Banking Alert - Amendments to the Consumer Credit Enhancements Bill

We recently reported that following Parliamentary recommendations made in December last year the Government is proposing to make certain amendments to the Consumer Credit and Corporations Legislation Amendment (Enhancements) Bill 2011.

Our earlier alert focused solely on changes to the proposed interest cap on payday lender fees and charges – refer here for further details.

Further amendments are proposed by Government to the Enhancements Bill including:

Hardship applications Conditional Credit Approvals Deduction Authorities

Link to full article

Banking Alert - Increased Cap on Pay Day Lender Fees & Charges - 27 April 2012

The Federal Government has revised its proposed cap on fees and charges for pay day and micro lending. Initially, draft laws set a cap on establishment fees of 10% (of the amount borrowed) for loans of $2000 or less, as well as a cap on monthly charges of 2%. However, a revised version of The Consumer Credit and Corporations Legislation Amendment (Enhancements) Bill 2011, released this week, now proposes a cap of 20% for fees and 4% for monthly charges. The changes are in response to parliamentary recommendations made in December last year. Along with these changes the Treasury has released a Discussion Paper regarding possible overall strategies for assisting short term lenders.

Link to full article

Banking Alert - Witnessing Statutory Declarations in NSW? - 26 April 2012

From 30 April 2012 authorised witnesses in NSW will be required to follow new laws when identifying people making statutory declarations.

Link to full article

Litigation & Dispute Resolution Alert - Shorter Deadline for Registering Company Charges

The Commonwealth’s Personal Property Security Act 2009 (PPS Act) has certainly brought about many changes. The legislation has dramatically changed the legal landscape as it relates to personal property interests; transforming a number of state and national registers into a single regime regulated by federal laws. One subtle but, significant change has been an amendment to the Corporations Act 2001 (Cth) that governs the time-frame for registering what was formerly known as a notice of a company charge (now known as a security interest).

Link to full article

Litigation & Disputue Resolution Alert - It Never Rains but it Pours - 26 March 2012

We are sure Governments throughout Australia now rue the day when at the height of the drought gripping Australia, certain decisions were made to build desalination plants and lay pipelines to major cities to ensure that the population had adequate water supplies going forward.

Now, with much of inland southern New South Wales battling floods and the population being evacuated, it is hard to cast one’s mind back only a few years ago when drought was gripping Australia.

Richard Ashley has recently joined our Melbourne office practicing in litigation and disputes. Over the past number of years he has acted for land holders along the path of the two major pipeline developments in Victoria.

Link to full article

New Appointments - Melbourne - March 2012

We are pleased to announce two new appointments to our Melbourne office. The appointments are part of the growth now taking place at MacGillivrays to cement its position as an east-coast law firm with all its offices having “on the ground” capabilities in the following four areas of competency: Banking & Finance, Litigation & Dispute Resolution, Corporate & Business, Property & Strata.

Gerald Miller, Partner, Corporate & Business Services

Richard Ashley, Senior Associate, Litigation & Dispute Resolution Services

Link to full article.

Banking Alert - Credit Card Contract Reform - 9 March 2012

On 1 July 2012 various reforms to credit card contracts take effect. The changes are bundled in with the earlier amending legislation introducing home loan Key Facts Sheets, but the credit card reforms are much more extensive and warrant separate consideration.

In addition, the Government recently issued a discussion paper which will result in further changes to credit card contracts, in particular to introduce a standard format for describing the “interest free period” when offered on various credit cards.

Link to full article

Intellectual Property Licences and the Personal Property Security Act 2009 (Cth)

Australia’s first national personal property security register commenced on 30 January 2012 and commercial dealings of a wide variety have been affected in one way or another.

Transactions relating to intellectual property are not excluded. This article will discuss the new personal property security law as it relates to intellectual property. In particular it will raise important considerations regarding the use of intellectual property licences for security interests under the Federal Government’s Personal Property Security Act 2009 (PPS Act).

Link to full article

Controlling Superannuation Death Benefits - 8 March 2012

Most adults are now members of a superannuation fund. Superannuation is one of the most tax effective long term savings strategies and overall balances are increasing. As a result, this may be a member’s most significant asset at retirement or death.

On the death of the member, the balance proceeds payable may also include a life insurance component; increasing the amount payable by the trustee.

Superannuation proceeds do not automatically form part of the deceased member’s estate. It is the trustee of the superannuation fund who has the legal ownership.

Link to full article

Banking Alert - Loan Licensing - Self Managed Superannuation Funds - 6 March 2012

Will an Australian Financial Services Licence be required to advise in relation to Self Managed Superannuation Fund (SMSF) Loans?

On Monday 13 February 2012 Treasury released a proposal which, if adopted, will require persons who advise Trustees of Superannuation Funds on borrowing facilities to hold an Australian Financial Services Licence.

Link to full article

Corporate & Business Alert - Beginners Guide to Trade Promotions - 2 March 2012

Conducting a trade promotion (or promotional game) can be an effective way to advertise and promote your business. There are however a number of legislative requirements to be satisfied prior to conducting a game. If these requirements are not met, heavy penalties can be imposed, rendering your promotion futile.

Link to full article

Corporate & Business Alert - New National Business Names Register - 17 February 2012

Following hot on the heels of the new registration system for Personal Properties Securities, comes the new National Business Names Register, scheduled to commence on 28 May 2012.

Currently, if you seek to register a business name, you have to do so in each relevant state and territory in which you intend to operate and “carry on business”.

Under the new national registration scheme, you only need to register once and that will cover your national business name registration requirements.

Link to full article

The Ins & Outs of Retirement Village Schemes

Tired of mowing your lawn, maintaining your property? Need to downsize or want to live in a community with more security? You might be considering moving into a Retirement Village but are not sure if it’s for you? Uncertain about the complexities of purchasing a unit and the costs incurred on sale of your unit?

Here we set out some brief information on the “Ins” and “Outs” of Retirement Villages as registered under the Retirement Villages Act 1999 (Qld).

