Business Advisory

New Similar Business Test to Incentivise Innovation by Increasing Access to Carry Forward Loss Rules

On 6 April 2016 the Federal Government released exposure draft legislation to allow businesses that have changed ownership to access past year tax losses if they satisfy a similar business test. The draft legislation follows the Government’s announcement on 7 December 2015 of a raft of measures proposed to incentivise and reward innovation as part
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Martin Checketts in ‘The Transformation Series’

Proactively advocating for your own personal growth, as well as that of your business is incredibly important for generating lasting success. But first you must decide where you want to grow and pinpointing those growth opportunities to generate future profit can be a challenge. Watch our own Martin Checketts (Private Advisory, Melbourne) coach and mentor
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The Transformation Series: 30 Day Business Challenge

By Martin Checketts This year, I had the opportunity to participate in the latest wealth education initiative by No More Practice, the Transformation Series. Broadcast nationally on SkyNews Business and Channel 74, the Transformation Series brings to life the stories of three business owners as they undergo intensive coaching to transform their business and compete
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Building, Construction & Infrastructure

A ban on combustible cladding and extending legal duties of care: Senate report recommendations turn up the pressure on property and building industry

By Scott Higgins, Partner and Lucy Hancock, Lawyer The Senate has released its interim report on the use of Aluminium Composite Panel (ACP) in Australia as part of its enquiry into non-conforming Building Products. ACP is combustible and considered by experts to have exacerbated the spread of the London fire. As set out in our
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Defective structure or defective design – which is it and what does it mean?

By Ziv Ben-Arie, Partner,  Vlad Vishney Senior Associate, and Nawid Cina Paralegal.  Summary The recent decision of His Honour Stevenson J, in AAI Ltd T/as Vero Insurance v Kalnin Corp Pty Ltd; Kalnin Corp Pty Ltd v AAI Ltd T/as Vero Insurance [2017] NSWSC 548 (Vero) examines the breadth and meaning of the term ‘structural
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Who’s liable? Combustible cladding prompts building reform in NSW

By Scott Higgins, Partner and Lucy Hancock, Lawyer As set out in our previous update, the devastating Grenfell Tower Fire in London in June highlighted the pervasive use of combustible and potentially unsafe cladding materials in high rise developments across the world. In terms of government responses to the risks, Victoria had already been leading
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Charity & Not-For-Profit

For when things go wrong: directors and officers insurance and indemnities

By Andrew Egri, Lawyer  It is clear that officers of not-for-profit organisations contribute a great deal to their cause, often at a personal cost. In addition to their investment of time and energy, officers are also authorised and expected to take risks on behalf of their organisation. It is good governance to protect those who
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Directors and Management Committees Beware: Insolvent Trading

BY Marcelle Chester Australia has some of the most severe and wide-reaching provisions prohibiting insolvent trading. It is essential that organisations are aware of the indicators and consequences of insolvent trading, and implement processes to protect the organisations and their officers from harm. How to determine if your organisation is solvent To determine whether an
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Accounting Standard 1058 and the ‘Cost’ of Volunteer Services

BY Marcelle Chester Under the new Australian Accounting Standards Board (AASB) income reporting standard, AASB 1058 Income of Not-For-Profit Entities (AASB 1058), not-for-profits (NFPs) may be required to report volunteer services as income. Why is there a New Accounting Standard? The current reporting requirements under AASB 1004 Contributions have been criticised for failing to accurately
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Commercial Disputes & Insolvency

Protecting Legal Privilege in Communications Involving Third Parties

By Stuart Walter, Partner Slea Pty Ltd v Connective Services Pty Ltd & Ors [2017] VSC 361[1] The decision considered whether legal professional privilege applies in relation to communications between a lawyer and a client where a third party (in this case a litigation funder) is included in those communications. Key Points A claim of
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Federal Court leaves priority regime hanging by a string

