Legal Updates
We pride ourselves on keeping our clients informed of important information and updates for themselves and their businesses. Our lawyers are constantly writing articles and position papers to explain current legal issues and developments in clear terms. We also prepare summaries of legal and commercial seminars our lawyers have attended, and share any knowledge we have gathered.
Amendments to the Small Business Fair Dismissal Code
Posted on: 22 Jul, 2010
In an effort to make clearer the obligations of small business employers in dismissal situations, the government has changed the preamble to the Small Business Fair Dismissal Code and the Small Business Fair Dismissal Code Checklist.-
Prefabricated construction
Posted on: 22 Jul, 2010
Prefabricated construction is a method of building that involves several factory-built components being assembled onsite to complete the building. Recent developments in Australian prefabricated construction have demonstrated that new applications for this method of construction could prove useful in meeting Australia’s socio-economic needs. -
The Benefit of Workplace Policies when Communicated Effectively and Applied Consistently
Posted on: 21 Jul, 2010
Many employers have written policies that supplement, and may form part of, their employment contracts. Company policies often reinforce and clarify the standards expected of employees and help employers manage staff more effectively by defining acceptable and unacceptable behaviour in the workplace. -
Hague Service Convention
Posted on: 16 Jul, 2010
Australia has become the 61st country to accede to the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965. The Convention
facilitates the service of court documents on overseas parties and is expected to apply in Australia after October 2010. -
The Importance of Estate Planning
Posted on: 16 Jul, 2010
It is important for all of us to ensure that the assets we have accumulated over a lifetime are left for the benefit of those people or institutions we wish to support, and left in the way that is most beneficial to the recipient. The only way to ensure this is to make a valid Will, having first obtained the appropriate advice. -
Director pursued for unpaid redundancy entitlements
Posted on: 14 Jul, 2010
Unions are taking unprecedented legal action to recover worker entitlements from the personal assets of the former sole director of a company (Forgecast Australia Pty Ltd) that went into liquidation earlier this year. -
Registering Business Names - A New National Approach
Posted on: 5 Jul, 2010
The Australian Government will be investing $125.2 million over four years in the Australian Business Number (ABN) Business Names Registration Project, an initiative designed to streamline ABN and business name applications. The consultation period for the Business Name Registration Bill 2010 is due to expire in the next few days, with the changes expected to commence in April 2011. -
High Income Threshold for Unfair Dismissals Increased
Posted on: 1 Jul, 2010
From 1 July 2010, the high income threshold for determining eligibility to make unfair dismissal claims will rise from $108,300 to $113,800. The high income threshold amount is calculated and indexed annually, thus employers can expect changes to this figure again in 2011. -
New Australian Consumer Laws: An overview of the proposed Trade Practices Amendment (Australian Consumer Law) Bill (No 2) 2010
Posted on: 24 Jun, 2010
The implementation of national, uniform consumer laws commenced with the recent enactment of the Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010 (Act), which comes into effect on 1 July 2010 and is just the first part of a planned national consumer regime, broadly termed the Australian Consumer Law. -
Case Note: The Stake Man Pty Ltd v Carroll [2009] FCA 1415
Posted on: 23 Jun, 2010
The Federal Court has recently excused a director from breaching insolvent trading laws. This case is the first decision in which the court has exercised its discretion and completely relieved a director from civil penalties where it has been established that the director allowed the company to trade while insolvent -
Parallel Importation of Trade Marked Goods: The High Court redefines 'use' in E & J Gallo Winery v Lion Nathan Australia Pty Limited
Posted on: 23 Jun, 2010
Last month, the High Court partly overturned a decision of the Full Federal Court, upholding Gallo Winery’s appeal. The anticipated decision has far-reaching implications for trade mark owners, particularly in relation to what constitutes ‘use’ of a trade mark in the importation context in Australia -
ASIC Dons its Hat as Credit Regulator - Finance Brokers in Trouble
Posted on: 15 Jun, 2010
On 11 June 2010, ASIC announced it has commenced proceedings in the Federal Court of Australia against Australian Lending Centre Pty Ltd and Sydney Lending Centre Pty Ltd, two finance brokers. The proceedings serve as a warning to credit providers and finance brokers, particularly in view of the upcoming commencement of the Consumer Credit Protection Act 2009 on 1 July 2010. -
New Australian Consumer Laws Affecting Unfair Contractual Terms in Standard-form Contracts
Posted on: 4 Jun, 2010
The Federal Government’s plans to establish uniform, national consumer laws have been implemented through the recent enactment of the Trade Practices Amendment (Australian Consumer Law) Act (No 1) 2010. -
FWA Minimum Wage Released
Posted on: 3 Jun, 2010
The Fair Work Australia minimum wage panel today released its first decision, ultimately increasing federal minimum weekly rates by $26.