Link to full article

Advance Health Directives

If you become seriously ill or unconscious, or are no longer able to make decisions, you may be unable to communicate decisions on your healthcare. If you do not have an Advance Health Directive (AHD), you have no legal way of making your wishes known about when to withdraw or withhold life-sustaining measures.

Link to full article

Body Corporate Information Gap

Disclosure of Body Corporate Information to prospective Buyers of units in Community Title Schemes was expanded last year by the Queensland Government.

From 14 April 2011 Sellers of units have had to disclose to their Buyers the basis upon which the Body Corporate levies have been calculated (contribution or interest schedule entitlement) and also provide a copy of the current community management statement for the scheme.

The Government did not however require that sellers disclose the amount of any unpaid levies!

Link to full article

Property & Strata Alert - New Asbestos Laws - Work Health & Safety Act 2011 (Qld) - 11 January 2011

The introduction of the Work Health and Safety Act 2011 (Qld) and the Work Health and Safety Regulation 2011 (Qld) (“WHS Laws”) heralds certain changes for all commercial buildings.

However, in some circumstances units, apartments, town houses and common property in residential community title schemes may be affected as well, depending on whether they can be considered a “workplace”.

Link to full article

Banking Alert - Confused? Key Fact Sheets - A Right Old Mess - 15 December 2011

Confusion seems to be reigning in the market place about the requirements of Key Facts Sheets for home loans. Each day we are receiving multiple queries about this issue and whose obligation it is to comply with this legislative requirement. Let’s cut the confusion!

Link to full article

Banking Alert - External Dispute Resolution - ASIC Consults, Finally! - 9 December 2011

On Friday 2 December 2011 ASIC released a consultation paper to commence a review of External Dispute Resolution (EDR) jurisdiction over consumer complaints in cases where lenders have already commenced legal proceedings to recover the debt from consumers.

Concern has been expressed by industry for some time now that consumers are able to use the EDR process as a mechanism for deferring payment obligations and that has had the effect of increasing the risk of loss to lenders by delaying the recovery process.

Link to full article

Property & Strata Services Alert - Flood Insurance Policies & Strata Title - 7 December 2011

The catastrophic floods in Queensland, New South Wales and Victoria have prompted the Federal Government to take action on two fronts.

Changes to strata title insurance policies is a possibility; due to a parliamentary investigation and introduced proposed laws. The Federal Government will investigate the affordability of residential strata title insurance in a new inquiry. It will be taking submissions up until 16 January 2012. Strata title insurance cover is also under scrutiny with a new Bill proposing to make changes to insurance policies that relate to cover for flood.

Link to article

Banking Services Alert - Term Deposits Redefined - 2 December 2011

An interesting interplay is going on at the present time between APRA and ASIC relating to how Term Deposits issued by authorised deposit taking institutions (ADIs) are treated.

The interplay illustrates how legislation and prudential standards can impact upon and shape the nature and features of retail banking products in the market place.

Link to full article

Banking In Brief - Financiers Depositing Funds Directly with Suppliers Beware!

Two recent court cases have highlighted the need for financiers, that are in the business of financing the purchase of chattels, to protect themselves from the risks associated with directly depositing funds into suppliers’ accounts (as opposed to borrowers’ accounts).

Link to full article

Banking In Brief - Further Enhancements to Reverse Mortgages

The Government foreshadowed that in Phase 2 of the Consumer Credit Law Reforms one of the first matters it would look at would be enhancement to the Regulation of Reverse Mortgages.

Link to full article

Banking In Brief - PPS Register: Government Indicates January 30 Commencement is Still Possible

The Federal Government has recently reported to a Senate Committee that a commencement date of 30 January 2012 for the personal property security reforms is still anticipated. However, a recent Federal Bill (Personal Property Securities Amendments (Registration Commencement) Bill 2011) if made law, will allow the Attorney-General to determine a new start date for the PPS register beyond February 2012.

Link to full article

Property & Strata Alert - Tenancy Notifications & Short Term Stays - 30 November 2011

Some years ago I was asked to advise a Body Corporate about restricting holiday letting. The building was a little over a year old and was marketed and sold as a residential only beachside tower. One of the 30 odd owners started to advertise their lot for holiday lets. The committee was concerned to “stop the holiday rental rot” before it began.

Link to full article

Key Facts Sheets for Home Loans - Implications for Mortgage Managers - 25 November 2011

As from 1 January 2012 (current proposed start date) Credit Providers will have to give potential customers the ability to generate a Key Fact Sheet on their website.

The capacity to generate a Key Facts Sheet does not need to be present in all circumstances, only where “the credit provider” has a website that can be used by a consumer to apply for or make an enquiry about, one or more standard loans of the “credit provider”.

There is a separate obligation for a credit provider to provide a Key Facts Sheet for a loan on request.

Link to full article

Property & Strata Services Alert - Summary of the Merrimac Decision - 17 November 2011

On 11 November 2011 the Supreme Court of Queensland delivered its decision in Henderson and Anor v The Body Corporate for Merrimac Heights [2011] QSC336. The decision, amongst other things, provides clear guidance on the Body Corporate’s power to enter into service agreements under Section 167 of the Body Corporate and Community Management (Accommodation Module) Regulation 2008.

Link to full article

Nuisance Trees - 3 November 2011

The Neighbourhood Dispute Resolution Act 2011 commenced on 1 November. Chapter 3 provides dispute resolution mechanisms in relation to nuisance trees. The new laws do not however apply to trees planted or maintained as a condition of a development approval. Developers, and local authorities, should consider the rights of future residents when development approval conditions are being drafted and imposed. Given the prevalence of landscaping plan conditions, how accessible will the new laws be in 10 years time? Will local authorities end up being inundated with requests to alter landscaping plan conditions, because affected owners cannot access the new laws? Only time will tell.

The correct version of the BCCM Form 14 can be obtained from the Department of Justice and Attorney General.

