What Are the Australian Consumer Laws

Having a clear understanding of Australian consumer laws is important for anyone looking to do business in Australia because having an understanding of these laws can help ensure you and your business are protected from any unfair or illegal behaviour.

Unfair contract terms

Typically, Australian consumer laws, which are enforced by the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC) protect consumers from unfair contract terms. Both of these agencies work together to ensure a consistent approach to compliance.

Unfair contract terms are those terms whaich are often hidden in the fine print or schedule of the contract that limit the obligations of one party, or that allow one party to terminate the contract without reason resulting in a significant imbalance in the contract obligations between the parties.

If a term is unfair, a court can declare it void which means typically, the court will balance the commercial interests of the business against the detriment to the consumer.

Moreover, the Australian government have announced that new legislation that will soon strengthen the law against further unfair contract terms in standard form contracts will be passed in the future. It will include changes to the UCT regime, have more stringent prohibitions against unfair contract terms, and will outline new civil penalties for subsequent breaches.

The proposed legislation is designed to give the ACCC more power to protect consumers including an increase in penalties for breaches of the competition and consumer law.

Australian consumer laws are governed by both the Australian Competition and Consumer Commission (ACCC) 

What is the ‘Standard form’ contract

Despite the fact that standard form contracts are widely used by businesses, they are also prone to contain such terms that are unfair. Australia’s Unfair Contract Terms legislation is designed to help prevent this.

The UCTL provides courts with a framework to determine whether a term in a standard form contract is fair allowing the court to take into account the relative bargaining power of the parties, whether the contract was pre-prepared and whether the purchasing party was given an opportunity to negotiate the terms.

While a term that sets a price is exempt from the “fairness test”, other terms can still be considered unfair such as penalty clauses which penalises one party and whether the contract was made available to the other party and accessible to consumers.

Although the Australian Consumer Law seeks to protect small business operators and consumers from unfair terms in standard form contracts it is still important for businesses to review contracts to ensure that they comply with the law.

The ACCC has outlined a number of areas in which consumers and small business operators may be at risk from unfair contract terms. These include contracts in the airline, travel, fitness, vehicle rental and telecommunications industries. The ACCC has also raised concerns about standard form contracts used by online traders.

Notes:

On buying a property and contract law.

Some examples of unfair terms in contracts

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Whether you are a business or a consumer, you should be aware of the many examples of unfair terms in contracts under Australian consumer laws. Some examples include automatic renewal clauses, restrictions on reviews and customer feedback, and restrictive evidence terms. These terms may seem like a good idea, but they can actually impede the consumer’s ability to get a fair price and to take legal action against a business.

Definition: a term may seem to be an unfair term on its own, 

An example of an automatic renewal clause is one that requires the customer to pay a fee to terminate a contract. This may seem reasonable as part of the overall contract, but the example is also the least likely to be considered an unfair term.

A more interesting example of an automatic renewal term is a clause that imposes a penalty for a contract to be cancelled. This type of term is unfair if the consumer has no choice. It is also not the most interesting example, but it may be considered the most significant.

Another example of a slur is a contract that requires the consumer to pay an extra fee to terminate the contract. It may be unfair to charge a consumer a fee for exercising a right, but it is not.

More on contract law specialist lawyers

A less enlightened example of an example of an unfair term is a term that limits the consumer’s ability to gather evidence. This may be an impressive feat, but it is also an example of a term that limits the consumer’s legal rights.

How to bring legal proceedings in a foreign jurisdiction.

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How to Choose a Real Estate Investment Fund

Profit distribution from the fund

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According to Ben Jones at M&G, Real estate investment funds are structured and established to generate profits for investors. They may have certain objectives, minimum investment amounts, and minimum distribution levels. Funds may also target particular types of properties or locations. Investors should carefully evaluate each real estate investment fund before making a purchase. Aside from the specific objectives, real estate funds also have risk and reward considerations.

The income generated by real estate investment funds is distributed to investors through a variety of means. Some funds have a preferred return option, while others offer a pro rata share of profits. The amount and timing of these distributions are based on the fund’s waterfall structure. These waterfall structures can be complicated and have several tiers.

