How Commercial Litigation Lawyers Protect Startups and SMEs Across Australia

Supporting Growing Businesses in a Complex Legal Environment

Across Australia, startups and small to medium-sized enterprises (SMEs) in cities such as Sydney, Brisbane, Canberra, and Perth face increasing legal and commercial pressures. As businesses grow, they encounter more complex contracts, regulatory obligations, employment issues, and potential disputes with customers, suppliers, competitors, or even co-founders.

Commercial litigation lawyers play a multifaceted role in this environment. Their work extends well beyond appearing in court — they provide preventive advice, manage risk, and help businesses make confident, informed decisions.

The Role of Commercial Litigation Lawyers for Startups and SMEs

Commercial litigation lawyers help protect startups and SMEs by:

• Reviewing and drafting contracts to avoid ambiguity and reduce the risk of disputes;
• Resolving disputes through negotiation, mediation, arbitration, or litigation when necessary;
• Advising on regulatory and employment law compliance, helping businesses meet their legal obligations;
• Protecting intellectual property through strategic registration, enforcement, and licensing; and
• Delivering litigation and dispute resolution strategies that are tailored to the business’s commercial goals and risk profile.

Having access to a litigation lawyer is therefore crucial for SMEs wanting to safeguard their company, their stakeholders, and their long-term growth.

Comparison Table: How Location Shapes SME Legal Support

While the core role of commercial litigation lawyers is similar across jurisdictions, local business environments and priorities can differ slightly between cities.

Location	Typical SME Focus Areas	How Local Commercial Litigators Commonly Assist
Sydney (NSW)	Tech, professional services, construction, hospitality	Contract drafting for complex service arrangements, shareholder disputes, and regulatory compliance for high-growth startups.
Brisbane (QLD)	Resources-adjacent services, trades, property, emerging tech	Managing disputes in supply chains, construction and property, and advising on employment and contractor arrangements.
Canberra (ACT)	Government-facing services, defence, consultancy, professional services	Navigating government contracts, procurement disputes, and compliance with public sector-related regulations.
Perth (WA)	Mining services, engineering, logistics, professional services	Handling project-related disputes, service agreements, and risk management for resource-linked SMEs.

This makes it valuable to engage lawyers who understand both national commercial law and the specific commercial landscape of the city in which the business operates.

The Risks of Not Hiring a Commercial Litigation Lawyer

Many startups and SMEs assume they only need legal support once a dispute has escalated. In reality, waiting until litigation is inevitable can be a costly mistake.

Key risks of delaying legal engagement include:

• Higher litigation costs when matters escalate, including damages, legal fees, and management time diverted away from operations;
• Reputational damage, particularly if disputes become public or affect key clients and investors;
• Loss of clients or contracts where disputes are not handled promptly or professionally;
• Financial instability, especially for early-stage businesses whose cashflow cannot absorb a major dispute.

By contrast, having an experienced commercial litigation and dispute resolution lawyer on retainer or readily available can:

• Help identify and address issues early, often preventing disputes from escalating;
• Deliver tailored legal strategies aligned with the business model and growth plans;
• Reduce time spent by founders and managers on legal distractions; and
• Enhance investor and stakeholder confidence by demonstrating a proactive approach to risk management.

Although engaging a commercial litigation lawyer involves an upfront cost, the long-term value in risk mitigation, stability, and reputational protection is likely to justify that investment.

How to Choose the Right Commercial Litigation Lawyer for Your Startup or SME

Selecting the right commercial litigator is a strategic decision that can directly impact your business’s outcomes in both disputes and day-to-day operations. When choosing a lawyer or firm, it is sensible to look for someone who:

1. Has experience with startups and SMEs
   They should understand growth-focused business models, funding structures, and the fast-paced nature of early-stage companies.
2. Has a track record of success in commercial claims
   Prior experience in resolving similar disputes shows they are capable of effectively protecting your company’s interests.
3. Communicates clearly and transparently
   They should be able to explain complex legal concepts in plain language and keep you informed at every stage of a dispute or advisory matter.
4. Has a proactive mindset
   The best commercial litigators don’t just “fight fires”, they help implement dispute prevention and risk management strategies.
5. Enjoys a strong reputation for reliability and professionalism
   Referrals, reviews, and professional standing all help indicate whether the lawyer or firm can be trusted with sensitive, high-stakes matters.

The lawyers at Chamberlains Law Firm have experience working with startups and SMEs across major Australian jurisdictions, making them a strong choice for businesses seeking comprehensive and commercially-minded litigation support.

Conclusion: The Importance of Proactive Legal Support for Startups and SMEs

For startups and SMEs in Sydney, Brisbane, Canberra, and Perth, proactive legal support is vital to long-term success. Engaging a commercial litigation lawyer can:

• Ensure contracts are properly drafted and understood;
• Help your business clearly understand its rights and obligations;
• Provide efficient, strategic management of disputes when they arise; and
• Protect your company against the unpredictable nature of commercial conflicts.

By retaining a reliable and effective commercial litigation lawyer, startups and SMEs can focus on growth with greater confidence, knowing they have robust support in place to manage risk, resolve disputes, and protect their future.

This article was prepared with the assistance of Thomas Grover.

