Beck Legal https://www.becklegal.com.au An Award Winning Legal Services Business Thu, 10 Jan 2019 07:45:52 +0000 en-AU hourly 1 https://wordpress.org/?v=5.2.1 https://www.becklegal.com.au/wp-content/uploads/2016/01/cropped-icon-32x32.png Beck Legal https://www.becklegal.com.au 32 32 Notifiable Data Breaches – Are you prepared? https://www.becklegal.com.au/commercial/notifiable-data-breaches-are-you-prepared/ Fri, 11 May 2018 01:34:32 +0000 https://www.becklegal.com.au/?p=1372 The Commonwealth Government amended the Privacy Act (Cth) 1988 (Privacy Act) which came into effective as at 22 February 2018 to introduce the Notifiable Data Breach scheme. The NDB scheme requires entities to notify individuals and the Office of the Australian Information Commissioner (OAIC) about eligible data breaches. A data breach is eligible as a …

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  • The Commonwealth Government amended the Privacy Act (Cth) 1988 (Privacy Act) which came into effective as at 22 February 2018 to introduce the Notifiable Data Breach scheme.
  • The NDB scheme requires entities to notify individuals and the Office of the Australian Information Commissioner (OAIC) about eligible data breaches.
  • A data breach is eligible as a notifiable data breach if it is likely to result in serious harm to any of the individuals to whom the information relates.
  • Whether a data breach is likely to result in serious harm is an objective test based upon a reasonable person’s point of view in the position of the entity.
  • An entity is exempt from reporting a data breach if an entity acts quickly to remediate the breach and because of this action the data breach is not likely to result in serious harm.
  • Review our Notifiable Data Breach brochure for more information on what to do in the event of a suspected breach.

    More information on the scheme can be found on the website for the Office of the Australian Information Commissioner by visiting www.oaic.gov.au.

    If you would like any guidance in relation to preparing for the NDB scheme please contact our Commercial Law team at Beck Legal on 5445 3333.

    Written by Daniel Cole, Director at Beck Legal

    dcole@becklegal.com.au

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    Changes in GST for Property Developers https://www.becklegal.com.au/conveyancing-property/changes-in-gst-for-property-developers/ Thu, 03 May 2018 06:26:21 +0000 https://www.becklegal.com.au/?p=1180 Overview The Federal Government announced a new GST withholding regime in the 2017-2018 Federal Budget which has now been passed by the Federal Government. The regime will apply to contracts of sale for new residential premises and new subdivisions which are entered into after 1 July 2018. Purchasers under these contracts of sale will now …

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    Overview
    • The Federal Government announced a new GST withholding regime in the 2017-2018 Federal Budget which has now been passed by the Federal Government.
    • The regime will apply to contracts of sale for new residential premises and new subdivisions which are entered into after 1 July 2018.
    • Purchasers under these contracts of sale will now need to withhold a proportion of the purchase price and remit it directly to the Australian Taxation Office.
    • This marks a significant change – currently, GST is collected by the Vendor at settlement and then remitted to the Australian Taxation Office directly by the Vendor.

    Property Transactions Affected

    The regime applies to contracts of sale entered into from 1 July 2018 for:

    • new residential premises; or
    • vacant land arising from subdivision of residential land; and

    New residential premises include premises which have been constructed as new premises to replace demolished premises on the same land and premises which have not been sold as residential premises previously.

    Subdivisions of potential residential land include premises in a plan of subdivision which have not been sold as potential residential land in the plan of subdivision previously.

    New Requirements Placed on Purchasers

    Purchasers are now required to withhold and remit a proportion of the GST on the purchase price specified in the contract of sale directly to the Australia Taxation Office. The amount due is dependent upon whether the margin scheme applies to the contract of sale and will be:

    • 1/11th of the purchase price if the margin scheme does not apply; or
    • if the margin scheme applies, 7% of the purchase price.

    The proportion of the purchase price is calculated on the purchase price specified in the contract of sale rather than the adjusted purchase price due at settlement which takes into account any amounts adjusted between the Purchaser and the Vendor.

    Purchasers must withhold and remit this amount on, or prior to, the date which any part of the purchase price is first paid (note this does not include payment of the deposit). For most affected transactions, this obligation will arise at settlement.

    A Vendor’s Obligations

    At least 14 days prior to the Purchaser’s obligation arising, the Vendor must provide the Purchaser with a written GST withholding notice outlining:

    • whether the Purchaser is required to withhold and remit any amount; and
    • if an amount is required to be withheld and remitted by the Purchaser, the Vendor’s name, ABN and the amount to be withheld and remitted.

    If the Vendor fails to comply with this requirement, significant penalties may be imposed by the ATO.

    The Vendor will be entitled to a credit for any payment made to the ATO by the Purchaser.

    Concerns for Purchasers and Vendors

    Although the Vendor will be entitled to a credit for any payment made, this may cause cashflow problems for Vendors around the time of their BAS reporting.

    Further, on terms contracts or staged settlements it should be noted that when payments are made in instalments, the regime may apply so that the 1/11th payment will be withheld on the first instalment amount. Obviously, this will cause issues when the GST payable represents a large amount of the instalment amount.

    If a Purchaser fails to withhold an amount, it will be liable to pay a penalty amount to the ATO that is equal to the withholding amount. If a Vendor fails to provide the required notice significant penalties may be imposed by the ATO up to 100 penalty units (currently $21,000 for individuals and $105,000 for corporations).

    More information

    If you require any further information about the new GST withholding regime, please do not hesitate to contact our Property and Development team on 03 5445 3333.

