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.
Employer's job application form found to be discriminatory
Posted on: 19 Mar, 2015
In the recent case of Willmott v Woolworths Ltd  QCAT 601, Woolworths was found to have engaged in unlawful discrimination by requesting information in its online job application form with respect to the applicant’s gender, date of birth, and proof of their right to work in Australia. The case serves as a timely reminder to employers of the need to be careful when requesting information from job applicants during the recruitment process in order to avoid exposure to claims for breaching anti-discrimination laws.
The High Court of Australia holds that builder did not owe a duty of care to the Owners Corporation
Posted on: 19 Dec, 2014
A recent High Court decision underlines the ability of parties to limit liability through detailed risk allocation provisions, which should provide comfort to those involved in the property development and construction industries.
Corporate & Commercial Newsletter, December 2014
Posted on: 15 Dec, 2014
The December edition of our Corporate & Commercial newsletter
outlines the new China-Australia Free Trade Agreement, the regulation of crowd sourced equity funding and recommendations for a regulatory regime designed to facilitate it, and details some recent decisions.
Reconstruction & Insolvency Newsletter, December 2014
Posted on: 9 Dec, 2014
The December edition of our Reconstruction & Insolvency newsletter provides an overview of the Insolvency Law Reform Bill 2014 and details some recent decisions.
Identification of mortgagors to ensure a valid mortgage
Posted on: 6 Oct, 2014
Victoria has now followed the lead of New South Wales, Queensland, South Australia and Western Australia by introducing strict requirements for mortgagees to take positive steps to verify the identity of a mortgagor as part of the process to eventually introduce electronic conveyancing.
The Victorian Court of Appeal holds that building owners have 10 years to bring a claim in a building dispute from the time the occupancy permit or certificate of final inspection is issued
Posted on: 18 Sep, 2014
The Victorian Court of Appeal has provided long-awaited guidance on the limitation period that applies to claims brought in building cases by holding that all actions, whether founded in tort or contract, must be brought within 10 years from the time the occupancy permit or certificate of final inspection is issued.
Abbott Government moves to cap FEG redundancy pay entitlement
Posted on: 8 Sep, 2014
The Abbott Government has introduced the Fair Entitlements Guarantee Amendment Bill 2014 (Bill) in the House of Representatives. The Bill seeks to amend the Fair Entitlements Guarantee Act 2012 (Cth) (Act), which provides for the Fair Entitlements Guarantee (FEG).
Changes to the ARITA Code in effect from Monday, 18 August 2014
Posted on: 15 Aug, 2014
The Australian Restructuring Insolvency and Turnaround Association (ARITA) has revised its Code of Professional Practice (Code) to reflect findings made by the Federal Court of Appeal in ASIC v Franklin; in the matter of Walton Constructions Pty Ltd  FCAFC 85 (Walton).
Compliance with the new amendments to the Code is mandatory for ARITA members from Monday, 18 August 2014.
Federal Court of Appeal affirms the change to the definition of a public benevolent institution
Posted on: 6 Aug, 2014
A recent Federal Court of Appeal (FCA) decision, Commissioner of Taxation v Hunger Project Australia  FCAFC 69 has dismissed the Commissioner of Taxation’s (Commissioner) appeal against the primary judge’s decision, settling the law concerning the meaning of the words ‘public benevolent institution’ (PBI) and the requirement for a charity to directly provide relief in order to be endorsed by the ATO as a PBI and receive a range of tax benefits.
Case Update: ASIC v Franklin (liquidator), in the matter of Walton Constructions Pty Ltd  FCA 85
Posted on: 23 Jul, 2014
In a recent decision, the Federal Court of Appeal found that administrators were in a position of apprehended or perceived lack of independence or impartiality in accepting an appointment that was referred to them by a regular referrer of work. The decision has serious implications for insolvency practitioners, given that referral relationships are commonplace and a major source of work.
Victorian Court of Appeal holds that VCAT is a 'court' for the purposes of section 8 Commercial Arbitration Act 2011 (Vic)
Posted on: 22 Jul, 2014
On 1 July 2014, the Victorian Court of Appeal handed down a decision in Subway Systems Australia Pty Ltd (Subway Systems) v Ireland  VSCA 142 – which, in contrast to almost all previous authority, found that the Victorian Civil and Administrative Tribunal (VCAT) could be characterised as a court in limited circumstances.
New safety requirements for construction companies
Posted on: 18 Jul, 2014
Construction companies should be aware that amendments to the Implementation Guidelines to the Victorian Code of Practice for the Building and Construction Industry (Guidelines) and the Occupational Health and Safety Regulations 2007 (Vic) (OHS Regulations) commenced on 1 July. Among other things, these changes include controversial new drug testing and site security rules.
Posted on: 1 Jul, 2014
There are instances where a school will be aware that a person associated with the school is protected by, or subject to an intervention order. While a school is not bound to enforce the terms of an intervention order in circumstances where they are not named in the order, knowledge of an intervention order should be considered a 'red flag' to principals and teachers.
Reconstruction & Insolvency Newsletter - June 2014
Posted on: 27 Jun, 2014
This Reconstruction & Insolvency newsletter includes news on changes to the Fair Entitlements Guarantee scheme; a recent court ruling that a running account balance maintained by the ATO was sufficient reason to wind up a company; a recent case regarding the right of administrators to apply to the court for directions; and the benefits arising from the amendments for businesses that lease goods resulting from the Personal Property Securities Amendment (Deregulatory Measures) Bill 2014 (Cth).
2014 amendments to NSW Security of Payment legislation
Posted on: 27 Jun, 2014
Three key changes changes to the Building and Construction Industry Security of Payment Act 1999 (NSW) (Act) apply to contracts entered into from 21 April 2014, and chiefly affect principals, head contractors, and subcontractors (including suppliers) of any contracting level.
Getting ready for 1 July
Posted on: 25 Jun, 2014
1 July is significant for employers this year because it is the date when the latest rise in the superannuation guarantee contribution takes effect; transitional arrangements under modern awards end; a new pay rate for 20-year-old retail workers will start; and changes to Victoria’s workers’ compensation laws commence.
New Building Industry Code 2014
Posted on: 23 Jun, 2014
The federal government is seeking to effectively replace the Building Code 2013, publishing an advanced release of the Building and Construction Industry (Fair and Lawful Building Sites) Code 2014 (Code). The proposed Code will come into effect once the Building and Construction Industry (Improving Productivity) Bill 2014 is passed into law. This is of course subject to it passing the Senate.
Proposed changes to the test to pay dividends - s254T Corporations Act 2001
Posted on: 5 Jun, 2014
The government has released the Corporations Legislation Amendment (Deregulatory and Other Measures) Bill 2014, which proposes to amend section 254T of the Corporations Act. If successful, the amendments would result in a change to the test for when a company can pay dividends from a current net assets test to a pure solvency test.
Annual Wage Review - 3 per cent increase to the national minimum wage
Posted on: 4 Jun, 2014
The Fair Work Commission has today handed down its Annual Wage Review decision and proposals for the national minimum wage order.
The Commission determined that the national minimum wage and minimum wages in modern award wages should adopt a 3 per cent increase (which is a higher percentage increase than the 2.6 per cent increase ordered last year).
Employment & Industrial Relations Newsletter - May 2014
Posted on: 30 May, 2014
The May edition of our Employment & Industrial Relations newsletter summarises the major decisions arising from the Fair Work Commission's new anti-bullying jurisdiction; includes a round up on recent decisions involving dismissals for health conditions, penalty rates in awards and industrial disputes; and provides an update on proposed legislative changes.
End of Year Tax Planning Checklist - June 2014
Posted on: 29 May, 2014
It is essential to undertake tax compliance reviews at the end of the financial year in order to ensure that audit risks are identified and all annual elections have been made. To assist, we have developed an end of year tax planning checklist that includes various issues that could potentially affect your tax liabilities for the income year ending 30 June 2014.
Superannuation update - are you ready for 1 July?
Posted on: 27 May, 2014
The question mark over what is happening with superannuation rates has been answered by the Budget Papers.
What you need to know: ASX Corporate Governance Council, Corporate Governance Principles and Recommendations (3rd Edition)
Posted on: 26 May, 2014
The Corporate Governance Principles and Recommendations (3rd Edition) (P&Rs) was released on 27 March 2014 and comes into effect on an entity’s first full financial year, beginning on or after 1 July 2104. This means that an entity with a 30 June or 31 December balance date will be expected to measure its governance practices against the P&Rs for the financial year ending 30 June 2015 or 31 December 2015.
Commercial Litigation Newsletter - May 2014
Posted on: 23 May, 2014
The May edition of our Corporate & Commercial newsletter provides an overview of the recent privacy law amendments; details Privacy Awareness Week; outlines a recent decision relating to caveats; and includes a success story outlining our involvement in helping a national retailer defend proceedings brought against it for breach of contract.
2014 Federal Budget
Posted on: 14 May, 2014
After more than a decade of comparative economic prosperity, the 2014 Federal Budget reflected a fundamental readjustment in the public’s revenue versus expenditure equation. The pervasive sentiment was that we must all ‘share the pain’ and collectively end the ‘age of entitlement’ to bring the public’s consolidated revenue or ‘public purse’ back to surplus. Significant cuts were made to welfare, which were balanced against a three year ‘budget repair levy’ that will increase the top marginal tax rate by two per cent for those taxpayers earning over $180,000 annually from 1 July 2014.