Chamberlains Law Firm is currently assisting in investigations related to serious allegations of abuse at Marist Brothers High School in Parramatta, spanning from 1984 to 2004. We are seeking individuals who may have witnessed or have any information related to incidents of abuse that occurred during this time.

If you have knowledge of these events or any information that could assist in our investigation, we urge you to come forward. Your voice is vital in ensuring that those responsible for any harm are held accountable.

We recognize that coming forward about sensitive matters can be challenging. However, the information you provide could play a significant role in bringing closure to survivors, offering support, and fostering a safer environment for all.

If you have any relevant information, we encourage you to reach out to us. All communications will be kept strictly confidential.

Spousal maintenance is a legal obligation requiring one party to support the other financially after separation if they cannot adequately support themselves. It ensures fairness following the breakdown of a relationship.

Consulting experienced family lawyers in WA is essential for personalised advice tailored to individual circumstances.

Understanding Spousal Maintenance Under Family Law WA

For married couples in WA, the governing law is the Family Law Act 1975 (Cth):

• Married couples: section 72
• Maintenance factors: section 75(2)

However, for de facto couples, Western Australia operates under its own legislation:

• Family Court Act 1997 (WA)
  • De facto maintenance provisions: subsections 205ZC–205ZG
  • Equivalent to s 90SF/90SE in other states

The same purposes apply:

• financial adjustment
• economic disadvantage
• rehabilitation
• clean break

Mitchell & Mitchell remains frequently cited nationwide, including in WA.

Eligibility for Spousal Maintenance in WA

The national two-part test applies for married couples, and the WA version mirrors it for de facto partners:

• Inability to support oneself
• Other party’s capacity to pay

Factors are assessed under:

• Married couples: s 75(2) FLA 1975
• De facto couples: s 205ZG Family Court Act 1997 (WA)

Spousal Maintenance vs Child Support in WA

Child support remains federal nationwide.

Spousal maintenance in WA, whether under federal or WA legislation, is assessed separately and cannot be “merged” with child support entitlements.

Calculating Spousal Maintenance in WA

WA courts apply the same factors as the rest of Australia:

• Financial needs and resources
• Standard of living
• Contributions

The reasoning in Badir & Badir [2022] FedFamC1A 109 is heavily persuasive for WA married couples and frequently considered for de facto matters.

Disputes and Challenges

WA cases commonly involve:

• disagreements about capacity
• disagreements about reasonable needs
• disputes involving farming, business, or mining incomes unique to WA

Most matters resolve through negotiation or FDR at the Family Court of Western Australia.

Conclusion

Spousal maintenance plays a critical role in protecting financially vulnerable individuals following separation. WA’s dual-legislation system makes early advice essential.

Spousal maintenance is a legal obligation under family law requiring one party to financially support the other following separation if they cannot adequately support themselves.

ACT residents rely primarily on the Family Law Act 1975 (Cth), but the ACT also has unique local legislation governing de facto relationships historically under the Domestic Relationships Act 1994 (ACT) (now largely superseded by the federal regime).

Understanding Spousal Maintenance Under Family Law ACT

The federal Act applies in Canberra:

• Married couples: section 72
• De facto couples: section 90SE and section 90SF

The purposes of maintenance remain the same nationwide, including the compensatory principles from Mitchell & Mitchell (1995).

ACT residents are subject to the same five guiding principles from ss 72 and 75:

• Need and ability to pay
• Economic disadvantage
• Status/minimum loss
• Rehabilitation
• Clean break

Eligibility for Spousal Maintenance in the ACT

The two-part national test applies:

• Applicant cannot support themselves
• Respondent has capacity to pay

Factors include:

• Child under 18
• Incapacity for work
• Any ground under s 75(2)

Child Support vs Spousal Maintenance in the ACT

The same strict separation applies: child support is assessed through Services Australia, while spousal maintenance concerns future needs and earning capacities.

Calculating Spousal Maintenance

ACT courts apply the same federal considerations:

• Needs
• Resources
• Contributions
• Standard of living

The four-step approach in Badir & Badir [2022] FedFamC1A 109 applies equally.

Disputes and Resolution

Most ACT matters resolve through negotiation, conferencing, or mediation through the Federal Circuit and Family Court in Canberra.

Conclusion

Spousal maintenance remains a key financial protection for ACT residents experiencing relationship breakdown. Early legal advice ensures proper assessment of rights and entitlements.

Spousal maintenance is a legal obligation arising under family law, requiring one party to a marriage or de facto relationship to financially support the other if they are unable to adequately support themselves. It plays a critical role in ensuring financial fairness following the breakdown of a relationship.

Consulting experienced family lawyers in Queensland is essential for personalised advice tailored to individual circumstances. This article provides an overview of spousal maintenance, including eligibility, calculation, and the role of legal professionals in assisting with claims.

Understanding Spousal Maintenance Under Family Law Queensland

Spousal maintenance in Queensland is also governed by the Family Law Act 1975 (Cth).
For married couples, the legal framework is found in s 72 of the Act, and for de facto couples in section 90SF and section 90SE.

The purpose mirrors NSW:

• financial adjustment,
• compensation for economic disadvantage, and
• support for the lower-earning spouse while they re-establish themselves.

QLD courts also rely on the principles outlined in Mitchell & Mitchell (1995) 19 FamLR 44 regarding compensation-based maintenance.