Link to the Dept of Justice & Attorney General

NSW Mortgagee & Witnessing Requirements

The NSW law changes requiring lenders to identify the person signing a mortgage and tightening the requirements for witnesses to identify the person signing a dealing in land started on 1 November 2011.

Unlike the Queensland identification form which provides evidence that the lender took steps to ensure compliance with the requirements of the law, identification forms signed by a witness do not assist Lender’s to comply with their identification obligations under the NSW laws. In the absence of fraud, the witness certificate merely provides a third party assurance that the person signing the mortgage is who they say they are.

Link to full article

Banking News Snippets

It seems that every day there are developments that affect the finance industry.

Some of the more interesting recent snippets of news include:

A draft bill to implement the Government’s Future of Financial Advice (FOFA) reforms
Management of early release superannuation
New disclosure obligations under the Financial Claims Scheme
Quoting of Australian Credit Licence Numbers
Deferral of commencement of the PPS reforms
Home Loan Key Fact Sheets

Link to full article

Know When to Hold 'Em

Don’t gamble with your reputation if you receive a prescribed notice under Section 204 of the Accommodation Module to return a Body Corporate’s property. In the recent Adjudicators decision of Casuarina Sphere [2011] QBCCM CMR286 a Body Corporate’s rights to the return of its property were tested against novel arguments made by the scheme’s former Body Corporate Manager.

Link to full article

Banking Alert - Micro Lending, Is this the End of the Road? - 31 August 2011

On Thursday 25 August 2011, the Assistant Treasurer announced reforms to so-called "pay day lending". An exposure draft of legislation has been released to regulate "small amount credit contracts" and to introduce a comprehensive cap on the "cost of credit". The expression "comprehensive" is perhaps an understatement.

Link to full article

Banking Alert - Consumer Leases - Light touch regulations coming to an end - 30 August 2011

Consumer Leases traditionally have been regulated under the Credit Code by way of a less prescriptive regime than that which applies to loan contracts. Government has grappled over recent years with what should be the position going forward in connection with regulation and disclosure requirements for consumer leases.

The release of the proposed National Consumer Credit Protection Amendment (Enhancements) Bill 2011 will make it clear that going forward consumer leases will have the same type of disclosure requirements and regulatory requirements as loan contracts now do.

Link to full article

Banking Alert - Key Fact Sheets for Standard Home Loans - 26 August 2011

Key Fact Sheets will have to be provided by lenders in respect to standard home loans as from 1 January 2012. A standard home loan is a loan to purchase or refinance residential property.

Regulations will shortly be released giving further detail on the content of the Key Fact Sheets (KFS) and other related matters. It is opportune to revisit this new legislation.

Link to full article

To Be or Not To Be? That is the Question - 19 August 2011

Artificial conception procedures are now commonplace with each state and territory enacting legislation to recognise the status of children born as a result, and also to regulate such procedures.

But what rights does the survivor of a couple have in relation to stored gametes of their partner, or the extraction of same where the partner has died suddenly before the couple were able to have children?

Link to full article

Complying With Environmental Duties - Part 2 - 19 August 2011

Part 1 of this article (Client Information Bulletin Issue 80, January 2011) considered the nature of some of the various environmental duties and offences prescribed under the Environmental Protection Act 1994 (Qld) (the Act). This article will look at the available remedies, enforcement action and prosecution which may be undertaken by a relevant state or local authority with respect to breaches of environmental laws.

Link to full article

Dividing Fences & Nuisance Trees - 19 August 2011

After almost 60 years of operation the Dividing Fences Act 1953 (Qld) is about to be replaced. The Neighborhood Dispute Resolution Act 2011 (“the Act”) was tabled in November 2010 and on 2 August this year was passed.

The Act reflects a more contemporary view of neighbour’s responsibilities for dividing fences and introduces new responsibilities & rights in relation to trees.

Link to full article

So, You Want to be a Director? What are the Dangers? 12 August 2011

In a recent landmark decision of the Federal Court, executives and directors of troubled property group Centro were found to have breached the Corporations Act by signing off on financial reports that failed to disclose billions of dollars of short-term debt. ABC Learning founder Eddy Groves and fellow executive Martin Kemp are due to face trial in the new year accused of breaching the Corporations Act.

What do you need to beware of with respect to your duties as a Director or Executive of a Company?

Link to full article

National Consumer Credit Code Update - 5 August 2011

Further to our Banking Alert on 1 August 2011, the National Consumer Credit Protection Amendment Regulations 2011 (No. 4) have been released. They can be located on the ComLaw web site along with the Explanatory Statement.

The regulations were made on the 28 July 2011, with the amendments relating to credit guides to commence on 1 October 2011.

Regulations & Explanatory Statement

Neighbourhood Dispute Resolution Act - 5 August 2011

The Neighbourhood Dispute Resolution Act 2011 was passed by the Queensland Parliament on 2 August 2011.  The Bill had been under consideration for some time, after having been tabled in Parliament originally on 25 November 2010.

Directly as a result of work undertaken by the SCA (Qld) Legislative Committee, of which the writer is the Chairperson, critical amendments to the Bill regarding trees and fences were made before the Act was passed.

Link to full article

Property Alert - Assignment Blocks Review

On 23 May 2011 the decision in Emvalle Pty Ltd as Trustee for the Alkaz Discretionary Trust trading as Aqua Vista Apartments v Body Corporate for Aqua Vista Apartments CTS 37051 (OCL096-10) was handed down from QCAT. The application concerned a remuneration and terms review under Section 130 of the Body Corporate and Community Management Act 1997.

Tribunal Member Barlow SC, dismissed the proceedings on the basis that QCAT had no jurisdiction. He reached this conclusion on the basis that review rights under Section 130 are only available to caretakers who were assigned or granted their Caretaking Engagement during the original owner control period.

Link to full article

NSW Introduces Identification Requirements for Mortgagees from 1 November 2011

Last Friday (10 June 2011) the NSW Government passed the Real Property Amendment Regulation 2011, which will become law on 1 November 2011. The regulation details the identification steps the Government requires mortgagees to take to confirm the identity of mortgagees. To review the changes and the significant difference between the regulations and earlier proposals refer to our full article linked below.

