General

The Interpretation of Financial Agreements

By Special Counsel, Rachell Davey, and Seasonal Law Clerk, Rebecca Brun A recent case in the Family Court has again highlighted the need for expert care to be taken when drafting Financial Agreements. In a recent decision of Warrick & Mia [2018] FamCA 426, the Court was asked to determine whether a Financial Agreement entered
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New ‘low rise medium density housing’ planning regime a double-edged sword

By Aaron Gadiel, Partner Today (6 July 2018) marks the first day of the new ‘low rise medium density housing’ planning regime in NSW. The aim of the new regime is to allow one to two storey dual occupancies, ‘manor houses’ and terraces to be developed as complying development.  This (in theory) is intended to
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To give or not to give

It is becoming increasingly common for parents to gift or loan their adult children funds to enable them to purchase their first home. Of course, the purchase of property often occurs at a time when adults are entering into long term relationships or marrying. Gifts or loans of money to adult children who are in
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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

No more automatic right to terminate for insolvency

By Andrew Wallis, (Partner),  Andrew Chegwidden, (Senior Associate), and Marcelle Chester, (Lawyer). How new insolvency reforms will affect your construction contracts The Federal Government’s insolvency reforms contained in the Treasury Laws Amendment (2017 Enterprise Incentives No.2) Act 2017 (Cth) (the Act) commenced on Sunday, 1 July 2018. The key reform introduced by the Act will prevent
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Finding the silver lining in an unfavourable adjudication determination

By Peter Meades, Partner, Ziv Ben-Arie, Partner, Vlad Vishney, Senior Associate and Anastasia Babi, Law Graduate/Paralegal In a recent Supreme Court decision it was held that an Adjudicator’s failure to provide adequate reasons in an adjudication determination under the Building and Construction Industry Security of Payments Act 1999 (the Act) constituted a jurisdictional error, rendering
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‘Super Union’ Merger to Bolster Union Powers

By Andrew Wallis, Partner, Andrew Chegwidden, Senior Associate and Marcelle Chester, Lawyer The Fair Work Commission has permitted an application under section 44 of the Fair Work (Registered Organisations) Act 2009 (Cth) for the amalgamation of three industry unions; the Construction Forestry, Mining and Energy Union (CFMEU), the Textile Clothing and Footwear Union of Australia
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Charity & Not-For-Profit

Submission: Inquiry into Charity Fundraising in the 21st Century

The Senate Select Committee was established to investigate charitable fundraising law, and whether it needs to be reformed. The Mills Oakley Not-For-Profit team was chosen as an expert in the field and as such has entered a submission for the inquiry into Charity Fundraising in the 21st Century. Please find a link to our submission
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Cybersecurity – is this a new directors’ duty?

By Brian Lee, Law Graduate When not-for-profit organisations hear about big data breaches in large international companies such as Facebook and Target, they often make the mistake of assuming that issues surrounding cybersecurity will not apply to them. The reality is that not-for-profits are very popular targets for cybersecurity attacks. This is because they often
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Documenting Customer-Centricity

By Brian Lee, Law Graduate It would be hard to find a business that did not place customer-centricity as a priority and not-for-profits have in recent times started to catch on. However, customers for many not-for-profit organisations will differ from that of a for-profit organisation. For not-for-profits, the “customer” could range from the beneficiaries of
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Commercial Disputes & Insolvency

Hanhwa successful in defending interlocutory application by Directed

By Phoebe Pitt, Senior Associate and James Tobin, Partner Mills Oakley has recently acted for Hanhwa Aus Pty Limited and a number of related parties (collectively, Hanhwa)  in successfully resisting an injunction application brought by its competitor and former customer Directed Electronics OE Pty Limited (Directed) seeking to stop Hanhwa from supplying a new digital
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Get your priorities straight: Former administrators’ statutory lien has priority over company assets

By Ariel Borland, Partner and Danielle El-Hajj, Law Graduate A change in insolvency practitioners inevitably creates issues with respect to remuneration and costs.  The Victorian Supreme Court has given important guidance in In the matter of Specialist Australian Security Group Pty Ltd (In Liquidation) (ACN 094 807 173) [2018] VSC 199 (Specialist Australian Security Group)
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If in doubt, take stock and seek directions

By Ariel Borland, Partner, Jennifer O’Farrell, Senior Associate and Danielle El-Hajj, Law Graduate We recently wrote about the Federal Court’s decision in White, in the matter of Mossgreen Pty Ltd (Administrators Appointed) [2018] FCA 471 (White). That decision was appealed and the Full Court has made a number of important observations about the administrators’ role, their incurred
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Corporate Advisory

MOving Ahead August 2018

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… ASIC’s independent expert report into fees and costs disclosure is released; APRA
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MOving Ahead July 2018

By Luke Hooper, Special Counsel Welcome to the July 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 identifies examples where “cash” investment options appear to include exposure to
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MOving Ahead May 2018

By Luke Hooper, Special Counsel Welcome to the May 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… ASIC releases its consultation paper on the approval and oversight of compliance
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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 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 be aware that the state
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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 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 of Ms Marlene Kairouz the
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Estates and Succession