The Budget was relatively innocuous for private clients and businesses. The government made a commitment to cut the company tax rate by one per cent from 1 July 2015 but otherwise sensibly deferred major decisions regarding tax reform until the root and branch federal review of the tax system has concluded. The re-write of the trust taxation regime has also evidently been postponed, which will at least delay the compliance costs associated with adapting to the changes implemented by the re-write for those small and medium enterprises that operate through a trust structure. The proposed expenditure outlined in the Budget is widely tipped to be a forward-thinking, tactical move to increase pressure on the states to support an increase in goods and services tax as part of broader fundamental tax reforms.
Corporate & Commercial Newsletter - May 2014
Posted on: 2 May, 2014
Our May Corporate & Commercial newsletter covers many topical issues including recent case law and the operation of important legislation.
Public holiday Alert: What you need to know about the upcoming Easter and ANZAC Day holiday period
Posted on: 15 Apr, 2014
The upcoming public holidays may be a welcome break for some, but whether you require your employees to work the public holiday period or not, there are some things you should know.
What does the ATO's Project 'DO IT' mean for you?
Posted on: 14 Apr, 2014
Ahead of its crackdown, the Australian Taxation Office (ATO) is giving Australian taxpayers the chance to voluntarily disclose any undeclared foreign income or assets that have accrued to them. In a highly regulated area, with increasingly severe penalties and growth in international cooperation between taxing authorities, this opportunity should be contemplated by any taxpayers who have unreported foreign income and assets.
Employment & Industrial Relations Newsletter
Posted on: 1 Apr, 2014
Despite it being early into the New Year, the ball has started rolling at a great pace in human resources and the employment sphere generally. In this newsletter, we discuss a number of the very significant amendments to the Fair Work Act 2009 (Cth), Facebook faux-pas, employee spending on company credit cards, employees behaving badly and a round-up of the decisions that the Fair Work Commission (Commission) has been making.
Twenty-year-olds in an adults world
Posted on: 25 Mar, 2014
On Friday 21 March 2014, the Full Bench of the Fair Work Commission (Commission) handed down a decision to vary the General Retail Industry Award 2010 (Award) to pay 20-year-old retail workers the same rate of pay as adult workers, after six months with their employer.
Fair Work Act reforms
Posted on: 24 Mar, 2014
As part of the government’s commitment to ‘improve the Fair Work laws’, it has introduced the Fair Work Amendment Bill 2014 (Cth) (FW Bill) into parliament. The FW Bill proposes to amend some key aspects of the Fair Work Act 2009 (Cth), including altering and/or removing some of the changes that only took effect on 1 January this year.
Commissioner of Taxation appeals against Federal Court decision that liquidators are not required to withhold proceeds to satisfy capital gains tax liability in the absence of an assessment
Posted on: 19 Mar, 2014
We recommend that liquidators seek advice and exercise due care when considering whether to withhold proceeds from the sale of company property, for the purpose of satisfying an anticipated tax liability, pending the outcome of the appeal (and any subsequent appeal to the High Court).
Liquidators not required to withhold proceeds to satisfy capital gains tax liability in the absence of an assessment
Posted on: 11 Mar, 2014
The recent Federal Court decision in Australian Building Systems Pty Ltd ACN 094 238 678 (in liquidation) v Commissioner of Taxation  FCA 116 is a significant step towards resolving a controversy that has existed for some time between the Commissioner of Taxation and insolvency practitioners: to what extent is a liquidator required to withhold monies from the proceeds of the sale of company property for the purpose of satisfying an anticipated capital gains tax liability?
Chain of responsibility - national road transport laws for heavy vehicles
Posted on: 7 Mar, 2014
If you consign, pack, load or receive goods as part of your business, you could be held liable for breaches of road transport laws – even if you had no direct role in driving or operating a heavy vehicle – according to the newly commenced Heavy Vehicle National Law.
Estate Litigation Newsletter, February 2014
Posted on: 28 Feb, 2014
Welcome to our February Estate Litigation newsletter. This quarter we have included news on a recent decision of the Supreme Court of Queensland (Re Yu  QSC 322), which held that a will typed into an iPhone was legally valid; formal versus informal wills, in light of Fischer v Howe  NSWSC 462; ‘protecting children from themselves’: special provisions that may be included in wills to safeguard your estate from beneficiaries and outside influences; and the circumstances in which you can seek to extend the time for making a claim on a will.
Late payment fees unlawful - Paciocco v ANZ  FCA 35
Posted on: 26 Feb, 2014
Earlier this month, Justice Gordon of the Federal Court of Australia released her judgment in the matter of Paciocco v Australia and New Zealand Banking Group Ltd  FCA 35, finding that fees charged for late payment of credit card accounts were penalties and therefore unenforceable. However, the decision was not the overwhelming consumer victory that it may seem to be, because Gordon J held that other fees imposed by ANZ, being honour fees, dishonour fees, non-payment fees and overlimit fees, were not penalties or otherwise unlawful.
Case Note: Re Walton Construction Pty Ltd (in liq); ASIC v Franklin  FCA 68
Posted on: 14 Feb, 2014
A recent decision in the Federal Court has confirmed there is no inherent apprehension of impartiality or lack of independence where an insolvency practitioner takes an appointment on referral from another party with whom the insolvency practitioner has a pre-existing commercial relationship.
The court found that the test for determining whether a hypothetical fair minded observer would apprehend a lack of independence and impartiality was an objective test viewed through the legal fiction of the hypothetical fair minded observer.
New consultation requirement
Posted on: 14 Jan, 2014
Amendments to the Fair Work Act 2009 (Cth) last year included the requirement that all modern awards contain a provision requiring employers to consult employees about any changes to their regular rosters or ordinary hours of work. The Fair Work Commission has issued a decision varying all modern awards as described in this Alert with effect from 1 January 2014.
Commercial Property Newsletter, December 2013
Posted on: 18 Dec, 2013
This quarter we have included news on:
• Willmott Growers Group Inc v Willmott Forests Limited (Receivers and Managers Appointed)(In Liquidation)  HCA 51 and the power to disclaim onerous property
• off the plan sales and the issue of when an amendment to a plan of subdivision ‘materially affects’ a lot, in light of the decision in Lockwood v PSP Investments Pty Ltd  VSC 10
• the GST implications of MBI Properties Pty Ltd v Commissioner of Taxation  FCAFC 112
• growth areas in the property market, including commentary on market developments over the last 12 months
• a property breakfast briefing recently held by Cornwall Stodart, for which we had the great privilege of hosting Rob Adams (Director City Design at the City of Melbourne and member of the Urbanization Council of the World Economic Forum) as the special guest speaker.
We'll be the judge - High Court to decide on mutual trust and confidence duty
Posted on: 17 Dec, 2013
The High Court has granted leave for the Commonwealth Bank of Australia to appeal the Full Court of the Federal Court’s watershed decision that a term of mutual trust and confidence is implied into all Australian employment contracts.
Willmott Forests and the power to disclaim onerous property
Posted on: 16 Dec, 2013
In a decision handed down on 4 December 2013, the High Court has clarified the scope of a liquidator’s statutory power of disclaimer. The decision emphasises risks for tenants and for financiers taking security over tenants’ interests in leasehold property, and may have wider implications for parties relying on property rights against a company in liquidation.
Reconstruction & Insolvency Newsletter, December 2013
Posted on: 10 Dec, 2013
In the December edition of our Reconstruction & Insolvency newsletter we have included news on voidable transactions and distressed restructures, in light of the recent decision of Ashington Bayswater Pty Limited (in liq); an update on accountants’ occupational liability schemes, after the expiry on 2 September 2013 of the limitation of liability scheme that covered Victorian chartered accountants; personal costs orders against liquidators in statutory demand applications, following the recent decision of Bluecove Pty Ltd v Gowinta Farms Pty Ltd; and a liquidator’s entitlement to remuneration out of insurance proceeds, in light of the recent decision of Morgan, Re Brighton Hall Securities Pty Ltd (in liq).
Privacy matters: Count down to the launch of the new Australian Privacy Principles
Posted on: 6 Dec, 2013
Australian organisations are urged to prepare for privacy reforms under the Privacy Act 1988 (Cth), which are set to take effect on 14 March 2014. In this Alert, we outline the key changes to the privacy law framework and consider a number of variations to the privacy obligations that are likely to be pressure points for businesses bound by the proposed Australian Privacy Principles.
Corporate & Commercial Newsletter, December 2013
Posted on: 3 Dec, 2013
This quarter we include news on the Personal Property Securities Act 2009 (Cth) and an update on registering your security interests; Crossmark Asia v Retail Adventures and the effect of a ‘retention of title’ clause on unperfected goods; incorporation of an exclusion clause by prior dealings and the decision of La Rosa v Nudrill Pty Ltd ; Resource Capital Fund III LP v FCT, which addressed various complex international tax issues, as well as approaches to valuing mining tenements and related assets; and the government’s announcement that it will remove a licensing exemption that currently allows accountants to provide financial advice on self-managed superannuation funds without an Australian Financial Services Licence.
Can a payment claim be served several times in one reference period?
Posted on: 22 Nov, 2013
The Building and Construction Industry Security of Payment Act 2002 (Vic) (Act) provides that a claimant can only make one payment claim in each reference period. Until recently, the effect of this provision had not been considered by the courts. In Jotham Property Holdings Pty Ltd v Cooperative Builders Pty Ltd & Ors  VSC 552, Justice Vickery handed down his judgment on the question of whether a payment claim can be served several times in one reference period. The case considered the application of sections 14(8) and 14(9) of the Act.
Employment & Industrial Relations Newsletter
Posted on: 15 Nov, 2013
In this newsletter we discuss the recent decision of the High Court in the controversial ‘motel sex case’. We also review two interesting unfair dismissal cases. The first involves the unfair dismissal of a casual employee. The second, in the context of considering the appropriateness of reinstatement as a remedy for unfair dismissal, provides further insight into the types of behaviour that might constitute a breach of the mutual trust and confidence obligation.
