Owing to a combination of factors, December 11 statistically presents the most likely day couples are to call it quits on a relationship, as reported in the Gold Coast Bulletin.
Whether one has a fear of facing the Christmas season with their current partner and their families or there is a reluctancy to spend money on gifts for a soon-to-be “ex”, this date is deemed as most popular due to family, social, and financial pressures that arise during the festive season. Being two weeks out from Christmas, December 11 presents the biggest day for these pressures to influence relationship stress, tension, and often spark arguments.
If you are already separated, here are some practical and sensible tips that should help you get through this Christmas season – Marino Law’s “12 tips for keeping Family law peace this Christmas:”
1. Reach a Merry agreement
Though Christmas is, once again, approaching at the speed of light, there is still time to reach an agreement regarding what will happen over the Christmas period, both financially and in relation to child arrangements.
Well-respected and experienced family lawyers know that this period can be one of the busiest and most stressful times for families and understand that we may need to provide urgent assistance and advice including court attendances and mediation, in order to assist families in getting through the festive season.
While a Court Order may be hard to achieve with limited trading days before Christmas, a Parenting Plan may well be the best option for your family over formal Court orders. There are still mediators who are available to assist urgently, and family lawyers are always available with flexibility in the lead up to Christmas.
2. Adopt a plan that works for your family
There are no set hard or fast rules on what arrangements for Christmas Eve to Boxing Day you should have in place for your family. Whatever works for your family, is what is going to be best.
Do not buy into what worked for you friend’s uncle’s cousin’s sister, instead, focus on your family and your children.  While sadness is likely to arise for the parent who does not wake with the children on Christmas Day, it is an opportunity to create new traditions and new memories.
3. Focus on making Christmas Day as magical as possible for your children
Yes, it would be nice to spend Christmas day as a family, just as they do in the many Christmas films, but relationships end, and life doesn’t always go according to plan.  Where appropriate, speak with your children about what they would like to do and where they would like to be on Christmas Day.
Don’t try to fit in seeing every single member of both parents’ immediate and extended family, you and the children will both be exhausted, and the day will not be enjoyable for anyone.
At the end of the day, your children’s happiness and making their day as magical as possible ought to be your focus.
4. Surround yourself with people who support you
Whether this be your immediate family, extended family, or friends that have become family, try to distract yourself from what may seem like the loneliest of times by being among friends and family who support and appreciate you.
5. Gain some perspective
Try not to get caught up in the little things, and instead stop and re-direct your attention to the important things and how you want to remember your day.
Rather than remembering whether your ex was five minutes late to changeover or that the kids couldn’t stop talking about their cool new presents they got at their other house, focus on the memories of spending time with loved ones, laughter, and over-indulging in food.
6. Take advantage of your position
If you are the parent who is in a superior financial position, Christmas time is not the time to set unreasonable expectations upon the other parent (be it financially or with the children).
Be generous and support the person that you chose to have a family with by ensuring they and, most importantly, your children do not miss out.
7. Remember the reason for the season
Christmas is really about love, family, friendship and appreciating how privileged we are.
It is not about winning the battle with your ex, being the parent who gives the best gifts, the one who spends the most money, or the parent who takes the kids to the best theme park or holiday destination.  Kids know when you are competing for the title of “best parent” and, in all honesty, they don’t like it.
8. Communicate. It’s key.
If you have your children on Christmas Day, encourage them to have meaningful contact with the other parent through the course of the day via Skype, Facetime, or by phone.
Also, consider if there are Christmas events or activities approaching which need to be communicated to both parents.
If you cannot communicate effectively, a communication book may be a helpful tool. You could also communicate via text and email – whatever method is chosen; the aim is to shield your kids from the conflict between yourself and the other parent to prevent what sometimes can be irreversible harm caused to your child’s emotional and psychological wellbeing.
Alternatively, there is a fantastic range of co-parenting apps parents may use, such as 2Houses (Android, Apple), FamCal (Android, Apple) and Our Family Wizard (Android, Apple), that create a platform for parents to co-ordinate schedules, send requests to vary arrangements, and communicate about all things in relation to the children.
9. Don’t get caught up in the ideal family Christmas
It’s so important to remind yourself that there isn’t one ‘perfect’ way to spend Christmas day. Just because how you celebrate may be different to that of the ideal Christmas you see on TV, doesn’t make it any less special.
The children often don’t mind at all having two Christmases between parents, after all Santa knows where to leave his presents.
Try to free yourself from unrealistic expectations garnered by “influencers” and celebrities. This adds unnecessary pressure and feelings of guilt. Instead, remove any expectations you may have of Christmas Day and try to think about what would make you and your children truly happy.
10. Introduce and welcome new partners with care.
The holidays are probably not the best time to introduce your new special someone to your children if you have a relatively new partner.
However, if new partners are well established with your family already, the holidays can be a good time to create a blended family moving forward. Finding ways to welcome this person into your family’s traditions and incorporating some of their traditions can create a rich holiday experience for everyone.
If you know your children do not favour your new partner (this is not uncommon!) avoid using the holidays to try to force togetherness. If you see these feelings develop, try consulting a family therapist for guidance on handling the holiday season and helping your children become comfortable around your new partner.
11. Have a backup plan
No matter how hard we try to make Christmas picture-perfect, things can go wrong, especially if you are co-parenting at Christmas.
If small issues arise, make a note of them for the following year, so you can prevent them from happening again.
Unfortunately, high revelry, daytime drinking and the build-up of pressure can cause Christmas Day disasters, including ruined plans, breach of court orders or simply just terrible behaviour.
Should any of these things happen, do your very best to protect your children (and of course yourself) and do not hesitate to call 000 if you need police support. Family Lawyers are often closed for around two weeks over the Christmas and New Year period, so if you need legal help, keep a note of all the events with dates and time, and book a meeting as soon as possible.
12. Finally, seek advice before your lawyer closes!
Most law firms close their doors for two weeks over Christmas, so that your trusted advisor can renew and refresh for the new year ahead.
If you have no formal arrangements for the Christmas period, then it is very sensible to meet with a lawyer prior to their last trading day to obtain some advice about how to deal with any curveballs the Christmas period may throw at you.
If urgent issues arise over the Christmas period (either in respect of your parenting arrangements or financial matters) or you find yourself separated during this time and need to receive some urgent clarification or preliminary practical advice, reach out to Marino Law via telephone or email.  We will remain available over the Christmas break to assist you if the need arises.
Remember, if any issues arise which cause you to be fearful of your safety, then call 000 without delay.
From the Marino Law family to yours, we hope that these tips will help you through the Christmas period with as little stress as possible.   We are open until 12.00 noon on 18 December 2020 for appointments to discuss all aspects of your family law needs.  Contact us on 07 5526 0157 or via our website www.marinolaw.com.au to make an appointment.
The post MARINO LAW’S 12 TIPS FOR KEEPING FAMILY LAW PEACE THIS CHRISTMAS appeared first on Marino Law.

