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

Queensland introduces Non-conforming Building Products Legislation and reforms BCIPA and other legislation

By Greg Richards, Partner The Building and Construction Legislation (Non-conforming Building Products – Chain of Responsibility and Other Matters) Amendment Act 2017 (NCBP Amendment Act) commenced on 1 November 2017. The Building Industry Fairness (Security of Payment) Bill 2017 (BIFSOPA), which replaces the Building and Construction Industry Payments Act 2004 (BCIPA) and the Subcontractors’ Charges
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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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Charity & Not-For-Profit

Consolidation of federated charities and not-for-profits

By Clarissa Sukkar Mergers amongst existing federated organisations[1] with related and like minded national and state based arms is being increasingly viewed as an avenue to better realise the common objectives of otherwise separate legal companies or entities. Competition within federated charities or not-for-profits, especially arms which share the same name, has been cited to
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Public Companies & Related Parties: Should our organisation be concerned?

By Clement Ngai, Paralegal & Benjamin Lyon, Paralegal If your not-for-profit has been established as a company, the company directors have significant duties associated with their role in orchestrating the operations of the not-for-profit. Under the common law and the Corporations Act 2001 (the Act), obligations have arisen in order to protect members from improper
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Fair’s fair: the unfair contract terms regime

By Andrew Egri, Lawyer With courts now hearing the first claims under the expanded unfair contract laws which have been in force since 12 November 2016, it is a timely reminder to not-for-profit organisations to act fairly in their contractual relationships. New application of unfair contract laws A term can now be declared void by
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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

Abolition of Third Line Forcing and what it means for you

By Warren Scott, Partner The absolute prohibition on third line forcing has been abolished. On the 6 November it was replaced with a test to judge whether it is likely to result in a substantial lessening of competition.  What is third line forcing? Third line forcing is where a franchisor requires a franchisee to acquire
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MOving Ahead October 2017

By Luke Hooper, Special Counsel Welcome to the October 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… Superannuation Industry (Supervision) Tax File Number approval No. 1 of 2017 prescribes
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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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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

ASIC flexes its muscles to gain power to ban managers in the financial services sector

By Lisa-Marie McKechnie, Partner, and Ahmed Rizk, Lawyer The Australian Securities and Investments Commission (ASIC) may soon be getting expanded powers to ban persons involved in the financial services industry and prevent them from having a role in a financial services business, according to a consultation paper released on 6 September 2017. But are the
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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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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

Hemp foods available for lawful sale in Australia next week

Foods made from low-THC hemp seeds and hemp seed oil are permitted for sale from 12 November 2017 in Australia. However, it remains unclear as to who may lawfully cultivate, manufacture and produce such food products. Partner, Dr Teresa Nicoletti and Law Graduates Helaena Short and Sarah Martin, discuss. Background For several decades, Cannabis sativa
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Private Greens Bill wins Majority Vote in the Senate

The Greens’ Medicinal Cannabis Legislation Amendment (Importation and Manufacture) Bill 2017 attempts to put an end to the government’s last ditch-efforts to stifle access to medicinal cannabis for terminally ill patients. Partner, Dr Teresa Nicoletti and Law Graduates, Helaena Short and Sarah Martin, discuss. Yesterday, the Senate majority voted in favour of the Medicinal Cannabis
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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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Insurance

New era of Competition Laws in Australia – what’s in it for me?

By Frazer Hunt, Partner The Competition and Consumer Amendment (Competition Policy Review) Bill passed Parliament last week, following the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 (Cth) which was passed in August 2017, as a result of various recommendations from the 2015 Harper Competition Policy Review. The ACCC hopes that these legislation
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The First Unfair Contract Terms case has been delivered – ACCC trashes JJ Richards’ standard form contract terms

By Frazer Hunt, Partner On 13 October 2017, the Federal Court of Australia delivered the first judgement* under the unfair contract terms provisions of the Australian Consumer Law, declaring various clauses in JJ Richards & Sons’ standard form contracts for waste management services to be unfair and void.   This was the first court case brought
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The elephant in the room – a cautionary tale for freight forwarders

By Henry Holland, Lawyer and Frazer Hunt, Partner The District Court of New South Wales has ruled that a freight forwarder engaged in misleading or deceptive conduct by issuing house bills of lading with all the hallmarks of negotiable bills of lading where the ocean carriers had issued negotiable bills of lading for the same
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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

Cryptocurrencies: What does the taxman think of your Bitcoin?

By Anthony Watson, Partner and James Lawrence, Partner  Bitcoin has been heralded as the ultimate digital payment technology: decentralised, immutable and free from the restraints of existing financial services structures. Other cryptocurrencies possess similar attributes. This relatively new technology presents fascinating legal challenges on numerous fronts. But how does the Australian Taxation Office treat cryptocurrency
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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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Planning and Environment

Going round the Bend – New Fishermans Bend Planning Controls Released

By Jenelle Cramer, Senior Associate and Hannah Wilson, Law Graduate Following the release of the Draft Fishermans Bend Framework Plan (Framework Plan) in the last fortnight, the Fishermans Bend Taskforce has now published the accompanying draft planning controls intended to be incorporated into the Melbourne and Port Phillip Planning Schemes as GC Planning Scheme Amendment
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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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Private Advisory

Major changes to Intestacy Laws in Victoria

By Troy Palmer, Special Counsel and Isobel Feben, Lawyer An intestacy commonly arises when a person dies without a valid will, or has a will which does not distribute the estate in its entirety. A strict legislative formula dictates how an intestate estate must be distributed amongst family members. Currently, if a person dies with a
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Mills Oakley Tax Note – Vesting Dates: Is your trust at an end?

By David Marschke, Partner; Stuart O’Neill, Special Counsel; and Tran Vuong, Associate.  A trust deed may require amendments throughout its lifetime due to changes in circumstances and in the law. A critical amendment that may be necessary is to extend the vesting date. The vesting date (as defined under the relevant trust deed) is the
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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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Projects and Infrastructure

Pumped hydro only half the solution

By Matt O’Connor, Special Counsel and Zac Kerr, Partner Not long after Malcolm Turnbull unveiled Snowy 2.0, Tasmania delivered its own pitch for a piece of hydro action by proposing 15 new pumped hydro sites across the Apple Isle. Pumped hydro – or the pumping and storing of water uphill for use in hydro-electric generation
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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

Cryptocurrencies: What does the taxman think of your Bitcoin?

By Anthony Watson, Partner and James Lawrence, Partner  Bitcoin has been heralded as the ultimate digital payment technology: decentralised, immutable and free from the restraints of existing financial services structures. Other cryptocurrencies possess similar attributes. This relatively new technology presents fascinating legal challenges on numerous fronts. But how does the Australian Taxation Office treat cryptocurrency
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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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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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