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Copyright Infringement of a Musical Work
Posted on: 28 May, 2010
Record company EMI has appealed against the Federal Court ruling that the Australian band Men at Work infringed the copyright in the song Kookaburra sits in the old gum tree in its song Down Under. -
Federal Government Moves on the Sons of Gwalia High Court Decision
Posted on: 18 May, 2010
Despite the recommendations of the Corporations and Markets Advisory Committee handed down in its Report of December 2008, the Federal Government has moved to reverse the decision of the High Court of Australia in Sons of Gwalia v Margaretic [2007] HCA 1.
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Tips for Retailers’ Privacy Compliance
Posted on: 17 May, 2010
Most retail businesses, particularly those operating multiple stores, are required to comply with the Privacy Act 1988 (Act) and corresponding National Privacy Principles (NPPs), but many are unaware of their obligations in this regard. Compliance with the Act and NPPs is not difficult, but there are many things to consider and retailers would be well advised to seek legal advice when preparing or updating their privacy policies to ensure they are compliant. -
Federal Government's Paid Parental Leave Bill Released
Posted on: 7 May, 2010
The Paid Parental Leave Bill 2010 has now been released and seeks to provide the first government-funded paid parental leave scheme in Australia. If the Bill is passed, on or after 1 January 2011 parents who can satisfy work, income and residency tests may be eligible to receive parental leave pay of up to 18 weeks at the national minimum wage (which is currently $543.78 a week).
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Case Note: Lehman Brothers Holdings Inc v City of Swan & Ors [2010] HCA 11
Posted on: 5 May, 2010
On 30 March 2010, the High Court delivered its decision in Lehman Brothers Holdings Inc v City of Swan & Ors [2010] HCA 11. The decision confirms the general understanding of the scope and effect of deeds of company arrangement – that they bind creditors only so far as creditors’ claims relate to the relevant company. -
First mortgagee's power to sell real property trumps subsequent mortgagees' charges over personal property - St George Bank Ltd v Perpetual Nominees Limited & Anor [2010] QSC 57
Posted on: 28 Apr, 2010
The recent Queensland Supreme Court decision of St George Bank Limited v Perpetual Nominees Limited & Anor [2010] QSC 57 clarifies the position of a first mortgagee exercising a power of sale over personal property. It has long been established that a first mortgagee, in exercising a power of sale over land, may convey the land free of the interests of any subsequent mortgagees. This case clarifies that the position of a first chargee exercising its power of sale over personal property (secured by a charge over the assets and undertakings of a company) is the same. The decision has important implications for financiers pending the commencement of the Personal Property Securities Act 2009 (Cth) due to commence in May 2011. -
Solid Investments Australia Pty Ltd v Clifford & Anor [2010] VSCA 59
Posted on: 21 Apr, 2010
The Victorian Court of Appeal has confirmed that special conditions in off-the-plan contracts of sale that allow for an extension of the date by which the plan must be registered, before a purchaser can rescind the contract, are contrary to the intentions of the Sale of Land Act 1962 (Vic). The decision has important implications for vendors, purchasers and financiers. -
Employer Beware: The need to Justify Action against Union-Associated Employees
Posted on: 16 Apr, 2010
A recent case in the Federal Court has shed some light on the new adverse action provisions of the Fair Work Act 2009, which essentially prohibit an employer from taking prejudicial action against an employee for a prohibited reason (the protective provisions). -
Cornwall Stodart Tax Digest: April 2010
Posted on: 16 Apr, 2010
Commissioner of Taxation v Bamford; Bamford v Commissioner of Taxation [2010] HCA 10 30 March 2010 -
Case Note: Jetaway Logistics Pty Ltd & Ors v Deputy Commissioner of Taxation
Posted on: 12 Apr, 2010
In Jetaway Logistics Pty Ltd & Ors v Deputy Commissioner of Taxation [2009] VSCA 319, the Victorian Court of Appeal considered an appeal of a decision that permitted the Commissioner of Taxation to raise an off-setting claim under s553C of the Corporations Act 2001 as a defence to a claim by a liquidator for recovery of preference payments. The appeal raised the issue of whether the Commissioner had ‘notice of the fact that the company was insolvent’ at the time of receiving the relevant credits. The appeal was successful. The Commissioner was ordered to pay the total of the credits.