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    Beck Legal supporting Heathcote Community Children’s Hub https://www.becklegal.com.au/commercial/beck-legal-supporting-heathcote-community-childrens-hub/ Fri, 23 Mar 2018 02:42:05 +0000 https://www.becklegal.com.au/?p=1121 A fundamental part of the culture at Beck Legal is their commitment and contribution to the regional community. The Heathcote community recently received a $650,000 contribution from the Department of Education’s, Children’s Facilities Capital Program to assist with the $1.3 million build of the new Community Children’s Hub. Joining forces with Heathcote Community Childrens Services …

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    A fundamental part of the culture at Beck Legal is their commitment and contribution to the regional community. The Heathcote community recently received a $650,000 contribution from the Department of Education’s, Children’s Facilities Capital Program to assist with the $1.3 million build of the new Community Children’s Hub. Joining forces with Heathcote Community Childrens Services Association, Beck Legal are proudly providing pro-bono legal advice to assist the project in securing the first childcare centre for the community.

    This project, creating at least 30 local jobs, will bring together a range of services where professionals and community will work together to deliver education, care, health and support services to children and their families. The new facilities will provide 76 child care places and include consulting rooms for Maternal child health nurses, Community Health Professionals (including speech pathologist, family domestic violence counsellor, NDIS, monthly visit by a pediatrician); and Counselling rooms.

    The hub will be a long day care and early learning centre built to service a community that currently has no local access to occasional or long day care. The project will also link in with the local kindergarten, playgroup, primary schools and a raft of family health and well-being services. This project will enhance access to an important range of services, work toward redressing community disadvantage and connects with Beck Legal’s commitment to corporate social responsibility of giving back to their local community.

     

     

     

     

     

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    Further amendments to the Building Act 1993 commencing on 16 August 2017 https://www.becklegal.com.au/uncategorised/further-reforms-to-the-building-act-1993-commencing-16-august-2017/ Wed, 16 Aug 2017 00:30:20 +0000 https://www.becklegal.com.au/?p=1051 Following on from the initial updates to the Building Act 1993 (the Act) introduced through the Building Amendment (Enforcement and Other Measures) Act 2017 which commenced on 23 May 2017 (see details here), a further raft of new provisions and amendments came into operation on 16 August 2017. Many of the changes which came into …

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    site-2421091_1280Following on from the initial updates to the Building Act 1993 (the Act) introduced through the Building Amendment (Enforcement and Other Measures) Act 2017 which commenced on 23 May 2017 (see details here), a further raft of new provisions and amendments came into operation on 16 August 2017.

    Many of the changes which came into effect on 16 August 2017 impact on the enforcement measures available to Councils, including:

    • New powers for Municipal Building Surveyors pursuant to an Emergency Order including:
      • to direct any person to vacate a building or land or place of public entertainment;
      • to prohibit any person from entering, using or occupying any building, land or place of public entertainment
      • to require the owner to cause an inspection to be conducted by a specified person within a specified time; and
      • to require the owner or builder to cause specified material used in a building or place to be tested by a specified person within a specified time.
    • To allow for the issue of a building notice if the relevant building surveyor considers safety or emergency services, installations or equipment (essential safety measures) have not been maintained in accordance with the occupancy permit and the Regulations.
    • To provide that, pursuant to a new section 146(2A), unless the Building Appeals Board otherwise directs, an appeal against the making of a building order prohibiting the occupation of the building or place, does not stay the operation of the decision under appeal, if the order was made following the making of an emergency order in respect of the same matter.
    • To provide that an emergency order, a building notice, or a building order, may be served upon a person by putting the order up in a conspicuous position on the building or land or place of public entertainment to which it applies, pursuant to section 236(4A).
    • That it is an an offence for a person to remove or deface a notice or order put up pursuant to sections 236(4) and (4A).
    • To provide that if a building notice or building order is to be served upon an owner of a lot affected by an owners corporation, the notice or order may be served upon the owners corporation, and, if so served, be taken to be served upon the owners of the lots, pursuant to section 236(4C).
    • Under a new section 251A:
      • an owners corporation, should it be served with a building notice or order, may authorise a person to enter a lot or building on a lot on its behalf to carry out any necessary building works as required by the building notice or order; and
      • a new offence is created for an owners corporation which fails to comply with a building order which it is served.

    There are still many more reforms to the Act which have not yet come into force, which include substantial changes to the entry and information gathering procedures available to Councils when conducting enforcement inspections.

    If you have any further queries with respect to how the amendments impact upon Council investigation procedures and prosecutions, please contact Matt Barkla and the Local Government Team at Beck Legal on 5445 3333.

    Written by Matt Barkla, Director at Beck Legal

    mbarkla@becklegal.com.au

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    Tour our new office! https://www.becklegal.com.au/uncategorised/tour-our-new-office/ Thu, 27 Jul 2017 04:21:31 +0000 https://www.becklegal.com.au/?p=1036 The post Tour our new office! appeared first on Beck Legal.

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    The Complexities of Rates Recovery under the Local Government Act https://www.becklegal.com.au/uncategorised/the-complexities-of-rates-recovery-under-the-local-government-act/ Thu, 27 Jul 2017 03:31:59 +0000 https://www.becklegal.com.au/?p=1034 Part 1 Occupied land Unpaid rates is an issue for all Councils, and will no doubt become a more significant issue during this era of rates capping. This is a brief discussion on the complexities seen in this area and is divided into two parts, with the second part discussing deceased estates. Section 181 of …

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    Part 1

    Occupied land

    Unpaid rates is an issue for all Councils, and will no doubt become a more significant issue during this era of rates capping. This is a brief discussion on the complexities seen in this area and is divided into two parts, with the second part discussing deceased estates.

    Section 181 of the Local Government Act 1989 (the Act) provides an avenue for Councils to sell land to recover unpaid rates or charges, providing:

    1. there are more than 3 years rates outstanding;
    2. no current payment arrangement exists; and
    3. the Council has a Court order requirement payment of the amount.

    Once points 1 and 2 are met, civil proceedings are initiated in the Magistrates’ Court to recover the debt and a Court order for debt is obtained (Judgment Order).

