News & Insights

Unfair contract terms provisions to be extended to small businesses on 12 November 2016.

A recent case in the Supreme Court of South Australia has highlighted the consequences for employers who allow their employees to drive unroadworthy vehicles.

The Heavy Vehicle National Law and Other Legislation Bill 2016 was introduced into Queensland parliament on 13 September 2016 and looks to amend the Heavy Vehicle National Law. The Bill was referred to the Transport and Utilities Committee for comment by 1 November 2016.

Foreign purchaser additional duty and absentee owner surcharge land tax may apply to Australian discretionary trusts transacting in Victorian residential land where the discretionary trust has potential foreign beneficiaries.

From 1 January 2015, Part IV of the Administration and Probate Act 1958 was amended to change the class of individuals who could make a claim for further provision against a deceased estate.

If you had said the word ’philanthropy‘ 20 years ago, most people would have looked at you with a quizzical look. Today this word has become as common as the word ’footy’.

An area that is typically challenging in the Wills & Estates space is where a person residing overseas or interstate dies leaving assets in Victoria.

NSW case challenges contract restrictions.

In a recent New South Wales case of Fuentes v Bondi Beachside Pty Ltd, Fuentes purchased a unit ‘off the plan’.

IP Australia fee changes looming – Renew your existing trade mark registration now to save.

IP Australia has announced a change to its fee structure. You can find out more here.

Many of our clients trade with customers on credit. When doing so, there is a risk that customers might be unable to pay.

Rigby Cooke Lawyers are often approached by clients who have been pressured into entering into a contract or a lease for a hospitality premises without having the opportunity to undertake proper due diligence.

This is a timely reminder for both landlords and tenants of retail leases that pursuant to the legislation (Retail Leases Act 2003 Vic),

Prudent business owners will go to great lengths to protect their intellectual property and confidential information from their employees and competitors.

One of the golden rules when entering into an agreement is to ensure that all the terms are recorded in writing and signed by the relevant parties. As the old saying goes, a verbal agreement is as good as the paper it is written on.

Ashley Madison breached a number of its obligations under Australian privacy law in the months leading up to a cyber-attack on its customer database in July 2015, a joint report by the Canadian and Australian privacy commissioners found recently.

Co-owners of land or parcels of land often wish to exchange ownership interests to become sole owners of specific land or specific parcels of land.

There is a range of scenarios in which the interaction between notice of termination and leave can arise and, unhelpfully for employers, neither the Fair Work Act 2009 (Cth) (FW Act) nor the Long Service Leave Act 1992 (Vic) (LSL Act) specifically address these issues.

Cashing out annual leave, excessive annual leave and annual leave in advance.

The Fair Work Commission (FWC) has reviewed annual leave in modern awards and there have been changes to the annual leave provisions to the transport industry modern awards to¹ :

The Full Federal Court has dismissed an appeal by Chemist Warehouse, who argued that its competitor Direct Chemist Outlet (DCO) had adopted a get-up and colour scheme on their pharmacy storefronts which was likely to mislead or deceive consumers into believing that the two businesses were associated.

The Full Federal Court has dismissed an appeal by Chemist Warehouse, who argued that its competitor Direct Chemist Outlet (DCO) had adopted a get-up and colour scheme on their pharmacy storefronts which was likely to mislead or deceive consumers into believing that the two businesses were associated.

Avoid underpayment claims: This year’s award wage increases explained

Award rates and the national minimum wage increased by 2.4% from the first full pay period on or after 1 July 2016. Award allowances were also increased.

We are pleased to have co-hosted our first Victorian Manufacturers breakfast with Klugo.

In a sobering lesson for trucking companies, the Industrial Relations Court of South Australia has ordered Atkins Freight Services Pty Ltd (Atkins Freight), an Adelaide transport company, to pay penalties of $93,000 and back-pay more than $374,000 to 10 truck drivers.

As a new financial year ticks over, financial and strategic planning is common practice for businesses, but one overlooked and yet highly important action to take is the review of your personal Will and estate planning.

On 31 May 2016, the Fair Work Commission handed down its 2016 Annual Wage Review Decision.

A number of recent changes affecting foreign purchasers of property in Victoria have either come into, or are soon to come into effect. These changes are already impacting on the sale of property.

A recent decision of the Victorian Civil and Administrative Tribunal (VCAT) is a timely reminder for experts, lawyers and their clients of the importance of ‘getting it right’ with expert reports in order to best assist Courts and Tribunals to make proper determinations of disputes.

Many businesses are familiar with engaging a software developer to create a product or application, however the devil is in the detail when it comes to ownership of the end product.

Recently in Pt Bayan Resources TBK v BCBC Singapore Pty Ltd [2015] HCA 36, the High Court of Australia held that the Supreme Court of Western Australia has the inherent power to issue a freezing order relating to a pending judgment in a foreign court, which would be registrable in Australia pursuant to the Foreign Judgments Act 1991 (Cth).

The value of formalising business owners’ arrangements
Shareholders’ and unitholders’ agreements are increasingly being implemented for companies or trusts that involve two or more arms’ length parties. There are very good reasons for this trend: such agreements help to guide decision making, establish governance procedures and stipulate mechanisms to resolve deadlocks.

In some cases, homemade Wills can cost the deceased’s estate considerable expense. We share with you just how defective a homemade Will can be and how risky it is for appointed executors to try to obtain probate of a homemade Will without legal assistance.

For super fund members there were a plethora of changes in May’s Budget announcement. Most changes apply from 1 July 2017 apart from the lifetime cap on non-concessional contributions of $500,000, which applies from Budget night (3 May 2016) and counts non-concessional contributions from 1 July 2007.