We have also summarised various key decisions ranging from fining individual workers for illegal strike-action, to overseas redeployment obligations in a redundancy, to directors’ liability for underpayments and other breaches.
Commercial Litigation Newsletter, October 2013
Posted on: 22 Oct, 2013
This quarter we have included news on:
• Cityrose Trading Pty Ltd v Booth and the importance of drafting contracts carefully
• dispute resolution clauses and when these are enforceable
• ACCC v Lux and unconscionable conduct under the Australian Consumer Law
• the issues surrounding advertising mortgagee sales.
Employment & Industrial Relations Newsletter, September 2013
Posted on: 6 Sep, 2013
In this newsletter we consider a watershed decision handed down by the Full Court of the Federal Court on implied contractual terms. We also look at a Federal Circuit Court judgment where a company and its sole director received record fines for sham contracting.
In our cases roundup section we summarise, among other cases, a significant decision on the general protections provisions and on the importance of consistent treatment in dismissals, and following on from our last HR Forum, a very topical post-employment restraint case.
Are superannuation contributions on behalf of directors deductible?
Posted on: 30 Aug, 2013
The recent Full Federal Court decision in Kelly v FCT  FCAFC 88 has shed light on the circumstances in which a superannuation contribution made on behalf of a director of the trustee of a family trust will be deductible. It confirms that taxpayers need to take appropriate steps to ensure contributions to family trusts are deductible.
Financial advisers to prepare for registration with the Tax Practitioners Board
Posted on: 29 Aug, 2013
From 1 July 2014, financial advisers should be registered with the Tax Practitioners Board (TPB) in order to provide tax advice in connection with offering financial product advice. Financial advisers who are registered with the TPB will be referred to as ‘tax (financial) advisers’.
Commercial Litigation Newsletter, August 2013
Posted on: 22 Aug, 2013
This quarter we have included news on the importance of registration under the Personal Property Securities Act 2009 (PPSA) and the decision in Maiden Civil (P&E) Pty Ltd & Ors v Queensland Excavation Services Pty Ltd  NSWSC 852; security for costs and the decision in Madgwick v Kelly  FCAFC 61; the importance of considering tax in commercial disputes; the role of an expert in the context of Smith v Gould  VSC 461; retail leases and why it is important that landlords and tenants are aware of whether they have entered into a retail lease.
Corporate and Commercial Newsletter, August 2013
Posted on: 16 Aug, 2013
This quarter the Corporate & Commercial Newsletter considers the new ASIC regulatory guides for takeovers; personal liability for corporate fault; the importance of registration under the Personal Property Securities Act 2009 (PPSA) and the decision in Maiden Civil (P&E) Pty Ltd & Ors v Queensland Excavation Services Pty Ltd; the ATO’s increased scrutiny of GST recovery in mergers and acquisitions; unfair contract terms and ACCC v ByteCard Pty Ltd and the National Disability Insurance Scheme (NDIS).
Accountants must obtain limited AFSL to provide advice on SMSFs
Posted on: 1 Aug, 2013
The government has announced it will remove a licensing exemption that currently allows accountants to provide financial advice regarding self-managed superannuation funds without an Australian Financial Services Licence. A new ‘limited financial services licence’ that enables licensees to advise on, or deal in, SMSFs has been introduced to replace the exemption.
Employment & Industrial Relations Newsletter, July 2013
Posted on: 26 Jul, 2013
This month’s E&IR newsletter considers the case of a bullied retail worker awarded almost $600,000 in compensation; a case determined in the South Australian Magistrates Court where the fines imposed for a workplace incident were covered by an insurance policy; and features our usual cases roundup and 'watch this space' sections.
Changes to the National Consumer Credit Protection Act 2009 (Cth)
Posted on: 26 Jul, 2013
The National Consumer Credit Protection Act 2009 (Cth) came into force just over three years ago. The Act is designed to protect consumers who take out loans by imposing a range of obligations on providers of credit. Since 1 March 2013, a new series of amendments to the Act has been implemented under the Consumer Credit and Corporations Legislation Amendment (Enhancements) Act 2012 (Cth).
Test case clarifies PBI endorsement criteria
Posted on: 24 Jul, 2013
A recent Federal Court decision has displaced the previously accepted view that a charity’s activities must directly relieve poverty, sickness, suffering or disability for the entity to be entitled to endorsement as a ‘Public Benevolent Institution’.
Government announces changes to FBT on cars
Posted on: 17 Jul, 2013
On 16 July 2013, the federal government announced that it will remove the statutory formula method for calculating both salary-sacrificed and employer-provided car fringe benefits from 1 April 2014.
Draft Road Safety Remuneration Order released
Posted on: 17 Jul, 2013
The Road Safety Remuneration Tribunal has issued its first draft order, which if made will affect the retail, livestock, bulk grain and long-distance (both interstate and intrastate) road transport sectors. Importantly, the draft order also imposes positive obligations on supply chain participants, such as consignees of goods.
The ATO increases its scrutiny of GST recovery in mergers and acquisitions
Posted on: 11 Jul, 2013
The line between tax avoidance and tax planning is increasingly prominent as the ATO steps up its tax collection and anti-avoidance activities in an effort to curtail revenue ‘leakage’. In this Alert, we consider the legitimacy of certain transaction structures that are designed to maximise GST recovery in mergers and acquisitions involving input taxed financial supplies.
Stock take of significant outstanding tax measures
Posted on: 5 Jul, 2013
During the week a large number of tax and superannuation measures passed parliament, however many previously announced measures have not yet been enacted. This article provides a stock take of significant enacted and un-enacted tax measures.
Estate Litigation Newsletter, July 2013
Posted on: 4 Jul, 2013
Our first Estate Litigation newsletter includes news on contesting wills; a case note on a testator family maintenance claim; the role of an executor; and what happens if you die without leaving a will.
Employment & Industrial Relations Newsletter, June 2013
Posted on: 28 Jun, 2013
In this month's E&IR newsletter we have considered two key decisions in employment law relating to general protections disputes and reasonable management action. In addition, we have prepared an article outlining some of the major changes that take effect on 1 July 2013. We have also summarised a number of interesting decisions in our ‘cases roundup’ from unfair dismissals to sweetheart deals with unions.
Due date for new reporting in the building and construction industry looms large
Posted on: 24 Jun, 2013
The due date for new reporting rules applicable to the building and construction industry is fast approaching. Taxpayers that are subject to these rules must report payments they have made to contractors during the 2012-13 year to the Australian Taxation Office (ATO) by 21 July 2013.
Case Summary: Owners Corporation PS326519P v May - air conditioning as an 'essential service'
Posted on: 21 Jun, 2013
This case summary outlines the first decision that has found for the proposition that air conditioning can be classified as something necessary for the reasonable use and enjoyment of premises.
'High income threshold' for unfair dismissals increased
Posted on: 18 Jun, 2013
From 1 July 2013, the ‘high income threshold’ will rise from $123,300 to $129,300. The high income threshold is critical for a number of reasons.
Case Note - Resource Capital Fund III LP v FCT
Posted on: 13 Jun, 2013
A recent decision of the Federal Court has addressed a number of complex international tax issues, as well as approaches to valuing mining tenements and related assets. Of particular note was the fact the court identified ‘mining information’ as a separate asset with a value distinct from that of the mining tenements to which it related.
Loss carry back rules one step closer to enactment
Posted on: 11 Jun, 2013
The highly anticipated ‘loss carry back rules’ are one step closer to becoming law after the House of Representatives passed the Tax and Superannuation Laws Amendment (2013 Measures No 1) Bill on 29 May 2013.
Annual Wage Review
Posted on: 3 Jun, 2013
The Fair Work Commission has today handed down its Annual Wage Review decision and proposals for the national minimum wage order. The Commission considered a range of factors in determining that modern award wages should adopt a 2.6 per cent increase.
Commercial Litigation Newsletter, May 2013
Posted on: 30 May, 2013
The May 2013 Commercial Litigation newsletter includes news on the High Court’s decision regarding proportionate liability; the first judicial consideration of the bid-rigging and cartel provisions of Australia’s competition and consumer legislation; the National Disability Insurance Scheme; security for costs; and subpoenas.
Employment & Industrial Relations Newsletter, May 2013
Posted on: 22 May, 2013
In the May 2013 E&IR newsletter we have considered a case of 'genuine redundancy'; a case that considers what alternative employment an employer must provide in order to pay a reduced redundancy payment to an employee; highlights of a number of ‘access to justice’ initiatives launched by the Fair Work Commission; and a snapshot of interesting recent cases in the E&IR area.
Australian Federal Budget 2013/14
Posted on: 15 May, 2013
On 14 May, Treasurer Wayne Swan handed down his sixth Budget, which was characterised by a paring back of expenditure for essential services, and was delivered against a backdrop of significant erosion in Australia’s tax base and unprecedented write downs in national revenue.
Coalition releases long awaited workplace relations policy
Posted on: 9 May, 2013
Today, the Coalition released its long awaited workplace relations policy in the lead up to the September election.
Test case fails to establish director's personal liability for redundancy entitlements
Posted on: 8 May, 2013
Despite finding that the director of failed manufacturing company, Forgecast Australia Pty Ltd, had hoped to ‘cast onto GEERS the burden of the redundancy entitlements’, the Federal Court has dismissed a union application that sought to make the company director personally liable for the redundancy entitlements.
Charities Bill 2013 to modernise not-for-profit landscape
Posted on: 7 May, 2013
The Charities Bill 2013 is a significant piece of law reform that will clarify, summarise and modernise a number of concepts that are fundamental to the charities and not-for-profit regime.