    In order to sell the land, Council must obtain a valuation of the property and serve notices on any person who has an interest in the land in accordance with the Act. If the land is to be sold at auction, further notices need to be issued in accordance with the Act.

    The Act provides that Council may recover all expenses associated with the enforcement, including interest, which can all be deducted from the proceeds of the sale, prior to distribution of the funds from the sale to each person who has an interest in the land.

    While this may appear, on the face of it, a straight forward process, there are complexities if the land is occupied or if the land belongs to a deceased estate, and these issues will be considered below.

    An Occupied Property

    Sale of property for rates arrears usually involves vacant land, or if there is a dwelling on the property, a vacant dwelling. A sale or transfer is problematic in a case where a person is residing, lawfully or unlawfully, at the property and will not vacate for the rates sale. The Act does not provide any capacity for Council to obtain vacant possession prior to the auction or transfer.

    In such a case alternative enforcement measures may be required after obtaining the Judgment Order.

    Assuming that the debt involves an individual, if the Judgment Order is for an amount of $5,000 or more bankruptcy proceedings can be initiated against the owner. The trustee in bankruptcy does have powers to obtain vacant possession of property in order to realise assets on behalf of the bankrupt estate and while this itself can be a slow process, it shifts the burden away from Council.

    There are also other alternative measures available to enforce a Judgment Order, including summons for oral examination, attachment of earnings order, instalment orders or warrants to seize property. Generally the most appropriate enforcement measure is to issue a bankruptcy notice, as the only apparent asset is the real property, the subject of the rates arrears, though each case is different and the appropriate option considered in light of the individual circumstances.

    In the case of a property that is a rental property, section 177 of the Act makes it is possible for Councils to require the occupier of the land to pay the rent directly to Council. This would usually be considered prior to the section 181 process commencing.

    Conclusion

    While sale of properties to recover rates appears to be straight forward process, there may be numerous issues that make any individual matter quite complex. Part 2 will discuss the implications of a deceased estate.

    If you wish to discuss how we can help your Council with rates recovery, please contact Kirsten Hughes or Matt Barkla on 5445 3333.

    Written by Kirsten Hughes, Solicitor at Beck Legal.

    khughes@becklegal.com.au

     

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    The house always wins https://www.becklegal.com.au/litigation-dispute-resolution/the-house-always-wins/ Thu, 27 Jul 2017 03:28:31 +0000 https://www.becklegal.com.au/?p=1032 A roll of the dice in the High Court came up trumps for Crown in the decision of Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd HCA 26. Background Two Crown restaurant tenants entered negotiations to renew their leases in early 2005. A condition of the lease, signed in November 2005, was that the …

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    A roll of the dice in the High Court came up trumps for Crown in the decision of Crown Melbourne Limited v Cosmopolitan Hotel (Vic) Pty Ltd HCA 26.

    Background

    Two Crown restaurant tenants entered negotiations to renew their leases in early 2005. A condition of the lease, signed in November 2005, was that the tenants would undertake extensive refurbishment. Despite this, Crown only offered a 5-year term without a guaranteed renewal.

    The tenants agreed to lease, despite the refurbishment costs.  Subsequently, the tenants were given notice to vacate at the expiration of their lease in 2010.

    Claim

    At first instance, the tenant’s VCAT claim alleged that, in the course of negotiations in 2005, agents of Crown made oral representations that they would obtain a renewal in exchange for the renovations.

    The tenants claim was based on two grounds. Firstly, that the representations gave rise to a collateral contract obliging Crown to offer a renewal, or alternatively, a promissory estoppel which prevented Crown from acting in a manner contrary to their representation.

    Despite looking unfavourably on the tenant’s Director’s evidence, VCAT accepted that a collateral contract could arise based on a note by a bank manager in attendance during negotiations stating the tenants ‘would be looked after’.  VCAT made an order for damages in the region of $1.5 million.

    On appeal, the primary judge and the Court of Appeal found that no collateral contract was formed. However, the Court of Appeal remitted the matter back to VCAT to determine what relief could be given on the ground of promissory estoppel.

    High Court decision

    Crown appealed against the finding of a promissory estoppel to the High Court, with the tenants cross-appealing to reinstate the collateral contract. In ruling for Crown, the majority found that, as a question of law, the representation that the tenants ‘would be looked after’ did not have the quality of a contractual promise to renew the lease when the time came. Similarly, the High Court found that that statement was not clear and unambiguous enough to give rise to the reliance claimed by the tenants.

    What does this mean?

    • Particularly for experienced commercial operators, parties to a contract should not rely on oral representations, but rather ensure they are included in the contract.
    • Despite the ruling, the court found that if a proprietary estoppel, or a promise to grant a proprietary interest had been argued, it would have been given further consideration. As such, contracting parties in a strong bargaining position should ensure representations are not made during negotiations which might give rise to a claim.

    If you require any further advice please contact our team on 03 5445 3333.

    Written by Jay Chandramohan, Solicitor at Beck Legal

    jay@becklegal.com.au

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    Statewide Honour Awarded to Beck Legal https://www.becklegal.com.au/uncategorised/statewide-honour-awarded-to-beck-legal/ Mon, 19 Jun 2017 03:03:57 +0000 https://www.becklegal.com.au/?p=1010 Beck Legal is proud to announce that we are the winner of the 2017 Boutique Law Firm of the year at the 13th Victorian Legal Awards We were awarded for our professional excellence as a premium provider of legal services by firms with five principals or less for the whole of Victoria. The quality of our …

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    Beck Legal is proud to announce that we are the winner of the 2017 Boutique Law Firm of the year at the 13th Victorian Legal Awards

    We were awarded for our professional excellence as a premium provider of legal services by firms with five principals or less for the whole of Victoria.

    The quality of our legal services, our innovation in staff development and wellbeing, our strategic vision and leadership, and our commitment to corporate social responsibility earned us this statewide recognition.

    You can view the Law Institute of Victoria 13th Victorian Legal Awards Winners here.

