Archived publications
2009
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30 Nov 09
Employment Update: Summary of changes and solutions for you to be ready for the 1 January 2010 National Employment Standards
By the Rigby Cooke Employment Law and Workplace Relations team
With the commencement of the National Employment Standards on 1 January 2010, some of the new provisions will have a significant impact on employers’ businesses unless consideration and planning prior to the New Year occurs.
11 Nov 09
Commercial Law Update: Standard form contracts - major reform in Australian consumer law
Ian Rosenfeld, Partner
Does your business use non-negotiable, standard form “business to consumer” contracts?
If the answer is “yes”, then it is timely to have them reviewed to ensure that they will comply with new legislation scheduled to commence on 1 January 2010. We can assist you with this task.
21 Oct 09
Building and Construction Update: Proportionate liability & arbitration - it's a goer
(at least for now)
Theo Kalyvas, Partner
On 2 October 2009 the Supreme Court of Tasmania in Aquagenics Pty Ltd v Break O’Day Council (No 2) [2009] decided that the proportionate liability legislation applies in an arbitration between the parties to the arbitration in the same way as it would have applied to those parties in any Court proceeding between them.
21 Oct 09
Commercial Law Update:
Trustee companies, margin lending and debentures – the Feds take control
Ian Rosenfeld, Partner & Suzanne Harmer, Special Counsel
Are you or your clients in the financial services sector? Do you deal in or advise on margin loans or margin lending facilities or debentures? Do you have involvement in estate management functions or prepare trust instruments or wills? If the answer is “yes” to any of the above questions, you will need to be across proposed new law contained in the Corporations Legislation Amendment (Financial Services) Modernisation Bill 2009 currently being considered by the Federal Parliament.
4 Sept 09
Friday Facts: Proposed changes to bankruptcy laws announced by Federal Government
Mary Nemeth, Partner & Elizabeth Mukherji, Lawyer
The Attorney-General’s department has announced proposed changes to the Bankruptcy Act which will give greater protection to debtors including more time to negotiate their debts.
14 Aug 09
Estate Planning Update: Common misconceptions about superannuation death benefits
Robin Parsons, Accredited Wills & Estate Specialist and Special Counsel & Ross Higgins, Partner
People in many cases appear to be under serious misconceptions as to how their superannuation benefits will be dealt with on their death.
10 July 09
Friday Facts: Contracts to negotiate in good faith - are they enforceable?
Mary Nemeth, Partner & Toniel Paton, Lawyer
In the recent case of United Rail Services Limited v Rail Corporation New South Wales, the New South Wales Court of Appeal held that a contractual clause which required the parties to negotiate in good faith was valid and enforceable. The decision brings more certainty to an area of law which has been subject to substantial debate and judicial uncertainty.
9 July 09
Commercial Law Update: Directors in "denial"
Suzanne Harmer, Special Counsel
Overdrawn facility and the bank “squeezing”? Managers departing? Hopeful that the next big “account” will be your company’s salvation?
These are just some of the early warning signs of corporate insolvency. Failure to proactively engage on these issues could mean that you are a director in “denial”.
30 June 09
Real Estate and The Law: "Off the plan" sales
By the Rigby Cooke Property Group
A recent decision of the Supreme Court of Victoria has sent a clear message to vendor developers that contracts of sale must set a definite period within which a plan of subdivision must be registered in “off the plan” sales, and that period cannot then be unilaterally altered.
30 June 09
Commercial Law Update: Personal Property Securities Bill
Suzanne Harmer, Special Counsel
The Personal Property Securities Bill is very significant commercial law reform.
New rules for the creation, extinguishment and enforcement of security interests in personal property and determining priority among competing security interests are likely to be enacted later this year in new Commonwealth law aimed at substantively reforming the area of personal property security..