Link to full article

Miracles Can Happen - Ban on Exit Fees

Regulations have recently been made to ban exit fees on loan contracts entered into as from 1 July 2011. Rumours abound that there are moves afoot to lobby members of the Senate and seek to persuade them to disallow these regulations - in effect stopping the ban in its tracks.

Link to discussion on how the ban could be disallowed

Paid Parental Leave - What Employers Need to Know

The Federal Government Paid Parental Leave (PPL) scheme commenced for working parents of children born or adopted on or after 1 January 2011.

The PPL scheme provides Government-funded pay at the National Minimum Wage for a maximum period of 18 weeks. Payments can commence from the date of birth or adoption, or a later date. It must be taken in one continuous period and must all be used before 12 months from the date of birth or adoption. PPL is taxable and can be received before, after, or at the same time as existing entitlements such as annual leave, and employer-funded paid parental leave.

Where can an employer find best practice guidance?

When is an employee eligible for PPL?

Link to full article

Recruitment & Discrimination - There Are Limits

In the recent case Bair v Goldpath Pty Ltd & Callinan [2010] QCAT 483 (the Bair case) , a potential employer asked questions in an interview which contravened section 124 of the Anti-Discrimination Act 1991 (Qld) (the Act).

Section 124(1) states ‘A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based’.

Link to full article

Recovering Queensland Fire & Rescue Services Call Out Fees

Before a strata titled building can be lawfully occupied in Queensland, the Body Corporate must enter into an agreement with Queensland Fire and Rescue Services (“QFRS”) for the installation and monitoring of fire safety/detection equipment.

When the fire alarm goes off, in most cases (thankfully) it is either a false alarm or something less than a fire which endangers the lives and property of the building occupants / owners. QFRS’s response to the alarm usually requires attendance on site and charging a call out fee if the call out is a false alarm.

Can a Body Corporate pass on the associated costs to an owner / occupier who was responsible for the false alarm?

When will the QFRS issue a call out fee?

Link to full article

Building versus Buying

Buying a property will be one of the most important financial transactions you make. There are various arguments for and against building a house or buying an established property which should be considered before making your decision.

Link to full article

The Last Piece of the PPS Puzzle Passes

On 10 May 2011 the Senate passed the last Bill amending the Personal Property Securities Act 2010 and the Corporations Act 2001 under the PPS regime.

The Personal Property Securities (Corporations and Other Amendments) Bill 2011 was the final set of amendments to the Personal Property Securities Act (PPS Act) and consequential amendments prior to the Personal Property Securities (PPS) regime coming into effect later this year (1 October 2011).

The PPS Act, which was passed by the Federal Parliament in 2009, created one national law with one set of rules governing interests in property other than land that secure debts or other obligations, with the aim of simplifying over 70 Commonwealth, state and territory laws, and common law governing security interests in personal property. It replaces many registers of personal property security interests that complement these state and territory acts, with the one PPS Register.

Link to full article

ASIC Issues Further Guidance on Responsible Lending

On Thursday 31 March 2011 ASIC advised that it had updated it’s Regulatory Guide 209 “Credit Licensing: Responsible Lending Conduct” to give further guidance on Responsible Lending obligations.

The updates to Regulatory Guide 209 have most likely been prompted by numerous enquiries and confusion surrounding issues such as loans made to people approaching retirement age, refinancing loans in default and circumstances where temporary hardship may be suffered due to foreseeable circumstances. Additionally, there is always the thorny issue of family income being taken into account where the loan is being applied for in the name of one person.

Link to full article

Key Fact Sheet for Standard Home Loans & Credit Cards

A Bill was introduced into Federal Parliament on 24 March 2011 to make further changes to the National Credit Act. The Bill is referred to as the National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Bill 2011.

Importantly, the Bill proposes to introduce a requirement for lenders to provide a Key Fact Sheet for standard home loans.

Link to full article

Ban on Exit Fees Becomes Law

In a surprise, but not unexpected, move the amendments to the National Credit Code to ban exit fees became law on 23 March 2011.

The regulation which inserts a new regulation 79A in the National Consumer Credit Protection Regulations applies to credit contracts entered into on or after 1 July 2011.

We issued an email alert on 10 March 2011 which looked out how the draft regulation would effect lenders and other participants in the finance industry if it became law. We recommend you read the earlier email alert in conjunction with this alert.

Link to full article

Deferral of Disclosure Requirements for Responsible Lending

With amending regulations still to be made, it was predictable that the disclosure requirements under the responsible lending provisions of the National Consumer Credit Protection Act 2009 would be deferred. These are the provisions dealing with Credit Guides, Credit Quotes and Credit Proposals.

These provisions will take effect from 1 August 2011.

The media liaison unit of Treasury stated the following today:
“The existing transitional arrangements for the disclosure obligations under the National Consumer Credit Protection Act 2009 will be extended by regulations so that they will now continue to apply from 1 April 2011 to 1 August 2011.”

We will keep you posted on any further developments

Link to Full Article

Warning to Credit Licensees about Trust Account Obligations

WARNING! Do you receive monies on behalf of another?

ASIC recently issued Information 136 (Info 136) dealing with the issue of “Complying with your Trust Account obligations as a Credit Licensee”

When finance brokers, mortgage managers, aggregators and lenders applied for their Australian Credit Licence there was a question posed on the application as to whether or not the applicant held “Trust Monies”. We suspect that most applicants answered the question in the negative, assuming that they would never be in receipt of monies that would be characterised as “Trust Monies”.

However, Credit Assistants often receive valuation fees upfront and application fees to be passed on to lenders. Info 136 issued by ASIC is a timely reminder for each credit licensee to examine what monies they do receive from borrowers on account of loan applications and whether those monies are in fact impressed with a Trust.