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    Introducing Sarah Gee https://www.becklegal.com.au/commercial/introducing-sarah-gee/ Tue, 13 Jun 2017 07:11:12 +0000 https://www.becklegal.com.au/?p=1006 Beck Legal are delighted to introduce you to our new business and commercial lawyer, Sarah Gee. Exciting things are happening in our commercial and succession planning team, and our continued growth has seen us add another experienced lawyer to our team. Sarah brings with her a wealth of experience, having moved to Bendigo more than …

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    Beck Legal are delighted to introduce you to our new business and commercial lawyer, Sarah Gee.

    Exciting things are happening in our commercial and succession planning team, and our continued growth has seen us add another experienced lawyer to our team.

    Sarah brings with her a wealth of experience, having moved to Bendigo more than four years ago and having spent those years advising businesses on their legal compliance. Growing up in Albury, Sarah is a regional girl at heart, understanding the sophistication of regional businesses and the challenges they face whilst enjoying the meaningful relationships that are forged with clients.

    “Over the past 4 years, I have worked with countless regional businesses who are punching well above their weight. Beck Legal is the right place to offer the sophisticated advice that regional businesses need without compromising on the personal approach that regional practice is renowned for,” Sarah explains.

    Sarah’s experience and personal approach gives her the ability to provide her clients with results, understanding their goals and needs and guiding them through the legal maze with practical, straightforward advice.

    Outside of work, Sarah is an enthusiastic baker and wine connoisseur. Sarah is also an active board member for two local not-for-profits – the Bendigo Science and Discovery Centre and the Community Foundation for Central Victoria.

    “To me, being a lawyer is about more than advising on the law. Living and working in Bendigo allows me to be part of my community and actively contribute to the wellbeing of the region,” says Sarah

    We are proud to continue to attract highly talented staff who offer high quality, specialised advice and service to our clients. Sarah’s addition to the team adds depth and carries forward Beck Legal’s vision to create the premier commercial law firm in Bendigo.

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    Employer Protection of IP rights – Beware the Growing Risks of Adverse Cost Orders https://www.becklegal.com.au/uncategorised/employer-protection-of-ip-rights-beware-the-growing-risks-of-adverse-cost-orders/ Wed, 23 Nov 2016 03:57:11 +0000 https://www.becklegal.com.au/?p=942 Courts are increasingly conscious that court resources have to be properly used and respected by litigants, particularly given the increasing cost of litigation and diminishing court resources. A recent case involving SAI Global Property Division (SAI) handed down by Justice Moshinsky in the Federal Court on 14 November 2016 highlights this issue. Several days prior …

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    Courts are increasingly conscious that court resources have to be properly used and respected by litigants, particularly given the increasing cost of litigation and diminishing court resources.

    A recent case involving SAI Global Property Division (SAI) handed down by Justice Moshinsky in the Federal Court on 14 November 2016 highlights this issue.istock-499208064

    Several days prior to his resignation on 29 October 2015, an SAI employee had copied confidential client information onto a USB device and his laptop computer. This occurred despite specific prohibitions in his employment contract, and correspondence and advice from his employer (including at the ‘Off Boarding’ interview) underlining his obligations under the Copyright Act and under Corporations Law. The employee commenced employment with a Competitor interestingly while on paid gardening leave.

    SAI became aware of this breach on 7 December 2015 and were granted an injunction preventing the ex- employee from deleting any of the confidential information on his laptop or USB and requiring him to deliver the devices to the Court.

    On 11 December 2015, the employee filed an affidavit detailing the limited use the confidential information had been put to whilst in his new employment (without  Employer’s knowledge) together with the devices.  Subsequently, the Court ordered that the employee be further restrained from deleting any confidential information and acceded to an SAI request for the devices to be examined by an independent expert.

    On 17 March 2016 SAI filed an amended originating application and statement of claim seeking declarations of injunctive relief, breach of lawful obligations including employment contract, copyright infringement and damages. Four further directions hearings ensued, with a final hearing occurring on 29 June 2016.

    It’s important to note that as of 7 December 2015,  the ex-employee had extensively admitted to liability and had provided detailed information, including expert forensic evidence,  that  access to the confidential  information was limited and that it had been removed from his new employer’s computer and restored on his USB for verification by SAI.

    Justice Moshinsky concluded that all the declaratory orders sought by SAI should be granted, including damages of $9,231. Further, the ex-employee was required to pay SAI legal costs ($82,952) incurred up to 11 December, when the matter was for all intents and purposes concluded,  plus  payment of  post-December 11  SAI  independent expert costs (including lawyer costs)  of $34,411 necessary to determine whether there had been any other confidential information accessed by the former employee.

    Now for the bad news for SAI and its lawyers!

    When it came to the question of costs after 11 December Justice Moshinsky determined that SAI had breached the overarching obligations contained in section 37 M & N of the Federal Court Act, which was designed amongst other things to ensure:

    • a just determination of proceedings;
    • efficient use of judicial/administrative resources; and
    • efficient disposal of the court’s overall caseload.

    Normally costs follow the event which would mean all of SAI legal costs would be payable by the ex-employee.

    However in this case justice Moshinsky determined that ‘  … to a large extent SAI had secured the most important relief it sought by 11 December 2015..” and declared that SAI had unnecessarily incurred costs ‘out of all proportion to the work involved in that period’ (including the final hearing), which amounted to $158,106, and ordered that these costs be reduced by 50%.

     This should serve as a salutary reminder to overzealous litigants that there are considerable risks of over engineering litigation, and that courts at every level are becoming increasingly focused on punishing litigants and legal representatives if litigation is not proportionate to the likely award of any damages and an efficient use of judicial and administrative resources available for the purposes of the Courts.