The same five principles from subsections 72 and 75 (and 90SF/90SE) apply:

• Need and ability to pay
• Economic disadvantage
• Status/minimum loss principles
• Rehabilitation
• The “clean break” principle

Who Is Eligible for Spousal Maintenance?

The eligibility test is identical nationwide:

• Inability to adequately support oneself, and
• The other party’s capacity to pay

Factors relevant in QLD include:

• Child under 18
• Incapacity for gainful employment
• Any reason falling within s 75(2) of the Act

Child support and spousal maintenance remain separate in Queensland as well.

Calculating Spousal Maintenance: The QLD Approach

The same considerations applied nationally also apply here:

• Needs
• Resources
• Contributions
• Standard of living

QLD courts also adopt Badir & Badir [2022] FedFamC1A 109 in assessing:

• Self-support capacity
• Reasonable needs
• Respondent’s capacity
• Reasonableness under s 75(2)

Challenges and Disputes

QLD families encounter the same issues as NSW families:

• Disputes about eligibility
• Disputes about amounts
• Financial capacity arguments

Mediation is widely encouraged across Queensland before litigation.

Conclusion

Spousal maintenance is a vital protection for financially weaker spouses. Queensland residents should obtain early advice from experienced family lawyers to ensure their rights are protected.

Spousal maintenance is a legal obligation arising under family law, requiring one party to a marriage or de facto relationship to provide financial support to the other if they are unable to adequately support themselves. It plays a critical role in ensuring financial fairness following the breakdown of a relationship.

Consulting experienced family lawyers in Sydney is essential for personalised advice tailored to individual circumstances. This article provides an overview of spousal maintenance, including eligibility, calculation, and the role of legal professionals in assisting with claims.

Understanding Spousal Maintenance Under Family Law Sydney

Spousal maintenance refers to financial support provided by one party to a marriage or de facto relationship to the other, as mandated by the Family Law Act 1975 (‘The Act’). The legal framework governing spousal maintenance claims is considered at section 72 of the Act for married couples and section 90S for de facto couples.

The purpose of spousal maintenance is to provide a financial adjustment for any discrepancy between the parties future needs and income earning capacity to allow for the disadvantaged party to re-establish themselves financially. An additional purpose to spousal maintenance was considered by Mitchell & Mitchell (1995) 19 FamLR 44 whereby the Court assessed that spousal maintenance could be paid as compensation for economic disadvantage, maintenance assessed for this purpose will usually be awarded for a longer payment period than other spousal maintenance orders.

There are five broad principles of spousal maintenance that are considered in ss 72 and 75 of the Act (and ss 90SE and 90SF for de facto couples). These being:

• The need and ability to pay,
• Compensation for economic disadvantages,
• Status, minimum loss or expectation damages principles,
• Rehabilitation and,
• The ‘clean break’ principle.

Family lawyers play a pivotal role in advising clients on their rights and obligations to pay or receive Spousal maintenance depending on your unique personal circumstances and ensuring compliance with legal requirements.

Who is Eligible for Spousal Maintenance?

Eligibility for spousal maintenance is determined by a two-part test: the applicant must demonstrate an inability to support themselves adequately, and the other party must have the financial capacity to provide support. Key factors include:

• Having the care of a child under 18 years.
• Age or physical/mental incapacity for gainful employment.
• Any other adequate reason, as assessed under section 75(2) of the Family Law Act 1975 (Cth).

Financial and non-financial factors, such as income, property, health, and contributions to the relationship, are also considered. Common misconceptions include the belief that spousal maintenance is automatic or dependent on marital misconduct, which is not the case.

Spousal maintenance as distinguished from child support

Spousal maintenance is designed to account for any discrepancy between one spouse and their ability to gain meaningful employment or account for any future needs of a particular spouse whereby it is just and equitable for the other spouse to accommodate these needs. Child Support is for one parent to financially contribute to the on-going care of any children to the relationship and is assessed by means and the care arrangements for the child/ren.

Many may assume both Spousal Maintenance and Child Support are interlinked when in fact they are not. If the Court is presented with both an application for Spousal Maintenance and an application for departure from a Child Support Assessment, the Respondents capacity to pay spousal maintenance can only be considered once the application for departure from a Child Support Assessment is considered.

How Family Law Firms Sydney Assist with Spousal Maintenance Claims

Family lawyers in Sydney provide a range of services, including assessing eligibility, preparing applications, and negotiating settlements. Tailored legal advice ensures that clients understand their rights and obligations, and the process of lodging claims is handled efficiently.

Lawyers also assist in resolving disputes through negotiation or alternative dispute resolution methods, minimising the need for court intervention where appropriate.

Calculating Spousal Maintenance: What You Need to Know

The amount and duration of spousal maintenance payments depend on various factors, including:

• The financial needs and resources of both parties.
• The standard of living during the relationship.
• Contributions made by each party to the relationship and family.

Deputy Chief Justice McClelland in Badir & Badir [2022] FedFamC1A 109 noted four key considerations:

• To what extent can the Applicant support him/herself?
• What are the Applicants’ reasonable needs?
• What capacity does the Respondent have to meet an Order of spousal maintenance?
• If steps (1)–(3) favour the Applicant, what Order is reasonable having regard to s 75(2)?