26 June 09
Friday Facts:
Judge considers whether financier should have regard to borrower’s desire to retain family home
Mary Nemeth, Partner & Tracey Bischofberger, Associate
In the recent decision of Nolan v MBF Investments Pty Ltd [2009], the Victorian Supreme Court had to determine whether a mortgagee, in exercising its power of sale over a range of properties, is to have regard to the mortgagor’s interest to retain the family home.
24 June 09
Tax Update:
Failed managed investment schemes
Arthur Athanasiou, Partner
According to a recent media report, the Australian Taxation Office (ATO) has indicated that it is open to it to now disallow deductions based on failed managed investment schemes.
12 June 09
Friday Facts:
Inspection of a company’s books –
An effective tool or an abuse of process?
Mary Nemeth, Partner & Elizabeth Mukherji, Lawyer
Section 247A(1) of the Corporations Act (2001) provides that a member/ shareholder of a company who holds shares in the company may seek an order to inspect the “books” of the company.
11 June 09
Tax Update: Tax liability of discretionary trust beneficiaries
By the Rigby Cooke Taxation & Financial Services team
The decision of the Full Federal Court in Bamford v Commissioner of Taxation [2009] FCAFC 66, handed down on 3 June 2009, has important implications in relation to the tax liability of the recipients of beneficial entitlements from discretionary trusts. In this matter the Court was asked to consider two issues which are critical to the operation of trust and tax law in Australia. The dispute arose as a result of the disallowance of substantial tax deductions to a trust and the inclusion of taxable capital gains in an allocation to a beneficiary.
01 June 09
Real Estate and The Law
By the Rigby Cooke Property Group
- Altering restrictive covenants
- Native Title
- Alpine property
29 May 09
Building and Construction Update:
Beware the preliminary agreement
Andrew Whitelaw, Partner & Lucy Fitzpatrick, Lawyer
The question of whether a builder can enter into a “preliminary work agreement” and whether such an agreement is “domestic building works” which must comply with the Domestic Building Contracts Act 1995 has been the subject of a recent decision in the Victorian Supreme Court.
28 May 09
Commercial Law Update: Crackdown on "golden handshakes"
Suzanne Harmer, Special Counsel
In response to community concerns over corporate excess in relation to executive “golden handshakes”, the Rudd Government will be introducing the Corporations Amendment (Improving Accountability on Termination Payments) Bill 2009 into Parliament during the 2009 winter sittings.
15 May 09
Friday Facts:
Errors in bankruptcy notices –
get your facts right
Mary Nemeth, Partner & Michael Tuohey
In the cases of GR Finance Limited v Francis Waldron (2009) and GR Finance Limited v Josephine Waldron (2009), the Federal Magistrates’ Court considered whether an error in the debt and interest claimed in two bankruptcy notices caused a substantial injustice to the debtor that could not be remedied by an order of the Court..
17 Apr 09
Friday Facts:
Notification of variations to charges – the Octaviar decision
Mary Nemeth, Partner & Toniel Paton, Lawyer
In the recent decision of Re Octaviar Ltd; Re Octaviar Administration Pty Ltd [2009], the Supreme Court of Queensland held that a charge on the property of Octaviar Ltd which secured a guarantee was void because there had been a variation of the terms of the charge and no notice of variation had been lodged with ASIC. This decision highlights the importance of notifying ASIC of variations to registered charges.
20 Mar 09
Friday Facts:
ASIC successful in having former director banned for 25 years
Mary Nemeth, Partner & Lucy Fitzgerald
A decision of the New South Wales Supreme Court delivered last week highlights the potential consequences for directors who pay blatant disregard to their duties and, in particular, engage in insolvent trading.
6 Feb 09
Friday Facts: Deregistration of company delayed
Mary Nemeth, Partner
In the recent decision of Programmed Maintenance Services Ltd v Ranelagh House Pty Ltd (in Liq) (2008), an unpaid creditor sought an order that ASIC defer the deregistration of a company to enable it to bring its claim against the company despite the fact that there had been a final distribution of funds held by the liquidator.