Employment & Industrial Relations Newsletter, April 2013
Posted on: 30 Apr, 2013
The April 2013 edition of our E&IR newsletter includes articles relating to the proposed amendments under the new Fair Work Amendment Bill 2013, the proposed consolidation of federal anti-discrimination legislation and the proposed changes to the skilled migration program (457 visas).
Landmark decision on redundancy pay for construction casuals
Posted on: 29 Apr, 2013
Construction employers will be heaving a sigh of relief following last week’s decision by the Full Bench of the Fair Work Commission, overturning an earlier ruling that entitled construction casuals to redundancy pay.
Retail Leases Regulations 2013 (Vic)
Posted on: 23 Apr, 2013
The new Retail Leases Regulations 2013 (Vic) came into force on 22 April 2013. The main change effected by the legislation is that the current Disclosure Statement is now replaced by four separate Disclosure Statements.
Award flexibility decision
Posted on: 22 Apr, 2013
The Fair Work Commission has handed down its decision to:
· vary the terms of the model flexibility term in modern awards so that an individual flexibility arrangement (IFA) cannot be entered into before the individual employee has commenced employment; and
· adopt the Fair Work Act Review Panel’s recommendations to extend the notice period for terminating IFAs.
The decision may have significant implications for employers.
Superannuation changes set to affect high income earners
Posted on: 5 Apr, 2013
On 5 April 2013, Federal Treasurer Wayne Swan ended weeks of speculation by announcing a number of important amendments to superannuation laws, which will affect high income earners.
The National Disability Insurance Scheme Act 2013 – An Overview
Posted on: 25 Mar, 2013
The National Disability Insurance Scheme Act 2013 (Cth) (Act) was passed through federal parliament with several amendments on 21 March 2013.
The purpose of the Act is to give effect to Australia’s obligations as a party to the United Nations Convention on the Rights of Persons with Disabilities and to support the independence and social and economic participation of Australians with a disability.
Employment & Industrial Relations Newsletter, March 2013
Posted on: 8 Mar, 2013
In this newsletter we discuss the key legal issues of unpaid work arrangements, a warning from the Federal Court on consultation with workers about workers’ compensation decisions, proposed new bullying laws, a new decision on performance management and adverse action, and some new anti-discrimination laws. We have also included a new section giving you a snapshot of the previous month in E&IR.
Commercial Litigation Newsletter, March 2013
Posted on: 5 Mar, 2013
The March 2013 Commercial Litigation newsletter includes news on: Wayne Edward John Streat v Fantastic Holdings Limited  NSWSC 1097; legal professional privilege for in-house counsel; estate litigation; when to notify your professional indemnity insurer of a potential claim; and our PPSA team.
May 2011 Budget Changes Affecting Australia's Not-for-profit Sector
Posted on: 15 Feb, 2013
This paper examines the May 2011 Budget changes affecting Australia’s not-for-profit sector. It considers the proposed reforms and their potential impact, and reviews issues including the tightening of tax concessions and the statutory definition of ‘charity’. It was prepared as an information sheet for our clients and was recently used by Michael Kohn, Partner and Head of Revenue Law, in the development of an educational video.
Corporate & Commercial Newsletter, February 2013
Posted on: 11 Feb, 2013
Welcome to our February issue of the Corporate & Commercial newsletter.
This month we have included news on:
• Contracting out of the ACL: Lane Cove Council v Davies & Associates
• Reverse takeover does not necessarily result in change of control
• ASX finalises enhanced disclosure rules for mining and oil and gas companies
• Andrews v Australia and New Zealand Banking Group Limited  HCA 30
Civil Procedure Amendment Bill 2012 - Certification changes for insurers
Posted on: 30 Jan, 2013
The Civil Procedure Amendment Bill 2012 amends the Civil Procedure Act 2010 to create greater flexibility in the overarching obligations requirements for insurers. The changes aim to promote efficient, timely and cost-effective resolution of the real issues in dispute in a civil proceeding.
Employment & Industrial Relations December 2012 Newsletter
Posted on: 20 Dec, 2012
The December 2012 edition of the Employment & Industrial Relations newsletter includes some recent developments in employment law, including case summaries on unreasonable requests to work overtime; adverse action; executive employment agreements; and sham contracting penalties.
RIT December 2012 Newsletter
Posted on: 19 Dec, 2012
The December 2012 edition of RIT newsletter includes news on voting power: conflicts of interest and COIs; liquidators’ fees; NAB class action update; Commissioner of Taxation v Park; and the information gathering powers of ASIC and the ATO.
Case Note: Intoll Management Pty Ltd v Commissioner of Taxation  FCAFC 179
Posted on: 19 Dec, 2012
A case considering whether certain dividends were assessable income.
Significant Investor Visa - opportunities for migrants and managed funds
Posted on: 14 Dec, 2012
The Australian government’s new Significant Investor Visa commenced on 24 November 2012 with the enactment of the Migration Amendments Regulation 2012 (No 7). The visa is targeted at high net worth foreign investors who wish to invest in and migrate to Australia.
Transfer pricing tax amendments
Posted on: 14 Dec, 2012
In response to the decisions by the Administrative Appeals Tribunal in Roche Products Ltd Pty v FCT and the Federal Court in FCT v SNF (Australia) Pty Ltd, the federal government announced in November 2011 that it would reform the transfer pricing rules in order to bring Australia into line with international practice. Those reforms are underway.
Self managed superannuation funds: arrangements to acquire property that contravene superannuation law
Posted on: 5 Dec, 2012
The ATO has become aware that a number of arrangements entered into by self managed superannuation funds (SMSFs) to acquire property may not comply with superannuation laws. SMSF trustees and advisors should exercise caution, ensuring any arrangements to invest in property are correctly implemented according to the law.
Important judgment on off-the-plan contractual provisions
Posted on: 4 Dec, 2012
The Supreme Court of Victoria recently added to the interpretation of section 9AE(2) of the Sale of Land Act 1962 (SLA) when it handed down judgment in Allen v Harofam Pty Ltd. Section 9AE of the SLA deals with a purchaser’s right of rescission in off-the-plan sales contracts. Vendors need to be aware of the implications of this decision.
Fair Work Amendment Bill 2012 passed by the Senate
Posted on: 29 Nov, 2012
The Fair Work Amendment Bill 2012 has been passed by the Senate without amendment. It introduces the first stage of amendments to the Fair Work Act 2009 recently announced by Mr Shorten in response to the Fair Work Act Review Panel’s report.
PPSR update released
Posted on: 29 Nov, 2012
On 22 November 2012, the Insolvency and Trustee Service issued a PPS Register update. Here we summarise the key content of this update and its likely impact on businesses.
Landord's notice to Small Business Commissioner of retail lease no longer required
Posted on: 28 Nov, 2012
The Retail Leases Amendment Act 2012 has been passed and was assented to on 20 November 2012, to the effect that landlords are no longer required to notify the Office of the Victorian Small Business Commissioner of new or renewed retail leases.
Tax Law Amendment (2013 Measures No 1) Bill 2013: General avoidance rules
Posted on: 23 Nov, 2012
An exposure draft and explanatory material have been released on the proposed amendments to Part IVA of the Income Tax Assessment Act 1936. The amendments apply to schemes entered into or commenced to be carried out on or after 16 November 2012, rather than the original date of the announcement (1 March 2012). Legislation is expected to be introduced into parliament in the autumn 2013 sittings.
Case note: Stringer v Gilandos Pty Ltd  VSC 361
Posted on: 22 Nov, 2012
This case considered whether leases of serviced apartments to members of the public are considered retail premises leases within the meaning of the Retail Tenancies Act 1986, the Retail Tenancies Reform Act 1998 and the Retail Leases Act 2003.
Case note: Murphy v Mitanovski  SASC 158
Posted on: 21 Nov, 2012
This case considered whether a vendor has obligations under a terminated contract for sale of land to mitigate its loss for termination of the contract.
Corporate & Commercial November 2012 Newsletter
Posted on: 19 Nov, 2012
Welcome to our November Corporate & Commercial newsletter. This month we have included news on:
• the High Court’s decision in Forrest v ASIC
• Walton Construction v Plumber By Trade
• the new incorporated associations law in Victoria
• revisions to Listing Rules 3.1 - 3.1B and continuous
• the Personal Liability for Corporate Fault Reform
Bill 2012 (Cth).
We hope you find the newsletter informative and useful.
Employment & Industrial Relations November 2012 Newsletter
Posted on: 7 Nov, 2012
Welcome to our November issue of the E&IR newsletter.
In this edition we have included news on changes to the director penalty regime; recent case law on the importance of the employee/contractor distinction; and the current enterprise bargaining landscape.
Foster v Hall  NSWCA 122 - The obligation to use 'best reasonable endeavours' to register a plan of subdivision
Posted on: 7 Nov, 2012
Foster v Hall  NSWCA 122 is an example of the liberal judicial interpretation of contractual terms that require parties to the sale of real property to use their ‘best endeavours’ in connection with the registration of a plan of subdivision. The decision offers guidance on the meaning of the term ‘best reasonable endeavours’, which is an amalgam of clauses that require parties to use their ‘best endeavours’ and those that require parties to exercise ‘reasonable endeavours’.
Fair Work Amendment Bill 2012 passed by the House of Representatives
Posted on: 1 Nov, 2012
Workplace Relations Minister Bill Shorten’s Fair Work Amendment Bill 2012 (Bill) has been passed by the House of Representatives.The Bill introduces the first stage of amendments to the Fair Work Act 2009 announced by Mr Shorten on 15 October 2012 in response to the Fair Work Act Review Panel’s report. In addition to implementing a number of recommendations of the Review Panel, the Bill also implements the government’s response to the Productivity Commission Inquiry into default superannuation funds in modern awards.