Family lawyers help clients understand these factors and negotiate fair arrangements. Typical spousal maintenance orders may include periodic payments or lump sums, tailored to the specific circumstances of the parties.

Challenges and Disputes in Spousal Maintenance Cases

Common challenges include disputes over eligibility, the amount of maintenance, and the financial capacity of the paying party. Family lawyers manage these issues by gathering evidence, negotiating settlements, and, if necessary, representing clients in court.

Alternative dispute resolution options, such as mediation, can help resolve conflicts amicably. However, court proceedings may be required in complex cases or where agreements cannot be reached.

Finding the Right Family Lawyer Near Me for Spousal Maintenance Advice

Choosing an experienced family lawyer in Sydney is crucial for navigating spousal maintenance claims. Look for professionals with expertise in family law and a strong understanding of the spousal maintenance provisions. Spousal maintenance regardless of if you are the paying or receiving party requires a degree of commerciality to reach a payment between that adequately reflects the needs and circumstances of all the spouses. Initial consultations typically involve assessing the client’s circumstances and providing tailored advice on the best course of action.

Conclusion

Spousal maintenance is a vital aspect of family law, ensuring financial support for those unable to support themselves after a relationship breakdown. Seeking professional legal guidance from experienced family lawyers in Sydney is essential to protect your rights and achieve a fair outcome. With expert advice, individuals can navigate the complexities of spousal maintenance and secure their financial future.

In a landmark decision, the Federal Court of Australia (Court) has ruled that the Australian Broadcasting Corporation (ABC) had no right to terminate the employment of Ms Antoinette Lattouf (Ms Lattouf) after she shared a ‘Human Rights Watch’ post that said Israel used starvation as a “weapon of war” in Gaza.

The Court determined that ABC contravened the Fair Work Act 2009 (Cth) (FWA), when it terminated Ms Lattouf’s employment because she held a political opinion in respect of the Israeli military campaign in Gaza.

The Court held that the termination contravened both section 772(1)(f) and section 50 of the FWA, delivering a judgment that reinforces an employee’s statutory protection of political opinion and procedural fairness.

The nature of this decision is significant as it was not limited to just the protection of political opinion but tackled several facets of the termination procedures. It serves broad guidance for employers to consider when managing the employment of its employees.

 

What happened?

Ms Lattouf was employed by the ABC as 5 day ‘fill-in’ host of the “Mornings” radio program on ABC Sydney from Monday, 18 December 2023 to Friday, 22 December 2023. During her engagement, Ms Lattouf reposted a video report by Human Rights Watch (HRW) on her personal Instagram account. The video alleged that the Israeli government was using starvation as a weapon of war in Gaza. She added the caption, “HRW reporting starvation as a tool of war.”

While the ABC itself had reported on the HRW material in its news division, senior management at the ABC reacted to Ms Lattouf’s post with considerable concern. Within hours, a decision was made to remove her from the program for the remaining 2 days of her engagement. She was instructed to inform the production team and leave the premises. No specific policies were identified as having been breached, other than the loose mentioning of “editorial ABC guidelines” and she was not provided with notice of any allegations, nor was she given any opportunity to respond to any allegations before her dismissal.

 

Did the ABC terminate Ms Lattouf’s employment?

Among other things, the ABC disputed that it had terminated Ms Lattouf’s employment. The ABC attempted to argue that Ms Lattouf’s casual employment contract included a term which allowed the ABC to make changes to the engagement, so long as it notified Ms Lattouf of these changes. The ABC’s argument followed that Ms Lattouf was placed on “garden leave” for the remaining 2 days because it paid her for the entire (5 day) engagement and simply relieved her of her duties for the remaining days. Therefore, the employment was mutually terminated at the end of the 5-day engagement as per the employment contract, rather than unilaterally terminated on the 3^rd day.

However, the Court did not agree with this approach. The Court accepted evidence from Ms Lattouf which showed that the ABC only retrospectively decided to pay Ms Lattouf for the entire engagement after she took issue with the termination, and did not initially inform her that she would be paid the full amount.  The Court took the view that ABC’s payment of Ms Lattouf’s remuneration for the full 5-days was actually an ex-gratia payment, rather than payment of wages. In its decision, the Court referred to the fact that Ms Lattouf’s contract explicitly confirmed that Ms Lattouf would be paid for each hour worked.

The Court went even further to clarify that even if the payment should be considered as wages (as argued by the ABC), the Court noted that this would only keep the contract itself alive, however the actual employment relationship (which is more than a mere contract) ended when Ms Lattouf was given no further work.

 

Unlawful Termination for Political Opinion

Section 772(1)(f) of the FWA prohibits the termination of an employee’s employment for reasons including the employee’s political opinion. The Court accepted that Ms Lattouf held political views including, opposition to the Israeli military campaign in Gaza, support for Palestinian human rights, and concerns regarding the lack of impartial media coverage of the Israeli-Palestine conflict.

Importantly, the Court confirmed that the protection under section 772(1)(f) extends not only to the holding of political opinions but also to their expression. This interpretation aligns with the broader objective of the FWA to safeguard employee freedoms such as political expression, particularly in the contexts of public discourse and social media.