By Ariel Borland, Partner, Dean Brayley, Associate and Natalie Court, Graduate The decision of Kite v Mooney, in the matter of Mooney’s Contractors Pty Ltd (in liq) (No 2) [2017] FCA 653 (Kite) is adding to a growing body of authorities that assets held by an insolvent corporate trustee in its capacity as trustee are
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Is it mutual? A tale of set-off and security

By Partner, Ariel Borland and Law Graduate, Hannah Wilson The reconciliation of contractual, equitable and statutory set-off rights in insolvency has long been a problematic area for creditors and principals alike. The findings in Hamersley Iron Pty Ltd v Forge Group Power Pty Ltd (In Liquidation) (Receivers and Managers Appointed) [2017] WASC 152 fundamentally improve
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Corporate Advisory

MOving Ahead September 2017

By Luke Hooper, Special Counsel Welcome to the September edition of MOving Ahead! This publication is filled with legal and regulatory developments designed to help super fund trustees meet the challenge of minimising the impact and maximising strategic opportunities arising from regulatory change. In this edition… APRA releases its 2017-21 Corporate Plan APRA advises trustees of the metrics it
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August 2017 Competition Update: The “effects test” becomes law, and other competition reform news

By Mick Coleman, Partner, Corporate Advisory  In March 2017, Mills Oakley published a Competition Update on amendments proposed to the Competition and Consumer Act 2010 (Cth) (“CCA”) by the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 (“the Bill”).  This note explains the final form of the Bill, with the main s46 reform
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MOving Ahead August 2017

By Luke Hooper, Special Counsel Welcome to the August edition of MOving Ahead! This publication is filled with legal and regulatory developments designed to help super fund trustees meet the challenge of minimising the impact and maximising strategic opportunities arising from regulatory change. In this edition… Treasury releases the draft Legislation Amendment (Improving Accountability and Member Outcomes in
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Doing Business in Australia

Doing Business in Australia – 25 August 2015

In The Media Agribusiness Towns lock horns in abattoir funding bid – Townsville Bulletin [05.08.2015] Hughenden and Charters Towers are continuing their battle to see who can secure an abattoir investor first. The towns have previously put forward plans to establish an abattoir in the North to boost the beef industry, with international investors to
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Doing Business in Australia – 2nd July 2015

In the media Agriculture Perich kicks off dairy wars – The Australian [23.06.2015] Freedom Foods, majority-owned by the billionaire Perich family, has moved to increase its foothold in the Australian dairy industry. Freedom has made an indicative, non-binding and conditional bid with a view to undertaking due diligence on listed milk company, a2 Milk. It
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Doing Business in Australia: 23 April 2015

Drop in $A stokes interest in IPOs – The Australian Initial Public Offerings (“IPOs”) are set to increase as global investors invest in the IPO sector following a drop in the Australian dollar, and lower interest rates resulting in favourable share market conditions. The lower Australian dollar means that stocks which were initially considered too
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Estate Agency Industry

The new “Underquoting” law comes into effect on 1 May 2017 – are you ready?

By Jason Maletic, Senior Advisor, and John Turnbull, Partner Most licensed estate agents in Victoria will be aware that Consumer Affairs Victoria (“CAV”) has been particularly busy over the last 12 months, having conducted investigations into the selling practices of over 100 estate agencies across the state. Most licensed estate agents in Victoria will also
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FIRB and “Off-the-plan” sales

By Tom Hedditch, Seasonal Clerk and John Turnbull, Partner On Monday this week, the Foreign Investment Review Board (FIRB) altered how foreign buyers will be allowed to purchase an off-the-plan property when another foreign buyer has failed to reach settlement. Prior to the introduction of the FIRB recommendations, foreign investors were restricted to only buying
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The new “Underquoting” law – the changing landscape for Victorian estate agents

By John Turnbull, Partner and Jason Maletic, Senior Advisor On Tuesday of last week the much-anticipated new “Underquoting” Bill was read for a second time in the Victorian State Parliament following its introduction earlier last month. The Bill seeks to amend the Estate Agents Act [1] by introducing several measures designed to, in the words
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Estates and Succession

Property incurs land tax because Will did not give beneficiary right to use it as their residence

