring
• Commercial agreements
• General corporate legal advice
• Preparation and automation of template documents as part of Arreis Automation

We are seeking candidates who possess an outstanding analytical mind, strong interpersonal and communication skills, excellent drafting skills, attention to detail, personal integrity, self-motivation and the ability to work as part of a close-knit team. 

If you would like to be considered for this exciting and unique role, please email your CV in confidence to careers@sierralegal.com.au

Happy New Year!

We are excited to be back in 2021 to continue providing exceptional, commercially focused legal services to our clients in the following areas:

✔️️ M&A (including buying and selling companies and businesses).

✔️ Shareholder transactions (including shareholder agreements and joint ventures, private equity transactions and IPOs).

✔️ Corporate advisory (including Corporations Act and ASX Listing Rules advice).

✔️ Commercial law (including customer and supplier contracts, IT and IP licences, outsourcing contracts and finance arrangements).

If you are thinking about engaging in a corporate/commercial transaction in the next 12 – 18 months, please do not hesitate to get in touch with one of the Sierra Legal Team, as it is never too early to have an initial discussion.

For further information on us, our experience and some of the innovative products we offer, please also see:

📢 https://www.sierralegal.com.au/what-we-do and https://www.sierralegal.com.au/experience for further details on our legal services, flexible fee arrangements/products and our experience; and

📢https://www.sierralegal.com.au/arreis on our innovative legal automation platform, Arreis Automation.

We look forward to working with you in 2021!

We would like to wish all of our clients, colleagues, referrers, connections, family and friends a happy festive season and a big thank for your continue support during 2020!

We look forward to continuing to work with everyone in 2021.

When did you start at Sierra Legal? I started at Sierra Legal in February 2014.

What were you doing before Sierra Legal? I was living and working in London as a Senior Associate in the Corporate team at SJ Berwin LLP (now King & Wood Mallesons) in London. 

What is the most exciting thing you are working on right now? I am working on some commercial agreements for a business that, amongst other things, provides some very cool drone equipment and services for cinematographic use (including for movies like Thor Ragnarok and Aquaman).

What do you do with your time when you aren’t advising on M&A deals and reviewing contracts? I have 2 daughters who keep me very busy outside of work.  I’m currently also in the middle of a home renovation project and I provide some company secretarial assistance to a not-for-profit accelerator for early stage start-ups in the Agricultural and Food sectors in Australia. I also like swimming, bike riding, yoga, gardening and doing Just Dance with my girls.

What was your first job? Waitressing for a couple of Malaysian restaurants in Brisbane.

What was the first thing you bought with your own money? I don’t remember but I’m sure it would have been some sort of fashion item – maybe a purse or a pair of shoes!

What was the last book you read? The Secret Commonwealth by Phillip Pullman. Before that, I also started reading Homo Deus (A Brief History of Tomorrow) by Yuval Noah Harari, but I haven’t finished this one yet – it’s interesting but a bit dry.

Favourite place? My favourite city that I’ve visited is Istanbul.  Otherwise, I love any place with a good beach.

Favourite food? Too difficult to choose just 1 – my top 3 would probably be Malaysian Fried Kueh Teow (a fried, flat noodle dish); Malaysian egg and onion roti canai with lamb curry; roast chicken or roast pork (with yorkshire pudding, veg and gravy).  The first 2 are from growing up in Malaysia and the last choice had to go on the list because when I was pregnant with my first daughter in London, I went off all Asian food and kept craving roast (particularly roast chicken) and 3 veg!

Least favourite food? Japanese natto (fermented soy beans).  I lived in Japan for a year after I graduated from Uni and I could never bring myself to have more than a taste – I don’t like the texture.

If you were stranded on a desert island, what 3 things would you want with you? An oasis, veggie seeds and some music.  It might be nice to be stranded there for awhile if I had these things! 

Best advice you have received? Not really advice but a quote I once read, which seems to have a number of variations but is essentially as follows – a person really only needs 3 things in life to be happy: something to do, someone to love, something to look forward to!

On 19 November 2020, ASX released Compliance Update no. 10/20 to announce the expiry, on 30 November 2020, of the temporary capital raising relief measures that had been introduced to assist ASX-listed entities affected by the COVID-19 pandemic to undertake emergency capital raisings.

Previously, these capital raising relief measures had been updated with effect from 23 April 2020, extended until 30 November 2020, and further updated on 15 September 2020 as a result of the ongoing stabilisation in market conditions.

However, following recent consultations by ASX with ASIC and other industry stakeholders, ASX confirmed in Compliance Update no. 10/20 that the temporary capital raising relief measures will expire on 30 November 2020.

A listed entity seeking to rely on these capital raising relief measures is required to (among other things):

• announce the capital raising to the market on or before 30 November 2020; and
• give written notice to ASX (not for release to the market) about the proposed capital raising, with ASX to then acknowledge by written notice that the entity is entitled to rely on the capital raising relief measures.

A copy of Compliance Update no. 10/20 can be found here.

Sierra Legal welcomes Michael Abrahams to the team as a Senior Consultant.

In conjunction with his work for Sierra Legal, Michael will also continue as General Counsel, Company Secretary and Integrity Officer at Essendon Football Club.