Link to full article

Draft Regulation to Ban Exit Fees - What it Will Mean

Since the release of the draft proposed regulation to amend the National Consumer Credit Protection Regulations 2010 to “ban exit fees”, much has been written about the pros and cons of taking such a step.

This note looks more closely at what it will mean for lenders and others in the finance industry if the draft proposed regulation 79A becomes law.

Link to full article

Further ASIC Review of Early Termination Fees

Following release of the draft regulation on 15 February 2011 to prohibit all termination fees on new home loans entered into on or after 1 July 2011, ASIC has now foreshadowed that it is intending to undertake a further review of early termination fees in the residential loan market, following hot on the heels of publication of Regulatory Guide 220 dealing with early termination fees for residential loans.

Link to full article

ASIC Change to Regulatory Guidance on Internal Dispute Resolution

Regulatory Guide 165 deals with Internal and External Dispute Resolution. Following lobbying from industry associations, ASIC have now broadened the scope of exemptions available to reduce the administrative and regulatory burdens on licensees when dealing with “complaints or disputes”.

Link to Full Article

PPS Reform Delayed

The Council of Australian Governments (COAG) in 2007 agreed to establish a national system for the registration of personal property securities.  Commonwealth legislation was enacted with referral of legislative power given from the States to the Commonwealth.

A single online register to be established run by the Attorney General’s Department, will keep a register of “personal property” interests. Personal property is any form of property other than land, buildings or fixtures which form a part of that land. Current registered securities of personal property such as ASIC and REVS are being transferred to the new register; the PPS Register.

The launch of the PPS Register was anticipated for May 2011. Today the Attorney General’s Department announced that the launch is now October 2011.

Link to full article

Can a Lender be Held Liable for the Actions of an Agent?

A finance broker, who was later found to be a conman and jailed, submitted a loan application to Violet Home Loans, a mortgage manager for Macquarie Bank.

Link to full article

Refer to Drawer - Defamation Found Against Westpac

The majority of the High Court in the recent case of Aktas v Westpac Banking Corporation [2010] HCA 25, determined that Westpac was liable in the defamation proceedings where the Bank dishonoured cheques drawn by the client from a trust account, where the client accounts had sufficient funds to pay. The case has important ramifications for those who provide information to third parties regarding the financial position or credit worthiness of their clients.

Link to full article

New National Consumer Credit Legislation

The NCCP is a new National Consumer Credit Protection Code which is the result of an agreement between the States, Territories and the Commonwealth Government for the Commonwealth to take over responsiblity in the area of consumer lending.

Link to full article

Important Changes to Worker’s Compensation and Workplace Health & Safety Legislation

The Workers’ Compensation & Rehabilitation Act 2003 was amended by the Workers’ Compensation & Rehabilitation and other Legislation Amendment Bill 2010 (“the Bill”) taking affect on the 1 July 2010. The Bill was intended to reconfirm the viability of the Workers’ Compensation Scheme. Below is a short summary of changes relating to workers who seek compensation from an employer for negligence.

Link to full article

Do Your References Stack Up?

A new website has been created to enable profiles of people to be added by anyone. Ex-employers with a grudge or ex-co-workers could potentially add a review about your work performance and provide sensitive details to others.

The web site allows 'reviewers to share their true, nuanced opinions without fear of repercussions', as the reviewer's identification is obscured. Could this be defamatory conduct? How many people could potentially see your information?

Link to full article

Genuine Steps for Dispute Resolution

As part of the Federal Government's strategic framework principles, legislation was introduced by the Attorney-General The Hon Reboert McClelland MP on the 16 June 2010, to require parties involved in legal disputes to take genuine steps to resolve their dispute before going to court.

Link to full article

NSW Mortgage Identification - What is Reasonable?

In December 2009 the NSW Land and Property Information office released their Christmas present to Lenders in the form of a consultation paper on the proposed 'reasonable steps' to ensure a person signing a mortgage is who they claim to be.

Link to full article

Credit Code Registration - Are You Ready?

The new National Credit Code Registration / Licensing process starts on 1 April 2010. There are three main options we offer to assist you with licensing.

Link to full article

On The Margin

If you make margin loans or advise clients about margin loans then you must apply to ASIC by 30 June 2010 for an AFSL licence or to vary your existing AFSL licence. If you want to provide a margin lending financial servce after 30 June 2010 then you will need to apply to ASIC for authorisation by that date. Those who fail to do so will have to cease providing those services.

Link to full article

Why Make a Will?

Many people still die without either having made a Will or with a Will that was hopelessly out of date.

Many people mistakenly believe that their assets will go to their partner on death. The Intestacy rules (which apply where no valid Will is left) do not work for many people. If you are survived by a partner and children, then your partner will share in the estate with your children, which could cause financial difficulties or tension.

Link to full article

How Far Does an ASIC Registered Charge Reach?

In Re Octivar Ltd (No 7) [2009] QSC 37, Justice McMurdo of the Queensland Supreme Court held that extending a Charge so it secures an additional liability not included in the documents on ASIC's Register of Charges creates a variation of the Charge which must be registered for that variation to be effective.

Link to full article

The Constitution and Banking Business

In May 2008, the Full Court of the Federal Court upheld an appeal confiming the constitutional validity of the provisions of the Banking Act 1959, and APRA's right to restrain parties from engaging in banking practice by way of injunctions. Here we review briefly the Court's decision in Siminton v APRA [2008] FCAFC 88 (30 May 2008).

Link to full article

New Laws Affecting Executive Termination Benefits

In a recent newsletter we outlined the views of the Australian Prudential Regulatory Authority on Executive remuneration, in particular, bonus payments linked to Executives' performance.

On 5 May 2009 the Federal Government released its exposure draft of the Corporations Amendment (Improving Accountability On Termination Payments) Bill 2009, together with draft regulations and accompanying commentary explaining the proposed amendments.

The proposed amendments reduce the maximum termination benefits that may be paid to directors before shareholders' approval is required. The closing date for submissions on the exposure to legislative draft was 2 June 2009.