By Stuart O’Neill, Special Counsel A recent decision of the Western Australian Supreme Court has highlighted the care that needs to be taken when drafting provisions in a Will dealing with residential property and the incidence of land tax. The Court held a property owned by the trustee of a testamentary trust created under a
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Queensland Government extends family primary production transfer duty concession to transfers to first cousins

By Stuart O’Neil, Special Counsel The Queensland Government has offered further assistance to Queensland farming families who wish to implement succession planning arrangements by allowing the family primary production transfer duty concession to apply to transfers to first cousins. Under the Queensland Duties Act, the concession is only available for transfers to defined family members
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Step Children of De facto Couples Entitled to Make Claims on Estates

By Troy Palmer, Special Counsel, Scott Colvin, Law Graduate Last week, the Victorian Court of Appeal dismissed an appeal against a 2016 decision of the Supreme Court concerning the ability of stepchildren to make claims against the estates of their deceased step parents. The Court of Appeal confirmed that the children of de facto spouses
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Financial Services

Court Approval: Don’t take it for granted

By Michael Chapman, Senior Associate, Jacqueline Wang, Senior Associate and Sheridan Handley, Lawyer Two recent decisions of the Supreme Court of Victoria have shown that the Court’s approval should not be taken for granted when seeking approval of settlement of a proceeding or seeking judicial advice or direction of the Court on a matter of administration
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Spotlight on Super – May 2016

Welcome to the May edition of Spotlight on Super! This publication is filled with legal and regulatory developments designed to help super trustees meet the challenge of minimising the impact and maximising strategic opportunities arising from regulatory change. In this edition… The ATO and APRA remind trustees of their upcoming SuperStream obligations. ASIC releases updated regulatory guidance
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The Budget 2016-17: How it affects Financial Services

By Christopher Lim, Lawyer, and Luke Hooper, Special Counsel Released on 3 May 2016, the Budget contains some interesting announcements affecting the financial services industry. The Australian managed funds industry has been given an international push with the announcement of Collective Investment Vehicle initiatives and support for the Asia Region Funds Passport. The Government has
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Franchising

Franchising Update – ACCC releases industry-specific report for unfair contracts legislation

By Cassandra Taylor, Lawyer and Warren Scott, Partner From 12 November 2016, the unfair contracts law contained in the Australian Consumer Law and Australian Securities and Investments Commission Act 2001 (Cth) was extended to apply to business-to-business standard form contracts to protect small businesses. Until the law is tested, its full scope will not be known. 
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Government and Administrative Law

Privacy remedies: When emotional harm can lead to financial pain

By Christina Graves, Senior Associate and Sharon Sangha, Lawyer Determinations made under the Privacy Act 1988 demonstrate that the Privacy Commissioner will likely award compensation for non-economic loss where an individual suffers emotional harm, humiliation or inconvenience as a result of a privacy breach. However, responding to privacy incidents in an efficient and conciliatory way
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Government Ships – Hands Off!

By Maurice Lynch, Senior Associate A Government owned ship is Teflon and cannot be the subject of in rem proceedings to secure a claimant’s proprietary or general maritime claim under the Admiralty Act 1988 (Cth). What constitutes a Government owned ship for the purposes of the Admiralty Act is likely to be broader than you
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The application of s 140(2)(c) of the Evidence Act to matters not in dispute

Key lesson: It is erroneous for a court to rely on s 140(2)(c) find that a party to the proceedings has failed to prove a matter which is not in dispute and for which the evidence is one way. The ordinary standard of proof required of a party who bears the onus in civil litigation
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Health & Life Sciences

The Senate sees Sense: Terminally ill patients may receive expedited access to medicinal cannabis

New votes by the One Nation Party in a surprise re-hearing of Senator Richard Di Natale’s medicinal cannabis motion mean that terminally ill patients may be able to access medicinal cannabis via Category A of the SAS once again. Partner, Dr Teresa Nicoletti and Paralegal, Helaena Short, discuss. Earlier this year Senator Richard Di Natale
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One Nation and the Xenophon Team prioritise political interests at the expense of terminally ill patients