Hurricane Sandy - a timely warning
Posted on: 1 Nov, 2012
Hurricane Sandy, which has devastated parts of the Caribbean and east coast of the United States, has provided a timely reminder of the destruction that Mother Nature can cause. Australia’s 2012-2013 cyclone season starts on 1 November 2012. With the effects of Sandy still unfolding, now is the time for companies to consider their disaster recovery and business continuity operations.
Wingecarribee Shire Council v Lehman Brothers Australia Ltd (in Liq)  FCA 1028
Posted on: 26 Oct, 2012
A case note on this decision and a discussion of the impacts of the GFC. This decision will not be the last - do you need to consider how it will impact you?
Australia's second PPSA judgment - Extension of time for registration
Posted on: 25 Oct, 2012
The NSW Supreme Court recently showed some leniency in the case of Barclays Bank plc  NSWSC 1095 in allowing an application for the extension of time for registration of a security interest under the Personal Property Securities Act 2009 (PPSA). The court allowed an extension of the time under section 588FM of the Corporations Act 2001 on the basis that it was satisfied that the secured party’s failure to register the security interest within time was ‘accidental or inadvertent’.
The ASX revises Listing Rules 3.1 - 3.1B and continuous disclosure guidelines
Posted on: 24 Oct, 2012
On 17 October 2012, the ASX released a ‘Review of ASX Listing Rules Guidance Note 8’ for public comment (Review). The Review considers the practical impact of the High Court decisions involving James Hardie Industries and Fortescue Metals Group on corporate disclosure and provides a much anticipated revision of Guidance Note 8. Guidance Note 8 indicates how the ASX and ASIC will interpret and apply ASX Listing Rules 3.1 – 3.1B, which deal with the continuous disclosure of market sensitive information
Why tailor an Enterprise Agreement when I can get an Industry Agreement for $500?
Posted on: 24 Oct, 2012
An Enterprise Agreement is a legally binding document with serious consequences for an employer who fails to comply with it (whether deliberately or not). Employers must be very cautious about just accepting terms that a union or group of employees wants in an agreement. Having a clause that does not work for your organisation will not only cost your business money during the life of the agreement, but could also continue to haunt you for some time to come. Clauses in your Enterprise Agreement can create an industrial precedent that can be difficult and in some cases (depending on your industry) impossible to remove.
A case note on the Forrest v ASIC decision and the High Court's view on when the term 'binding contract' may be misleading or deceptive
Posted on: 18 Oct, 2012
A case note on the Forrest v ASIC decision and the High Court's view on when the term ‘binding contract’ may be misleading or deceptive.
Fair Work Act to be amended
Posted on: 16 Oct, 2012
Workplace Relations Minister, Bill Shorten has announced that the federal government will implement a number of changes to the Fair Work Act 2009 (Cth).
Commercial Litigation October 2012 Newsletter
Posted on: 9 Oct, 2012
Welcome to our October issue of the Commercial Litigation newsletter. This quarter we have included news on: expert evidence and when it can be challenged; business' responsibility for social media content; intellectual property - plain packaging litigation; litigation funding update; and a case note on a decision concerning a prospective lessee withdrawing from negotiations relating to an agreement to lease.
Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd (No 2)  NSWSC 517
Posted on: 5 Oct, 2012
In this decision the Supreme Court of New South Wales considered whether a poorly drafted notice of termination will be enforceable. The court held that the notice to vacate was not legally enforceable because it did not unequivocally communicate to the tenant that the lessor was treating the lease as at an end.
Awad v Twin Creeks Properties Pty Ltd  NSWCA 200
Posted on: 3 Oct, 2012
In this decision the court considered whether developers may remove the burden of proving they had reasonable grounds for making a future representation by producing evidence that tends to establish they did have reasonable grounds. The court decided that developers can show they had reasonable grounds for making a future representation by adducing evidence that tends to establish they did have reasonable grounds. Oral examination of an experienced representative of the developer (such as a director) may be sufficient to reverse the onus.
The Commissioner of Taxation's right to garnish proceeds from the sale of secured property under section 260-5 of the Taxation Administration Act 1953 (Cth)
Posted on: 14 Sep, 2012
A recent Federal Court decision affirms the imperative for receivers and trustees of bankrupt estates to proceed with caution when voluntarily releasing security for the purposes of facilitating the sale of secured assets by the mortgagor to a third party.
Joseph Street Pty Ltd v Tan  VSCA 113 - 'Best endeavours' and 'off-the-plan' sale contracts
Posted on: 12 Sep, 2012
In Joseph Street Pty Ltd v Tan  VSCA 113, the Victorian Court of Appeal determined that a developer was in breach of its obligations to use its ‘best endeavours’ to register a plan of subdivision, saying that a developer must do more than just take reasonable steps to attempt to register the plan.
Two recent Court of Appeal decisions support liquidators
Posted on: 11 Sep, 2012
Commissioner of Taxation v Kassem and Secatore  FCAFC 124
The Full Federal Court of Australia has recently delivered a seminal decision with respect to unfair preference claims, dismissing an appeal by the Commissioner of Taxation, finding (amongst other things) that despite payments to the Commissioner being made by a related party on behalf of the debtor company, the company and the Commissioner were ‘parties to the transactions’ for the purposes of section 588FA of the Corporations Act 2001 (Cth).
Re Willmott Forests Ltd (Receivers and Managers appointed) (in liq)  VSCA 202
This Victorian Court of Appeal decision extends the scope of liquidators’ statutory power of disclaimer by allowing liquidators of landlord companies to disclaim leasehold interests in land in order to effect an unencumbered sale of the asset.
Barclay worse than its bite: High Court overturns contentious adverse action case
Posted on: 7 Sep, 2012
The High Court has overturned a decision of the Full Federal Court of Australia that inflated the application of the adverse action provisions of the Fair Work Act 2009 and exposed employers to greater liability as a result.
Residential Tenancies and Other Consumer Acts Amendment Bill 2012
Posted on: 5 Sep, 2012
An article covering some amendments proposed by the recent Residential Tenancies and Other Consumer Acts Amendment Bill 2012.
PPSR update issued by ITSA
Posted on: 30 Aug, 2012
Last Monday the Insolvency Trustee Service of Australia (ITSA) issued an update regarding the Personal Property Securities Register (PPSR).
Australian importing and exporting - does the PPSA apply?
Posted on: 28 Aug, 2012
The PPSA provisions regarding importing and exporting of goods are complex. This article provides an outline of some key PPSA matters to consider in international trade.
Corporate & Commercial August 2012 Newsletter
Posted on: 24 Aug, 2012
Welcome to our August issue of the Corporate & Commercial team newsletter. This month we have included news on: the new phoenix company legislation, the amended director penalty regime introduced by the Tax Law Amendment (2012 Measures No 2) Act 2012 (Cth), changes to ASX Listing Rules, the PPSA and its implications for importers and exporters, and Cornwall Stodart's role in the merger and acquisition of a pre-eminent publishing network.
Australian PPSA decision: court confirms administrators’ conduct
Posted on: 24 Aug, 2012
We have recently had the opportunity to work with administrators in creating a strategy for the sale of plant and equipment at auction having regard to the new Personal Property Securities Act 2009. This strategy was subsequently ratified by the court.
Reconstruction & Insolvency August 2012 Newsletter
Posted on: 22 Aug, 2012
Welcome to the August issue of our Reconstruction & Insolvency newsletter. This quarter we have included news on: Westpac Banking Corporation v The Bell Group Ltd (in liq)  WASCA 157; Williams as Liquidator of Willahra Pty Ltd (in liquidation) v Kim Management Pty Ltd  QSC 143; Carson, in the matter of Hastie Group Limited (No 3)  FCA 719, in which the Federal Court of Australia handed down its first PPSA-related judgment; post-liquidation debts and the application of set-off provisions; and establishing insolvency of a company with limited financial records.
A venture into dangerous territory
Posted on: 21 Aug, 2012
An overview of the responsibilities of schools and teachers in off-campus care for students with serious medical conditions such as anaphylaxis.
Asset based lending: a thing of the past?
Posted on: 16 Aug, 2012
A growing judicial trend has arisen that frowns on asset based lending, tending towards a policy requirement that lenders take appropriate steps to ensure their loans will be serviceable.
Notices of an event - requirements
Posted on: 16 Aug, 2012
While insolvency practitioners must continue to comply with relevant statutory requirements about how notice of an event must be given, dispensation from the requirement for publication in print media under the Court Rules can be sought from the Court.
Posted on: 8 Aug, 2012
In May 2008 shareholders commenced a class action against the listed entities of the Centro Group.
Amendment to tax legislation may affect GST refunds
Posted on: 8 Aug, 2012
An article on the government's response to Multiflex Pty Ltd v The Commissioner of Taxation.
Posted on: 18 Jul, 2012
The court’s tightening of the law regarding the enforceability of guarantees may render this type of security ineffective in certain circumstances.
High-income threshold for unfair dismissals increased from 1 July 2012
Posted on: 29 Jun, 2012
The high-income threshold for determining eligibility to make unfair dismissal claims will rise from $118,100 to $123,300 from 1 July this year.
Independent Hospital Pricing Authority
Posted on: 29 Jun, 2012
From 1 July 2012, the Independent Hospital Pricing Authority will control a national approach to activity-based funding of public hospitals and promises better value for public money spent on hospital services and a more transparent system that takes efficiency into account.
Purchasing your first home and update on the available grants and duty reductions
Posted on: 8 Jun, 2012
The end of June 2012 will see the cessation of two government grants previously payable to eligible first home owners.
