General

Third Dimension – Dispensing Justice Fairly – Is Your Disciplinary Policy Exposing Your Organisation?

By James Thomson, Associate The members of a not-for-profit or charitable organisation inevitably have one thing in common – they all support the objects of the organisation, and want to work towards bettering the organisation and its activities. However, most organisations will eventually come across a member whom despite their best intentions (or perhaps not),
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Third Dimension – Protecting Your Not-For-Profit Against Terrorism Financing

By Prianca Moodley, Law Graduate The Australian Transaction Reports and Analysis Centre (AUSTRAC) has identified not-for-profit organisations (NFPs) as one of the most significant terrorism financing channels in Australia. The consequences of being either knowingly or unknowingly involved in terrorism financing are significant, both in terms of the NFP’s reputation and status, as well as
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Third Dimension – Changes to Trade Mark Fees

By John Vaughan-Williams, Lawyer IP Australia has recently unveiled significant differences to its previous fee structure, which became effective on 10 October 2016 across the different intellectual property rights that it administers. These rights include registration of trade marks, patents, designs and plant breeders’ rights. In the not-for-profit sector, trade mark registration is a particularly
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Banking & Finance

The next step: Mandatory clearing rules and single-sided reporting

On 11 December 2015, the ASIC Derivative Transaction Rules (Clearing) 2015 (Clearing DTRs) were released setting out detailed rules for the mandatory central clearing of certain over-the-counter (OTC) derivatives. The release of the Clearing DTRs marks the final piece of Australia’s mandatory clearing regime, a central pillar of Australia’s G-20 commitment to reforms in the
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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

BREAKING NEWS: High Court today delivers landmark first decision on Security of Payment legislation – A win for respondents and reference dates

By Vlad Vishney, Senior Associate, Scott Higgins, Partner and Ziv Ben-Arie, Partner The High Court’s judgment today in Southern Han Breakfast Point Pty Ltd (in Liquidation) v Lewence Constructions Pty Ltd [2016] HCA 52 marks the final chapter in the judicial process dealing with an adjudicator’s determination of a builder’s claim under the Building and
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‘Fair Play’ – New contract laws to impact procurement from small business

By Sacha Janczuk, Associate and Scott Higgins, Partner The ‘Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015’ (Cth) (“the Act”) commenced on 13 November 2016.  It will have implications for any company that engages directly with small businesses.   Procurement teams and in-house legal counsel in the property and construction sectors should
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“I don’t need you…or do I?”

By Ziv Ben-Arie, Partner and Alec Brown, Lawyer Adrigan v Owners Corporation SP83475 [2016] NSWCATAP 58 Summary An owner builder recently failed in his defence against an Owner’s Corporation claim for defects, primarily because he was not adequately prepared and unrepresented. At the hearing, the builder sought an adjournment but the Tribunal refused that application. The
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Charity & Not-For-Profit

Building a not-for-profit board – Australian Institute of Company Directors

Are you looking to be a director? Do you require guidance as a would-be director of a Not For Profit board? A handy guide published in Company Director February 2017 edition by Vera Visevic of Mills Oakley clearly sets out the priorities of what a diligent would-be director would look for when joining a Not
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Third Dimension – Why All Charities Should Revisit Conflicts of Interest

By John Vaughan-Williams, Lawyer If your organisation is registered with the ACNC as a charity, then it is required to comply with the ACNC’s five Governance Standards, contained in the Australian Charities and Not-for-profits Commission Regulation 2013 (Cth). Some of the governance standards pertain to individual directors’ conduct and suitability, whereas others relate to the conduct
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Third Dimension – Was That Information Private? Proposed Changes to the Privacy Act

By Prianca Moodley, Law Graduate In October 2016, the Privacy Amendment (Notifiable Breaches) Bill 2016 (Bill) was introduced to the Federal Parliament. This is the third bill of its type to propose amendments to the Privacy Act 1988 (Cth) (Act) in response to the Australian Law Reform Commission’s recommendation that certain data breaches should activate
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Commercial Disputes & Insolvency

Industry Focus – Turning choice into opportunity

Joining the likes of Uber, Airbnb and Deliveroo in fiercely competitive service industries is an unlikely new sector. Due to reforms that came into effect on 27 February 2017, the aged care sector in Australia just got a whole lot more competitive. What will be the difference between service providers that barely survive, and those
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Going around in circles on section 433? Court identifies when certain assets will be subject to a circulating security interest

By Ariel Borland, Partner; and Jennifer O’Farrell, Associate A recent Federal Court of Australia decision contains some important points for receivers who are assessing their obligations under section 433 of the Corporations Act 2001 (Cth) (Act) to pay priority employee creditors out of assets subject to a circulating security interest.  The decision of Gilmour J
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Arbitrary percentages out the window: Sakr clarifies remuneration processes.