A motion moved by Richard Di Natale of the Greens to disallow legislation which blocks immediate access to medicinal cannabis by terminally ill patients was recently voted down in the Senate due to unexpected votes by One Nation and the Nick Xenophon Team. Paralegal, Helaena Short and Partner, Dr Teresa Nicoletti discuss. In February this
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Voluntary Euthanasia in New South Wales: Draft legislation to be considered in 2017

Prompted by the draft Voluntary Assisted Dying Bill 2017 (NSW), New South Wales is preparing to tackle growing community demands for end-of-life legislation in the coming months. Partner, Dr Teresa Nicoletti and Paralegal, Helaena Short discuss. A draft of the Voluntary Assisted Dying Bill 2017 (NSW) (Bill) was recently released for public consultation by a
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Insurance

Fiaese Tuimaseve v Wesfarmers Ltd – Melbourne Magistrates Court – 7 September 2016

By Stuart Eustice, Partner Hot on the heels of Jarvis v Salvation Army [2016] VSCA 175, Magistrate Ginnane has been asked to apply the Court of Appeals reasoning from Jarvis in determining the application of s.114(2A) Accident Compensation Act 1985. This decision illustrates further the Courts likely pathway in future decisions. Background Tuimaseve was a
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Hanjin Shipping – What Should I do with my Container?

Last week’s application by Hanjin Shipping for receivership and bankruptcy protection will create a number of headaches for cargo interests who have consignments either booked for shipment or already shipped on Hanjin Shipping’s vessels. To read the complete article, click here. Contact Mills Oakley   Frazer Hunt | Partner T: +61 2 8035 7972 E:  fhunt@millsoakley.com.au
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Right of Stoppage – It Sounds Simple, Right? Not for Freight Forwarders

By Maurice Lynch, Senior Associate A right of stoppage is the right of an unpaid seller to stop goods in transit that they have sold to a purchaser, and retain them until payment of the purchase price. For an unpaid seller to exercise a right of stoppage it must, prior to possession of the goods
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In MOtion Interviews

In MOtion – Tran Vuong

In this instalment of In MOtion, Brisbane Private Advisory Associate Tran Vuong tells us about working for the underdogs and fishing her way around the world. What is the best thing about being a lawyer and, in particular, a Private Advisory lawyer? Most of the clients that we deal with are the underdogs – small
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In MOtion – Hannah Morris

Hannah Morris is a Lawyer in the Sydney Property team. In this interview, she talks about the many facets of property law, synergies with other practice areas….and running a puppy day care centre. What is the best thing about being a lawyer and, in particular, a property lawyer? All careers have ups and downs, but
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In MOtion – Paul Jurdeczka

Paul Jurdeczka, better known as PJ to his colleagues, is an Insurance and Strata specialist in our Sydney office. In this interview, he talks about life in practice at Mills Oakley and how the profession may evolve down the track. What do you love most about your practice? Every matter is different. In construction insurance and strata
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Intellectual Property

Patent damages counter-factual analysis: Bayer V Generic Health [2017] FCA 250

James Lawrence, Partner and Leonora Tyers, Associate[1] Background Bayer AG and Bayer Australia Ltd (together, Bayer) are the patentee and exclusive licensee respectively of Australian Patent No 780330 (Patent) pursuant to which they have manufactured and sold in Australia for over 15 years an oral contraceptive (OC) product known as “Yasmin”. Yasmin contains a combination
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Voluntary Euthanasia in New South Wales: Draft legislation to be considered in 2017

Prompted by the draft Voluntary Assisted Dying Bill 2017 (NSW), New South Wales is preparing to tackle growing community demands for end-of-life legislation in the coming months. Partner, Dr Teresa Nicoletti and Paralegal, Helaena Short discuss. A draft of the Voluntary Assisted Dying Bill 2017 (NSW) (Bill) was recently released for public consultation by a
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Dr Teresa Nicoletti named Health Partner of the Year

Mills Oakley partner Dr Teresa Nicoletti has been named Health Partner of the Year at the 2017 Lawyers Weekly Partner of the Year Awards, held in Sydney last Friday. To read more, click here.