Corporations Amendment (Phoenixing and Other Measures) Act 2012
Posted on: 6 Jun, 2012
The federal government announced measures as part of its 2011 Budget to counter and deter what it deemed ‘fraudulent phoenix activities’.
Employment & Industrial Relations June 2012 Newsletter
Posted on: 5 Jun, 2012
Our June E&IR Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'Road Safety Remuneration Act 2012 (Cth)', 'Cooper v Western Area Local Health Network  NSWADT 39 (9 March 2012) – the importance of workplace sexual harassment policies', and 'Birdanco Nominees Pty Ltd v Money  VSCA 64 (4 April 2012): three-year restraint clause – enforceable? You better believe it'
Minimum wage increase
Posted on: 4 Jun, 2012
Fair Work Australia has announced its Annual Wage Review decision for the 2012/2013 income year.
Commercial Litigation May 2012 Newsletter
Posted on: 29 May, 2012
Our May Commercial Litigation newsletter contains some topical articles on important legal developments.
This quarter we have included news on: bank guarantees and when they can be called upon; the risks associated with using rented motor vehicles; a recent decision of the Victorian Supreme Court, Knowles v Victorian Mortgage Investments, which considers aspects of the National Consumer Credit Code; a recent case about offers to settle; and various recent decisions in the property sphere.
A practical guide to the national business name scheme
Posted on: 28 May, 2012
From 28 May 2012, ASIC will take over the registration of business names from the states and territories.
Business names - a new national scheme
Posted on: 28 May, 2012
A new national Business Names Register will be operational from 28 May 2012, replacing existing state and territory services.
Research and Development Tax Incentive
Posted on: 25 May, 2012
The new Research and Development Tax Incentive has a potentially broad application to a range of activities engaged in by local corporations (or foreign corporations residing in Australia) and is potentially available to businesses of all sizes.
Corporate & Commercial May 2012 Newsletter
Posted on: 24 May, 2012
Welcome to our May Corporate & Commercial newsletter. This newsletter will be distributed quarterly and will contain topical articles on legal issues and developments, as well as news of our team.
This month we have included news on: directors’ duties and the James Hardie and Centro decisions; teething problems arising from the new PPS Register; implications of the High Court’s decision in Roadshow Films Pty Ltd v iiNet Limited; proposed amendments to tax legislation that seek to impose personal liability on directors; andCornwall Stodart’s role in saving the ANZAC biscuit.
Intellectual Property May 2012 Newsletter
Posted on: 22 May, 2012
Welcome to our first Intellectual Property newsletter. This newsletter will be distributed regularly and will provide updates, information and our opinions on recent developments in the world of intellectual property.
This month we have included articles on: a dispute between two telcos over copyright infringement in the broadcast of sports matches; infringement of IP rights on social media; the Personal Property Securities Act 2009 (PPSA) and intellectual property; the attempt by Hollywood studios to make an ISP liable for authorising copyright infringement; and recent amendments to trade mark and copyright laws aimed at ‘raising the bar’ in Australia.
Trust deeds and the Tax Law Amendment (2011 Measures No 5) Act 2011
Posted on: 15 May, 2012
Trust deeds must be reviewed to ensure their terms allow for compliance with the provisions introduced by the Tax Law Amendment (2011 Measures No 5) Act 2011.
Australian Federal Budget 2012-2013
Posted on: 10 May, 2012
On Tuesday 8 May, Treasurer Wayne Swan released the Australian Federal Budget for 2012-2013. Here we provide an overview of the key initiatives contained in the Budget.
James Hardie: Further rulings by the High Court - general counsel and company secretaries take note
Posted on: 7 May, 2012
On 3 May 2012, the High Court found that individuals who act in the combined role of general counsel and company secretary have a high degree of responsibility. The impact of the decision is that general counsels who have a dual role of company secretary may have a greater degree of responsibility than previously thought.
Updated Implementation Guidelines for the National Code of Practice for the Construction Industry
Posted on: 1 May, 2012
The federal government has released updated Implementation Guidelines for the National Code of Practice for the Construction Industry.
Taxation Administration Regulations amended for the building and construction industry
Posted on: 1 May, 2012
The federal government has released an amendment to the Taxation Administration Regulations 1976 that will affect the reporting requirements for businesses operating in the building and construction industry that purchase building and construction services.
Roadshow Films Pty Ltd v iiNet Limited - High Court decision handed down
Posted on: 23 Apr, 2012
A group of thirty four Australian and US film and television companies (Studios) alleged that an internet service provider, iiNet Limited, authorised its customers’ primary infringement of the Studios’ copyright (with infringement occurring through the illegal downloading and sharing content via BitTorrent or peer-to-peer networks). The High Court held that the conduct of iiNet did not constitute authorisation of its customers’ acts of infringement.
Reconstruction & Insolvency April 2012 Newsletter
Posted on: 19 Apr, 2012
Welcome to our first Reconstruction & Insolvency Newsletter. The newsletter will be distributed quarterly and will contain topical articles on legal issues and developments, as well as news of our team. This quarter we have included articles on the following: rights of tenants and landlords in insolvency, confusion over receivers’ obligations with respect to leave and superannuation entitlements resolved, unfair preference claims: preserving liquidators’ entitlement to recover interest, and civil dispute resolution legislation.
Case Note: Commissioner of Taxation v Bargwanna
Posted on: 5 Apr, 2012
The High Court of Australia sent a strong message to trustees concerning how funds of a charitable trust must be applied, when it handed down the decision Commissioner of Taxation v Bargwanna  HCA 11 on 29 March 2012.
The PPSA and the changing face of unfair preference payments
Posted on: 19 Mar, 2012
An article on the changes to the unfair preference regime brought about by the introduction of the Personal Property Securities Act 2009.
Rights of tenants and landlords in insolvency
Posted on: 13 Mar, 2012
Two recent Victorian decisions have clarified the legal principles applied by the courts in relation to tenants’ and landlords’ rights in an insolvency administration.
Case Note: N R Reid & Co Pty Ltd v Pencarl Pty Ltd and Santosa Realty Co Pty Ltd  VCAT 2241
Posted on: 13 Mar, 2012
In a recent decision, VCAT found that the landlord was entitled to terminate the lease upon the bankruptcy of the tenant’s guarantor.
E&IR March 2012 Newsletter
Posted on: 8 Mar, 2012
Our March E&IR Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'Social media forum', 'Shorter after-school shifts in retail', 'Social and community sector workers - big winners!'
Business Names Register - New guidance released
Posted on: 5 Mar, 2012
ASIC has released regulatory guidance in preparation for the commencement of the new national register of business names on 28 May 2012.
The PPSA - Wages and superannuation
Posted on: 5 Mar, 2012
Does the new Personal Property Securities Act 2009 apply to wages and superannuation?
Estate Agents (Contracts) Amendment Regulations 2011
Posted on: 28 Feb, 2012
The Estate Agents (Contracts) Amendment Regulations 2011 will apply as of 1 March 2012.
Corporate & Commercial February 2012 Newsletter
Posted on: 27 Feb, 2012
Welcome to our first Corporate & Commercial newsletter. The newsletter will be distributed quarterly and will contain topical articles on legal issues and developments, as well as news of our team.
This quarter we have included articles on the following: the impacts of carbon tax, including for consumers like you and ourselves; ASIC's changes to financial requirements for responsible entities; and a Cornwall Stodart 'Success Story': 'RSEA - A complex transaction'.
The Personal Property Securities Act 2009 - Get moving
Posted on: 9 Feb, 2012
The Personal Property Securities Act 2009 (PPSA) and the PPS Register commenced operation on 30 January 2012. After several delays, they are here - and it's time get moving.
The Personal Property Securities Act 2009 (Cth) (PPSA): How it will impact you
Posted on: 8 Feb, 2012
The PPSA completely overhauls security interests in personal property, being nearly all property other than land. Existing federal and state security registers will be migrated to a single national PPS Register (PPSR).
The commencement date of the PPSR was 30 January 2012. Every business supplying or receiving goods (and some services) will be affected by the PPSA as legal title to assets changes from one party to another.
Federal government reforms concerning charities and not-for-profits
Posted on: 7 Feb, 2012
The federal government has begun the process of implementing broad changes to laws governing not-for-profit organisations, including the creation of a new statutory definition for ‘charity’.
New Planning Provision Reforms
Posted on: 18 Jan, 2012
As a longstanding member of the BGRA, Cornwall Stodart congratulates the Executive and members of the BGRA on their unfailing efforts to have the Victorian Government achieve monumental reforms to Victoria’s retail planning environment.
Proposed reforms to Australia's corporate insolvency regime
Posted on: 23 Dec, 2011
The Parliamentary Secretary to the Treasurer, together with the Attorney-General, have released a paper detailing a number of proposals designed to harmonise the regulations relating to personal and corporate insolvency.
Farm Debt Mediation Act
Posted on: 21 Dec, 2011
The Farm Debt Mediation Act 2011 (Vic) came into operation on 1 December 2011. It covers all farm mortgages in Victoria and makes it compulsory for creditors to offer mediation to farmers before taking possession or other enforcement action under a farm mortgage.
Home Loan Key Facts Sheets
Posted on: 20 Dec, 2011
From 1 January 2012, the consumer credit legislation governing disclosure on new home loans comes into effect. It will require all lenders who offer standard home loans to provide ‘Home Loan Key Facts Sheets’ to consumers on request.
AUSTRAC money laundering report
Posted on: 14 Dec, 2011
The Australian Transaction Report and Analysis Centre has released a report on money laundering.