    Written by Geoff Bowyer, Director and Accredited Business Law Specialist at Beck Legal

    gbowyer@becklegal.com.au

     

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    Con the Bus Driver Re-instated Following Unlawful Termination https://www.becklegal.com.au/commercial/con-the-bus-driver-re-instated-following-unlawful-termination/ Fri, 22 Jul 2016 03:53:45 +0000 https://www.becklegal.com.au/?p=939 Now before you call me old-fashioned, understand that using mobile phones particularly when you are driving is not only illegal and inherently dangerous but can cost you your job (potentially). A recent case in the Fair Work Commission (20 May 2016) highlighted the importance of employers ensuring that to successfully avoid applications for a relief …

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    Now before you call me old-fashioned, understand that using mobile phones particularly when you are driving is not only illegal and inherently dangerous but can cost you your job (potentially).

    A recent case in the Fair Work Commission (20 May 2016) highlighted the importance of employers ensuring that to successfully avoid applications for a relief from unfair dismissal (s.394(1) of the FWA 2009) all circumstances of the case need to be carefully and objectively considered to ensure that all parties can be seen to have been given ‘a fair go all round’.

    In this case, Con, a driver for private bus company Hillsbus Co. Pty Ltd who had been employed since 3 September 2015, was seen by passenger on 19 October 2105 to be using a mobile phone while driving a bus along the M2 between Wynyard to Baulkham Hills near Sydney.

    The passenger observed Con tilt the phone towards him to see the screen. While he did not place the phone to his ear, the passenger complained that it was entirely inappropriate for driver to look at anything other than the road while driving. This was given to the bus company as written feedback on 21 October 2015.

    Con received a letter from his employer advising of the suspension on 4 November 2015 which amongst other things, required him to attend a meeting to show due cause why the employee should continue with his employment. The employer had a clear policy which prohibited the use of any hand-held mobile phones and also included the use of hands free devices. The policy provided that any breach would be deemed serious enough to result in a summary dismissal.

    Con had been provided with a driver’s guide during his induction which also referred to the prohibition of the use of mobile phones while in charge of a moving vehicle. However, and the BIG But was that Con was not using it for making a call (it had no SIM card being his old phone) but was being used solely for use as a broadcasting music function to which the driver’s guide was silent.

    The policy provided that mobile phones could only be used during meal break times and only after the vehicle has been safely parked and secured. Con attended an interview with the Branch Manager and pleaded his case and was accompanied by a fellow employee as a support person.

    Con received a termination letter on 5 November 2015 which provided him three weeks’ pay in lieu of notice and Con used an internal appeal procedure made available by the employer. However, Con was again unsuccessful.

    It is interesting to note that at no time prior to his dismissal did Con notify the employer that he was using the mobile phone for the purposes only to play music. Con only admitted this during a meeting with the employer at the appeal on 11 November 2015.

    Con appealed to the Fair Work Commission and represented himself whilst the employer was represented by a Solicitor.

    Senior Deputy President Drake determined that Con’s conduct amounted to no more than a ‘quick glance and tap’ and ‘presented no greater danger than a driver’s ordinary observation of the dashboard or other implements in a moving motor vehicle and thus concluded that it was not unsafe.

    The Commission determined that the termination was harsh just or unreasonable notwithstanding that the employer had a valid reason to terminate for notice and after determining that Con had been provided the opportunity (and was allowed to bring a support person to the initial meeting and the internal appeal hearing).

    In the end the Commission determined that there was ambiguity and conflicting evidence about the applicability of policies to drivers notwithstanding that all drivers knew that use the mobile phone was a breach of the law.

    The Commission took into consideration a previous offence of Con driving a vehicle whilst using a hand-held mobile phone and warnings given to Con relating to ‘fault ‘accidents’ (including a final warning) but determined that these were ‘not in the same category of offences as that for which he (Con) was dismissed’ .

    The Commission also gave weight to the delay in the employer investigating the customer complaint which contrasted with the employer’s avowed reason for terminating (upon the basis of a risk to public safety) and matters raised by Con in mitigation by way of submissions on penalty as well his potential loss of income and Con’s misconduct which involved issues of public safety.

    Ultimately, the Commission found in Con’s favour and ordered reinstatement and ordered compensation for period of time since Con’s termination of employment including Con’s efforts at mitigating his loss by finding alternative employment.

    Clearly this was a finely balanced case but should alert readers and particularly employers that there is no open and shut case simply because there has been breach of policy or even in fact where the employer was validly entitled to terminate.

    If you require any further advice regarding Employment Law, please contact our Commercial team on 03 5445 3333.

    Written by Geoff Bowyer, Director at Beck Legal

    gbowyer@becklegal.com.au

     

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    New CGT withholding laws now in effect https://www.becklegal.com.au/conveyancing-property/new-cgt-withholding-laws-now-in-effect/ Mon, 04 Jul 2016 05:32:56 +0000 https://www.becklegal.com.au/?p=936 On 1 July 2016, new capital gains tax withholding laws came into effect around Australia. The aim of the legislation is to recoup unpaid capital gains tax from foreign residents who dispose of property in Australia. However, the way in which the laws have been drafted mean that all parties to an agreement under which …

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    On 1 July 2016, new capital gains tax withholding laws came into effect around Australia.

    The aim of the legislation is to recoup unpaid capital gains tax from foreign residents who dispose of property in Australia. However, the way in which the laws have been drafted mean that all parties to an agreement under which an interest in taxable Australian property is transferred will be forced to comply.

    Contracts of Sale of Real Estate

    The legislation affects all contracts of sale for real estate worth $2 million or more which are entered into from 1 July 2016. From this date, all purchasers under such contracts must withhold a total of 10% of the purchase price from the vendor unless they are provided with a clearance certificate by the vendor or the vendor’s solicitor which has been issued by the Australian Taxation Office. Penalties will apply if purchasers fail to comply with their obligations to withhold funds.

    If the clearance certificate is not available in time for settlement, the purchaser must make arrangements for payment of the withheld amount to the ATO immediately after settlement.