Link to full article

Do You Know the Difference Between License and Licence?

Presently, there is a lot of press about the new Australian Consumer Credit Licence. The Federal Government in late April 2009 released for public comment its proposed draft national credit laws. The words 'license' and 'licence' are used throughout the Government's draft National Consumer Credit Protection Bill 2009 and the proposed Regulations and Explanatory Material.

Link to full article

Nothing is More Certain than Death & Taxes ... or is it?

Implications of Captial Gains Tax liability and Joint Tenancy.

Has your partner died and left you as the surviving Joint Tenant? Are you aware of the possiblity of CGT liability?

Link to full article

Lawyers Get Gadgety

Social networking site Facebook has been used to serve legal documents for what is believed to be the first time.

Canberra firm Meyer Vandenberg tracked down a couple who defaulted on their $150,000 mortgage by inputting information from their mortgage application into Facebook. The fact the defaulters' Facebook accounts included their names, dates of birth and listed each other as "friends", was enough to persuade the court it had the right people in its sights. The method was accepted by ACT Supreme Court Judge, David Harper, who does not have a Facebook account.

Link to full article

Foreclosure

Given the recent falls in property values, some lenders are finding themselves in the uncomfortable position where the debt owed to them is not adequately covered by the price recoverable on a sale of real property security.

Some lenders are considering what had become in the last ten years a rarely used procedure, being foreclosure.

Foreclosure occurs where a mortgagee, rather than selling the property as mortgagee to satisfy the debt, elects to become the legal owner of the property.

Link to full article

What a Difference a Day Makes - When it Comes to Land Tax

Perhaps due to the Global Financial Crisis and on-going cashflow issues, we have seen a sudden surge in the number and quantum of Declaration of Agent notices issues by the Queensland Commissioner for Land Tax to borrowers buying property. Recently, we saw a Notice for nearly $200,000 (about two-thirds of the purchase price of the land). A copy of the notice was provided to use as a “land tax search”. The declaration acts like a garnishee order against the settlement proceeds.

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Personal Property Securities Reform

The Attorney General Robert McLelland, announced on 17 November 2008, that the Personal Property Securities Bill had been referred to the Senate Standing Committee on Legal and Constitutional Affairs. That committee is due to report by 24 February 2009.

He has previously stated "The Australian Government is committed to pursuing personal property securities reform. Businesses should not have to implement complex and sometimes inconsistent business practices to comply with the more than 70 Commonwealth State and Territory Acts dealing with personal property securities. Harmonising the law and practice on personal property securities through a single national act, supported by a single national online register, will generate real benefits for business and consumers."

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Legal Language De-Mystified

Most lawyers write poorly. They can’t say anything simply. They have no judgement on what to include or what to leave out. Legalese and jargon overwrite everyday words that communicate complex information clearly. So what? Does poor writing matter?

It’s commonplace to say that it does. Enter the “plain English movement” - a programme aimed at educating the legal profession to use common words and phrases, their meaning known to the community at large. But does history have a part to play in the development of “plain English”?

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Advance Health Directives - What You Should Know

An Advance Health Directive is a binding legal document which sets out your wishes and authorises your medical staff as to your desired medical treatment should you become so ill or incapacitated that you are incapable of communicating those wishes when a critical decision has to be made for your care.

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Personal Property Securities - Reforms Are on Their Way

What money lenders and suppliers of goods or services need to know: Personal Property Securities Reform.

In May 2008, the Australian Government released for public comment a draft Bill titled “Personal Property Securities Bill 2008” (PPS). The Federal Government, in co-operation with the States and Territories, is pursuing reforms to Australia’s PPS law with an end goal of having a uniform system for the registration and regulation of security interests.

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Treating the Urge to Trickle

Under a new Queensland State Government 12 month ticketing trial to be introduced next year, Police will be given powers to issue on the spot fines for Public Nuisance offences which include public urination.

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Assets, Wills & Estates

Making a Will is just one part of developing an effective estate plan. There are many other factors to consider that will affect the distribution of your assets on your death.

Your Will only deals with assets that form part of your “estate”. These are assets that you personally own and control. However, these days many people have considerable assets that do not fall into their estate.

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Parties Beware! Are Pre-Contractual Costs Recoverable?

It's a common scenario: two parties enter into contract negotiations. One party begins preparatory work and incurs expenses. Negotiations fail, through no fault of either party, and a binding contract is never formed. Is either party able to recover their expenses from the other?

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Workplace Fraud: Proposed Tax Allowances for Amounts Misappropriated by an Employee or Agent

We are all familiar with the old saying "only two certainties exist in life: death and taxes". For the employer, fraud in the workplace has become a third certainty. Workplace fraud is a significant problem. It is compounded by the fact that those committing the crime are persons whom employers have placed in positions of trust.

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Current Trends in Public Liability

From 2000 until recently, there was a clear emergence of legislation and Court decisions which attempted to negate public liability claims. However, it would appear that there is a recent momentum swing to a resurgence in successful Plaintiff claims.

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“No Diving” Sign is Reasonable says the Hight Court of Australia

Roads and Traffic Authority of NSW (“RTA”) v Dederer [2007] HCA 42

A 14 year old boy became a paraplegic when he dived from a NSW bridge maintained by the local council - what are the legal issues as to liability for the local council?

The Plaintiff (a 14 year old male) became a paraplegic when he dived 9 metres into a navigation channel from a bridge linking the New South Wales towns of Forster and Tuncurry.

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Superannuation Update - Instalment Warrants

Superannuation law has in the past contained a general prohibition against self managed superannuation funds borrowing money. Recent amendments to the Superannuation Industry (Supervision) Act 1993 have created some exceptions to this general prohibition and superannuation funds may now borrow money in limited circumstances.

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Retail Leases and Rainwater

Singing in the Rain, or Not? Retail Leases and Rainwater.

What happens to retail premises when they are inundated by rainwater? What are the respective rights and obligations of the parties? What legal difficulties can result?

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GPS Devices to Map Out the Law?

