The unfair contract provisions under the Australian Consumer Law (ACL) provide that terms in “standard form” contracts that are “unfair” under the legislation can be declared void. The provisions apply to contracts for the supply of goods or services or a sale or grant of an interest in land for personal, domestic or household use or consumption. There are similar provisions in the Australian Securities and Investments Commission Act 2001  applying to the sale of financial products and services.

The phrase “without prejudice” is commonly overused and misunderstood. When using the phrase, people should be mindful that simply labelling communication “without prejudice” does not automatically guarantee the privilege. Rather, the surrounding circumstances and the content of the communication will be taken into consideration when determining whether the privilege applies.

The 2015/16 new financial year commencing this Wednesday will also bring into effect new minimum pay rates and thresholds.

According to the Fair Work Commission (FWC), from 1 July 2015, the following changes will take effect

The Government has released the Tax and Superannuation Laws Amendment (2015 Measures No. 2) Bill 2015 which, if passed in its current form, will provide for “look through” tax treatment for trusts set up for limited recourse borrowing arrangements (LRBA).

In effect, this means that, from a tax law perspective (except for certain limited exceptions), the asset of the LRBA trust will be deemed to be held by the super fund and the actions of the trustee of the LRBA trust in relation to the asset will be deemed to be the actions of the trustee of the super fund. This will reduce adverse tax consequences (eg capital gains tax on collapsing the trust, losses being trapped in the trust and difficulties of passing franking credits) and result in a reduction to tax administration (eg the trust will not require a TFN or be required to prepare a tax return). It also means that, from a tax law perspective, super funds no longer need a bare trust for a LRBA in order to achieve a look through approach.

In April 2015, an article written by Sladen Legal's Phil Broderick and Melissa Brazzale, was published in the Tax Institute’s Journal, Taxation in Australia.

This article addresses the need for directors of corporate trustees to beware, as breaches of their fiduciary duties can result in amounts taken out of the trust, including super contributions, being clawed back.

The New South Wales Court of Appeal adopted a traditional and technical approach to the interpretation of the terms of a trust deed when dismissing an appeal in the decision in Segelov v Ernst & Young Services Pty Ltd.

For super purposes, turning 55 has traditionally been the year in which you start to access your benefits (for example under a transition to retirement income stream (TRIS)). However, with the auto-rise of the preservation age coming into effect, as of 1 July 2015, persons turning 55 in the 2015/16 year will have to wait until they turn 56 (ie in the 2016/17 year).

The attached presentation was delivered by Sladen Legal’s Rob Jeremiah and Phil Broderick at the Tax Institute’s Trusts & Estates Club on 17 June, 2015.

In this presentation, Rob discussed “Beneficial interests” in and “beneficial ownership” of trust property – trustees, trusts and beneficiaries, while Phil addressed issues about Superannuation and insurance – the good, the bad and the ugly.

Newly introduced UK regulations impose additional conditions on SMSFs that are registered, or will be registered as Qualifying Overseas Pension Scheme (QROPS). The new regulations broadly require that in order to be treated as, or continue to be treated as, a QROPS, the relevant SMSF’s deed must now contain provisions that prevents members from accessing benefits prior to age 55, unless they retire as a result of ill health under the UK laws.

When served with a statutory demand a company has 21 days to pay the debt, negotiate an outcome or apply to have the statutory demand set aside. Upon the expiration of 21 days the company is deemed insolvent and an application can be made to wind it up. 

Following this expiration date, the company cannot make an application to set aside the statutory demand, even if it has grounds to do so. Instead, it has to oppose the winding up application if it is to avoid being wound up. The most common ground for setting aside a statutory demand is that the debt is in dispute.

Use our online trade mark search tools to ensure it is not already registered.

If you are purchasing a business and want to use the existing brand, it’s important to ensure the brand is available for use and sale. It may not automatically come with the acquisition of
business assets.