Last week the High Court of Australia granted WorkPac special leave to appeal the decision in WorkPac v Robert Rossato. We examined the case at the lower court levels in our earlier article titled, ‘Casual Employment: Employees’ right to double dip confirmed – What Employers Need to Know About Recent Decisions’.
Background
Briefly, the lower Court held that Mr Rossato’s employment had been mischaracterised by his employer as casual and that in fact, he was a permanent employee entitled to back payment of annual leave and other entitlements despite being paid a causal loading of 25%. WorkPac argued that if Rossato was in fact employed ‘other than as a casual,’ it should be able to set off any of his entitlements against the casual loading paid to Mr Rossato over the years.
The Court did not agree and found that the contracts were not sufficiently worded to give an option for contractual set-off.  Further, casual loading could not be appropriated. One of the Court’s reasons for this was that paying a casual loading is not a substitute for the absence of a right to enjoy the entitlement to paid leave. The purpose of paid leave is to provide an authorised absence from work for rest and recreation without loss of remuneration.
The Court also rejected the relevance of Regulation 2.03A of the Fair Work Regulations, which aims to prevent double dipping of casual loading and permanent employee entitlements by allowing a set off when there is a claim ‘in lieu of entitlements.’ Since Rossato was seeking payment of his entitlements under the Fair Work Act 2009 (Cth) (‘the Act’) and not to be paid an amount ‘in lieu of’ such entitlements, the Court held that the Regulation was inapplicable.
Comments from the Australian Industry Group
Innes Willox, Chief Executive of the national employer association, the Australian Industry Group, said the following today:
“Today’s decision by the High Court to grant special leave to WorkPac to appeal the controversial decision of the Federal Court in the WorkPac v Rossato case is very welcome. The Federal Court’s decision has alarmed businesses and is no doubt operating as barrier to employers taking on casual staff. With more than half a million casual jobs lost since March, any barrier to casuals being re-employed is not in the interests of employees or employers.
There are at least 8 class actions underway pursuing claims against employers given the interpretation of the law adopted by the Federal Court. In evidence given in support of WorkPac’s special leave application, Ai Group’s chief economist calculated that the potential cost impact of the Federal Court’s decision to employers, if not overturned, would be over $14 billion. The Federal Government’s estimates of the potential cost impact are between $18 billion and $39 billion.
In the decision that is the subject of the appeal, the Federal Court decided that Mr Rossato was not a ‘casual employee’ despite the fact that the employment contract that he signed stated that he was a casual employee and despite the fact that he was paid a casual loaded rate under the enterprise agreement that applied to his employment. The Federal Court also decided that WorkPac is not entitled to offset the higher casual loaded rate against the annual leave, personal/carer’s leave and compassionate leave entitlements that Mr Rossato claimed. The Federal Court’s decision creates the potential for ‘double-dipping’ where an employee can effectively be paid twice for leave entitlements already included in the casual loading.”
We expect that the High Court will hear the appeal by the middle of 2021.
How we can help?
At Marino Law, we can review your employment documentation and policies and audit your employment arrangements in order to advise you if any of your casual employees are at risk of being classified as permanent. In those cases, we may recommend that such employees have new contractual document issued clarifying their status (and offset provisions in respect of leave loading) or we may recommend that they be offered full time or part-time employment at a reduced rate of pay noting their associated entitlements. We can advise you in this event so that your employment arrangements are in proper order and you are not at risk of incurring significant liabilities on an employee’s application to the Court.
We can also prepare a suite of employment documentation for your business including employment agreements, deeds of employment, written warnings and policy documents. We offer reliable advice concerning the termination of employment on a variety of grounds including poor performance, serious misconduct and redundancy so that you do not inadvertently bring on an unfair dismissal or general protections (adverse action) claim under the Act. In the event that any such claims are brought against you, we are able to defend you with a view towards resolving the matter commercially with the least possible time and expense.
Contact one of our expert employment lawyers today to commence the audit process and avoid finding yourself in financial distress as a result of utilising a system of employment potentially fraught with risk.
 