The ABC attempted to argue that the contents of the HRW video were not ‘facts’ but simply opinions, which encroached on the obligation of Ms Lattouf to remain unbiased as a journalist. The Court rejected ABC’s argument and found that Ms Lattouf had still complied with her obligations to only post information from a “reputable organisation” and/or “a verified source”.

The Court found that the ABC’s decision to terminate Ms Lattouf’s employment was substantially and operatively influenced by her expression of political views by way of reposting the HRW video. While the ABC maintained that its decision was based on concerns about impartiality, possible breach of internal policies, and reputational damage, the Court rejected these justifications, finding them to be pretextual or baseless.

In particular, the Court found that:

• The ABC had not provided Ms Lattouf with any formal directive not to post on social media;
• The HRW post was consistent with prior content the ABC had published in its own news reporting;
• The decision to remove Ms Lattouf was made in response to pressure from external stakeholders, including lobbyists and media criticism; and
• The ABC had failed to demonstrate that Ms Lattouf’s political opinions were a valid reason for the termination.

Accordingly, the Court concluded that the ABC had contravened section 772(1)(f) of the FWA by terminating Ms Lattouf’s employment for reasons including her political opinion.

 

Breach of Enterprise Agreement

The Court also found that the ABC had breached section 50 of the FWA by failing to comply with its Enterprise Agreement. Clause 55 of the Agreement outlines the disciplinary process to be followed when allegations of misconduct are made against an employee. This includes the obligation to:

• Inform the employee of the allegations;
• Provide an opportunity for the employee to respond; and
• Consider the response before making a determination.

The Court held that the ABC had effectively accused Ms Lattouf of misconduct but failed to comply with the above procedural requirements. Instead, the decision to terminate her engagement was made unilaterally and without affording her the right to respond. The Court found this to be a clear contravention of the Enterprise Agreement and in turn, a breach of section 50 of the FWA.

The Court also gave significant weight to the fact that the ABC did not respond to an email sent by Ms Lattouf at the time of dismissal where she asked the ABC for clarity on whether she was still employed and, if not, on what grounds she was dismissed.

 

Relief Granted

The Court ordered that the ABC pay $70,000 to Ms Lattouf as compensation for non-economic loss arising from the unlawful termination. The Court accepted that the non-economic loss involved the psychological harm, reputational damage, and emotional distress Ms Lattouf experienced as a consequence of the termination. Evidence was provided that she suffered anxiety, sleep disturbance, and damage to her professional integrity as a result of the public nature of the dismissal.

The Court also issued declaratory relief confirming the breaches of the FWA and indicated that pecuniary penalties against the ABC would be considered at a later hearing.

 

Broader Implications

This decision has significant implications for all Australian employers across all industries.

Key takeaways include:

• Casual employees may still have the same rights as permanent employees under the FWA, including access to unfair dismissal remedies, due process and procedural fairness, particularly in circumstances where the termination was carried out at the employer’s initiative.
• A dismissal is considered to have occurred when the employer initiates the termination of the employment relationship, regardless of the specific method or event that triggered it.
• An employment relationship is not confined to the terms of a single contract. It encompasses a broader context, including:
  • the nature and scope of the work performed;
  • applicable industrial instruments such as awards or enterprise agreements;
  • any series of successive fixed-term contracts;
  • the surrounding circumstances in which the employment arrangement operated;
  • the behaviour and interactions of both parties throughout the employment; and
  • the manner in which the employment ultimately came to an end.
• The Courts will expect employers to understand the difference between:
  • the contract and employment relationship terminating naturally; or
  • termination at the initiative of the employer.
• Employers must ensure that decisions regarding employment are not influenced by political opinion, whether held or expressed.
• Procedural fairness must be followed when managing allegations of misconduct, especially where an enterprise agreement applies.
• An employer’s concern about reputational risk does not override an employee’s rights under the FWA.
• Temporary or short-term employment contracts are still subject to the full protections of employment law.

This decision highlights the intricacies of the FWA and related workplace laws, demonstrating how even minor oversights, misjudgements, or misinterpretations can result in significant risk. Disciplinary and/or termination procedures must be handled with precision and usually require expert legal guidance to ensure compliance. Often employers underestimate the importance of investing in quality legal advice, only to find themselves paying a much heftier price tag when things go sour.

Do not go it alone! Our team of experts at Chamberlains Law Firm are equipped to support your business and offer tailored and effective services to achieve your business objectives while minimising risks.

 

This article was prepared with the assistance of Isabella Turner and Challita Tahhan.

Clancy v ASIC [2025] FCA 220

The decision in Clancy v Australian Securities and Investments Commission serves as a useful and practical reminder of the legal principles that govern applications to reinstate a company under section 601AH of the Corporations Act 2001 (Cth). The case underscores several key points relevant to both corporate officers and insolvency lawyer professionals considering reinstatement applications.

1. The Legislation

Section 601AH Subsection (2) of the Corporations Act sets out the requirements for the Court to make an order for a company’s registration to be re-instated by ASIC. Under s 601AH Subsection (2) a) an application for reinstatement is made to the Court by:

• a person aggrieved by the deregistration;
• a former liquidator of the company;

Under s 601AH Subsection (2) b)  of the Corporation Act, the Court may make an order that ASIC reinstate the registration of a company if the Court is satisfied that it is just that the company’s registration be reinstated.

