Changes to the law of Conveyancing and Caveats

Posted on June 30, 2010July 27, 2023 by Admin

The recent High Court Case of Black v Garnock [2007] HCA 31 has led to a change in the way that conveyancing practice is likely to occur in the future. The facts of the case were that a conveyance was being performed between a purchaser and a vendor. The day that the settlement occured, a writ of execution for the levy of property was ordered over the property and the trasnfer which the purchaser obtained was ineffective because of the writ which had been obtained. The purchasers were therefore unable to obtain posession of the property and their interests were seriously prejudiced becasue the transfer could not be registered for the property as result of the issuing of the writ of execution.

All of this occured despite the fact that the purchaser’s solicitors took the precaution of obtaining a final title search on the day of the settlement. This is a very normal precaution in the conveyancing process which is insisted on by the banks because of the risk that something might appear on the title before the time of settlement and make the transaction ineffective. The court said that it was necessary for the purchasers to have lodged a caveat prior to settlement to prevent the writ for the levy of property being executed. Although there is some argument that in this case, the vendor requisitions on title should have been served and this should have revealed the fact that there was litigation support in relation to the property which should have alerted the purchasers to the danger that a writ would be taken out in the near future, for whatever reason that is not explained in the judgment, this did not occur. It is now a precaution that is often taken by purchaser’s solicitors that a caveat is lodged at the time of settlement to prevent a situation like this developing for their client. If you would like more information about any of this, please do not hesitate to contact us using any of the contact methods available on this site.

Workplace Relations and Queensland Rail

Posted on June 23, 2010 by Admin

In recent decision by the Federal Court, Queensland Rail has been fined $660,000.00 for failing to properly consult its staff on the sale of the company. This ruling may make consultation in similar cases something that unions can demand in the future as part of work agreements. The need to retrench 20 Queensland Rail workers which arose from the sale of the business lead to a finding that the company had breached its agreements with the workers. The finding by Justice Logan was emphatic and stated that

“This change so radical, a breach so comprehensive, the occasion for consultation so obvious that anything less than maximum penalties would not do justice to the case and the need to ensure public confidence in the adherence to industrial relations bargains.”

Union were obviously pleased with the decision which would enable to demand greater amounts of consultation before the assets of a business were sold off. The decision is considered unusual by industrial law experts because of the size of the fine and the way in which the judge railed against the actions of the company in the decision. This decision was brought down despite the fact that the company had gone to great efforts to inform its workers about the planned changes, but nothing to consult them or to genuinely account for their views in the decision making processes of the company. The company has already filed a notice of intention to appeal the decision in the High Court. It is obviously difficult to predict what will eventuate from a high court decision because the High Court makes a ruling from a position of far greater stature than the Federal Court of Australia. However, the present High Court has appeared to have taken a traditionally more conservative view of the status of the law in the past than some of their judicial brethren in lower courts and on a probability basis it would seem unlikely that the decision would be overturned.

Mining Law and the Resource Super Profits Tax

Posted on June 19, 2010March 28, 2024 by Admin

According to the current proposal by the government for the new mining tax, the so called Resource Super Profits Tax (RSPT) is due to be introduced on 1 July 2010 at a rate of 40% on the profits made from the exploitation of Australia’s non-renewable resources.

Why is the government doing this?

The present government has stated that the exploitation of Australia’s wealth of natural resources does not currently provide a fair return to the Australian community. Although there is no empirical evidence given to verify this, the government believes that the imposition of the new tax will increase employment and investment in the resources sector. There is no explanation as to how this is likely to occur, in traditional economics the imposition of a new tax is likely to reduce employment and investment in a sector where greater taxation is applied. However, the economic argument for the tax is that compared to the current system of taxation which is based on royalties rather than a proportion of profit the new RSPT will only impose taxation where the businesses are profitable. It could be argued that this is misguided because it removes the possible initial incentive for mining prospecting or the mining entrepreneur to invest because in an already risk laden business, losing 40% of the profit to taxation in addition to company income tax would be a serious disincentive to invest or to employ new staff, including through EU Workers. The government also argues that it will reduced national uncertainty be creating a nationwide uniform system of taxation for mining which may be true, but it will also be a new tax system that will be difficult to administer the compliance costs of many businesses will go up as they attempt to identify their exact obligations under the new system of taxation. It is also argued that this profit based resource taxation is used in countries such as Norway (50% on oil), Canada and the United States. However, with the exception of Norway’s tax on oil super profits, these other taxation systems do not exceed 20%. There is therefore very little evidence that the tax will work int he way that the government predicts. It will most likely do enormous damage to Australia’s national economy and prevent our largest export industry from performing competitively in an already globally competitive market.

Are the any exemptions of ways of reducing the tax?