26 November 2020
 
 
 
The post Special Leave Granted: High Court to Hear Appeal on Casual Employment appeared first on Marino Law.

Separating couples can find themselves in a position where they cannot reach agreement regarding either parent travelling outside of Australia with a child of the relationship.  Today there are many families with ties to overseas countries through extended family members and dual citizenships.  In such situations there can be a real risk of the unilateral relocation of children to an overseas country.
This is of grave concern to parents if the child was to be taken to a country which is not a party to The Hague Convention on the Civil Aspects of International Child Abduction.  The Hague Convention is an international treaty under which arrangements are made for the return of children who have been wrongfully removed from or retained outside their country of residence.
A parent or other interested party can make application to the Family Court of Australia or the Federal Circuit Court for the child’s name to be placed on the Family Law Watch List (also known as the “Airport Watch List”) .  This is a List maintained by the Australian Federal Police for the purpose of preventing the unauthorised removal of children from Australia.  The child’s name will be registered on the List operating at all international points of departure, both by air and sea.
In circumstances where there is a real risk that the child may be removed from the country without the other parent’s consent, the application can be made on an urgent ex-parte basis, which means it can be heard in the absence of the other party.
Upon the filing of the application with the Court, the Australian Federal Police can action the listing immediately.  If a parent then attempts to remove the child from the country, the child will be stopped at the airport and not allowed to leave.
If there is a current parenting order in existence or the parents are involved in family law proceedings, pursuant to s.65Y of the Family Law Act 1975 (Cth) (‘the Act’), it is an offence punishable by imprisonment to remove a child from the Commonwealth of Australia without the other parent’s consent
Section 65Y of the Family Law Act 1975 (Cth) provides as follows:
(1)  A person commits an offence if:
 (a)    a parenting order to which this Subdivision applies is in force in relation to a child; and
 (b)    the person takes or sends the child from Australia to a place outside Australia; and
 (c)    the child is not taken or sent from Australia to a place outside Australia:
(i)      with the consent in writing (authenticated as prescribed) of each person in whose favour the parenting order was made; or
(ii)     in accordance with an order of a court made, under this Part or under a law of a State or Territory, at the time of, or after, the making of the parenting order; and
(d)  the person:
(i)      is or was a party to the proceedings in which the parenting order was made; or
(ii)     is acting on behalf of, or at the request of, a person who is or was a party to the proceedings in which the parenting order was made .
Penalty:  Imprisonment for 3 years.
The Court does have the power to make an order restraining a party from removing a child from Australia.  Such an order can be a parenting order (pursuant to s.65D of the Act or an injunctive order (under s.68B).  For example, if the Court finds that it would not be in the child’s best interests for them to travel overseas as there is a real risk that they may not be returned, then it can order an injunction preventing the child from travelling and placing the child’s name permanently on the Australian Federal Police Family Law Watch List.
Matters concerning the removal of a child from Australia or their retention overseas without consent involve complex issues of law and as such, specialist family law advice ought be sought as a matter of urgency.
The family law team at Marino Law have extensive experience in such matters and can assist you should you find yourself in this position.  Please call our office on 07 552
The post Family Law Watch List appeared first on Marino Law.