This happened to poor Mr Carroll who purchased a pallet racking, shelving and storage solutions business from the Griffiths in Queensland in 2009, called Rack’N Stack*. Unbeknown to Mr Carroll, the Griffiths had already sold the Rack’N Stack business to someone else in 2008. Under the original sale, the Griffiths retained a limited licence to trade in an agreed geographical location. Mr Carroll was unaware of this until he tried to register the trade mark Rack’N Stack and found out that the purchaser of the business in 2008 had already registered it as a trade mark in Australia. This registration was cited against Mr Carroll’s application, and the owners also opposed the registration of Mr Carroll’s Rack’N Stack trade mark.

Yesterday, the Fair Work Commission handed down its Annual Wage Review decision.

From 1 July 2015, the national minimum wage will be increased by 2.5% (equating to an increase of $16 per week) and the new weekly minimum wage will be $656.90 (or $17.29 an hour) .

Modern award rates will also be increased by 2.5%  from 1 July.

Safe Work Australia has released key statistics on work-related injuries, diseases and fatalities. While the report shows a downward trend in both worker fatalities and in the rates of serious injury over the period 2003 to 2013, the total number of serious workers’ compensation claims (117,815 in 2012-13) and worker fatalities (196 in 2013) are significant.

Digitally stored information, including records, communications, photographs and other details which are held with various internet-based organisations can be difficult to deal with when the account holder dies. Many organisations are grappling with methods of dealing with the problem or simply ignoring it.

Facebook is giving users more control over their social networking afterlives with a “Legacy Contact” setting. This allows account holders to have their account deleted after they die or alternatively appoint a Legacy Contact to manage the account.

Schools collect and receive personal and sensitive information on a daily basis. What are the legal requirements for managing and using this data?

Much of the personal and sensitive information collected by schools is, of course, essential to their day-to-day running.

This information can relate to students, parents and guardians, job applicants, staff members, volunteers and contractors, and others who come into contact with the school.

Following significant changes to the Privacy Act 1988 (Act), which took effect from 12 March 2014, schools need to consider how they use and manage such information, so as to avoid significant penalties.

The Federal Court, in the decision of Elecnet (Aust) Pty Ltd v FCOT, has ruled that a trust established to pay out redundancy benefits for employees of the electricity industry was a unit trust for the purposes of the public trading trust rules.  This was held notwithstanding that the employees’ interest in the trust is not unitised but rather operates in a way that is akin to a superannuation fund. In coming to this conclusion, the Court found, for the purposes of the public trading trust rules, that the employees have a beneficial interest in the property of the trust.

On 23 April 2015, the Supreme Court ordered a party who lodged a caveat without proper grounds to pay the other party’s costs on an indemnity basis.  The defendant lodged a caveat on the title of a property claiming an interest pursuant to a purchaser’s contract. 

The plaintiff landowner stated that he did not enter into any contract with the defendant and moreover had never met the defendant or had any dealings with the defendant.  The Court ordered that the defendant pay the plaintiff’s costs on an indemnity basis because the Court inferred that the defendant, at no time, had any valid basis upon which he could claim a caveat over the property. 

Moving business real property out of trusts and into a self-managed superannuation fund (SMSF) can have significant tax advantages, but despite the significant potential of this, there are often impediments  in the form of possible tax and duty consequences of the transfer, especially where the property is held in a unit trust or a discretionary trust and limits are imposed by the non-concessional caps.

This article, written by Sladen Legal’s Melissa Brazzale and Phil Broderick, and published in the Tax Institute’s Journal, Taxation in Australia in March 2015, examines the ability to transfer Victorian business real property out of trusts and into a self-managed superannuation fund (SMSF) without triggering duty.

According to the latest budget handed down last night from Treasurer Joe Hockey, penalty units (ie. fines) for breaching federal laws are set to rise from $170.00 to $180.00 (per unit) from 31 July 2015.

 The maximum penalty for a breach of the Fair Work Act 2009 is:

• 300 penalty units for a corporation; and
• 60 penalty units for an individual.

Is the name of your business protected? Many businesses say yes because they have a business name registration or are a registered company. But those kinds of registrations don’t protect the business. Don’t just take my word for it, Shark’s Janine and Naomi from Shark Tank were at pains to explain this to one of the hopeful start up contestants during a pitch on the Channel 10 TV show.

There is so much confusion about protecting business names and it doesn’t just come from start-up businesses. I have seen well established businesses operating internationally that haven’t understood how to protect the name of their business.