Blog Archives | Nevile & Co. Lawyers

As digital transactions become the majority of all transactions, from Paypal to Venmo to tap-and-go, so too does the potential for ‘fat fingering’. Maybe the man at the café charged you 45c instead of $4.50 for that coffee, or maybe a friend sent you $100 for dinner instead of $10. What does the law say in regard to this sort of mistake, and do you have to give the money back?

The Honourable Justice Elliot is considering these issues in the case of Foris GFS Australia Pty Ltd v Manivel. An employee of Crypto.com, a cryptocurrency exchange, went to transfer a $100 refund to a customer. Instead of typing in $100 into the “Amount” field, the employee typed in Manivel’s account number 10474143, resulting in an 8-digit windfall for the lucky Manivel. “Extraordinarily”, in the words of Elliot J, this mistake was not realised until 7 months later.

Unfortunately for Crypto.com, Manivel decided to share the money among 6 other people, and generously bought a $1.35m house in Craigieburn for her sister in Malaysia.

Unsurprisingly, the sister became very hard to contact when Crypto.com came asking for its money back.

Crypto.com then went off to court to try get its money back. Although Manivel used the money to buy a house and transferred it to her sister, the money is traceable. The money would not have been in her sister’s hands if it had not been accidently made by Crypto.com. In this sense, her sister was “unjustly enriched”. Crypto.com therefore is able to get the $1.35m purchase price back from Manivel’s sister, plus penalty interest. The ‘tactic’ of simply not answering the door or picking up the phone when people come asking for their money back doesn’t work.

There are two key takeaways we can glean from this.

The first is that despite all the anti-state, anti-bank marketing, even crypto companies drop the “immutable ledger no takebacks” sales pitch, and run off to court to have a bank help them out.

The second and more important lesson is that just because you handed a small pile of coins to the barista, and they handed you a $10 note back, it doesn’t mean that money is yours. If you get given too much money by mistake, you should give it back. Penalty interest hurts!

DISCLAIMER The contents of this newsletter are of a general nature and cannot be relied upon as legal advice. However, if you need legal advice please do not hesitate to contact any one of our lawyers.

Whether E-scooters are a miracle solution or simply another roadside nuisance depends on how many times you refresh your newsfeed. Regardless of the conflicting opinions, their rise in popularity is increasing pressure and demand for clearly defined laws surrounding their use.

Previously, the guidance provided by RACV and VicRoads stated that only electronic scooters which:

Have a motor operating under 200 watts; and
Have a maximum speed of 10 km/hr on level ground

are permissible on public roads.

To put this into perspective, mobility scooters have a 250 watt capacity with a maximum speed range of 25-35 km/hr, which the average wattage across the e-scooter board is 1145 watts.

Those who did not meet the criteria, but still insisted upon challenging their grandma’s mobility scooter to a street race, could expect to receive a $909.00 fine.

Currently however, the restrictions have been tightened. According to the Road Safety Rules 2017 (Vis), riding a privately owned scooter on public roads is prohibited. The only exception is if the rider is using an e-scooter that is part of a commercial share scheme. Although this may seem disheartening for e-scooter enthusiasts, there is a silver lining.

VicRoads is currently undertaking trials within restricted regions to determine whether e-scooters can harmoniously co-exist with other vehicles and pedestrians.

These trials are ongoing and expected to produce a clearer idea for the future of privately owned e-scooters and finally set the headlines straight.

What is a Trademark?

A trademark is a sign used or intended to be used to distinguish goods or services dealt with or provided in the course of trade by a person or organisation, from goods or services dealt with or provided by any other person or organisation.

A sign includes any of the following, or any combination of the following (note this :

Letter;
Word or Name;
Signature;
Numeral;
Device;
Brand;
Heading;
Label or Ticket;
Aspect of packaging;
Shape;
Colour;
Sound; or
Scent.

Accordingly, a logo and any word marks may properly operate separately as a trademark. Often, you will use them in close association with each other. However, you will most likely find it beneficial to register both of these as separate trademarks.

What are the Benefits of Registration?

In general terms, once your trademark has been registered, you will obtain an Australia-wide monopoly for use of that trademark in respect of the goods or services (aka classes) for which registration was granted.

You will not obtain this right if you use your mark as a business name, domain name, or company name without registering it as a trademark.

How do I Apply for Registration?

Applications for trademark registration must be filed with IP Australia.

The current timeframe for registration is 8-12 months, however, sometimes IP Australia may expedite the process.

Applying for registration of your trademark will involve the following stages:

Searches to establish whether there is a trademark that may be the same or very similar to your trademark;
Identifying the relevant goods and/or services that you use or intend to use your trademark for. These are categorised into “classes”;
Lodging an application for registration of a trademark with IP Australia;
Dealing with any objection that IP Australia many have to the registration of the mark; and
Paying registration fees which will ultimately be a prerequisite to the issuance of a certificate of registration.

Are you looking to register a trademark? Contact our Commercial Team today at nevileco@nevile.com.au

There are many reasons to lodge a caveat. If you are purchasing property you can lodge a caveat over the property to ensure that the vendor does not sell the property to anyone else.