McDonald’s flagship hamburger, the Big Mac, was first introduced in 1967 in the United States and quickly became a staple of the fast-food restaurant chain. The sandwich brand was first registered as a trade mark in the United States in the 1970s, following its emergence in the US market.
As the global popularity of the brand skyrocketed, McDonalds trade marked the words ‘Big Mac’ in various different jurisdictions across the world, including the European Union.
In 1996, an EU trade mark was filed for the mark BIG MAC and registration was secured in December 1998. 
The Case with Supermacs – Application for Removal of Trade mark for Non-Use
In order to maintain the registration of any trade mark, the trade mark must be continuously used in trade and commerce within the class descriptions for which it has been registered. In Australia, if a trade mark is not used for a continuous period of three years, any party can bring an application to have it struck off the trade mark register. The law is similar across most jurisdictions as a result of intellectual property treaties between many countries; however, the period of time in which the trade mark must be used varies.  In the European Union, a trade mark must be used within five years of the date of an application for removal for non-use.
In April 2017, an Irish burger chain called Supermacs challenged the Big Mac trade mark registration arguing that it had not been put to genuine use within a continuous period within the time frame set out above.
All of the following classes of goods and services under which the Big Mac European trade mark were registered were challenged on this basis (classes are universal across the globe):

Class 29: Foods prepared from meat, pork, fish and poultry products, meat sandwiches, fish sandwiches, pork sandwiches, chicken sandwiches, preserved and cooked fruits and vegetables, eggs, cheese, milk, milk preparations, pickles, desserts;
Class 30: Edible sandwiches, meat sandwiches, pork sandwiches, fish sandwiches, chicken sandwiches, biscuits, bread, cakes, cookies, chocolate, coffee, coffee substitutes, tea, mustard, oatmeal, pastries, sauces, seasonings, sugar; and
Class 42: Services rendered or associated with operating and franchising restaurants and other establishments or facilities engaged in providing food and drink prepared for consumption and for drive – through facilities; preparation of carry-out foods; the designing of such restaurants, establishments and facilities for others; construction planning and construction consulting for restaurants for others.

McDonalds submitted the following evidence of use in opposing the application for removal of its trade mark:

An Affidavit of use in Germany made by the internal Head of Legal in Germany, with examples of promotional material and packaging showing the mark;
An Affidavit of use in France made by General Counsel in France, with examples of promotional material showing the mark;
An Affidavit of use in the UK made by Legal Counsel of the UK registered business, with examples of promotional material;
Excerpts from McDonald’s website in EU member states taken from 2014 and 2016; and,
A Wikipedia extract showing an article about the history of the Big Mac.