Derrington J in Clancy concluded that the principles that bear exercise on this section are well-settled, referencing the decision in Re LCW Property Holdings Pty Ltd [2020] NSWSC 71 at [15]:

… Three matters need to be considered. First, whether the application is made by “a person aggrieved by the deregistration”. Second, the Court must be “satisfied that it is just that the company’s registration be reinstated”. Third, the Court has a residual discretion whether to make an order.

2. What Does “a person aggrieved” Mean?

The court in Clancy emphasised that a person is “aggrieved” within the meaning of section 601AH(2)(a)(i) of the Corporations Act 2001 (Cth) is to be construed liberally and determined by reference to whether the person has suffered some loss of a legal right or interest of some or potential value upon deregistration of a company. A “person aggrieved” is “not someone merely dissatisfied by an event” and the claims must not be “hopeless or bound to fail”. The extent of loss or injury necessary to meet the threshold is to be judged in context however the threshold is low and can be dealt with in a summary way.

In this case, Mr Clancy was considered to be “a person aggrieved” due to the status of the Debt. This Debt was the product of a series of judicial orders enforced against CIP, two other companies and Mr Clancy for a common obligation to pay for costs incurred by Mr Watters in proceedings against CIP. Upon deregistration of CIP, CIP was no longer liable to pay “its fair share” of the Debt. The Court concluded that this caused CIP to be “unjustly enriched”, causing detriment to the three other Defendants. This was held particularly in light of equity’s concern to ensure the burden of a common liability is borne equally (Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342, 350 – 351). In this sense, Mr Clancy suffered a grievance that was able to overcome the low bar imposed by s 601AH(2)(a)(i).

3. What Does “Just” Mean?

The requirement in s 601AH(2)(b) that reinstatement be “just” imposes no fixed limits on the Court’s discretion. The Court in Clancy emphasized that “just” is a broad, policy-oriented standard, not a principle with strict legal criteria. This allows the Court to weigh the equities and practical implications of reinstatement.

The court in Clancy considered the following considerations in order to assess whether registration was to be deemed just: the circumstances of deregistration, the purpose in seeking reinstatement and public interest consideration. In this instance, reinstatement was deemed just because it served a legitimate purpose, caused no identifiable prejudice, and did not conflict with the public interest. Legal practitioners should be mindful that the “just” requirement provides the Court with a wide evaluative lens, emphasizing fairness over formality.

4. Residual discretion

However, the Court in Clancy made clear that the conclusions as to “a person aggrieved” and a “just reinstatement”, “favour, but do not compel” re-instatement of the company. A Court does have discretion whether to reinstate even if the above factors are satisfied. However, upon Clancy’s facts, the Court opted not to exercise its residual discretion having reached a state of satisfaction that it was just to reinstate the registration and that there was no other reason to deny that outcome.

5. Legal Effect of Reinstatement

Under s 601AH(5), a reinstated company is treated as if it had never been deregistered. However, the Court was clear that this deeming provision does not automatically validate acts done on the company’s behalf during the deregistration period.

This distinction is critical: while reinstatement revives the company’s existence retroactively, it does not legitimize legal or commercial actions taken while the company was deregistered. For example, actions in litigation by a deregistered company remain invalid unless separately addressed.

6. Power to Validate Past Acts

Section 601AH(3) gives the Court power to validate acts done during deregistration upon reinstatement. The Court in Clancy exercised this power to validate steps taken by CIP Group Pty Ltd in ongoing legal proceedings, recognizing that validation would serve justice for all parties who relied on those actions.

This highlights the importance of applying for validation alongside reinstatement, particularly where the company was active in litigation or other commercial dealings during deregistration.

Conclusion

The Clancy decision reinforces the flexibility and purposive approach embedded in s 601AH. For an insolvency lawyer, it is a reminder to:

• Assess standing broadly when identifying a “person aggrieved”;
• Frame arguments around the equitable and practical benefits of reinstatement to satisfy the “just” requirement;
• Be clear-eyed about the limits of the deeming provision under s 601AH(5); and
• Proactively seek validation of acts under s 601AH(3) where appropriate.

This case provides a helpful reference point for ensuring procedural compliance and strategic clarity in reinstatement applications, particularly in the context of ongoing disputes or obligations involving a deregistered entity.

*This article was prepared with the assistance of Emma Saunders

Chamberlains Law Firm has secured a significant victory for its client, Sharvain Facades Pty Ltd (Administrators Appointed), in a crucial decision handed down by the Supreme Court of New South Wales. The judgment, delivered by Stevenson J on 12 June 2025, affirms the primacy of the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act) over contractual clauses that attempt to modify its operation.

The case, Sharvain Facades Pty Ltd (Administrators Appointed) v Roberts Co (NSW) Pty Ltd, hinged on the precise date a payment claim of over $3.2 million was served. The contractor, represented by Dr A J Greinke and Mr P J Hick of Counsel, instructed by Chamberlains, sent the payment claim via an agreed electronic system at approximately 7:17 PM on Friday, 28 February 2025.