‘Til Death Do Us Part: Impact of Same Sex Marriage on Estate Planning

By Troy Palmer, Special Counsel and William Constable, Seasonal Clerk As a consequence of the recent postal survey, the Federal Government intends to introduce a bill recognising same-sex marriage into the Parliament before Christmas. Assuming that this bill is passed, the ability of same sex couples to become legally married will have a significant impact
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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
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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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Financial Services

Royal Commission into Banking & Financial Services Sector releases Practice Guideline 3

By Lisa-Marie McKechnie, Partner As expected, the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (“Commission”) has continued its practice of releasing guidelines to assist applicants/potential applicants and the industry more widely in understanding how the Commission will be run. The Commission has recently released Practice Guideline 3 which sets out
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2018 industry codes and proposed reforms – is your fund ready?

By Lisa-Marie McKechnie, Partner, and Aryana Thurairasa, Lawyer There has been a lot of change in the Financial Services industry over the past year and 2018 is shaping up to be a year of enhancements to, and critiquing of, existing regulations and legislation. There are three key pieces of legislative reform/industry consultation which superannuation trustees
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Royal Commission into Banking & Financial Services Sector – the first Practice Guideline

By Lisa-Marie McKechnie, Partner The Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry (“Royal Commission”) has recently released Practice Guideline 1 which sets out general guidance about the procedures the Royal Commission will follow. The full Practice Guideline is available here and contains useful introductory information on a number of procedural issues,
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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 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 may reduce the extent of
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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

New laws for autologous human cell and tissue products

On 1 July 2018, changes to the regulation of human cells and tissues were introduced which affect several biologicals[1] and blood products, especially those intended for autologous application – many of which were previously exempt from the therapeutic goods regime. The affected biologicals, often referred to as ‘stem cell treatments’, are subject to additional manufacturing,
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A New Code for Therapeutic Goods Advertising

Several reforms to the advertising framework for therapeutic goods have commenced. Among these, a new Therapeutic Goods Advertising Code has been introduced. The new Code seeks to simplify the minimum standards for all medicine and medical device advertisements which are directed at the public. Importantly, however, despite expectations that the new Code would commence on
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The What’s What of the Therapeutic Goods Advertising Reforms

21 June 2018 Media coverage of the advertising reforms for therapeutic goods appears to have precipitated strong reaction to the enhanced sanctions and penalties which have been introduced to manage non-compliance. Several other advertising reforms to be implemented shortly which are intended to streamline the requirements for medicines and medical devices and will give the
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Insurance

Insurance in MOtion – NSW Court of Appeal examines liability of developers and builders for defects in design under the Home Building Act 1989

On 3 August 2018, the NSW Court of Appeal handed down judgment in The Owners Strata Plan No 66375 v King [2018] NSWCA 170. The decision examines the extent to which a trial judge should have drawn an inference that a contract had been signed by the developers from the surrounding facts and examines the
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Insurance in MOtion – Mills Oakley in successful public liability defence

A decision of the District Court of Queensland on 29 June 2018 has reinforced the principle that a landlord’s duty of care (in this case to the tenant) is only to take reasonable care to ensure that at the start of a tenancy the premises are fit for the tenant to live in and/or in
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Insurance in MOtion – When can an insurer refuse to advance payment of defence costs?

In the recent case of Onley v Catlin Syndicate Ltd as the Underwriting Member of Lloyd’s Syndicate 2003 [2018] FCAFC 119 the Full Court of the Federal Court of Australia permitted an insurer to refuse to advance defence costs, even it had agreed an Automatic Extension in the Policy providing for payment of Defence Costs which required
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In MOtion Interviews

In MOtion – Louise Cantrill

In this edition of In MOtion, we chat with Sydney’s newest partner, Louise Cantrill, on all things AI, skiing and her trepidations regarding hard rock. Tell us about your practice and your key areas of expertise. My insurance practice is unusual because I am both a specialist litigator and front-end technical advisor. I started life
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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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Intellectual Property

Biosimilars – First interlocutory injunction in Australia

For the first time in Australia, an originator of a biologic therapy, Roche, has been granted interim relief in the Federal Court restraining Sandoz from launching a biosimilar on the basis that such supply would infringe treatment method claims patented by Roche. Partner, James Lawrence and Lawyer, Helaena Short discuss. Background Rituximab is a biologic
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Trade in China – Using IP to defeat Piracy

By Stuart Gibson, Partner and Cassandra Taylor, Lawyer In the last two years, intellectual property and in particular the number of trade mark registrations has exploded in China.  China is now a sophisticated jurisdiction for the registration of overseas IP.  A key reason for this is that it has become notoriously difficult for overseas exporters
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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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Planning and Environment

Blink and you’ll miss it: Upzoning reversed after only seven days

By Aaron Gadiel, Partner On 6 July 2018 the NSW Government made small residential apartment buildings permissible with consent in some parts of the Liverpool and Penrith local government areas.  The decision has now been reversed — just seven days after it was made. The reversal has echoes of two other decisions made  earlier this
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New ‘low rise medium density housing’ planning regime a double-edged sword