As you may be aware, there is a Bill (State Taxation and Other Acts Amendment Bill 2016) before the Victorian Parliament that will upon becoming law, have the effect of increasing the stamp duty surcharge on the acquisition by foreign purchasers of residential property in Victoria to 7%.

This paper was presented to The Tax Institute, Western Australian Division, 29 April 2016

If you are a health service provider, all personal information that you collect about an individual to provide, or in providing a health service to that individual is classified as health information for the purposes of the Privacy Act.

The effects of a privacy breach can extend beyond fines and apologies: the damage to a business’ reputation and goodwill can be costly and it may take years to rebuild.

Can Australian businesses send information overseas?

If your business discloses personal information to an overseas recipient, it may be accountable for any actions of the overseas recipient that would breach the APPs. This leaves your business with a significant exposure – your business could be found liable based solely on the actions of the overseas recipient.

Quick facts:

• From 1 July 2016, any purchaser who acquires an Australian property with value of $2 million or more from a foreign resident vendor will be required to withhold and pay 10% of the purchase price to the Australian Taxation Office (ATO).

Spanline Weatherstrong Building Systems Pty Ltd, a franchisor engaged in designing, manufacturing and selling home extensions (eg patios, roof awnings, covered verandas, and carports) gave permission to one of its franchisees (Marmax Investments Pty Ltd) to conduct business within the territory of another franchisee (RPR Maintenance Pty Ltd).

The Federal Treasurer handed down his first Budget (the government’s third) at 7.30 pm on 3 May 2016.

Download our full report >>

If you are considering buying a property, it’s important to be aware of the correct procedures for cancelling the contract if that should become necessary. A new Supreme Court ruling that saw a purchaser forfeit their deposit and pay damages sets a new precedent that all agents and buyers should follow.

In breaking news, the Road Safety Remuneration Tribunal (RSRT) was abolished by Parliament last night.

Rigby Cooke Lawyers has continued its expansion program recruiting new partner Demian Walton to its Litigation and Dispute Resolution Group.

Rigby Cooke Lawyers’ Executive Chairman, Bill Karvela says,

I own property in Australia, what do I need to do to protect my interests?

If you have recently purchased property in Australia, then it is imperative that you protect your new asset. The first thing most people do is take out insurance to protect against fire, theft and damage but what most people forget to do is protect their assets against government intervention during times of incapacity or on death.

Scleroderma Victoria is a small volunteer-run group which provides support, information and advocacy for those living with scleroderma and their families. The organisation received portable oxygen concentrators (medical equipment) as part of a bequest, and started to loan these to terminally ill members who have lung complications due to scleroderma.

In structuring 30 June transactions it is often desirable to sign a contract before 30 June, but defer payment of capital gains tax (CGT) or the CGT event until a subsequent income year; particularly where settlement is deferred to a subsequent income year so there are no sale proceeds for the vendor to pay the tax or it is desired to set-off losses in the subsequent income year.

Key points

• Parties to a franchise agreement should always act honestly in exercising powers and performing obligations under the agreement and the Franchising Code of Conduct

The Building and Construction Industry Security of Payment Act 2002 (Vic) (the Act) has revolutionised dispute resolution processes in the civil, construction and engineering industries.

From time to time, where a party becomes aware that there is a risk that assets of another party to a dispute may be disposed of, it is necessary to apply to the Court for a freezing order.

Rigby Cooke recently acted for a client that had entered into a sub-lease with a global transport and logistics provider. The site was to be used as a depot for our client’s business, which relies heavily on the use of B-Doubles.

Rigby Cooke recently acted for a client in a NSW Supreme Court case which clearly defined the Chain of Responsibility laws that relate to consignors and loaders of goods.

From time to time clients of ours find themselves in the position where they need to seek an intervention order (known in some states as an Apprehended Violence Order or ‘AVO’), usually in cases where they have been threatened by another party.

The avid readers of InDispute may recall that each year our commercial Litigation and Dispute Resolution team act in numerous shareholder dispute matters.  These past 12 months have been no exception.

If you were served with a subpoena to produce documents to Court, would you know what to do and how to respond to it?

On 3 February 2016 the Full Federal Court handed down its decision in Assarapin v. Australian Community Pharmacy Authority. ¹

Scott’s Transport has been issued with what appear to be the most severe penalties for breaches of Chain of Responsibility laws in Australia to date.

A recent decision of the Supreme Court of NSW¹ has provided a timely reminder of the importance of ensuring the existence and currency of employment contracts.

Key Points

• The purpose of the Pharmacy Location Rules is to reduce the cost to the Commonwealth of administering the Pharmaceutical Benefits Scheme, not to protect individual pharmacies’ geographic markets.

• A recent court decision highlights the need for companies to review deeds of indemnity given to the company’s directors
• The decision illustrates the importance for officers and employees of having effective and extensive directors and officers insurance from the outset

The European Court of Justice has ruled that a 15-year-old agreement allowing companies to transfer personal information from servers within the European Union to servers in the United States is invalid.

Disclosure statistics released

• The ATO has announced that, at 30 June 2014, there had been 166 disclosures, 250 expressions of interest (where taxpayers have identified themselves and said they will be making a disclosure) and more than 600 general enquiries in relation to Project DO IT.

One of Australia’s oldest law firms, Rigby Cooke Lawyers is on the move.

The full service commercial law firm, which can trace its heritage back to 1848 and has included partners such as former Australian Prime Minister, Mr. Harold Holt, is moving to state of the art offices over 2 floors in Melbourne Central Tower at 360 Elizabeth Street, Melbourne.

Service by Email – Effective?

Construction contracts can permit the service of notices by email, however, determining the time at which the email is deemed to have been served or received is problematic and may have implications in the event that a matter proceeds to adjudication.