By Ariel Borland, Partner, Joanne Hardwick, Partner and Hannah Carne, Associate The New South Wales Court of Appeal has given important guidance on the issue of practitioner remuneration in Sanderson as Liquidator of Sakr Nominees Pty Ltd (In Liquidation) v. Sakr [2017] NSWCA 38.  The Court of Appeal unanimously allowed the liquidators appeal against Justice
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Corporate Advisory

New notification requirements under the Privacy Act. Privacy Amendment (Notifiable Data Breaches) Act 2017

By Luke Hooper, Special Counsel The Privacy Amendment (Notifiable Data Breaches) Act 2017  (Cth) amends the Privacy Act 1988 (Cth) (Privacy Act) to introduce mandatory “eligible data breach” notification provisions for entities regulated by the Privacy Act, and will likely take effect by 22 February 2018. These entities include super funds. What are the requirements
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R&D Tax Offset – Are you missing out?

By Michael Fredericks, Special Counsel, Sam Bassingthwaighte, Associate and Lucy Burke, Paralegal  Over the past 18 months Australia has been positioning itself as the “Innovation Nation”.  A key component of this strategy is increased investment in research and development (R&D), or more importantly, convincing businesses to invest in R&D. While it is true that tax
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MOving Ahead February 2017

By Luke Hooper, Special Counsel Welcome to the February edition of MOving Ahead! 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… APRA writes to all APRA-regulated entities advising that Prudential Standard CPS 226 Margining
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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

Extension of the family primary production duty concession creates long awaited succession planning opportunities for farming families

By Stuart O’Neill, Special Counsel  A long awaited amendment to the Queensland Duties Act, extending the family primary production duty concession to inter-generational transfers for value, has commenced from 1 July 2016. The Duties and Other Legislation Amendment Act 2016 (Qld) received assent on 27 June 2016.  It removes the requirement for inter-familial transfers of
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The Benefits of Testamentary Trusts in a Will

Sophisticated Wills often include options for beneficiaries to receive their distribution from the estate via a ‘testamentary trust’. A testamentary trust is a trust created by a Will, where the distribution is held ‘on trust’ for the benefit of an intended beneficiary. A clever way of constructing the testamentary trust is to form a discretionary
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Changes to Powers of Attorney in Victoria

By Edward Skilton, Special Counsel, Private Advisory Team The Powers of Attorney Act 2014 commenced today (1st September 2015). There are a few practical changes to the use of powers of attorney that I would like to draw to your attention. I would also like to take the opportunity to remind you of relevant considerations
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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

Hope for Hemp Industry Stakeholders – final decision on the scheduling of cannabis deferred

Fervent advocacy by Mills Oakley partner, Dr Teresa Nicoletti, has stalled a final decision on the scheduling of cannabis and tetrahydrocannabinols, to allow more careful consideration and consultation. Partner, Dr Teresa Nicoletti; Lawyer, Sebastian Tonkin and Paralegal, Helaena Short discuss. A notice published on the Therapeutic Goods Administration (TGA) website yesterday announced that the Secretary
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Access to medicinal cannabis – how terminally ill patients are missing out

Terminally ill patients continue to be denied access to essential medicines despite positive developments in the medicinal cannabis framework in Australia. Partner, Dr Teresa Nicoletti and Paralegal, Helaena Short discuss. Bold claims have been made in the Daily Telegraph this morning that terminally ill patients will be given the “green light” to access medicinal cannabis
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Insurance

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

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

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

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

In MOtion – 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 – Isabella Kelly

Isabella Kelly is a Lawyer in the Melbourne Planning & Environment Team.  In this interview, she talks about creativity, perfectionism and how a certain American sportswear company may provide some inspiration. What aspect of your role do you enjoy the most? I love the fact that planning law can be surprising!  You can come across
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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

Hope for Hemp Industry Stakeholders – final decision on the scheduling of cannabis deferred

Fervent advocacy by Mills Oakley partner, Dr Teresa Nicoletti, has stalled a final decision on the scheduling of cannabis and tetrahydrocannabinols, to allow more careful consideration and consultation. Partner, Dr Teresa Nicoletti; Lawyer, Sebastian Tonkin and Paralegal, Helaena Short discuss. A notice published on the Therapeutic Goods Administration (TGA) website yesterday announced that the Secretary
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Access to medicinal cannabis – how terminally ill patients are missing out

Terminally ill patients continue to be denied access to essential medicines despite positive developments in the medicinal cannabis framework in Australia. Partner, Dr Teresa Nicoletti and Paralegal, Helaena Short discuss. Bold claims have been made in the Daily Telegraph this morning that terminally ill patients will be given the “green light” to access medicinal cannabis
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The Fees They Are A-Changin’, IP Australia’s official fees are changing from October 2016

By Stephanie Rowland, Partner and Amanda Wong, Associate IP Australia’s official fees for trade marks, patents, designs and plant breeders’ rights are changing from 10 October 2016. The Intellectual Property Legislation Amendment (Fee Review) Regulation 2016 has been signed by the Governor General and amends the existing trade mark, patent, design and plant breeders’ rights
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Planning and Environment

