On 12 June 2025, the High Court granted the Commissioner special leave to appeal the decision of the Full Federal Court in FCT v Bendel [2025] FCAFC 15 (Full Court Decision) that we wrote about here.

The Schaper report in December 2023 recommended further evaluation of the merits of replacing the Franchising Code of Conduct with a licensing regime. This recommendation arose after a submission to the review by the Australian Competition and Consumer Commission. Without detail of what a licensing regime may look like there is uncertainty about what any licensing regime may require. The recent case of ASIC v RAMS however provides an illustration of the effect a licensing regime may have on a franchisors. Click here to read more.

#franchising #licensing #franchisor_liability

The language used in a contract can significantly impact its enforceability. Reliance on the incorporation of an obligation to act in good faith will not necessarily result in an outcome sought. This was considered in the recent Supreme Court decision in Beecham Motors Pty Ltd v General Motors Holden Australia NSC Pty Ltd, which provides guidance for those with or considering a franchise agreement and the drafters of franchise agreements. #franchise_agreements #good_faith #franchisee_group_action

On 6 March 2025, Associate Justice Barrett handed down his decision in the matter of Duke Ventures Wellington Street Pty Ltd [2025] VSC 75. In this case, the Court clarified when a debtor can rely on an offsetting claim to set aside a statutory demand in a dispute adjudicated under the Building and Construction Industry Security of Payment Act 2002 (Vic) (SOPA).

#insolvency #statuory_demand  #creditors #securityforpayments

Our recent article on the proposed Division 296 tax has sparked some discussions, particularly as to whether benefits should be taken out and, if so, when they should be taken out.

With the recent Labor election victory, and a potentially friendlier Senate, it is likely that the proposed Division 296 tax of an additional 15% on members with a $3 million or more total super balance (not indexed) will be enacted. See here for our previous commentary on the measure.

The Full Federal Court case of Commissioner of Taxation v Liang [2025] FCAFC 4 serves as a reminder that when challenging an ATO decision at a court or tribunal, it is the taxpayer who carries the burden of proving that an assessment is excessive and what the assessment should have been.

The matter of Ford Kinter & Associates Pty Ltd v Reliance Franchise Partners Pty Ltd (in liq) [2025] FCA 139 emphasises the important role that creditors can play in facilitating asset recovery during insolvency proceedings. It further examines the broad discretionary powers the courts have under section 564 of the Corporations Act 2001 (Cth) (the Act), which enables courts to reward creditors who take on the financial risks of litigation to be prioritised when recovering company property or expenses in a winding up due to the risk assumed by them. In doing so, the court considers the public interest in encouraging creditors to provide indemnities so as to enable assets to be recovered.

#insolvency #liquidation #creditors #publicinterest

Withholding information whilst negotiating agreements can amount to misleading and deceptive conduct. However, the recent Supreme Court decision in Sec New Line Pty Ltd v Muffin Break Pty Ltd provides important guidance on when silence will become deceptive, specifically in the context of lease and franchising renewals.

This article considers the views of the Full Federal Court in AusNet v FCT on the “nothing else” condition in Division 615 and what those views may mean for proposed ATO guidance on sequential transactions and the “nothing else” condition of a rollover.

The Federal Court decision of ASIC v PayPal Australia Pty Limited [2024] FCA 762 further clarifies the statutory unfair contract terms regime with respect to standard form contracts and provides another example of ASIC successfully taking action to void an unfair contract term.

Businesses using standard form contracts should review their contracts for potentially unfair contract terms considering recent legislative and common law changes.

#unfaircontractterms #unfair #contract #standardform #ASIC

As noted in part 1 of our articles on the application of the Bendel decision to the Superannuation Industry (Supervision) Act 1993 (SIS Act), in our view, it is likely that the Courts will apply the Bendel decision to the SIS Act, such that the expanded definition of loan in the SIS Act will apply to arrangements that involve the advancement of principal with an obligation to repay and that it will not apply to a mere creditor and debtor arrangement.

As noted in part 1 of our articles on the application of the Bendel decision to the Superannuation Industry (Supervision) Act 1993 (SIS Act), in our view, it is likely that the Courts will apply the Bendel decision to the SIS Act, such that the expanded definition of loan in the SIS Act will apply to arrangements that involve the advancement of principal with an obligation to repay and that it will not apply to a mere creditor and debtor arrangement (like a UPE).

In this part 3 of the series we examine how this may play out in the in-house asset rules contained in Part 8 of the SIS Act.

As noted in part 1 of our articles on the application of the Bendel decision to the Superannuation Industry (Supervision) Act 1993 (SIS Act), in our view, it is likely that the Courts will apply the Bendel decision to the SIS Act, such that the expanded definition of loan in the SIS Act will apply to arrangements that involve the advancement of principal with an obligation to repay and that it will not apply to a mere creditor and debtor arrangement (like a UPE).

As discussed here, the recent decision of the Full Federal Court (Court) in FCT v Bendel [2025] FCAFC 15 (Bendel) has been a significant one in the private tax world.

On 19 February 2025, the Full Federal Court handed down its decision in FCT v Bendel [2025] FCAFC 15. On 18 March 2025, the ATO applied for special leave and, on 19 March 2025, the ATO updated its interim decision statement (DIS) on the case.

We review the updated DIS below.

#Division 7A, #UPE, #Unpaid present entitlements, #Tax, #Trusts, #TD2022/11, #Bendel, #109D #Special leave #Decision Impact Statement

In the 2023-24 Budget, the Government announced that the super guarantee framework will be reformed to align the payment of super guarantee contributions with an employee’s regular pay cycle, instead of the current quarterly requirements. 

The exposure draft legislation for the new ‘Payday Super’ rules has now been released, with consultation open until 11 April 2025.

The super guarantee charge, payable where employers fail to make contributions in full and on time, will be updated, including a new ‘administrative uplift’ component of up to 60% of the shortfall amount.

In the decision of QWYN and Commissioner of Taxation (Taxation and business) [2025] ARTA 83 the Administrative Review Tribunal (ART) has determined that regular disability payments described as a superannuation income stream was a superannuation income stream for tax purposes and not a number of (more tax concessionally treated) disability lump sums.

In certain circumstances creditors can take direct action against directors of companies in liquidation  to recover insolvent trading losses suffered.

The process for doing so is to first try and obtain the liquidator’s consent and if they are not forthcoming, then take the steps required under subsections 588S and 588T of the Act.

On 19 February 2025, the Full Federal Court, in FCT v Bendel [2025] FCAFC 15 (Bendel), held that an unpaid present entitlement (UPE) with a corporate beneficiary is not a loan under subsection 109D(3) of Division 7A of the Income Tax Assessment Act 1936 (ITAA 1936).