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New Tax Amendments result in Greater Responsibilities for Land Owners
Posted on: 30 Mar, 2010
Amendments to the Land Tax Act 2005 (Vic) and the Taxation Administration Act 1997 (Vic), both of which came into effect on 9 December 2009, have put new responsibilities on land owners in relation to land tax. -
Appeal of Octaviar decision to be heard in the High Court
Posted on: 26 Mar, 2010
On 12 March 2010, the High Court of Australia (HCA) granted special leave to the Public Trustee of Queensland to appeal the decision of the Queensland Court of Appeal in the matter of Re Octaviar Ltd (No. 7) [2009] QCA 282. -
Cornwall Stodart Tax Digest: March 2010
Posted on: 9 Mar, 2010
The Commissioner of Taxation can Ascribe a Taxable Value to a Supply where it is Provided with a GST-free Supply
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Risky Business: Off-Campus Negligence
Posted on: 4 Mar, 2010
In 2010, a holistic education for students at primary and secondary schools involves the teaching of a range of subjects in varying educational styles. These styles include outdoor education and off-campus activities. Schools commonly incorporate camps or excursions in their curriculum and some schools have rural campuses where students board for a number of terms for outdoor-based education, generally aimed at giving students a sense of confidence, leadership, teamwork, responsibility and self-reliance. But with outdoor education comes a myriad of risks that are not otherwise present in classroom teaching. -
Carbon Reporting: Do you have to Report your Greenhouse Gas Emissions and Energy Consumption or Production?
Posted on: 1 Mar, 2010
As part of the Federal Government’s environmental initiative, corporations must now monitor and record greenhouse gas emissions, energy production and energy consumption if they have operational control of “facilities” that may exceed the legislative threshold requirements set out in the National Greenhouse and Energy Reporting Act 2007 (Cth) (Act). -
ISP Not Liable for its Users' Copyright Infringement
Posted on: 1 Mar, 2010
The decision in the much anticipated Roadshow Films Pty Ltd v iiNet Limited (No 3) [2010] FCA 24 was handed down on 4 February 2010. It was found that the ISP was not responsible for the copyright infringement of its users (occurring while the users were using the ISP’s internet service), nor had it “authorised” the infringement. -
Refinancing and Workouts of Financially Distressed Companies - Lessons from the Bell Group Ltd (In Liquidation) v Westpac Banking Corporation [1]
Posted on: 18 Feb, 2010
The judgment of Justice Owen of the Supreme Court of Western Australia in The Bell Group Ltd (In Liquidation) v Westpac Banking Corporation provides a salutary lesson for bankers, directors and their legal advisers of the legal pitfalls involved in refinancing and work-outs of corporate groups on the brink of financial collapse. -
Cornwall Stodart Tax Digest: February 2010
Posted on: 10 Feb, 2010
Company Beneficiaries, Present Entitlements and Division 7A of the Income Tax Assessment Act 1997 – Private Groups’ Funding Arrangements under Attack -
FWA Decides Dismissal Unfair Despite Valid Reason
Posted on: 27 Jan, 2010
Fair Work Australia (FWA) has held that an employee was unfairly dismissed despite finding that the employer had a valid reason for terminating the employee and the employer providing the employee with an adequate opportunity to respond to allegations that he had breached the employer’s drug and alcohol policy. -
Being a Referee: What are your Obligations?
Posted on: 21 Jan, 2010
Do you remember the last employment reference you gave? Do you remember what you claimed to be true about that individual? Were your statements accurate? Now, the crucial question: have you ever considered that you can be liable for the contents of your reference? -
Timely Warning: A judicial review of a review adjudicator's review
Posted on: 15 Jan, 2010
In a recent Supreme Court case, an applicant was successful in having an adjudication determination under the Building and Construction Industry Security of Payment Act 2002 (SOP Act) judicially reviewed.
The decision is a timely warning to adjudicators that they can be parties to litigation.
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Award Modernisation and Flexibility Arrangements
Posted on: 12 Jan, 2010
The Retail Industry Award 2010 (the Modern Award), which will cover a broad range of retail operations including supermarkets, grocery stores, clothing, soft goods and department stores, came into effect on 1 January 2010. It will displace the operation of various Awards and Notional Agreements Preserving State Awards previously covering this industry. -
Living away from Home Allowance - Not 'Earnings'
Posted on: 16 Dec, 2009
An unfair dismissal application may proceed despite an employer's jurisdictional objection that the employee was paid an amount above the high income threshold. -
Fair Work Information Statement Released
Posted on: 3 Dec, 2009
The Fair Work Information Statement (FWI Statement) has now been released, and from 1 January 2010, all employers covered by the national workplace relations system are required to provide the FWI Statement to new employees before, or as soon as possible after, the employee commences. -
Heavy Fines for First Conviction of Director under Victoria's OHS Act
Posted on: 3 Dec, 2009
Judge Allen of the County Court has handed down the first conviction for a breach of s144 of the Occupational Health and Safety Act 2004 (Vic) (Act) following the death of an employee trapped in the roller of a laundry ironing machine. -
The Year That Was
Posted on: 2 Dec, 2009
Schools fear litigation. The number of legal cases decided by Australian courts and tribunals each year suggests however that this fear is ill-founded. Relatively few cases find their way to a final determination in the court system. That said, by reflecting on some of the cases that are commenced and settled or run to trial, schools can take appropriate steps to minimise the risk of finding themselves in similar situations.