One respite which mining companies may find in relation to this new tax is that the crude oil excise is going to be abolished a the same time as the imposition of this new tax. Resource companies will also be able to elect to stay with the current Petroleum Resource Rent Tax (PRRT) of move over onto the new tax system, although once this decision has been made it will not be capable of being reversed. It will also be possible to obtain credit for royalties paid to state governments in relation to the tax. Perhaps the most important element of the new tax proposal is that the basis of exemptions as they are proposed is that if there is no net benefit to society of applying the as in the case of minerals which are not super profitable or in the case of microbusinesses which face large compliance costs then it would be unlikely that the tax would be applied according to the current proposal.

ATO crackdown on big business

Posted on June 17, 2010 by Admin

The latest enforcement drive of the esteemed Australian Taxation Office is to target large firms. The government authority hopes to raise extra revenue by auditing up to one third of the 1,300 largest firms in Australia, most of which are public companies. The rationale produced by the ATO is that these firms will present one of the largest tax risks. The way that the commissioner of Taxation looks at the definition of a large firm is if it turns over more than $250,000,000.00 or if it dominates a market for a particular good or service in Australia. Companies are classified on a scale of non-compliance from high through to low risk.

High risk candidates will be watched very closely and auditing is likely to reveal significant problems which these companies will need to deal in order to prevent the ATO taking significant action against them. The ATO has hastened to add that only a very small proportion of reviews will lead to full blown audits. The way that the the ATO intends to collect information about these companies is by examining the past compliance of the business, if they have risk management procedures in place, through industry monitoring and cooperation with other sectors of the government such as state based revenue agencies. According to Michael D-Ascenzo, there will also be an eye of suspicion over companies that utilise tax professionals with a history of shady tax practices. The head tax man says that each company will be run through a series of risk filters to identify the possibility of non-compliance.

The ATO’s systems of compliance monitoring are becoming ever more sophisticated as well with the agency having the ability to cross match records from bank accounts, dividend payments, PAYG returns and foreign tax regulators in order to identify undeclared income. Contrastingly, however, the commissioner emphasised the need for greater trust between big business in Australia and the ATO. This makes sense given that the tax office is ultimately run by public servants who are paid to serve the elected representatives of the people. The ATO must not be a bar to the efficient functioning of the economy, it must provide the background to facilitate this. Overly intrusive and obstructionist tax regulation borders on being undemocratic, because the government must always act ultimately in the interests of the Australian people and these large companies produce goods and services which people consume and provide employment to thousands of Australians, nevertheless, the ATO has stated that it wants to be tougher on big business.

Legal implications of the Oil Spill

Posted on June 13, 2010November 10, 2023 by Admin

The scale of the oil spill being experienced in the USA has no direct comparison in history, it is now the largest uncontrolled discharge of oil from a man made facility on record and BP is still not only struggling with the spill itself but also starting to get coated in a thick black slick of negative PR and potentially a toxic set of legal claims by people affected by the spill. As the Deepwater Horizon oil spill continues into its second month, BP has already committed to paying for the recovery efforts and all “legitimate claims,” but lawmakers are considering raising legal liability limits from $75 million to $10 billion.

The parties who could possibly claim as a result of the spill is any tourism operator whose business was affected by the spill or any coastal fisherman, coastal farming industry operator anyone else whose livelihood was dependent on the environment that existed prior to the spill and has now been destroyed as a result of the accident. This is not to mention that claims that could arise from the various local, state and federal authorities who could potentially prosecute the company for criminal negligence or fine them for breaches of environmental health and safety regulations. This case is similar to the one at camp lejeune, for which those affected will be looking for a camp lejeune water contamination attorney and personal injury attorney who can assist them in resolving this matter via legal means. Employees who got injured in similar accidents may hire a workers compensation lawyer to help them file a claim.

Perhaps the closest analogy in recent history to the scale of the spill that has occurred is the Exxon Valdez disaster which occurred in Prince William Sound, Alaska, on March 24, 1989 when the tanker hit Prince William Sound’s Bligh Reef and spilled an estimated minimum 10.8 million US gallons (40.9 million litres, or 250,000 barrels) of crude oil. In the case of Baker v. Exxon, an Anchorage jury awarded $287 million for actual damages and $5 billion for punitive damages. The punitive damages amount was equal to a single year’s profit by Exxon at that time and Exxon was one the ten largest companies in the world by revenue at the time. In this particular case, the tanker was allegedly drunk. However, the actual causes of the disaster were later identified as being a faulty radar system and the negligence of the company in placing excessive requirements on the third mate of the vessel. The present spill has similarities because experts associated with the maintenance of the well expressed concerns about ‘well control’ in the months before the accident. The direct cause of the accident was that at approximately 9:45 p.m. CDT on April 20, 2010, methane gas from the well under high pressure shot up and out of the drill column marine riser, expanded onto the platform, and then ignited and exploded, destroying the well and allowing crude oil to gush out into the surrounding ocean uncontrollably. Early attempts to cap the well also failed. This element of company negligence is in common and for this reason it is expected that BP will face an even larger bill for the spill than Exxon did in its disaster.