Planning and Environment

Politics-free zone? Sydney and Wollongong councillors stripped of their DA powers

By Aaron Gadiel, Partner State parliament has rushed through legislation to completely strip local councillors of their power to decide development applications in Sydney and Wollongong.  This is a major change to the NSW planning system. The changes are set out in the Environmental Planning and Assessment and Electoral Legislation Amendment (Planning Panels and Enforcement)
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NSW Government sweeps away caps on residential development levies

By Aaron Gadiel, Partner The NSW Government has published a new ministerial direction paving the way for increased local council levies on new housing. The levies are commonly known as ‘section 94’ contributions.  The contributions can be imposed on new housing under a development consent.  Typically these levies are paid to a local council prior
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District commissioners off the Sydney planning panels and ‘Landcom’ back in vogue

By Aaron Gadiel, Partner The NSW Government has introduced legislation to parliament to strip the district commissioners of their recently acquired role as chairs of the Sydney planning panels. The Government is also now implementing its March decision to divide ‘UrbanGrowth NSW’ into two separate enterprises. One enterprise will retain the ‘UrbanGrowth’ label — while
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Private Advisory

Mills Oakley Tax Note: Is your trust a fixed trust?

By David Marschke, Partner; Stuart O’Neill, Special Counsel; and Tran Vuong, Associate.  The final version of the ATO guidance on what constitutes a “fixed trust” for tax purposes has been released.  It provides safe harbour rules to assist practitioners and taxpayers in applying the “fixed entitlement” requirements. Why bother with “fixed trusts”? There can be
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Property incurs land tax because Will did not give beneficiary right to use it as their residence

By Stuart O’Neill, Special Counsel A recent decision of the Western Australian Supreme Court has highlighted the care that needs to be taken when drafting provisions in a Will dealing with residential property and the incidence of land tax. The Court held a property owned by the trustee of a testamentary trust created under a
Read more…

Queensland Government extends family primary production transfer duty concession to transfers to first cousins

By Stuart O’Neil, Special Counsel The Queensland Government has offered further assistance to Queensland farming families who wish to implement succession planning arrangements by allowing the family primary production transfer duty concession to apply to transfers to first cousins. Under the Queensland Duties Act, the concession is only available for transfers to defined family members
Read more…

Property

Commercial Building Disclosure – Amendments to the Building Energy Efficiency Disclosure Act 2010

By Partner, Tony Butler and Lawyer, Erin Priest Amendments to the Building Energy Efficiency Disclosure Act will come into effect on 1 July.  These amendments will affect commercial building owners and lessees intending to sell, lease or sublease their property after this date. The key amendment is the reduction of the commercial office space threshold
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2017/18 Federal Budget implications on the Property Industry

By Andrew Logan, Partner, Patrick Thaung, Partner and Mitchell Spurge, Senior Associate With the announcement of the 2017/18 Federal Budget, Mills Oakley has taken the opportunity to analyse and provide the following summary and commentary on the Federal Budget’s implications on the property industry. 1            Measures that take effect on and from 9 May 2017
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Federal Budget Measures

By Tom Cantwell, Partner GST and residential property transactions 1 July 2018 GST is currently payable on newly constructed residential properties.  This is ordinarily paid by the purchaser to the developer, and the developer is required to remit the GST to the ATO. Government has stated that some developers are currently failing to remit the
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Strata

Security for Costs Required of Owners Corporation

By Paul Jurdeczka, Partner The Supreme Court of NSW has handed down a decision that needs to be taken into account by any Owners Corporation when bringing litigation. In The Owners – Strata Plan 64415 v Serman [2017] NSWSC 806 (20 June 2017) an owners corporation was suing their former solicitors and barrister for alleged
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Identifying Defects Early – Now Even More Relevant!