There are many reasons to lodge a caveat if you have a caveatable interest.

What is a caveat?

A caveat is a notice registered on title that prevents the registered proprietor from transferring the title to someone else. It ensures that the caveator is informed of any dealings on title.

If you have a caveatable interest in the property you can lodge a caveat at the titles office. Most caveats are lodged electronically via PEXA. Nevile & Co can assist you registering your caveatable interest online.

The important question to ask is whether or not you have a caveatable interest. If you lodge a caveat on a title that you do not have a caveatable interest in then you can find yourself in hot water. It is important to get proper legal advise before lodging a caveat. At Nevile & Co we have the expertise to provide you with appropriate and timely advise with respect to registering caveats.

Caveatable interests can arise by way of loan agreements, contracts of sale of land, pursuant to a charge, or an equitable or constructive trust for example an agreement may give a charge to a party, or a purchaser of a contract of sale of land.

When a caveatable interest arises it is important to register the caveat on title in a timely fashion, that is, as soon as the caveatable interest comes into existence you should lodge a caveat immediately to avoid any issues regarding priority.

Once the caveat is lodged the registered proprietor can not deal with the land until the caveator provides consent to the relevant dealing or withdraws the caveat. You can withdraw the caveat at any time.

If you are the registered proprietor and someone lodges a caveat over your property you can object to the caveat being lodged in which case the caveator will be required to give evidence of the interest in the land.

If it is found that a caveat has been lodged on title where there is no caveatable interest the Court may award the aggrieved party with damages for any loss suffered as a result.

For more information regarding caveats and how to register them, please contact us at nevileco@nevile.com.au and mention this newsletter.

Maybe people are dying earlier these days, but everyone seems to be having “once-in-a-lifetime” opportunities pitched at them every few months.

From your nephew at Christmas trying to get you into cryptocurrencies, or that guy at work raving about a hot new stock, or the woman next door telling you about being her own boss in a multi-level marketing scheme, it seems that everyone is promising you’ll get rich quick if only you give them your wallet.

Something ingrained in us as humans makes us want to be rich with little or no effort. Whether it is winning the lottery, or tripping over a gold nugget, the promise of instant riches holds a very powerful allure. We seem to turn our brains off, and for this reason, people who think they will get rich quickly are the perfect target for scammers. Of course, there are real opportunities out there, but these are hard to find.

But how can you tell the difference? Below are a few good questions to ask yourself when you stumble across a potential scam.

Who’s telling you, and what’s in it for them?

This is one of the most important questions. Be skeptical. Anyone saying you can get rich quick but isn’t rich themselves should be treated with caution. Do they get a fee for signing you up? Will they benefit if you buy their crypto/stock/shares? If they’re not impartial about the opportunity, you should be particularly careful. If they’re telling you, they’re selling you.

How are they describing the opportunity?

If anyone ever uses the words “risk-free”, just change the topic. Everything in life has risks. There are no exceptions. Words like “guaranteed” are equally suspect.

Are the returns reasonable?

Australian banks currently advertise interest rates of 0.10%. For example, if you deposit $10,000, in a year’s time you will have $10,010. Alternatively, if you go to the high-risk casino of the cryptocurrency market, you can deposit into a scheme advertising interest rates of 94,806.50%.

For example, if you deposit $10,000, in a year’s time you will have $0 because the scheme will have collapsed and this guy below will have stolen all your money.

“It’s fiiiiiiiiiiiiine” – This guy

What recourse do you have?

You should always buy into an investment assuming it will go to 0. That way, you’ll be prepared for the inevitable occasions when it does happen, and you’ll never invest more than you can afford to lose.

But before you invest, think about what would happen in that scenario. What are your options? If you’ve ordered a hundred pairs of yoga pants from your MLM-minded neighbour and discover you can’t sell them, what’s the return policy? If the company whose stock you just bought was shut down tomorrow, how much could a liquidator get back for you? Are you protected by a contract? Is the contract enforceable? If you sign a contract with a stranger in Russia and they’ve just made off with your money, that contract will make excellent toilet paper the next time Woollies runs out.

Is it a Ponzi/pyramid scheme?

Ponzi schemes and pyramid schemes are very similar in that they pay out interest, or returns, based on new buyers coming in, instead of actual profits from the production of real goods or services. Take a step back and think about the business model. If you had to hold onto those shares, or that cryptocurrency, or a hundred pairs of yoga pants, for the rest of your life, and nobody ever bought that investment from you, would you still go ahead? If it looks like the whole thing would collapse without new money coming in, you might be looking at a Ponzi scheme.

Takeaway

Speaking of takeaway, there’s no such thing as a free lunch. If anyone tells you that you’re going to get rich quick with no effort whatsoever, thanks to their exciting new scheme, you should either look at it a little closer or, better still, avert your gaze entirely.

If you’re thinking about an investment opportunity, call us today on 9664 4700. We can walk you through the documentation, the risks involved, and advise you on your options if things don’t work out as planned.

What is a caveat?

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