National Consumer Credit Code – How will these legal changes affect my business?

Posted on May 25, 2010 by Admin

On 27 April 2009, the Federal Government introduced the National Consumer Credit Reform Package. In the time since then, the new legislation has passed and is soon to become operative. The new legislation is the National Consumer Credit Protection Act 2009 (Cth) which is designed to provide additional safeguards and protections to the process of obtaining credit in this country for all types of consumer credit credit from credit cards to mortgages. The new legislation has been made possible as a result of the referral power in s.51(xxxvii) of the Constitution which has allowed the matter to be referred to the Commonwealth from the States. This was because of the meeting of the Council of Australian Governments (COAG) where it was decided that reform was needed in light of the global financial crisis. Amongst other things, the objective of the package is to replace the state system of consumer credit regulation with a consistent overarching national system which applies in the same way across all of the states. Although the major content of the bill will simply replace the existing consumer credit codes with the same regulations, the new legislation will also require businesses engaging in ‘credit activity’ to hold an Australia Credit Licence which will mean that providers such as finance brokers, mortgage managers and assignees of the major banks will need licences where previously they may not have.

The objective of the licence is to ensure that activities of credit providers are carried out efficiently, honestly and fairly and ensure that the representative are trained and competent to engage in the activities for which they are licensed. The enforcement of the act with be both the power and responsibility of the Australian Securities and Investments Commission. If misconduct occurs, imprisonment of 5 years and civil penalties of up to $220,000 or $1.1million for a corporation can apply. Also, new requirements are to apply to the giving of loans and brokers will need to ensure that the a loan is suitable for a consumer’s needs and that they have the capacity to repay the loan. This will include the obligation to make reasonable inquiries about the financial position of the consumer and to attempt to verify that the information given is correct. Also, credit institutions will need to find out what purpose the credit is being used for and a purpose declaration. Disclosure obligations will also come in in relation to the receipt of commissions. One of the newer and more novel areas to be reformed is that now credit from strata corporations to purchase or renovate buildings will be regulated by the new legislation and another reform is the increasing of the thresholds available for a hardship application. If you would like more information about the consumer credit code and how these changes will affect your business please do not hesitate to contact us.

Conveyancing and Housing Affordability in Sydney

Posted on May 25, 2010June 21, 2024 by Admin

Sydney home buyers have experienced a crisis in housing affordability with the average house price outstripping average incomes to a point where many people do not have access to adequate housing because of their inability to get a mortgage or even afford the rental price hikes. There have been similar experiences in many American cities and there have also been some inventive solutions to these problems. One program which looks like it is going to get a run in Sydney is a system where land is owned as community title, but home buyers own their roof. It is estimated that this scheme could cut the cost of owning a home by half. There would be a need to ‘create another rung on the property ladder’. This is what some of the community groups involved in the project are advocating.

In cities like Sydney, where housing costs have skyrocketed relative to average incomes, accurate valuation becomes pivotal in ensuring equitable access to housing options. With initiatives aimed at cutting the cost of homeownership by half gaining traction, the demand for trustworthy commercial appraisal services to assess the value of such community-owned properties is likely to surge. These services not only provide essential insights for potential homebuyers but also play a key role in shaping policies and regulations aimed at fostering inclusive and sustainable urban development. If you’re buying a newly-built home, be sure to schedule new home inspections Melbourne before completing the transaction.

As Sydney explores avenues to create additional pathways onto the property ladder, the partnership between real estate appraisal professionals and community advocates becomes instrumental in realizing the vision of affordable and accessible housing for all. Those who have invested in rental properties may need to hire letting agents to help them find good tenants and manage their properties.

The name of this new scheme is the Waratah Trustand it is being created in Bondi as s way of halving the cost of housing. Presuming that the land trusts can acquire new land in the first place, advocates are planning to implement a new form of social housing to Sydney as an idea to bridge the gap between renting, government housing and the private property market. The model of ownership is that the land trust owns the land and members own the dwelling, reducing the cost of ownership enormously. The investment can then be sold back to recoup the investment of the owners. This may present a partial solution to the housing affordability crisis. The model has also been tried in Victoria where land has been be quested to the trust to being the process.

This new solution to the housing affordability crisis will present a new method of attributing title which will be used to convey the ownership of land and real real property to people in Sydney. Currently, there are not types of title which currently exist that have this dynamic. There is Strata title, Torrens Title and Community Title. It is conceivable that this new type of land scheme could be arranged around strata or community title. If you are interested in buying a property under this system of title, please do not hesitate to contact us.

