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Our legal experts will keep you up to date on all relevant and current developments.

Retail and Commercial Leases During COVID-19: Rent Abatements and Waivers Further Extended – A 2022 Update

Following on from previous articles on the same, this in-depth update from Property and Commercial Special Counsel Alex Bentancor takes a look at the current Retail and Commercial Lease landscape within NSW, as we move into another year of the COVID-19 Pandemic.

This piece covers a range of relevant information for commercial and retail landlords, as well as tenants, including:


To note or not note an interested party?  That is the question.

It is common practice for insurers to offer policies of insurance where persons or entities other than, or in addition to, the named insured receive the benefits of the relevant insurance cover as additional insureds or third party beneficiaries.  Under the Insurance Contracts Act 1984 (Cth) (‘ICA’), a third party beneficiary to a contract of insurance has a right to recover from the insurer the amount of any loss suffered by the third party beneficiary, even though the third party beneficiary is not a party to the contract.

The ICA defines “third party beneficiary” as a person who is not a party to the contract, but is specified or referred to in the contract as a party to whom the benefit of insurance cover extends.  While the ICA has attempted to provide some certainty in relation to the status of third party beneficiaries, some confusion remains surrounding the rights and status of entities claiming entitlements under policies of general insurance.

Such confusion often stems from the wording of the contracts which underly this obligation – although similarly, the policy wording and its application can create confusion at times. Regardless, it is important for parties to be aware of the risks associated with both naming and not naming interested parties on policies of insurance.


Professional Services Exclusions: Liberty Mutual Insurance Company, Australia Branch v SunWater Ltd (No 2)  [2021] NSWSC 1582

The recent NSW Supreme Court decision of Liberty Mutual Insurance Company, Australia Branch v SunWater Ltd [2021] NSWSC 1582 restates the relevant principles to be applied when considering the application of professional services exclusion clauses when construing an insurance contract.


No Stay on De-Registration Orders: Rahman v Health Care Complaints Commission [2021] NSWCA 247

This case note from Insurance Partner Zara Officer discusses the recent matter of Rahman v Health Care Complaints Commission [2021] NSWCA 247, an inappropriate prescribing case against Dr Abdul Bassel Rahman.

The offending conduct occurred over a period of 5 years, between 2011 and 2015. In May 2021 the NSW Civil and Administrative Tribunal decided to cancel the practitioner’s registration, and directed that he not seek a review for a period of 12 months. The practitioner appealed to the NSW Court of Appeal.

The Australian Health Practitioner Regulation Agency removed the practitioner’s name from the register soon after the Tribunal orders were made.

The case is noteworthy because it leaves no doubt that once cancellation of registration has occurred, the Tribunal cannot later order reinstatement, pending an appeal.   


The Office of the Australian Information Commissioner Releases Biannual Report and Performance Statement

The Office of the Australian Information Commissioner (‘OAIC’) has released its 2020–21 annual report and performance statement.

In the past 12 months, the OAIC has sought to establish strong privacy protections to both increase public confidence in the use of personal information, and minimise the public health risks associated with COVID-19.


Supreme Court Guidance On AFCA Procedures - Australian Capital Financial Management Pty Limited v Australian Financial Complaints Authority Limited (2021) NSWFC 1577
Thursday 9 December 2021 / by Nick Maley posted in Banking & Finance AFCA Borrowing

In a single judge decision delivered on 7 December 2021, the Supreme Court of NSW has provided guidance on what is required of AFCA in its procedures to determine factual disputes.

In the decision of Australian Capital Financial Management Pty Limited v Australian Financial Complaints Authority Limited (2021) NSWFC 1577, Ball J in the Supreme Court of NSW made a number of findings concerning an application for judicial review of an AFCA decision. 


What are the Limits of Implied Software Licences?  QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615

If you purchased a business and the sale included all of the business’s computers, would it be reasonable to expect to be able to use the software installed on those computers?

In the recent matter of QAD Inc v Shepparton Partners Collective Operations Pty Ltd [2021] FCA 615, the Federal Court ordered Shepparton Partners Collective Operations Pty Ltd (‘SPC’) to pay $1M+ in damages to software company QAD Inc (‘QAD’), after finding that SPC had infringed copyright after purchasing the business from Coca-Cola Amatil (‘CCA’) without having secured a transfer of the relevant software licence agreement.

  • After the sale QAD required payment of a fee as a condition for its consent to transfer the licence, which SPC refused to pay.
  • SPC denied that it had infringed copyright, claiming that it had an implied licence from QAD to use the software.
  • SPC cross-claimed against Sale Co 1 Limited (‘SaleCo’) and CCA on the basis they had failed to use their ‘best endeavours’ to secure a transfer of the licence agreement.

They do things differently in New Zealand: Appanna v Medical Board of Australia [2021] VSC 679

The Supreme Court of Victoria recently came to a decision in the matter of Appanna v Medical Board of Australia [2021] VSC 679.  The doctor concerned in this matter entered into an intimate relationship with a woman in New Zealand.

The Medical Council of New Zealand subsequently suspended the doctor’s practising certificate – although the suspension was later stayed by the District Court in New Zealand on the doctor’s undertaking to practice with conditions on his registration while his professional conduct was investigated.

In September 2019, the doctor advised the Australian authorities of what had transpired in New Zealand.  The Medical Board of Australia imposed an interim suspension on the doctor’s registration in Australia, on the same basis as the suspension was imposed in New Zealand.  AHPRA revoked the suspension, on becoming aware of the New Zealand District Court decision to terminate the suspension.  However, shortly thereafter the Medical Board of Australia reimposed the interim suspension in Australia, on a different basis.

The doctor appealed to the Victorian Civil and Administrative Tribunal, but the Tribunal confirmed the suspension.  The doctor appealed to the Supreme Court of Victoria.


Recent Developments in Notifications Under 'Claims Made and Notified' Policies and Section 54 Insurance Contracts Act

Unusually, in the second half of 2021 there have already been two cases relating to notifications under ‘claims made and notified’ policies, which have looked at whether an Insured’s failure to notify facts and circumstances that have the potential to give rise to a claim can be cured by section 54 of the Insurance Contracts Act 1984.

In this article, Insurance Partner Zara Officer discusses how the recent matters of Avant Insurance Limited v Burnie [2021] NSWCA 272 and Darshn v Avant Insurance Limited [2021] FCA 706 have clarified that omissions to notify facts and circumstances that might give rise to a claim are not omissions to which section 54 can apply.


Recent Developments in Motor Accident Law: Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 1457 (10 November 2021)
Thursday 11 November 2021 / by Natasha Miller posted in Insurance

On 10 November 2021, the Supreme Court issued an interesting decision in the matter of Chahrouk v Allianz Australia Insurance Limited [2021] NSWSC 1457 (10 November 2021).

From this case we can see the importance of clearly explaining any argument (or counter argument) on causation, in relation to each and every specific injury alleged.   Of course, one cannot ensure that a medical assessor does in fact consider the argument - but at least there will be grounds to seek Review. 

In addition, where a specific scientific study is material to a decision, then it ought to be identified in the decision, but a Panel is entitled to rely on settle medical facts and theories without elaborating on the source of that knowledge.


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