    Indirect real property interests

    Transactions involving indirect real property interests (such as sales of shares in a company or units in a trust whose majority assets consist of real property) will also be affected.

    Where an interest of 10% or more in such a company or trust is transferred, the vendor will be required to provide an appropriate declaration to the purchaser that the interest is not an indirect Australian real property interest.

    Sales of company title interests worth at least $2 million will be subject to the new rules.

    Options

    Option interests held over land will also be subject to the new regime. In those instances, at the time the option price is paid, 10% of that amount must be remitted to the ATO unless the vendor provides a clearance certificate or an appropriate declaration. When the option is later exercised, a total of 10% of the price paid to acquire the property less any amounts previously paid to the ATO in respect of the option price must be withheld in the absence of a clearance certificate or an appropriate declaration.

    Option agreements entered into before 1 July 2016 where the exercise date is after 1 July 2016 will also be caught by the new rules and there is no minimum threshold on the market value of the option.

    The new regime adds a layer of complexity to all affected real property transactions in Australia. It will be important that both vendors and purchasers are aware of their obligations in respect of their particular transaction for settlement to proceed smoothly.

    If you require any further advice about these new laws, please contact our Property & Development team on 03 5445 3333.

    Written by Mark Donaldson, Director at Beck Legal

    mdonaldson@becklegal.com.au

     

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    Tweeting from the grave – Who can deal with your digital assets when you die? https://www.becklegal.com.au/litigation-dispute-resolution/tweeting-from-the-grave-who-can-deal-with-your-digital-assets-when-you-die/ Thu, 26 May 2016 05:33:32 +0000 https://www.becklegal.com.au/?p=926 Of the seven billion people in the world, 1.51 billion people have a Facebook account, 310 million use twitter, and 100 million people use Instagram every month. The ever increasing popularity of technology and its usage across every generation young and old has raised the question as to what happens to your digital assets when …

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    Of the seven billion people in the world, 1.51 billion people have a Facebook account, 310 million use twitter, and 100 million people use Instagram every month. The ever increasing popularity of technology and its usage across every generation young and old has raised the question as to what happens to your digital assets when you die assuming after death that is that us inveterate tweeters can in fact beat the bug and stop tweeting!

    Your digital assets could be comprised of websites, email accounts, Facebook, Twitter, LinkedIn, iTunes, Paypal and many other online programs and applications. Digital assets form part of your estate, and very few of us consider what we would like to happen to these accounts and information on our death.

    If you don’t leave any instructions regarding your digital assets, your executor may have difficulties in deciding how to manage or shut down your accounts.

    As every digital provider deals with the death of a member in a different way, we have outlined the process of a few of the popular providers to assist you in deciding how you wish for your digital assets to be dealt with.

    Facebook & Instagram

    Both are owned and operated by related companies and have the same procedures when it comes to a members death.

    You can elect to have your account turned into a memorial page, where it remains on line for people to view, but steps are taken to secure your privacy, meaning that no posts or changes can be made to your page. In order to memorialise your account, a family member or friend must fill out a request form and provide proof of your death before Facebook or Instagram will consider and approve the request.

    Your Executor or close family member can also request to have your account deactivated, and the contents removed completely.  In both options, the contents of your page including photos and videos cannot be retrieved by your executor or family members.

    iTunes and Google play

    Apps, books, movies and music that you have paid and downloaded through your account can not be passed on to another person. The purchase of this type of digital content only grants you a licence to use those files, and that licence is non transferable to another person or device.

    Should you wish for this type of digital content to be used by another person you will need to leave that person your device, and your account and password details.

    Email accounts

    Only in rare cases will email providers allow a person to access a deceased person’s account. A request can be made to these providers directly, however there is no guarantee that your executor will be granted access.

    It is useful to keep details of your login and passwords somewhere that your executor can access particularly in circumstances were you have bills being sent to you electronically.

    Twitter

    Twitter will not give anyone, no matter their relationship to you access to a deceased’s account. They will consider requests to have the account deactivated however this is not always guaranteed and in some circumstances your account may continue after you have passed away.

     

     

    Paypal

    Should you have an active Paypal account on your death that is holding funds on your behalf, your Executor can submit a request to have the account deactivated. When proof of your death is provided to Paypal by your authorised representative Paypal will forward a cheque to your Estate for the balance of funds held on your behalf.

    If you would like further details on how each provided deals with your account on your death, please review their terms and conditions.

    Should you have specific wishes as to how you want your digital assets to be dealt with after you die, we encourage you to keep up-to-date records of your accounts, login details, passwords and answers to secret questions. Store this information with your will, or somewhere that your executor of family member can locate on your death.

    If you would like further assistance please contact Beck Legal on 03 5445 3333.

    Written by Alix Steed, Solicitor at Beck Legal.

    asteed@becklegal.com.au

     

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    Planning Permit holder timed out in recent VCAT red dot decision https://www.becklegal.com.au/conveyancing-property/planning-permit-holder-timed-out-in-recent-vcat-red-dot-decision/ Wed, 20 Apr 2016 04:49:00 +0000 https://www.becklegal.com.au/?p=919 Red Dot Planning Decision Review – Moorabool Shire Council v Ethanwray Developments Pty Ltd (2016) Beck Legal recently represented Moorabool Shire Council in the recent VCAT red dot decision of Moorabool Shire Council v Ethanwray Developments Pty Ltd .  Red dot decisions are significant decisions made by VCAT in the Planning and Environment List, which …

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    Red Dot Planning Decision Review – Moorabool Shire Council v Ethanwray Developments Pty Ltd (2016)

    Beck Legal recently represented Moorabool Shire Council in the recent VCAT red dot decision of Moorabool Shire Council v Ethanwray Developments Pty Ltd .

     Red dot decisions are significant decisions made by VCAT in the Planning and Environment List, which provides guidance with respect to important planning matters.

    This case concerned two interesting questions of law stemming from a Planning Permit issued by Council which permitted the development of land for the purposes of offices and a 10-lot subdivision.

