General

The Interpretation of Financial Agreements

By 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 into during the parties’ marriage
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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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Australian Business with the EU – does the General Data Protection Regulation apply to you?

By Louise Cantrill, Partner The European Union General Data Protection Regulation (GDPR) came into force on 25 May 2018, and it has a long reach. Many Australian businesses may think they are not caught, or that their compliance with Australian Privacy Principles will be enough. But if you are wrong, the consequences could be significant 
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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

The Shergold and Weir ‘Building Confidence’ Report: serious reform required for Australia’s building certification, compliance and enforcement systems

By Scott Higgins, Partner, Lucy Hancock, Associate and John Hibbard, Paralegal As we have touched on in previous articles (see here), the building regulation framework in NSW and nationally has attracted widespread criticism, with the recent ‘cladding crisis’ highlighting industry failure to monitor and prevent the use of non-compliant building products and practices. In response
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Building Reform: Times they are a changin’

By Scott Higgins, Partner The various Commonwealth and State Government agencies and departments that are responsible for building regulation, compliance and policy-making are not without their action lists at present.  Reform is being proposed across the spectrum in the areas of building products, certification, licencing, compliance and enforcement, payment disputes and adjudication. There is a
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Combustible cladding and non-compliant building products: a summary of the steps taken in each jurisdiction

By Scott Higgins, Partner, Lucy Hancock, Associate and John Hibbard, Paralegal Summary There have been varied responses at state and federal levels to the ‘combustible cladding crisis’ sparked by the tragic Grenfell fire in London last year, which has put non-compliant and non-conforming building products in the spotlight. Nationally, there have been out of cycle
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Charity & Not-For-Profit

Amalgamation and Mergers of Not for Profit Organisations

By Alison Sadler, Law Graduate In response to changes over recent years, mergers have become a trending concept in the not-for-profit (NFP) sector and are often considered as an option for survival in challenging economic climates. Australia does not have a register of merged charities to record how prevalent mergers are, but there is no
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Submission: External Conduct Standards for charities with the ACNC

By Vera Visevic, Partner Treasury is seeking submissions on the draft regulations and explanatory statement for the proposed external conduct standards that charities registered with the Australian Charities and Not-for-profits Commission (ACNC) will need to comply with when operating outside Australia. Please find a link to our submission here. Contact Mills Oakley For further information,
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Strengthening for Purpose: Australian Charities and Not-for-Profits Commission Legislation Review 2018

By Alison Sadler, Law Graduate The Strengthening for Purpose: Australian Charities and Not-for-Profits Commission Legislation Review 2018 was tabled in Parliament on 22 August 2018. The review panel included Mr Patrick McClure AO, Mr Greg Hammond OAM, Ms Su McCluskey and Dr Matthew Turnour. The report makes 30 recommendations aimed at finding a balance between
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Commercial Disputes & Insolvency

Are you ready? Royal Commission into Aged Care Quality & Safety announced

A 5 minute primer about the recently announced Royal Commission into Aged Care Quality & Safety, and 5 steps you should consider taking in the next 1-2 weeks. By Darren James, Partner, Commercial Disputes, Mills Oakley. Winner, ACQ5 Litigation Lawyer of the Year (Australia), 2018. Winner, International Client Choice Award for Litigation (Australia), 2018. Royal Commission announced The
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Holding back the Mighty River

By Nirupa Manoharan, Special Counsel Introduction In its recently published reasons in the case of Mighty River International Limited v Mineral Resources Limited [2018] HCA 38, the High Court has affirmed that deeds of company arrangement (DOCAs) afford practitioners a high degree of flexibility.  The High Court also stamped its approval for the use of
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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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Corporate Advisory

MOving Ahead October 2018

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… APRA updates its outsourcing and cloud computing guidance; ASIC announces a review
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Corporate Advisory Update – October 2018

In the Media Crust franchisee accused of underpaying staff $35,000 A Crust Gourmet Pizza Bar franchisee in Melbourne is currently in hot water over allegations it underpaid seven employees a total of $35,725. To read more, see: http://www.franchisebusiness.com.au/news/crust-franchisee-accused-of-underpaying-staff-$35 Has ABC chairman overstepped his role asks Governance Institute Governance Institute believes Michelle Guthrie’s controversial departure as
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Corporate Advisor Stung for Misrepresenting Initial Coin Offering