The European Union Intellectual Property Office (‘EUIPO’) decision criticised the evidence, noting in particular:

The statements are from the interested party or their employees, and such statements are generally given less weight than independence evidence. However, the probative value of such statements will depend on whether or not they are supported by other evidence;
While extracts from a website can show use, the mere presence of a trade mark on a website is, of itself, insufficient to demonstrate genuine use. The website should also show the place, time and extent of use (unless this information is provided elsewhere). The extracts did not show whether or how a purchase could be made and no evidence of any orders. The connection between the website and the number of items sold could not be established;
The packaging materials and promotional material show the trade mark but there is no information about how the material was used. There was no circulation data for the brochures, i.e. how they were circulated, who they were offered to, nor any information to show whether these led to any potential or actual purchases. Moreover, there was no independent evidence to show many of the products used the packaging which was shown;
The materials did not give any data for the real commercial presence of the trade mark for any good or service; and
Wikipedia is not a reliable source of information as the entries can be amended by users.

The EUIPO found the evidence insufficient to maintain the registration even for a limited specification of goods and the registration has been revoked for all goods and services, stating that:
“The documents do not provide conclusive information that the products marked with the EUTM are offered for actual sale, as there is no confirmation of any commercial transactions, either online, or via brick-and-mortar operations offered for sale, there is no data about how long the products were offered on the given web page or in other ways, and there is no information of any actual sales taking place or any potential and relevant consumers being engaged, either through an offer, or through a sale. Finally, as far as the relevant services are considered, there is no single piece of evidence that refers to any of the registered services being offered under the EUTM.”
The case with Supermacs illustrates the dire consequences of not properly responding to an application for removal of a trade mark for non-use and not taking such an application seriously. It seems to be the case that McDonald’s was so confident that its trade mark would be upheld that it took the proceedings lightly and failed to prepare as comprehensive a case as clearly possible. Even most lay people are aware, for example, that Wikipedia is not a valid source for university essays let alone a high-stake trade mark case.
While it is obvious to most that McDonald’s is actively using the Big Mac trade mark throughout the world, such wide use does not derogate from a trade mark holder’s responsibility to prove (on the balance of probabilities) actual use and the derivement of financial gain from the use of a trade mark when presented with an application for removal for non-use. One can imagine the litany of evidence that could have been provided had McDonald’s treated the matter more seriously. 
 
Key Takeaways
Key points to be taken from the case with Supermacs are as follows:

A trade mark must be continuously used in trade and commerce or it can be removed from a country’s trade mark register for non-use on application by any party. In Australia, a trade mark that has not been used for three years is liable to be struck off the register;
Independent third party evidence of use such as examples of advertising using the trade mark or articles in which the trade mark is mentioned, is generally the strongest rather than relying predominately on affidavits by employees of the trade mark registrant, who are inherently biased;
If you cannot obtain third-party evidence, make sure internal statements are supported by other persuasive evidence (e.g. invoices, bills of lading, orders etc);
When providing copies of brochures and marketing material, be sure to explain how and where these were distributed as well as the dates and extent of use;
When submitting website extracts, consider whether the website shows how to purchase the goods/services and, if possible, submit supporting data including the website traffic, number of customers, period and territory and details of orders made through the website;
Consider the reliability of the material you are submitting and the source of such material;
McDonalds’ approach to the application for removal for non-use was lacklustre and it appears that the large multinational company took it as self-evident that the Big Mac trade mark was so well known that the application would be defeated and that it only needed to provide limited evidence to do so; and
Genuine use must be proven by the evidence and cannot be inferred from the Examiner’s own knowledge.  Your trademark, like the Big Mac, may be well-known and extensively used but you must submit evidence to convince the Examiner of this fact.

How we can help?
At Marino Law, we have an expert team of trade mark and intellectual property lawyers that are widely experienced in all aspects of trade mark law from preparing an application for lodgment to responding to examiner’s reports to defending and prosecuting applications for removal for non-use, opposition applications, infringement disputes and all other associated matters. Don’t make the same mistake as McDonald’s – seek expert legal advice today.
The post How McDonalds lost its Big Mac Trade Mark in Europe appeared first on Marino Law.