E&IR December 2011 Newsletter
Posted on: 8 Dec, 2011
Our December E&IR Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'Bad behaviour', 'Sexual harassment at Christmas parties', 'Work parties and safety', 'Working on public holidays', and 'Christmas close downs'.
New national business names register
Posted on: 29 Nov, 2011
The Business Names Registration Act 2011 introduces a new national business names register, replacing the previous system that required business names to be registered in each state and territory.
Update: Personal Property Securities Act 2009 (PPSA) - Registration commencement date and defects in registration of migrated security interests
Posted on: 23 Nov, 2011
On 21 November, the Attorney-General made determinations on the registration commencement date of the Personal Property Securities Register, as well as defects in the registration of any migrated security interests.
Carbon tax Bills passed by the Senate
Posted on: 16 Nov, 2011
On 8 November 2011, the Senate passed the government’s controversial Clean Energy Legislative Package.
Commissioner ordered to pay indemnity costs
Posted on: 15 Nov, 2011
The Commissioner of Taxation was dealt a heavy blow in the Federal Court last Thursday, when ordered to pay taxpayers’ costs in respect of the appeal on an indemnity basis, pursuant to Order 23 Rule 11(6) of the Rules of Court.
E&IR November 2011 Newsletter
Posted on: 11 Nov, 2011
Our November E&IR Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'FWA finds compulsory drug and alcohol testing ‘reasonable’ employer direction', 'Fraudulent workers’ compensation claim lands worker nine month jail term', 'Model work health & safety harmonisation –
are the model laws stalling?', 'Planking workers prosecuted', 'Model Codes of Practice', 'Employer suffers heavy fine for OHS breach despite no injury', and 'Fair Work Australia finds a dismissal for a high BAC to be unfair'.
Commercial Litigation October Newsletter 2011
Posted on: 24 Oct, 2011
Our October Commercial Litigation newsletter contains some topical articles on important legal developments, including the following articles and success stories: 'Does your business use retention of title clauses? If so, read this', 'Civil dispute resolution legislation', 'A sleeping asset saved', and 'A complex administration'.
Case Note: Macquarie Bank Limited v Commissioner of Taxation  FCA 1076
Posted on: 21 Oct, 2011
The decision in Macquarie Bank Limited v Commissioner of Taxation  FCA 1076 clarifies the operation of Part IVA of the Income Tax Assessment Act 1936 as it applies to subsidiary members of consolidated groups.
Construction Industry Security of Payments Legislation - Frequently Asked Questions
Posted on: 21 Oct, 2011
With security of payment legislation now in place around Australasia, everyone involved in the construction industry has to deal with this legislation from time to time.
The Australasian member firms of ALFA International are pleased to present this compendium of security of payment legislation across the region and trust that it will be a useful guide for those working in the construction industry.
Directors now automatically liable for SGC
Posted on: 19 Oct, 2011
The Tax Laws Amendment (2011 Measures No 8) Bill 2011 proposes a variety of amendments to taxation legislation.
Personal Property Securities Act 2009 - Timeframes for commencement and other amendments
Posted on: 14 Oct, 2011
On 12 October 2011, the Personal Property Securities (Registration Commencement) Bill 2011 was introduced to the House of Representatives and read a first time.
E&IR October 2011 Newsletter
Posted on: 13 Oct, 2011
Our October E&IR Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'Discrimination cases round-up', 'Harmonisation regulators', 'Workplace gender reporting the key to unlocking government tenders and funding', 'No consultation about alternative duties leads to non-genuine redundancy', 'An employee who sustained an injury during
a lunch-break has been denied compensation', 'A truck driver’s breath led to an unfair dismissal', and 'Employer not entitled to claw back mistaken redundancy payment to executive'.
Building Energy Efficiency Disclosure Act 2010
Posted on: 11 Oct, 2011
The BEED Act was passed in July 2009 by the Commonwealth parliament as part of the National Strategy on Energy Efficiency.
Legal professional privilege and accountants: How confidential are your 'confidential' communications?
Posted on: 6 Oct, 2011
Taxpayers who consult taxation lawyers are afforded the protection of legal professional privilege (LPP), which prohibits from disclosure certain confidential communications between a taxpayer and their lawyer. However, taxpayers who consult accountants are not afforded the same protection and there is an inherent risk that their communications may require disclosure in certain circumstances. This article raises the important points all taxpayers should be aware of when considering LPP in a tax context.
Proposed Victorian landholder duty model
Posted on: 26 Sep, 2011
The government is seeking submissions on its proposed landholder duty model to replace land rich duty.
Update: Personal Property Securities Act 2009 – implementation
Posted on: 9 Sep, 2011
The commencement of the PPSA has again been deferred. It is now expected to come into force in early 2012.
E&IR September 2011 Newsletter
Posted on: 1 Sep, 2011
Our September E&IR Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'No legal professional privilege for Black Saturday investigation reports', 'General Manager award coverage bid fails', 'Employers owe financial duty of care to workers', '(S)ex marks the spot!', and 'Think before you post – Facebook anti-work rant gets worker sacked'.
Australia's current position on parallel importing: 'Proceed with caution'
Posted on: 26 Aug, 2011
This article takes a general look at parallel imports in Australia and considers what impact the court ruling may have on importers.
Reduce your WorkCover premium and add to your bottom line
Posted on: 25 Aug, 2011
Workers’ compensation premium renewals are due shortly. Our E&IR team can help you reduce your WorkCover premium.
Update: Personal Property Securities Act 2009 - introduction
Posted on: 24 Aug, 2011
The Attorney General’s Department is currently analysing the results of user acceptance testing of the new Personal Property Securities Register. Although it is possible that the scheduled implementation date of 31 October 2011 will be deferred, clients should contact us to ensure that they understand how the PPSA could affect their business.
Fee waiver for corporations in the Supreme Court of Victoria
Posted on: 19 Aug, 2011
An article clarifying whether a company can apply for a fee waiver in the Supreme Court for financial hardship on the basis that the company is in liquidation.
Update on chairperson proxy voting on remuneration reports
Posted on: 19 Aug, 2011
A further update on reform to proxy voting.
E&IR August 2011 Newsletter
Posted on: 1 Aug, 2011
Our August Employment & Industrial Relations (E&IR) Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'Incompetent handling of harassment claim costs company', 'The Skype’s the limit', and 'There’s no (work)place like home'.
Transferring deposit monies
Posted on: 29 Jul, 2011
An article clarifying the legal position on transferring deposit monies in relation to off-the-plan sales.
Model Work Health & Safety Regulations and Codes of Practice for mining released
Posted on: 26 Jul, 2011
Draft model Work Health and Safety Regulations and Codes of Practice for mining now opened for public comment.
Reform to proxy voting
Posted on: 7 Jul, 2011
Recent amendments to the Corporations Act 2001 include several reforms to the manner in which proxy votes are to be dealt with.
E&IR June 2011 Newsletter
Posted on: 30 Jun, 2011
Our June 2011 Employment & Industrial Relations (E&IR) Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'Independent contractors: are you paying the correct amount of workers' compensation insurance', 'Employers shouldn't take "planking" lying down', 'Penalty a clear message to company directors', and 'Putting things in con-"text"'.
Appeal against changes to the General Retail Industry Award 2010
Posted on: 28 Jun, 2011
The SDA has lodged an appeal against the NRA’s draft determination, granted by FWA on 20 June 2011.
Reform to board remuneration
Posted on: 24 Jun, 2011
A new Bill grants shareholders of a listed public company more power in determining board remuneration.
Personal liability for sham contracting arrangements
Posted on: 24 Jun, 2011
A business owner and HR manager have been fined by the Federal Magistrates Court in the first case prosecution brought by the Fair Work Ombudsman for a sham contracting arrangement.
Changes to the General Retail Industry Award 2010
Posted on: 23 Jun, 2011
The General Retail Industry Award 2010 has been varied, allowing for greater flexibility in minimum shifts for student casuals.
New Victorian Equal Opportunity Legislation: Update
Posted on: 20 Jun, 2011
An update on the new Victorian Equal Opportunity Act 2010, the substantive provisions of which come into force on 1 August this year.
Sexting: the legal implications
Posted on: 1 Jun, 2011
By staying aware of the problem of sexting and implementing policies and procedures to deal with the issue, schools can minimise their exposure to liability.
First home buyers grant and bonus retained; 50 per cent land transfer duty cut
Posted on: 27 May, 2011
State Budget News, Victoria: First home buyers grant and bonus retained; 50 per cent land transfer duty cut
E&IR May 2011 Newsletter
Posted on: 27 May, 2011
Our May 2011 Employment & Industrial Relations (E&IR) Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'Occupational health and safety legislation update', 'Parliament passes amendments to Sex Discrimination Act', 'Administration of paid parental leave', 'Changing employee entitlements', and 'Managing employees on sick leave'.
Social networking sites - ACCC v Advanced Allergy Elimination
Posted on: 25 May, 2011
A recent decision of the federal court may cause businesses to rethink their use of social networking sites.
FWA ruling on equal pay
Posted on: 19 May, 2011
The fight for gender equality in the workforce saw a further development through a landmark ruling handed down by Fair Work Australia (FWA) on Monday.
A Retailer's Guide to Part 2 of the new Australian Consumer Laws
Posted on: 13 May, 2011
The second article in a two-part guide to the new Australian Consumer Laws.
Recent changes to banking regulation
Posted on: 5 May, 2011
The federal government has recently announced some substantial changes to banking regulation.
E&IR April 2011 Newsletter
Posted on: 29 Apr, 2011
Our April 2011 Employment & Industrial Relations (E&IR) Newsletter contains some exciting updates about our E&IR team, and shares some recent developments in employment law, including the following articles: 'Workplace bullying under new laws', 'Employer efforts "rewarded" in redundancy case', and 'Two decisions on the high income threshold'
Pre-litigation requirements for civil disputes
Posted on: 21 Apr, 2011
There have been significant legislative developments regarding pre-litigation requirements for civil disputes.