By Daniel Livingston, Partner and Scott Colvin, Lawyer. Publically-listed DigitalX Limited (ASX:DCC) is being sued by a consortium of investors after allegedly making misleading representations during the promotion of an initial coin offering (ICO) earlier this year. DigitalX was acting as the corporate advisor for the issuance of OMX Tokens on behalf of Omix Ventures
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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

A timely reminder for super fund members

By Lisa-Marie McKechnie, Partner, and Tanya Hibberd, Graduate When someone dies without a Will, the person dies ‘intestate’, meaning that the State is assigned the task of determining who will inherit the deceased superannuation fund member’s assets. Each State has its own intestacy laws, the adherence to which may result in the estate being distributed
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AFCA on the way – disclosure relief and ASIC’s enhanced powers

This is article No. 2 in a four-part series on the new Australian Financial Complaints Authority (AFCA), which commences on 1 November 2018.    By Mark Bland, Partner, Jacqueline Wang, Senior Associate and Eliza Kane, Paralegal The AFCA Rules set out the processes applying to all complaints submitted to AFCA, including superannuation complaints. ASIC’s approval
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AFCA on the way – 10 weeks to go

This is the first of a series of articles on AFCA, the new monolith External Dispute Resolution (EDR) Scheme open for business on 1 November 2018.   By Mark Bland, Partner, Jacqueline Wang, Senior Associate and Eliza Kane, Paralegal In less than ten weeks, the Australian Financial Complaints Authority (AFCA) will become the single statutory
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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 – Cover and Exclusions for Employment Breach Claim under Management Liability Policy

In the recent decision of Southern Classic Group Pty Ltd t/as Southern Classic Cars v Arch Underwriting at Lloyd’s Ltd on behalf of Syndicate 2012 [2018] NSWSC 1272, the Supreme Court of New South Wales looked at the extent of an insured’s cover under a management liability policy for liability arising from a claim by
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Insurance in MOtion – Assisted dying in Victoria

Last November, Victoria passed the Voluntary Assisted Dying Act, becoming the first Australian State to legalise assisted dying. The Act comes into force on 19 June 2019. But how can a person lawfully access the regime? This is a complex piece of legislation, with 143 sections and including 68 safeguards to prevent misuse. To access
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Insurance in MOtion – Privacy and sexual harassment impose increased D & O risks

Increased risks for directors and officers are not just arising from the external environment- companies need to manage the internal risks arising from privacy breaches and sexual misconduct. This has ramifications for corporates and their insurers. Management liability specialist Kevin LaCroix has pointed to US trends as forewarning of what can be expected in the
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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

Shining the light on the latest Draft Solar Energy Facilities Design and Development Guidelines

By Jenelle Cramer, Senior Associate. The recently released DELWP Draft Solar Energy Facilities Design and Development Guidelines (Guidelines) outline the assessment and development process for new large scale solar energy facilities and provide advice on the avoidance of potentially detrimental impacts. These Guidelines are the product of a review of existing guidelines and requirements applied
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The Latest Proposed Addition to the Commercial Zones: The Commercial 3 Zone

By David Passarella, Partner, Andrew Vicendese, Law Graduate and Elle McIntosh, Law Graduate On 11 September 2018, the Minister for Planning, Richard Wynne, announced a new category of planning zone which will be introduced into the Victoria Planning Provisions as part of proposed Amendment VC149. The new “Commercial 3 Zone” (C3Z) is a mixed-use employment
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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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Private Advisory

The sun is setting on developers terminating off the plan sales contracts because of delays

By John Turnbull, Partner and Sophie Caldwell, Law Graduate You may remember we previously sent you an update on the possible effect on commissions where a developer relies on a sunset clause in an off-the-plan contract of sale to terminate an existing contract. Sunset clauses are contractual terms in off-the-plan contracts of sale permitting a
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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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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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