    The first question of law which the VCAT was called upon to answer was – had the entire permit expired as consequence of the subdivision not being certified in time, which, if answered in the affirmative, would mean that the development works undertaken on the land were undertaken without a permit.

    Member Whitney decided in favour of Council, that is the permit had expired as consequence of the subdivision of the land not being certified in time, primarily on the basis that an extension in time to a planning permit could only extend the time in which that condition could be satisfied, it could not change the mechanics and operation of the condition itself, as argued by the Respondents which if accepted would have allowed the permit to remain active.

    The second question of law that needed to be answered was just what had been constructed at the land? Had offices, as was permitted to be constructed under the permit, been constructed or had the Respondents constructed dwellings for which no planning approval had been granted.

    Member Whitney determined in favour of Council that the existence of built in robes with mirrored sliding doors, kitchens including substantial cabinetry, laundry troughs and clothes lines all gave rise an overall indication that the permit holders had sought to build dwellings from the outset, and not offices as permitted under the expired permit.

    Consequently, Member Whitney ordered, amongst other things, that the buildings on the land could not be used until planning approval had been obtained for the development of the land and the development completed in accordance with the permit.

    If you have any questions or issues related to planning law please contact Beck Legal on 03 5445 3333.

    Written by Jamie O’Regan, Solicitor at Beck Legal

    joregan@becklegal.com.au

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    Protecting the assets of your business https://www.becklegal.com.au/commercial/protecting-the-assets-of-your-business/ Wed, 06 Apr 2016 22:24:07 +0000 https://www.becklegal.com.au/?p=916 A recent decision of the New South Wales Supreme Court (the Court) illustrates the consequences in which businesses are exposed to in the event they fail to register their security interest on the Personal Property Securities Register (PPSR). What is the PPSR? The PPSR is a national online register which is established and governed by …

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    A recent decision of the New South Wales Supreme Court (the Court) illustrates the consequences in which businesses are exposed to in the event they fail to register their security interest on the Personal Property Securities Register (PPSR).

    What is the PPSR?

    The PPSR is a national online register which is established and governed by the provisions of the Personal Property Securities Act 2009 (Cth) (PPSA). The PPSA allows an entity or an individual to register a security interest on the PPSR in circumstances where an entity or individual is:-

    • selling goods on credit;
    • providing credit facilities to third parties;
    • making loans or advances available to third parties;
    • renting, leasing or on-hiring goods to third parties;
    • supplying goods on retention of title terms;
    • supplying goods on consignment to third parties;
    • granting a licence to third parties to use personal property, such as trade marks or other intellectual property;
    • receiving a security deposit under a legal document such as a lease;
    • entering into an agreement where security is granted over a third party’s assets; or
    • receiving a personal guarantee from an individual (such as a company director), guaranteeing the performance of certain obligations under a contract.

    It is important to note that the PPSA only applies to personal property as defined under the PPSA. That is, the PPSA does not apply to property such as real property.

    Why the PPSR important to your business?

    The PPSA is important to your business as, if you fail to register a security interest on the PPSR and the entity or individual in possession of your goods enters into liquidation or is declared bankrupt, the liquidator or trustee in bankruptcy may be able to claim ownership of your goods and on-sell such goods to satisfy the debts of creditors.

    Importantly, to have a valid security interest, an individual or entity must:-

    • enter in to a written agreement with the other party which sets out certain security provisions;
    • register a security interest on the PPSR within the specified time frames as set out in the PPSR; and
    • comply with other requirements of the PPSA.

    The decision in Forge

    The decision in Forge Group Power Pty Ltd (In Liquidation) (Receivers and Managers Appointed) v General Electric International Inc NSWSC 52 provides an example of the consequences in which a business may face if they fail to register a security interest on the PPSR.

    In this case, General Electric International Inc (GE) leased to Forge Group Power Pty Limited (Forge) two mobile gas turbine generator sets (the Assets).

    GE failed to register its security interest in the Assets on the PPSR and shortly thereafter, Forge entered into administration. Despite arguing (amongst other things) that the PPSA did not apply to the current circumstances on the grounds that GE was not regularly engaged in leasing goods in Australia, the Court found that GE’s failure to register their security interest meant that GE lost its interest in the Assets, which were valued in the vicinity of $60 million. This ruling ultimately resulted in some good news for the secured creditors of Forge.

    The practical implications in this case serves as a timely reminder on businesses as to why it is essential to ensure compliance with the PPSR as legal ownership of goods can be trumped by those in possession of the goods/assets in question.

    For more information regarding PPSA compliance, please contact a member of Beck Legal’s Commercial and Business Law team.

    Written by Nicholas McConnell, Commercial and Business Law Solicitor at Beck Legal

    nmcconnell@becklegal.com.au

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    Marriage, Divorce and Wills https://www.becklegal.com.au/wills-estate-planning/marriage-divorce-and-wills/ Wed, 16 Mar 2016 03:24:39 +0000 https://www.becklegal.com.au/?p=913 As relationships change it is important to understand the effect that marriage, divorce and separation can have on your Will. Marriage and Wills Many people are unaware that their will becomes invalid on the day they get married. If you pass away without having updated your will to consider your new relationship, you will have …

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    As relationships change it is important to understand the effect that marriage, divorce and separation can have on your Will.

    Marriage and Wills

    Many people are unaware that their will becomes invalid on the day they get married. If you pass away without having updated your will to consider your new relationship, you will have passed away without a valid will. Without a valid will the laws of intestacy will direct that a large part of your Estate will be paid to your new spouse. This may not be a concern for couples who are marrying for the first time; however it can become a problem for couples who may be marrying for a second or third time and have children from a previous relationship who they also wish to provide for. It is important to consider updating your Will before, or immediately after you get married.

    There is one exception to the marriage rule, should you make a will ‘in contemplation of marriage’ that expressly states that you have considered your new spouse, then upon your marriage your will is not revoked.