Welcome Michael!

Buying a business normally involves a substantial amount of due diligence by the buyer on the target business.  Before committing to the transaction, the buyer will want to ensure that it knows what it is buying, including what obligations it is assuming, the nature and extent of the target businesses contingent liabilities, problematic contracts, litigation risks, and intellectual property issues.  

As such, it is important for a seller to have all of their business records and documentation up to date, so that a buyer can obtain a good understanding of the business and to minimise the risk of a buyer undervaluing the business or not proceeding with the acquisition.

In our experience, the following are a few key matters that buyers don’t want to see when they are undertaking due diligence:

• Corporate registers not up to date:  This could reflect that the rest of the business documents and records are inaccurate and unreliable. If the register of members is not accurate and up to date, it may be difficult to prove who the owners/sellers are (in a share sale transaction).
• Business assets owned by numerous entities:  The buyer could be concerned that it may not be purchasing all of the assets required for the business.  The buyer may also need to expend time and costs to restructure the business and its assets after the transaction – the buyer may take this into consideration and reduce the purchase price.
• Numerous registrations on the Personal Property Securities Register:  This could ring alarm bells that the business is relying too heavily on credit.  The release of registrations on the PPSR can be a time-consuming process and often causes delays in completion.
• Intellectual property that is essential to the business is not owned by the seller:  The buyer could be concerned that it may not be able to acquire or use the intellectual property required for the business.  The buyer is likely to require the acquisition of, or right to use, the intellectual property as a condition precedent to completion.
• Lack of contracts or expired contracts:  The buyer could be concerned that the relationships with major customers and suppliers may end after the sale.  This may create uncertainty as to whether the business has in place all of the contracts needed for its ongoing operation, and its continued revenue or supply (as the case may be).
• Contracts with onerous assignment or change of control consent provisions:  This could mean that the third party may not consent to the sale.  This is particularly important for agreements with major customers and suppliers.
• Salaries, employee entitlements and superannuation payments are not up to date:  There could be a risk of potential action by employees for unpaid salary and entitlements. This could reflect that the business has not been managed properly, and that there could be other hidden liabilities.
• Leases that have expired or are about to expire:  If a premises is required for the business and the lease has expired or is about to expire, the buyer could be concerned that it may not be able to continue to use the premises after completion. This could also reflect that the business has not been managed properly.
• Litigation that is on foot or threatened:  The buyer could be concerned that the business may be exposed to unknown liabilities or liabilities of uncertain value, as well as potential damage to its reputation or goodwill.

Whether the above are critical to a buyer will depend on the nature of your business, the purchase price, and the risk appetite of the buyer.  Many of the above items can also be corrected or managed before you proceed to offer your business for sale. 

If you are a business owner who is considering selling your business and you are concerned about whether there are any issues or gaps with your records and documentation, you may consider arranging a legal audit of your business prior to it being offered for sale.  If a legal audit is of interest, please get in touch with one of the Sierra Legal team.   

We are growing!  

Sierra Legal is proud to announce that Michael Abrahams, a highly regarded commercial lawyer, is joining our expanding law firm. 

Michael has been the General Counsel, Company Secretary and Integrity Officer at Essendon Football Club since 2014, and is excited to be sharing this role with his new part-time position as a Senior Consultant at Sierra Legal.  

Michael’s broad range of experience as the General Counsel at Essendon will add a valuable dimension to the suite of legal services that Sierra Legal provides its clients, particularly those clients who themselves have in-house legal teams or are looking to outsource part or all of their legal function.  Michael's unique skills and position as a practising in-house lawyer who "knows what the client thinks", will further enhance the Sierra Legal unique offering and client promise - top quality legal advice, that is commercially focused, on time and reasonably priced.

Michael’s passion for legal drafting, and developing systems that result in more efficient and effective legal and commercial outcomes, will also be put to good use as part of Sierra Legal’s innovative and cutting-edge document automation service offering, Arreis Automation.  

Welcome to the team Michael!

We are delighted to have assisted DWM Solutions and its founders and directors Nick Clift and Jeni Clift on their merger with Milan Industries.

Both DWM Solutions and Milan Industries are leading IT partners in providing Managed IT, Business Continuity Solutions, IT Security, Managed Hosting, and IT Consultancy services and the new dynamic business offers clients a reliable multi-national SMB and valuable mid-market service provider for IT support.

It was a pleasure working with Nick and Jeni and we wish Nick, Jeni, Milan and their team all the best for their continued growth and success.

The ACCC has recently commenced legal action in the Federal Court against Fuji Xerox Australia with the ACCC alleging that there are 31 different terms in Fuji Xerox’s standard form contracts that are unfair (including automatic renewal terms, excessive exit fees and unilateral prices increase). 

You can read more about the case against Fuji Xerox in the ACCC’s press release - https://www.accc.gov.au/media-release/fuji-xerox-in-court-over-alleged-unfair-contract-terms

If you need any assistance reviewing your standard form contracts to ensure that they comply with the Unfair Contract Terms regime in the Competition and Consumer Act, please do not hesitate to get in touch with the Sierra Legal team.