Real estate funds come in many different varieties, including those that buy single-family homes and others that buy multi-family properties and rent them out. Some specialize in one strategy or the other, and many exist to accommodate both strategies. Before you invest, however, it’s important to understand the tax implications associated with flipping or holding properties. Profits from flipping or renting out a property are subject to short-term capital gains tax and long-term capital gains tax.

Tax implications of dividends

When determining whether to invest in a real estate investment fund, it’s vital to understand the tax implications of the fund’s dividends. These dividends are taxable, and you’ll pay tax on 80% of the fund’s net income. Ordinary dividends will be subject to the same tax rate, although you can take advantage of tax treaties or get advance rulings to avoid paying taxes on REIT distributions.

The tax benefits of investing in a REIT include the fact that you can deduct 20% of your capital gains and ordinary dividends from your income tax return. Additionally, the investment can be tax-advantaged because you’ll only pay state taxes in the state in which you live.

Another advantage of investing in a real estate investment fund is the ability to defer taxes for some time. Many real estate investors choose to defer taxes for five or ten years. This will provide them with significant long-term benefits and will allow them to grow their capital more quickly. Unlike with other forms of investments, rental income is not subject to some kinds of taxes, which can be an important feature for many investors.

The tax consequences of investing in a real estate investment fund can be complicated. For example, you may have to pay taxes on the sale proceeds of the property if the funds are non-resident. While that’s not ideal, there are election options available to structure your UK real estate investments.

Limitation of liability of the fund’s structure

Choosing the right fund structure can be crucial to the success of your business. Mutual funds, for example, often have provisions that limit their liability. A fund’s liability may be limited to the value of the investment portfolio, but it may also extend for a specified period of time. In some cases, funds have optional extension periods to allow for unexpected changes in the value of investments and disposition strategies.

Costs associated with the fund

There are many costs associated with real estate investment funds. Initially, investors must pay a committed capital fee, which is reduced proportionally as money is invested. Later on, there are investment management fees, which are typically between 1% and 2% of invested equity. These fees cover the expenses associated with sourcing and due diligence on new properties.

Other fees that accompany a real estate investment fund include fees to third-party vendors. Some of these entities are owned or controlled by the sponsor of the fund. These entities are paid through the sponsor’s affiliates, but the amounts depend on the nature of the services provided. It is important to understand what each affiliate is paid.

Most real estate investment funds offer a wide range of real estate investments. They can be conservative or speculative. A low leverage loan on an urban trophy asset has a profile similar to high-credit bonds, while a highly speculative development project can return similar returns to those seen with small-cap equity investments or VC funds.

Real estate investment funds are a complex and capital-intensive venture. The costs of managing such funds depend on the type of fund you choose. Some are closed-ended and have a set term, while others are open-ended or continuation funds. As an investor, it is important to understand the fees associated with each fund. You should also be aware of the jurisdictions that your fund will operate in.

While investing in real estate can be profitable, it is also important to understand the risks. Some funds use leverage in their investments, which increases the overall investment return. Other types of funds utilize leverage, which can be as much as 50%.

Structure of a real estate investment fund

There are many factors that affect the structure of a real estate investment fund. These factors can include complexity and performance. The most common consideration is the tax objectives of the investors. Some real estate investment funds are structured to maximize tax benefits, while others are structured as a cash-flow fund and pay distributions throughout the life of the fund.

A real estate investment fund can be open-end or closed-end. An open-end fund allows investors to put their money into the fund anytime they wish, but a closed-end fund is not open to new contributions. This means that investors cannot withdraw their money or make additional contributions during the life of the fund. A closed-end fund can only return capital to investors if the underlying asset is sold, or if the cash flow from the real estate is positive enough to provide dividends.

A private fund can also contract with a third party to act as developer, general contractor, and property manager. These funds may ask investors to pay a fee to these third parties to serve as the manager of the real estate investments. Some investors may question the purpose of the management fee. But this fee is not related to the actual investments made by the fund, but to the management of the properties.

Before launching a real estate investment fund, sponsors need to carefully consider the compensation arrangements. They should be aligned with the objectives of the investors and sponsor. While it is not advisable to view the fund as a fee-based venture, sponsors must be willing to incorporate fees in order to provide value for their investors.

Author – Ben Jones M&G

Ben Jones

Ben Jones M&G, a top fund manager

Jones ran the firm’s 8 billion pound ($10.5 billion) long lease real estate business at M&G.

Ben Jones @ MandG on Twitter