Changes to the laws of Banking and Finance in Australia

Posted on May 18, 2010October 16, 2023 by Admin

There are a series of sweeping reforms which are about to take place in the Australian system of financial regulation. These will have a marked impact on the way as securities are dealt with under the corporations act and in particular the way that insolvency practitioners manage the securities of insolvent companies. although the bill has not passed yet it is anticipated that it will pass within the next few months and will then become law. There are a series of education programs available in relation to this new legislation, however it will affect many businesses large and small and no matter what type of business you are in it will certainly have an impact at least indirectly on the financial systems which your business employs in its operations, while financial education is also important and resources from straight.com/guides/ can be helpful with this.

The Personal Property Securities (Corporations and Other Amendments) Bill 2010 was introduced into Federal Parliament on 10 March 2010, it is expected to pass soon. This act institutes a number of changes to the system of financial regulation in Australia through changes to the corporations legislation and the institution of some new additional reforms.

The important aspects of the amendments include:

1. Provisions changing the system of registration of charges.
2. Making the Corporations Act more focussed on functional outcomes in relation to securities.
3. More exemptions for interests under the Act;
4. Changes to the priority and extinguishment rules;
5. Changes to the enforcement provisions; and
6. Alterations to the rules governing insolvency practitioners and the management of security interests in insolvent entities.

If you would like more information about these changes to the banking and finance laws which are occurring in Australia, we would be more than happy to help you understand how this will impact your business. Our platform helps you navigate complex processing credit card fees structures. Undoubtedly the new legislation will have a very broad effect and it would certainly be wise to consult a lawyer in relation to how you can change your business to adapt to this new system of regulation.

Defamation, facebook and legal implications of online social networking

Posted on May 16, 2010 by Admin

The world of online social networking opens up enormous opportunities but also some potential threats. As with any social situation there will be pleasant people who you will come accross and others who are no so pleasant, or who are even down right dangerous. Protecting our children online has become a big priority for many parents and even protecting our own identities without becoming an internet hermit. It is now a question which is regularly raised in legal circles as the to the limits and extent to which the law applies in the online social networking space. In many quarters, the consensus appears to be that on-line media is no different from a phone call, a mobile phone text message, a radio signal or a television broadcast in that the senders of such messages must be sensitive to how these messages will be viewed and interpreted by audiences who are sometimes not intending to view material or are naive to the extent as which dangerous material can be damaging. Then there is also the issue of how to deal with communication which is intentional spiteful and designed to cause harm either directly or through the mechanism of reputation.

It is now a regular occurrence that people are caught in compromising situations and then this information is posted on a social networking site like facebook or twitter or myspace. Getting posted on these site when you are not consenting is potentially very harmful to your reputation. What if your employer saw these photos or your close friends or family? It can be a very difficult situation to be in. There are some protections which the law offers to people to prevent deliberate and malicious harm to the reputation of another. This is known as the law of defamation which generally prevents this type of publication from occurring. We have defamation specialists available who can look into a defamation issue with you and indentify if you may have a claim of defamation available to you if someone has done some serious damage to your reputation.

Building and Construction Law Disputes

Posted on May 11, 2010 by Admin

Sydney house prices are soaring and people seem to be turning to home capital as a solution compared to buying a new house. At the moment, it is much cheaper to renovate and then to buy. Sydneysiders are turning to home renovation solutions to increase the capital investment in their own home rather than looking for a new one. The building construction industry estimates that home renovations will increase by 200 to 300% in the coming years.

However, as with all new economic activity there will inevitably be disputes surrounding the addition of new parts of buildings. The cost of these renovations can be very large in comparison to the value of property, and if there is even a simple misunderstanding in relation to the building contract which is used to construct a home renovation it can lead to a protracted and costly dispute. There is also a significant elements to building construction disputes which is different from other types of commercial disputes because it is governed by the building and construction industry security payment act.

The building construction industry is fraught with problems and disputes and having a good lawyer from the beginning can mean the difference between a very good and very bad outcome in relation to a building and construction dispute. Many building companies engage in questionable practices such as creating Phoenix companies which go insolvent to avoid paying their debts and then setting up as a new company immediately or they may either provide to their customers and then dispute the amount of payment that is given shonky or sometimes non-existent work. if you have had a problem with the builder of this type, you”ll know exactly what it is like to try to dispute the completion of a building project while it is in operation. You are often hamstrung by the need to complete the project despite the fact that you often unhappy with it. These problems can snowball into something which seriously affects the value of your house and your enjoyment of rights in relation to the provision of services guaranteed under a contract you have with the builder. It is certainly worth talking to a lawyer if you have any concerns of this nature.