The principal, Roberts Co (NSW) Pty Ltd, argued that a “deeming clause” in the contract meant the claim was not officially received until 9:00 AM on the next business day, Monday, 3 March 2025. The clause stated that any notice sent after 5:00 PM would be treated as received on the following business day. This distinction was critical, as the principal’s payment schedule was served on 17 March 2025—within 10 business days of 3 March, but not of 28 February.

The Role of Payapps in Service

A key aspect of the case was the method of service. The contract specified that progress claims were to be submitted through an approved electronic system, which the parties agreed was Payapps. The Court noted that the contractor submitted the claim correctly through this system. The act of submission on Payapps generated an email to the principal’s nominated representative. The Court treated this as the legally effective act of service. The judgment confirmed that using the contractually agreed electronic platform was a valid means of service under the Act.

The Court’s Ruling

Stevenson J rejected the principal’s argument, finding in favour of our client. His Honour concluded that the deeming clause was an attempt to modify the operation of the Act and was therefore void under section 34 of the legislation. The Act defines a “business day” as the full day, and the Court found that contractual clauses cannot redefine this by deeming a business day to end at 5:00 PM.

With the deeming clause voided, the Court determined that service was effected when the electronic message generated by Payapps became “capable of being retrieved” by the principal on 28 February 2025, in line with the Electronic Transactions Act 2000 (NSW).

Consequently, the payment schedule was served out of time, entitling our client to judgment for the full amount claimed.

This judgment is a vital reminder for all participants in the construction industry that the protections afforded by the Act cannot be contracted out of. Chamberlains Law Firm is proud to have represented Sharvain Facades in this landmark case, reinforcing the statutory rights of contractors and ensuring the Act’s critical payment mechanisms are upheld.

The successful team was led by Michael Terry-Whitall and Counsel, Dr A J Greinke and Mr P J Hick.

Flexible working arrangements have taken flight since the Covid-19 pandemic with work-from-home (WFH) and remote work becoming one of the most commonly requested flexible working arrangements. Given the exponential rise on remote working, both employers and employees must be aware of their rights and obligations.

Who can request flexible working arrangements?

In Australia, the right to request flexible working arrangements is part of the National Employment Standards (NES) under the Fair Work Act 2009 (Cth) (FW Act). This right is available to any permanent full-time/part-time employees who would like to change their working arrangements where any of the following circumstances apply to that employee:

• The employee is pregnant;
• The employee is a parent, or has responsibility for the care of a child who is school age or younger;
• The employee is a carer (within the meaning of the Carer Recognition Act 2010);
• The employee has a disability;
• The employee is 55 years or older;
• The employee is experiencing family and domestic violence;
• The employee provides care or support to a member of their immediate family or household who requires care or support because that person is experiencing family or domestic violence.

It is also a prerequisite that an employee has completed at least 12 months continuous service immediately before making a request.

Casual employees who satisfy one of the above eligible circumstances are also able to request flexible working arrangements if:

• in the last 12 months, have been working on a regular and systematic basis; and
• there is a reasonable expectation of continuing work with their employer on a regular and systematic basis.

What are flexible working arrangements?

In short, flexible working arrangements are alternative work patterns, or terms and conditions of employment which assist employees with better balancing their work and personal responsibilities. Naturally, types of flexible working arrangements will vary depending on the job and industry, however these arrangements will typically the employee more choice over when, where and how they perform their work.

Some common types of flexible working arrangements include:

• remote working/working-from-home arrangements;
• flexible hours or changes to an employees’ normal start and finish times, usually including “core hours” where the employee must be working;
• reduction of hours i.e. from full-time to part-time hours;
• job-sharing or split shift arrangements; and
• compressed/reduction of work days i.e. working 10 hours each day over Monday to Thursday, rather than working 8 hours each day over Monday to Friday.

How must flexible working arrangements requests be handled?

1. Employees seeking flexible working arrangements must make their request in writing and outlining:
   1. the change/s sought;
   2. the relevant eligible circumstance/impacting the employee ; and
   3. Including any evidentiary material to support the basis of their request.
2. Upon receiving the request, employers must assess the employee’s eligibility to request flexible working arrangements.
3. Employers must afford due consideration to the employee’s request, including considering how the proposed arrangement would impact the business and how the refusal of the request would impact the employee making the request.
4. Discuss the request with the employee and genuinely attempt to reach a mutual agreement which accommodates both the requested change/s and the employer’s operational requirements.
5. Employers are required to respond in writing, to the employee’s request within 21-days. The response must state:
   1. Whether any further information or evidence is required;
   2. Whether the request is granted or refused;
   3. Information about any other changes that the employer is willing to agree to in the alternative (if appropriate).

Employers must also be able to substantiate that they have actually engaged in the process and satisfied each of the above steps. Therefore, contemporaneous record keeping is vital.

Refusal of a request for flexible working arrangements

Under the FW Act, employers can only refuse a request on ‘reasonable business grounds’ as prescribed by Section 65A(5).

Reasonable business grounds may include:

• the requested working arrangements would be too costly for the employer;
• accommodating the requested changes would require the employer to change other employee’s working arrangements to the extent that it would be impractical, or that the capacity does not permit such e.g. they would need to hire new employees or other employees would be unreasonably burdened by an increased workload; and
• accommodating the requested changes is likely to result in significant loss in efficiency, productivity or significantly and negatively impact customer service.