Local councils to win new powers to reject development applications

By Aaron Gadiel, Partner, and Antony Whealy, Partner The NSW Department of Planning and Environment has released draft regulations that will make it easier for local councils to ‘reject’ development applications before they are assessed on their merits. The changes are set out in a draft Environmental Planning and Assessment Amendment (ePlanning) Regulation 2017.  It
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More convoluted, expensive and risky planning laws for NSW? Mills Oakley’s review of the Environmental Planning and Assessment Amendment Bill 2017

By Aaron Gadiel, Partner, Anthony Whealy, Partner, and Ashleigh Cowper, Senior Associate The NSW Government has released proposed changes to the state’s planning laws that it says will ‘boost housing supply’. The proposed changes, which are currently on public exhibition,  are in the form of a draft bill which would amend the Environmental Planning and
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The Better Apartments Design Standards

By Jenelle Cramer, Senior Associate and Isabella Kelly, Lawyer The final Better Apartments Design Standards (Standards) were released by the Victorian government in December 2016.  For background, please see our August 2016 update on the draft Standards. The Standards will apply to all apartment development applications in Victoria.  Depending on the number of storeys in
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Private Advisory

Stamp duty: it doesn’t have to be the restructure killer!

By Mark Lowis, Special Counsel, Tran Vuong, Associate and Caitlin Murdock, Lawyer Stamp duty can be incredibly frustrating for advisers looking to rearrange the affairs of private business owners in Queensland. You may have heard it referred to as the “restructure killer”! However, it’s important to understand that the regime is very specific in its
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Enduring Powers of Attorney: More than meets the eye!

By Mark Lowis, Special Counsel and Tran Vuong, Associate  The Enduring Power of Attorney (EPA) is probably one of the most poorly understood and considered aspects of an estate plan. We have witnessed many situations where an EPA seems to have been prepared as a thoughtless adjunct to the will preparation process – something ‘thrown
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Asset protection: Working with UPEs

By Mark Lowis, Special Counsel and Tran Vuong, Associate In recent publications, we’ve discussed some of the ways in which the asset protection benefits of a family discretionary trust can be compromised.  Some examples included: allowing significant unpaid present entitlements (UPE) to accumulate in favour of ‘at-risk’ individuals allowing large loan balances to accrue in
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Property

Recent changes to the off-the-plan stamp duty concession for purchasers

By Tom Cantwell, Partner, Anthony Brearley, Partner, and James Price, Partner The Victorian State Government recently announced that from 1 July 2017, the off-the plan stamp duty concession will only be available to purchasers who intend to live in the property being purchased off-the-plan. This is one of many changes recently implemented by the Victorian
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Foreign purchasers: Further sale of dwellings that do not settle

By Jarrod Marchesi, Senior Associate The Treasurer Scott Morrison MP has recently clarified that foreign buyers are entitled purchase an off-the-plan dwelling when another foreign buyer has failed to settle their purchase of that dwelling. This is in response to a media report and some legal commentary suggesting that the ATO had changed its position,
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Sale of Land Amendment Bill 2016 and its effect on sales contracts: You can soon sell land that you do not own!

By Mitchell Spurge, Senior Associate, and Andrew Logan, Partner The current position:  You cannot sell land you don’t own yet Currently, section 13 of the Sale of Land Act 1970 (WA) (Act) prohibits a person from selling: five or more lots in a subdivision or proposed subdivision; or two or more lots in a strata
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Strata

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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Victorian Decision follows NSW Cases on Section 80D

A decision of the Victorian Supreme court earlier this year followed the approach of the NSW Court of Appeal in the 2014 decision of 2 Elizabeth Bay Road (which necessarily has to be read with Bakkante), in dealing with the equivalent legislation and requirements in Victoria. Justice McDonald in Burbank Australia Pty Ltd v Owners
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Taxation

NSW Budget 2016-17

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

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

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

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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Modern Media’s Legal Impact on the Public Service

Paul Armarego, Special Counsel in our Government & Administrative law, Commercial and Property team, has recently given a presentation on the impact that new technologies and social media are having on the workplace. To view the slides from this presentation, please click here. Contact Mills Oakley For more information, please contact: Paul Armarego | Special
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Copyright Cat-Burglary

By Scott Coulthart It seems that even pets can engage in breaches of copyright. Recently, as reported in this news article, EMI claimed copyright breach by the owner of a YouTube account when a one-hour long video of the owner’s cat purring was uploaded. YouTube uses an automated copyright checking system which tries to match
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Workplace Relations, Employment & Safety

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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Workers Narrowly Escape Death as Gate Spears Motor Vehicle at Entrance to Mine Site

This Information Release produced last week by the NSW Department of Industry Resources Regulator is a timely reminder that poor and wet weather conditions are a well-known risk to the mining and construction industries, as well as to the general public. It demonstrates the risks associated with driving a motor-vehicle in bad weather, and the
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The Joys of Being a Boss…

Workplace Relations, Employment and Safety Special Counsel Shelley-Anne Brace was recently published in Plumbing Connection. In her three-part article, “The Joys of Being a Boss“, she discusses multiple workplace topics. “Swearing Like a Tradie” talks about making appropriate language choices in the workplace, focussing on tradesman worksites. “Big Brother is Watching” talks about surveillance cameras at
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