By Aaron Gadiel, Partner Today (6 July 2018) marks the first day of the new ‘low rise medium density housing’ planning regime in NSW. The aim of the new regime is to allow one to two storey dual occupancies, ‘manor houses’ and terraces to be developed as complying development.  This (in theory) is intended to
Read more…

Infrastructure Contributions Plans: let’s use them properly

By David Passarella, Partner, and Hannah Wilson, Lawyer. The PLC Act On 2 July 2018, the Planning and Environment Amendment (Public Land Contributions) Act 2018 (PLC Act) came into operation. The PLC Act proposes a new model for the infrastructure contributions plan (ICP) system, whereby affected landowners are required to transfer any part of their
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Private Advisory

Sutherland v Globe Real Estate: What You Need to Know

By John Turnbull, Partner and Isobel Feben, Lawyer Many of you will now have seen the newspaper articles and internet feeds regarding Mrs Sutherland and her dispute with Globe Real Estate (“Globe”). In case you’ve missed it, the case essentially involved a 93 year old vendor who was required to pay an incentive commission (or
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Changes to Medical Decision-Making Laws in Victoria: What Does This Mean For Your Future?

By Troy Palmer, Special Counsel, Isobel Feben, Lawyer and Kate Eastaugh, Law Graduate Following a recent bill passed by the Victorian Government, significant changes to medical decision-making laws in Victoria have been implemented. The Medical Treatment Planning and Decisions Act 2016 (Vic) (“the Act”) came into effect on 12 March 2018, and replaces previous medical
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‘Til Death Do Us Part: Impact of Same Sex Marriage on Estate Planning

By Troy Palmer, Special Counsel and William Constable, Seasonal Clerk As a consequence of the recent postal survey, the Federal Government intends to introduce a bill recognising same-sex marriage into the Parliament before Christmas. Assuming that this bill is passed, the ability of same sex couples to become legally married will have a significant impact
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Property

New GST withholding regime for residential property commences

By Tom Cantwell, Partner and Ajith Pius, Associate The Treasury Laws Amendment (2018 Measures No. 1) Bill 2018 received royal assent on 29 March 2018. The new law significantly changes the way that GST is dealt with and will impact all residential property transactions. Summary of key changes: A purchaser of new residential premises or potential residential land
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Foreign Investment in Australian Residential Property

The Australian Government’s Foreign Investment Review Board (FIRB) requires non-residents of Australia to apply for approval prior to purchasing residential property in Australia.  This article summarises who needs to apply, timeframes and exemptions. Who needs to apply and Property types Persons who do not ordinarily reside in Australia (foreign non-resident) or a holder of a
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Commercial Building Disclosure – Amendments to the Building Energy Efficiency Disclosure Act 2010

By Partner, Tony Butler 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 from 2,000 square metres
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Strata

Building Products (Safety) Act 2017 Overview

Mills Oakley recently presented a paper with an overview of the Building Products (Safety) Act 2017 (NSW) to the Australian Construction Law Discussion Group, which His Honour Justice McDougall of the NSW Supreme Court also attended and addressed. A copy of the paper can be found here. This article is of a general, informational nature.
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Building Products (Safety) Act 2017 expands Major Defect definition

The Lacrosse fire in Melbourne in November 2014, and the tragic Grenfell fire in London in June 2017, has lead to the NSW government following the lead of Queensland and passing the Building Products (Safety) Act 2017 (BPSA), which allows the government to declare a building product unsafe and ban it, investigate work using them
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BOND, Strata-Bond…

Author, Ziv Ben-Arie, Partner When will it apply? The deferred enactment of the amendments to the Strata Schemes Management Act, relevantly in relation to bond payment, will start to apply from 1 January 2018 in respect of contracts entered into between developers and builders on or after that date and will apply to 4 storey (or higher) residential, as well as mixed use
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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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New Withholding Tax Regime – What Do Real Estate Agents Need To Know?

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 new regime, so settlement can
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The Tax Storey

To read the latest editions of The Tax Storey, an informative update and report on all things Tax-related, please see below link. The Tax Storey: Issue 1 The Tax Storey: Issue 2 The Tax Storey: Special Star Wars Edition! Contact Mills Oakley To subscribe or suggest a topic for discussion in a future issue, please
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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

3.5% increase to the minimum wage from 1 July 2018

By Lisa Anaf, Partner and Sarah Saliba, Lawyer The Fair Work Commission has delivered its decision with respect to the 2017/2018 annual wage review. Following its review, the Commission has decided to increase minimum rates from the first full pay period on or after 1 July 2018 as follows: the national minimum wage will increase
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Changes to Long Service Leave entitlements in Victoria

By Sarah Saliba, Lawyer  On 8 May 2018, the Long Service Leave Bill 2017 was passed by the Victorian Parliament and received Royal Assent on 15 May 2018. By 1 November 2018, the current Long Service Leave Act 1992 (Vic) will be repealed and replaced by the Long Service Leave Act 2018 (Vic) (Act). The
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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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