This article reviews some of the cases that have been decided during the last twelve months.
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Unlawful Behaviour: Students and Teachers
Posted on: 2 Dec, 2009
The law recognises that school authorities and school teachers have a duty of care to ensure their students are not placed in risky situations that could cause them harm while at school. This article explores some of the unlawful behaviours that students and teachers might engage in which can place the school community at risk. Addressing these issues can bring our schools that little bit closer to being "safe". -
Case Note - Opes Prime Stockbroking
Posted on: 1 Dec, 2009
In the matter of Opes Prime Stockbroking Limited [2009] FCA 813 (Finkelstein J) Fowler v Lindholm, in the matter of Opes Prime Stockbroking Limited [2009] FCFCA 125 (Emmett, Gordon & Jagot JJ) -
Insurance Newsletter: November 2009
Posted on: 17 Nov, 2009
In this issue of the Insurance newsletter we provide details of two cases regarding duty of care that recently reached the High Court, and outline another case that was overturned in the Court of Appeal relating to a claim for financial loss. -
Retailers' Lobbying Pays Off - At Least for Now
Posted on: 5 Oct, 2009
The publication of the exposure draft National Consumer Credit Protection Bill (exposure draft Bill) on 27 April 2009 created a significant level of angst among retailers. Retailers were concerned that the exposure draft Bill would confer responsibilities on retail sales assistants similar to those of bank managers and financial brokers whose job it is to consider the credit-worthiness of a prospective borrower. -
Victorian Industry Participation Policy (VIPP) Amendments
Posted on: 10 Sep, 2009
The Victorian Government introduced VIPP in 2001, applying to construction activities, Major Projects Victoria, major events, Public Private Partnerships, and to investment support, business development, and community infrastructure grants. Key amendments to the VIPP came into effect on 1 July 2009. -
Dealing with Tenants in Financial Crisis: How it can Affect you as a Landlord
Posted on: 31 Jul, 2009
The current economic climate has caused significant pain for various parts of the economy and no less so for landlords and tenants.
It is important for landlords (and tenants) to understand the different types of insolvency administrations that may affect them.
This article will look at how insolvency (such as receivership, administration or liquidation) of a corporate tenant may affect landlords.
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Heavy fine for underpaying casuals
Posted on: 24 Jul, 2009
A Melbourne carwash firm and its owner and sole director have been fined $207 900 for underpaying five staff a total of $4,511. The company admitted to underpaying the five casual workers in 2006. -
Duties Amendment Bill 2008 ... Landlords and tenants must take exceptional care
Posted on: 16 Jul, 2009
Landlords and tenants will need to take exceptional care in drafting leases since the Upper House of the Parliament of Victoria passed the Duties Amendment Bill 2008 (Vic) on 25 June 2009. -
Ensuring Clarity in Pricing for Consumers
Posted on: 6 Jul, 2009
Advertisements such as ‘$24,990 plus on-road costs’ and ‘$5 airfares plus taxes Melbourne to Sydney’ are now a thing of the past. The introduction of the Trade Practices Amendment (Clarity in Pricing) Act 2008 (Act) amending section 53C of the Trade Practices Act 1974 (TPA) on 25 May this year has had significant consequences on how businesses advertise and provide quotes for consumers. -
Understanding Unfair Dismissals under the Fair Work Act
Posted on: 28 May, 2009
An unfair dismissal can take many forms, including issues such as a disingenuous redundancy, a dismissal inconsistent with the Small Business Fair Dismissal Code (the Code), or a dismissal that is harsh, unjust or unreasonable. The Fair Work Act 2009, effective from 1 July 2009, sets out the parameters of an 'unfair dismissal'. -
Negotiating Your Supply Chain
Posted on: 28 Apr, 2009
For many businesses, an efficient logistics supply chain is a key indicator of its overall profitability and ongoing success. The ability to get the goods to market is paramount! -
Anti-Money Laundering and Counter-terrorism Financing Rules Update
Posted on: 6 Apr, 2009
This article details recent case law and proposed developments to the Anti-Money Laundering and Counter-Terrorism Financing Rules Instrument 2007 (No 1).