A New York online news journal recently reported a case where a driver of a rental car with a GPS (global positioning system) device, was wrongly directed by the device to drive onto train tracks, causing the car to get stuck. The rental car driver is now being sued for the damage to the train and tracks.

Does the car driver have an action against the GPS provider? Is there a cause of action in breach of contract with the rental car company? Could there be an action for negligence?

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Understanding Wills & Inheritance

Have you been left out of a Will or has an intestacy resulted in you missing out on an inheritance? Did you nkow that it is possible to contest a Will?

Under Queensland law, if a person dies with or without a Will (died intestate), and as a result, individuals (eligible applicants) have been left without appropriate / suitable / adequate provision, then it may be possible for those individuals to apply to the Court for an 'order for provision' from the deceased's estate.

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Credit Worthiness, Privacy & Future Reforms - What Consumers Should Know

Proposed changes to the national Privacy Act will mean more details will be collected and disclosed.

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Get Your "New Year" Resolutions In Order

Christmas is upon us and on its heels the "New Year". Many of us will be optimistically making New Year's resolutions - but before we know it another year will be over and our resolutions, made with all good intentions, (often influenced by the "spirit of the moment" in more ways than one!) will have gone by the wayside.

Events of the past year have highlighted the need to make one resolution and keep it ... Get your Estate Planning Affairs in order or at the very least make, or update, your Will because you never know what life has in store.

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Office Parties, Alcohol & Sexual Harassment

With the ‘silly season’ almost here office Christmas parties are being eagerly planned and generous amounts of alcohol bought.

So … should business be held responsible for the behaviour of its staff at after hours office functions?

A recent decision by the NSW Industrial Court, upholding the dismissal of an employee, suggests not, provided the employer has acted responsibly. (Gordon Meggatt v Australian Business Limited [2007] NSWIR Comm182).

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So ... You Want to be a Director? Useful Information You Should Know!

'ASIC will not hesitate to disqualify company officers who disregard their obligations under the law' ASIC's Deputy Executive Director of Consumer Protection, Ms Delia Rickard - December 2006.

With the recent disqualification of nine Directors by the Australian Securities and Investment Commission (ASIC), it is important that any person acting as a Director knows the duties they have to the Company and Shareholders.

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Have You Been Appointed as an Executor Under a Will?

It is quite likely that at some stage of your life you will be asked to be the executor of a Will, most likely for your parents, or siblings or even for a close friend.

In this article we provide some information on your responsibilities as executor and the steps you may need to take to finalise the estate.

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Check Now Before You Cold Call Prospective Clients!

You have alread dealt with the Privacy Act 1988, but now the Do Not Call Register Act 2006 is poised to affect your lead generation.

The Do Not Call Register Act 2006 (DNCRA) has been with us for almost a year and to date it has had little impact on businesses capacity to telephone prospective clients and offer or promote services or products ... until now. On 31 May 2007, the provisions of the DNCRA will commence. The provisions directly affect businesses' capacity to make telemarketing calls.

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New Independent Contractors Legislation

On 1 March 2007 the following new Federal legislation came into place:

the Independent Contractors Act 2006;
the Independent Contractors Regulations 2007 and;
the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth)

These new Acts bring greater certainty to contractual arrangements (especially within the building and construction industries which rely heavily on subcontracting) by providing a statutory definition of ‘independent contractor’.

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P-Plate Drivers: Loss of Autonomy?

As a result of the Queensland and New South Wales Governments’ concern for continued road safety and the NSW Government’s discussions with the Young Drivers Advisory Panel, legislation affecting P-Plate Drivers in both States is planned for introduction on 1 July 2007. It is set to introduce new rules for new drivers, including night curfews, passenger restrictions and the banning of high-powered cars.

The legislation is part of the graduated licensing system that is being slowly phased in across all Australian states. The aim is to reduce the number of motor vehicle related fatalities that occur in the late night and early morning hours.

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WorkChoices Goes to the Movies

Australian Industrial Relations Court decision denies employee access to unfair dismissal provisions in operation re-structures, regardless of circumstances.

In a recent case the Full Bench of the Industrial Relations Commission ruled that WorkChoices requires a strict interpretation of whether or not a genuine operational reason lead to the dismissal and that issues of redeployment were irrelevant to making that assessment.

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Client Documents - Do They Stay or Do They Go?

Businesses and individuals should be aware that it is now a criminal offence in Victoria to destroy or conceal documents which are likely to be required as evidence in legal proceedings.

Since the controversial and highly publicised 2002 Victorian Court of Appeal case of Mrs McCabe and British American Tobacco Australia (‘BATAS;’) where there were allegations of deliberate document destruction by BATAS and its legal representatives, the Victorian Government has moved to introduce a new legislative package ensuring criminal sanctions to individuals or companies who deliberately destroy documents relevant to current or future legal proceedings.

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Is Your Will Right for You?

Do you have a Will? Is it the right one for you?

Every person over the age of 18 is entitled to have a Will and should have one. If you do not make a Will your estate may be distributed in accordance with what are known as the Rules of Intestacy and not in accordance with the way you would like your estate to be divided. You should also have a Will so that you can nominate who will take charge of your affairs when you die.

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To Endure or Not to Endure?

A Power of Attorney is a legal document that provides authority for another person to make decisions about matters on your behalf. The decisions that your attorney makes for you will have the same legal force as if you had made them yourself.

It is important to distinguish between the types of attorney and the particular circumstances in which they should be used.

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Special Disability Trusts

On 20 September 2006 the federal government amended both the Social Security Act 1991 and teh Veterans' Entitlement Act 1986 so as to provide for the establishment of Special Disability Trusts.

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Simplified Super - Soon to be a Reality

On 21 December 2006 the federal government released the long awaited draft regulations on pensions and annuities which form part of the Government's Simplified Superannuation reforms

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Consumer Credit Law Update

The last few months have seen a significant number of reforms, reports and enquiries in the Consumer Credit law area, in particular:

The Victorian Government’s response to the Consumer Credit Review conducted by Consumer Affairs Victoria.