By Paul Jurdeczka, Partner A recent decision of Justice Stevenson of the Supreme Court has reinforced the need to identify and include all claimed defects in court proceedings, even more so than used to be the case. Various court decisions had previously made clear that suing on the underlying “cause of action”, or legal right,
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The new Strata Schemes Management Act: Major Impact on Developers and Contractors

By Scott Laycock, Partner, Sarah Sattout, Consultant, and Caitlin Cook, Lawyer New South Wales Fair Trading recently announced that the new Strata Schemes Management Act 2015 (NSW) (Act) will come into effect in November 2016. The Act replaces the existing Strata Schemes Management Act 1996. The Act will apply to construction contracts entered into after
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Taxation

NSW Budget 2016-17

By Jennifer Yeo, Special Counsel, and Isobel Feben, Lawyer. NSW introduces Foreign Investor Duty and Land Tax Surcharges and abolishes off-the-plan concession for foreign persons The NSW Budget 2016-17 handed down on 21 June 2016 introduces new measures affecting foreign persons who own or purchase residential property in NSW on and after that day. The
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New Withholding Tax Regime – What Do Real Estate Agents Need To Know?

By Jennifer Yeo, Special Counsel From 1 July 2016, purchasers of certain ‘taxable Australian property’ from foreign tax residents will be required to pay 10% of the total purchase price to the Australian Taxation Office (ATO). As a successful agent, it is vital you inform both the vendor and purchaser of their obligations under the
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New foreign resident capital gains tax withholding regime

The Tax and Superannuation Laws Amendment (2015 Measures No. 6) Act was enacted on 25 February 2016. All purchasers of Australian real property, interests in entities that predominantly hold Australian real property or options over these will be affected by the new foreign resident capital gains tax withholding regime.  The new regime will apply to
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Technology & Communications

Hey you, with the fixed network – not so superfast!

By Mick Coleman, Partner An extension to the Superfast Broadband rules beyond 1 January 2017 will impose further obligations on the (very few) superfast fixed networks competing with NBN Co.  But the real competitive threat will come from less-regulated fixed wireless operators that bypass fixed networks altogether.    In December 2014, Malcolm Turnbull (as Minister for
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The Telstra – ACCC regulatory game – the longest running show in town, back for a new season

By Mick Coleman, Partner NBN Co’s purpose in life, since it was a twinkle in Minister Conroy’s eye in 2007, was always the (re)nationalisation of the last, greatest monopoly in Australian telecommunications. Telstra shareholders bought from the government a bunch of nationally significant infrastructure assets.  But in a free market, things change, and most of
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Mandatory Notification of Data Breaches – Proposed to be introduced in 2015

By Mick Coleman This paper discusses the severity of data breaches and the movement to make reporting these breaches mandatory in Australia. This paper outlines the background of the movement, how data breaches happen, the current Australian position, a discussion on the Parliamentary Joint Committee on Intelligence and Security (PJCIS) Report, the United States’ position
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Workplace Relations, Employment & Safety

The Protecting Vulnerable Workers Bill has become law: what your business needs to know (and do)

By Lisa Anaf, Partner and Diana Diaz, Senior Associate  After some tweaks in the Senate, the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (the Bill) was passed. Now that the Bill is law, we have summarised some of the key changes to the Fair Work Act 2009, along with some practical steps that you
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The Fair Work Ombudsman is pursuing directors, HR managers, contractors and franchisors

By Lisa Anaf, Partner In the last 12 months we have seen an significant increase in the Fair Work Ombudsman’s efforts to pursue directors and managers (including HR and payroll managers) for their involvement in contraventions of the Fair Work Act’s accessorial liability provisions. The full article available here, will provide you with a summary of
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The Fair Work Commission cuts penalty rates: What it means for your business

By Lisa Anaf, Partner and Eleanor Downie, Lawyer  In a historic ruling, the Full Bench of the Fair Work Commission (the FWC) has decided to reduce penalty rates across a number of Awards in the hospitality and retail industries. The awards affected by the FWC’s decision are as follows: Fast Food Industry Award 2010 (Fast
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