    If you have recently married or are considering marrying in the near future please contact our Wills department to ensure that your will is valid and reflects your wishes.

    Separation, Divorce and Wills

    Both separation and divorce have different effects on your Will and it is important that you review your will immediately after you separate from your spouse.

    Marriage separation has no effect on your Will; however it is crucial that during the period of separation prior to divorce that you update your Will to reflect your relationship change. As your Will is not invalidated as a result of separation you may find that your ex-spouse will be entitled to a substantial part of your assets.

    A formal divorce in Victoria will invalidate all clauses in your will that refers to your ex-spouse, namely clauses appointing them as Executor and any clauses leaving them a gift or the residue of your estate. When clauses are invalidated in your Will it can cause considerable issues in the reading and interpretation of the Will that may result in substantial legal fees being incurred to interpret your Will.

    Next Steps

    We recommend that you actively review your Will every three years. Should you enter into or end a relationship please contact our Wills department to discuss whether your Will is valid and reflects your new relationship status.

     

    Written by Alix Steed, Wills & Estates Solicitor at Beck Legal

    asteed@becklegal.com.au

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    Deal or no deal? What are the obligations in good faith bargaining? https://www.becklegal.com.au/commercial/deal-or-no-deal-what-are-the-obligations-in-good-faith-bargaining/ Tue, 23 Feb 2016 00:37:34 +0000 https://www.becklegal.com.au/?p=907 Background Australia has been in our opinion relatively slow in following United Kingdom’s developments and enforcement of good faith bargaining. A recent decision in the Victorian Supreme Court North East Solution Pty Ltd –v- Masters Home Improvement Australia Pty Ltd and Woolworths Limited (2016) VSC 1 put fair and square the obligations of parties in …

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    Background Australia has been in our opinion relatively slow in following United Kingdom’s developments and enforcement of good faith bargaining. A recent decision in the Victorian Supreme Court North East Solution Pty Ltd –v- Masters Home Improvement Australia Pty Ltd and Woolworths Limited (2016) VSC 1 put fair and square the obligations of parties in terms of good faith and reasonable standards of conduct. Woolworths (WOW) had embarked upon a very aggressive campaign in 2009 to compete against Bunnings Hardware outlets by planning to roll out in a relatively short timeframe a large number of outlets which were considered to be a higher standard in finish to the Bunnings product and which in particular, would be attractive to women. WOW had identified a Bendigo site in Strathdale which was centrally located and entered into negotiations with the Northeast (NE) which were formalised by a letter of offer (LO) dated 2 June 2009 and an agreement to lease (ATL) executed on 24 February 2010. The proposal contained in the LO was that NE would construct a Masters Home Improvement store on a turnkey basis to a specification provided by WOW (10,533m2) and proposed that should the design brief differ in  cost to other major trade supply/restricted retail premises, the difference  in cost was to be made (by the tenant) by payment of  a lump sum with a quantity surveyor to verify the cost difference. Once completed, a lease would commence for a period of 12 years with 5 options of 6 years each with a commencing rental of $1,264,200 per annum. It was a term of the LO that the proposal was subject to approval by the WOW Board, NE gaining control of all the Site land and finalisation of development plans, and scope of works to WOW’s satisfaction. It was specified that the LO was to be a binding agreement,  subject to execution of an ATL based on the WOW standard documentation,  including the terms contained in the LO. Issue During the intervening period and before any negotiation or disagreement between the parties arose as to the calculation of the landlords work costs, NES contended that WOW had decided take into consideration other extraneous objects such as:

    • to pursue as an alternative and existing long established hardware store being Hume & Iser;
    • harbouring concerns regarding the price escalation above original budget & development cost($3.7m –v- $1.7m);
    • NES’ ability to complete; and
    • potential Council planning opposition;

    which resulted in WOW terminating the ATL in May 2010. An essential term of the subsequent ATL, given the haste which WOW wanted the construction completed , was that NES would plan to construct a store  to a Bunnings specification  and WOW would agree to pay the difference between this Bunnings specification and the WOW Briefing Kit . In particular clause 2.2 of the ATL provided that: As soon as reasonably practicable after receipt by the landlord of the (Woolworth’s) Briefing Kit the landlord acting reasonably and in good faith would engage in a process with the tenant whereby the landlord’s works and costs could be examined on an open book basis and after engaging in a range of review processes, the landlord and tenant acting reasonably and  in good faith, would endeavour to resolve any differences in an  attempt to determine the amount the tenant must contribute towards the landlord’s work costs (if any) within a timeframe of either 20 April 2010 or a date which is six weeks after the receipt by the tenant of the notice of the landlord’s work costs. Decision Justice Croft who is in the writer’s opinion, is a long established and acknowledged leader in the profession in leasing matters,  determined that the clause was not an agreement ‘merely to negotiate’  but that it was an agreement to act reasonably in good faith to resolve differences between the NES estimate of the landlord’s work costs and WOW’s position. It was determined that WOW (on a reasonable person basis) could have determined that WOW, if it had complied with the object of identifying and resolving the differences in the calculation of the landlord’s work costs (writer emphasis) could have done so much more than it did and wrongfully terminated the agreement in May 2010. His Honour made an award in damages to NES of $10.875 m plus costs. Justice Croft in spelling out good faith and reasonableness principles, referred amongst other things to 3 salient principles based upon a lecture provided by the former High Court judge Sir Anthony Mason at Cambridge in 2000:

    1. the obligation of the parties to cooperate in achieving contractual objects (loyalty to the promise itself);
    2. compliance with honest standards of conduct; and
    3. compliance with honest standards of conduct that are reasonable having regard to the interests of the parties.

    Take away point As a result of the above decision, we recommend readers carefully consider the fine line between robust and hard negotiation bargaining and breaching good faith principles and reasonableness, particularly if they are specifically stipulated in any agreement.   

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