Employers must also consider their obligations under state and federal equal employment opportunity laws e.g. the Disability Discrimination Act 1992, the Sex Discrimination Act 1984 which make it unlawful to discriminate against an employee based on particular protected attributes. Some of these protected attributes include; family responsibilities, status as a parent or carer, or pregnancy.

Therefore, it is incumbent on employers to exercise due diligence and ensure that the refusal of a request is indeed reasonable. The decision to refuse a request should be reached with caution and with the understanding that such carries risk, as in some cases, a refusal can amount to unlawful discrimination.

 

Addressing Disputes

If an employee considers that their formal and valid request was unreasonably refused, or if they did not receive the employer’s response to their request, employees are able to apply to the Fair Work Commission (FWC) to resolve the dispute.

It is recommended that in the first instance, employees and employers genuinely attempt to resolve the dispute internally through pragmatic discussions. If the dispute persists, employees are able to utilise the Form F10C to have the matter heard by a FWC member. This is generally conducted through a conciliation or mediation.

WFH/Remote Work – WHS Obligations

WHS obligations are commonly overlooked or misconceived in respect of WFH and remote work arrangements. The legal obligations imposed on employers and employees are not displaced by WFH or remote work arrangements. This is because, any environment where an employee is agreed to be performing work is considered a workplace as per applicable State and Federal WHS legislation.

Therefore, it is vital that employers take steps to ensure the health and safety of its workers who are WFH or working remotely, so far as reasonably practicable. This includes assessing and mitigating the health and safety hazards which may be present in the workplace.

WFH/Remote Work – Common WHS Risks 

Health and safety risks most commonly present in WFH/remote workplaces include:

• improper workstation set up;
• poor working conditions;
• prolonged sitting or sedentary work;
• trip and slip hazards;
• fatigue; and
• family and domestic violence.

Risk Management

As a result, employers are urged to manage risks in remote workspaces by undertaking a risk management process which involves identifying hazards, assessing the risks, controlling the risks and procedurally reviewing and maintaining the implemented controls.

1. Identify Hazards

Living arrangements vary between employees. As a result, the risks for each employee differ. Therefore, effective consultation with employees is crucial in ensuring that employers can meet their WHS duties. Employers are urged to work with their employees to manage risks in remote working environments. This is since employees are often the only people with the awareness of the risks in their own home environment. By working together to identify and manage risks, effective control measures can be implemented.

2. Assessing Risks

When a risk is identified, employers must assess and understand the impact of the risk upon their employee. This includes assessing the occurrence of the risk and the degree of hazard faced. Failing to make assessments of risks in the workplace will likely expose employees to harm.

3. Control Risks and Implement Safeguards

Once a risk has been identified and assessed, it needs to be controlled so far as reasonably practicable. This can be achieved by using a variety of different methods. Some methods may include:

• Establishing procedures;
• Sourcing fit for purpose equipment; and
• Establishing a point of contact for the employee/engaging in regular communications.

Where necessary, employers may need to consider whether they are unable to sufficiently control any risks to the extent that they cannot accommodate the employee’s WFH/remote work arrangement.

4. Review and Update Control Measures

Control measures are only useful when they address the intended hazard. Over time, hazards change and so too does the management of existing hazards. Employers are required to ensure that there is a process established for consistent reviews of control measures in order to ensure that the health and safety of employees is protected.

Equally, employees are not exempt from having regard to their own health and safety during WFH or remote work. Employees are legally obligated to:

• take reasonable care for their own and not adversely affect others, health and safety;

• comply with reasonable WHS instructions; and
• cooperate with reasonable WHS policies and procedures.

 

Contracts and Policies

Employers must ensure that employment contracts and workplace policies adequately cover the expectations of employees while working from home or remotely. This will assist in preventing disputes regarding the obligations and requirements of each party as well as mitigating risks.

Workplace policies ensure that all employees, regardless of whether they are working in the office, remotely, or in a hybrid model, are treated fairly. This helps avoid any perception of favouritism or unequal treatment. A clearly outlined flexible working policy ensures that all employees have access to the same opportunities for flexible work and that any requests for flexible working are evaluated based on objective criteria rather than personal preference.

Further, flexible working arrangements require clear performance expectations to ensure productivity doesn’t decline. Policies and contracts can outline how work will be monitored, how performance will be measured, and what the expectations are regarding deadlines, communication, and availability. This helps employers manage remote or hybrid teams effectively while ensuring employees still meet company standards.

It is best practice for employers to provide an allowance, or to loan equipment to employees to ensure that their remote workstation is sufficient to conduct the inherent requirements of their role. If equipment is loaned to employees, it is imperative to keep accurate records as these items will need to be returned during the separation process.

By having clear, comprehensive policies and contracts in place, both employers and employees are better equipped to navigate the complexities of flexible working arrangements. This can aid in cultivating a compliant, healthy and productive work environment.

The Workplace Law Team has extensive experience with drafting WFH policies, contracts and employee handbooks. For ongoing support for your business, Chamberlains Law Firm offer HR services to employers. To learn more, click here.

Employers are reminded that breaching WHS obligations under relevant State and Federal legislation can expose your business to significant liability. To better understand your position, rights and duties concerning working from home arrangements, contact the Workplace Law Team.