Easter Sunday trading permitted
Posted on: 29 Mar, 2011
An amendment to the Shop Trading Reform Act 1996 (Vic) received Royal Assent on 29 March 2011, allowing trading on Easter Sundays.
Posted on: 1 Mar, 2011
Many schools incorporate camps or excursions into their learning program; it’s vital they manage the risks.
E&IR February 2011 Newsletter
Posted on: 28 Feb, 2011
Our February Employment & Industrial Relations (E&IR) Newsletter contains important workplace relations highlights, and details recent developments in employment law.
Employer in breach of adverse action provisions for taking prejudicial action against 'unionised' employee
Posted on: 25 Feb, 2011
A Federal Court full court majority has overturned last year’s controversial decision regarding adverse action.
New disclosure statement for retail landlords
Posted on: 21 Feb, 2011
A new disclosure statement for retail landlords came into effect on 1 January 2011.
Trade Practices Act name change to Competition and Consumer Act
Posted on: 28 Jan, 2011
Effective 1 January 2011, the Trade Practices Act 1974 (Cth) (TPA) was renamed the Competition and Consumer Act 2010 (Cth) (CCA). As well as the name change, the CCA introduced substantial changes to consumer law. The CCA is one of the most wide-reaching pieces of commercial legislation; it is critical that you are aware of how the new regime will affect your business.
E&IR January 2011 Newsletter
Posted on: 28 Jan, 2011
Our January Employment & Industrial Relations (E&IR) Newsletter contains exciting updates about our E&IR team, and shares some recent developments in employment law.
The Personal Property Securities Act 2009 - A new start for securing interests in personal property
Posted on: 22 Dec, 2010
The Personal Property Securities Act 2009 (PPSA), designed to be a national 'umbrella' Act concerning the taking of security over personal property, will effect a revolutionary change to the way customers, manfacturers and suppliers, banks and financiers and insolvency practitioners 'do business'. Who owns the 'title' to personal property will no longer be relevant.
The PPSA is scheduled to sart in May 2011. The consequences of failing to understand the changes that the PPSA will bring and be prepared for its commencement will be dramatic.
Does the Personal Property Securities Act 2009 Apply to You? A Cornwall Stodart Questionnaire
Posted on: 22 Dec, 2010
The Personal Property Securities Act 2009 (Cth) (PPSA) is set to commence in May 2011. The PPSA is a new 'one stop shop' regulating the creation and enforcement of security interests in personal property.
It is one of the most significant changes to business law we have seen in a very long time and will leave its mark on the way that customers, manufacturers, retailers, suppliers, banks and financiers do business. Those affected will be required to reassess their existing and future arrangements for taking security over personal property, prepare new policies, redraft contracts and identify transactions that will now be regulated under the PPSA.
Cornwall Stodart has prepared an indicative questionnaire to help you assess whether the PPSA will apply to you. If you answer 'Yes' to any question, we recommend you consult us as soon as possible for more detailed and specific advice.
A Retailer's Guide to Part 1 of the new Australian Consumer Laws: Unfair Contract Terms
Posted on: 1 Dec, 2010
This is the first of a two-part guide designed to assist retailers to understand and comply with their obligations under the harmonised national consumer protection laws.
New Victorian Equal Opportunity Legislation
Posted on: 1 Dec, 2010
The Victorian Parliament recently passed a new Equal Opportunity Act 2010, the substantive provisions of which come into effect on 1 August 2011. There are some key changes to the current Equal Opportunity Act that employers should be considering now.
Cracking down on sham contracting
Posted on: 26 Nov, 2010
A director and HR manager are facing penalties for their role in sham contracting arrangements between six employees and Centennial Financial Services Pty Ltd, now in liquidation.
Amendments to the Corporations Act concerning the payment of company dividends
Posted on: 26 Nov, 2010
The Corporations Amendment (Corporate Reporting Reform) Act 2010 amends the Corporations Act 2001 by changing the ‘profits’ test that has previously applied to the payment of company dividends.
E&IR November 2010 Newsletter
Posted on: 24 Nov, 2010
This month's legal updates and team news from our Employment & Industrial Relations group.
Protecting employee rights during receivership of an employer and in insolvency
Posted on: 19 Nov, 2010
Recent developments in the Federal Court and initiatives by the Federal Government have heightened the protection of employee rights during receivership of an employer and in insolvency.
Cornwall Stodart Tax Digest: November 2010
Posted on: 3 Nov, 2010
The Full Federal Court recently delivered its judgment on the appeal by the Taxation Commissioner in Commissioner of Taxation v News Australia Holdings Pty Ltd  FCAFC 78 (30 June 2010).
E&IR October 2010 Newsletter
Posted on: 29 Oct, 2010
This month's legal updates and team news from our Employment & Industrial Relations group.
No Copyright in Newspaper Headlines
Posted on: 25 Oct, 2010
In the first decision internationally to examine and decide on this issue, the Australian Federal Court recently determined that copyright does not exist in newspaper headlines.
E&IR September 2010 Newsletter
Posted on: 28 Sep, 2010
Our September E&IR Newsletter shares some recent developments in employment law, as well as exciting updates about our E&IR team.
Modern Award coverage article - Real estate industry
Posted on: 22 Sep, 2010
In addition to the National Employment Standards, on 1 January 2010 the Real Estate Industry Award 2010 and the Clerks – Private Sector Award 2010 commenced operation.
First ‘Take-Home Pay Order’ made by FWA
Posted on: 20 Sep, 2010
Fair Work Australia has made its first take-home pay order under the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
Company fined for blocking union access to the workplace
Posted on: 20 Sep, 2010
The Consumer Affairs Legislation Amendment (Reform) Bill 2010 was passed by the Legislative Council on 2 September 2010 and is awaiting assent. If accepted, it will amend certain provisions of the Estate Agents Act 1980 (Vic).
Case Note: Bovino Pty Ltd v The Casey Group Holdings Pty Ltd  VSC 391
Posted on: 16 Sep, 2010
On 10 September 2010, the Supreme Court of Victoria handed down its decision in Bovino Pty Ltd v The Casey Group Holdings Pty Ltd  VSC 391. Purchasers, vendors and real estate agents alike should be aware of the circumstances of the case and the result
Field of dreams ... or nightmares
Posted on: 15 Sep, 2010
An article about two differing construction experiences highlighting the importance of good planning, thoughtful contract drafting, diligent project management, input from competent consultants, and the need to be aware of relevant laws.
Case Note: Bofinger v Kingsway Group Limited (2009) 239 CLR 269
Posted on: 9 Sep, 2010
The High Court has clarified the question of priority between a guarantor of a first mortgage and later registered mortgagees in relation to the distribution of sale proceeds in the case of Bofinger v Kingsway Group Limited.
Octaviar Appeal Dismissed
Posted on: 2 Sep, 2010
Undoubtedly to the relief of banking and finance lawyers and their clients, the High Court yesterday dismissed the Public Trustee of Queensland’s appeal of the decision in the matter of Octaviar Ltd (No 7)  QCA 282
Civil Dispute Resolution Bill (Cth) 2010
Posted on: 26 Aug, 2010
With the aim of moving away from the expensive adversarial culture of litigation, on 16 June 2010 Attorney General Robert McClelland introduced the Civil Dispute Resolution Bill into parliament.
The Who, What, Where, When and Whys of the Growth Area Infrastructure Contribution
Posted on: 23 Aug, 2010
The Growth Areas Infrastructure Contribution is a new tax on land development. It will have a substantial fiscal consequence on purchasers, landowners and developers with land on Melbourne’s fringe.
Leasing Arrangements – Can they be subject to duty?
Posted on: 23 Aug, 2010
Ruling DA.052, recently issued by the Commissioner of State Revenue, provides guidance on the operation of the lease provisions, sections 7(1)(b)(v) and (va) of the Duties Act 2000.
Sexual Harassment: Unprecedented claim against David Jones acts as reminder to take sexual harassment seriously
Posted on: 12 Aug, 2010
The widely publicised $35million claim by Kristy Fraser-Kirk against the board of David Jones and its former CEO, Mark McInnes, should act as a wake up call to any employers (and directors) who do not take sexual harassment seriously.
To what extent will a bank be liable in defamation for making an incorrect decision to dishonour a cheque?
Posted on: 10 Aug, 2010
On 4 August 2010, the High Court in Aktas v Westpac Banking Corporation Limited  HCA 25 awarded a former real estate agent $50,000 in damages for defamation arising from Westpac’s mistaken dishonouring of his company's cheques. The decision has clarified the law of defamation in relation to whether a bank may rely on the defence of qualified privilege when it has mistakenly dishonoured cheques
Appeal against damages of $466,000 for sexual harassment and discrimination upheld
Posted on: 30 Jul, 2010
The Full Court of the Federal Court has upheld an earlier award of $466,000 in damages for the unlawful discrimination of a terminated employee, one of the highest payouts ordered for a case of this type.
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.
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  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.
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  HCA 1.
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).
Case Note: Lehman Brothers Holdings Inc v City of Swan & Ors  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  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  QSC 57
Posted on: 28 Apr, 2010
The recent Queensland Supreme Court decision of St George Bank Limited v Perpetual Nominees Limited & Anor  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  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  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  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.
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)  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
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)  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 
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.
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.
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  FCA 813 (Finkelstein J) Fowler v Lindholm, in the matter of Opes Prime Stockbroking Limited  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 fff - 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.
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).