Legality of Electronic Communications

Research into Streamlining of Pre-contractual Disclosure

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The Importance of an Employee's Qualifying Period

The new WorkChoices legislation is here to stay. The following article discusses the importance of understanding qualifying periods.

On 16 October 2006, the Australian Industrial Relations Commission (AIRC) dismissed an employee’s application for unfair dismissal because he had failed to complete his qualifying period of employment of six months.

Unfair dismissal occurs when an employer fails to give an employee “a fair go all round” when terminating their employment, making the termination “harsh, unjust or unreasonable”.

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Asbestos Warning for Sellers and Buyers of Commercial Buildings in Queensland

The presence of asbestos, a hazardous substance widely used as a commercial building material throughout Australia until the late 1980s, may not only cause potentially fatal health effects upon exposure, but may significantly diminish the value of commercial property.

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National 'Do Not Call' Register Comes Calling

On 25 May 2006 the ‘Do Not Call Register Bill 2006 (Cth)’ was introduced into Federal Parliament.

Once passed, the Act will allow people who do not wish to be disturbed at home by telemarketers to register themselves on the ’Do Not Call’ Register.

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Succession Act (Qld) Amendments ... Some interesting ways they Could Affect You

On 1 April a number of amendments to the Succession Act 1981 were passed by the Queensland Parliament. Many of the changes won’t, in our experience, have a great impact on the way a prudent person would prepare a Will.

To ensure that your Will is properly prepared (and therefore valid) we always recommend that you have your Will prepared by a solicitor. A solicitor will also be able to guide you in relation to other issues that can affect the form of your Will (e.g. asset protection, taxation planning, shareholdings in privately-owned companies, etc).

Bearing this in mind here are some of the more interesting changes that are not directly related to usual Will preparation.

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New NSW Smoke Alarm Regulations - Implications for Vendors

The new Conveyancing (Sale of Land) Amendment (Smoke Alarms) Regulations 2006 (NSW) which commenced on 1 May 2006 have introduced new requirements in relation to the installation of smoke alarms.

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Safeway Ordered to Pay $8.9Million for Breaches of the Trade Practices Act 1974

A recent decision of the Federal Court of Australia gives a strong reminder to corporations of the consequences of engaging in anti-competitive conduct.

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Don't Lose Hope at the Sight of an Appeal

If you are a regular reader you may recall a matter mentioned in our December newsletter which involevd our client, a builder, in a dispute with a developer with whom it had contracted to undertake construction work.

The developer had defaulted under the agreement with our client, and our client had appointed a Receiver and Manager over the development project. Despite a number of pre-trial successes against the developer, the developer had pursued its (albeit reduced by that stage) claims to trial.

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What's New? March 2006

NSW Land Tax Threshold Raised.

States & Unions Challenge New IR Laws.

Australian Law Reform Commission calls for National Evidence Regime.

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Office of Fair Trading Issue Warning about Gym Membership

In a recent statement the Queensland Office of Fair Trading urged Queenslanders to do their homework before signing up for gym membership and weight loss deals.

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Delay in Addressing Legal Documents Costs

In a recent decision the Brisbane District Court had to consider whether it should set aside a judgment in default given where a defendant had failed to respond to legal documents.

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Our Recent Successes in Dispute Resolution - December 2005

Sydney Developer Takes a Dive in North Queensland

Appointment of "Friendly" Administrator Fails

Taking Security Pays Off

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Unclaimed Money - Obligations of Businesses

Businesses have obligations to record, advertise and then ultimately pay to the State, unclaimed money that they are unable to pay to the person or entity entitled to the money.

"Unclaimed money" is moeny that is legally payable to others in the course of your business but remains unclaimed such as uncashed cheques, salaries and wages, rents and bonds, debentures and interest, trust moneys and refundable deposits.

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Pacing Out Approximate Floor Area was Misleading

A real estate agent paced out parts of units in a block of six units for the purpose of estimating the floor area for each unit. An advertising brochure for the sale of the six units in the block said that each unit was approximately 63 square metres.

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What's New - December 2005

Slam Dunk Standards - New safety standards for basketball rings and backboards.

Privacy for Queenslanders - Secretly observing or filming people engaged in private acts outlawed.

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Who's Bidding Against You?

Dummy bids are false bids made at auctions either by the auctioneer pretending a bid has been made by someone in the crowd or bids used to drive up the proce with no intention to pay.

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Financial Products for the Elderly

Reverse mortgages (also known as home equity loans or equity access loans) are targeted at the elderly who do not qualify for ordinary lending. These types of loans are increasing in popularity in Australia.

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Tougher Penalties for 'Cancerous' Cartels

Australian cartels are 'a cancer on the Australian economy' according to ACCC chairman Graham School.

In an attempt to make breaches of the TPA unappealing, the maximum penalties for anti-competitive behaviour were increased in July 2005. Changes include criminal penalties for individuals.

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What's New - September 2005

GST on Auction Sales

Statutory Wills to be Introduced into Queensland

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Failed Attempt to Patent Asset Protection

Lawyer Steven Grant failed in his Federal Court appeal to patent a trust structure, which he claimed to have developed, as a method for protecting an asset.

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Moratorium on GST Free Leases Ends 1 July 2005

Leases signed before 8 July 1999 were exempt from GST for five years. Unless, during that period, a rent review opportunity arose, in which event, GST was payable.

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McDonald's in Hot Oil

Two New York teenagers are suing McDonald's for damages after developing coronary heart disease, diabetes, high blood pressure and other health problems.

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Lowest Airfares Guaranteed - ACCC Interest in Flight Centre

Flight Centre Limited will stop using its 'Lowest Airfares Guaranteed' slogan for five years following an Australian Competition and Consumer Commission (ACCC) investigation.

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$3.75M for Injured Swimmer

A man, who became a quadriplegic after diving under a wave at Bondi Beach, was awarded $3.75 million damages by the High Court in February 2005.

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