In Cant v Mad Brothers Earthmoving Pty Ltd [2020] VSCA 198 (“Mad Brothers”), the Victorian Court of Appeal has provided some much-needed clarity as to the circumstances in which a liquidator can claw back a payment made by a third party to a creditor of an insolvent company as an unfair preference payment pursuant to part 5.7B of the Corporations Act 2001 (Cth) (the “Act”). 
The Court of Appeal determined that, where a third party pays the debt of a company which subsequently goes into liquidation, for that payment to be an unfair preference payment, it must, amongst other things, diminish the available assets of the insolvent company.
The Facts
Eliana Construction and Development Group Pty Ltd (In Liquidation) (“Eliana”) was indebted to Mad Brothers Earthmoving Pty Ltd (“Mad Brothers”). Eliana and Mad Brothers agreed to settle that date by way of a payment to Mad Brothers in the sum of $220,000.00. Rock Development & Investments Pty Ltd (“Rock”), a company related to Eliana, paid the debt to Mad Brothers using borrowed funds. Eliana was subsequently placed into voluntary administration on 11 October 2016 and its creditors subsequently voted to place Eliana into liquidation on 3 November 2016. 
The liquidator appointed to Eliana commenced proceedings to recover from Mad Brothers the $220,000.00 it received from Rock on the grounds that the payment was an unfair preference. 
The liquidator was successful at first instance, however that decision was overturned on appeal to the Supreme Court. The liquidator subsequently appealed to the Court of Appeal.
The Decision in Mad Brothers
The main issues to be determined by the Court of Appeal were whether:

Eliana was a party to the transaction within the meaning of section 588FA(1)(b) of the Act; and,
the $220,000.00 payment was received from Eliana within the meaning of section 588FA(1)(b) of the Act,

in circumstances where Mad Brothers received the payment from Rock.
The court determined that Eliana was a party to the transaction in circumstances where it had directed Rock to make the payment; however, the fact that Eliana had directed Rock to make the payment did not necessarily mean that the payment had been ‘received’ from Eliana as required pursuant to section 588FA(1)(b) of the Act.  In this regard, the Court held that for the payment to have been ‘received’ from Eliana, it needed to have been received from Eliana’s own money. Importantly, the Court determined that, in order for the payment to have been a preference payment, its receipt by Mad Brothers was required to diminish the assets of Eliana that were available to its creditors. There was no evidence that the payment by Rock to Mad Brothers led to a diminution of the assets available to the creditors of Eliana. Accordingly, the Court of Appeal determined that the payment was not a preference payment.
Had Rock been indebted to Eliana before the $220,000.00 payment was made by Rock to Mad Brothers, that payment would have been a preference payment as its receipt by Mad Brothers would have resulted in a diminution of the assets that were available to Eliana’s creditors. A diminution of assets does not require an actual cash transaction but can take the form of a release of liability to a third party. Upon making the payment to Mad Brothers, Rock’s liability to Eliana would have reduced by the amount of the payment thereby reducing the value of Eliana’s asset, being the debt owed to it by Rock. 
Conclusion
The decision in Mad Brothers, while clarifying the law in this area, may, in certain circumstances, enable creditors and insolvent companies to structure payments to be made by third parties so that they fall outside of the unfair preference regime in the Act. Legal advice should be sought by parties considering such transactions.
Marino Law has extensive experience acting for insolvency practitioners, lenders, financiers, directors and trustees in the administration of all corporate insolvency appointments. Our highly experienced lawyers regularly advise clients in the following areas of corporate insolvency:

voluntary administrations;
liquidations;
enforcement of securities; and
statutory demands. 

We also regularly provide advice to liquidators, lenders, and financiers regarding the registration of security interests on the PPSR, the validity of those registrations and their enforceability. 
Should you require assistance in any of the above areas, please contact one of our highly experienced lawyers.
 
The post Third Party Preference Payments Law Clarified by Victorian Court of Appeal appeared first on Marino Law.

On 16 September 2020, the Queensland State Government announced amendments to the definition of “response period” pursuant to the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) (“the Regulation”) which was enacted pursuant to the COVID-19 Emergency Response Act 2020 (Qld) (“the Act”) has been extended from 30 September 2020 until 31 December 2020.
For a full explanation of the mechanics of the Act and the Regulation, please refer to our previous articles with respect to leasing matters during COVID 19, which can be found here.
The amendments have taken effect by the Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Amendment Regulation 2020 (Qld).
The practical effect of these amendments is that, for an extended response period between 1 October 2020 and 31 December 2020, landlords and tenants must continue to negotiate with each other in good faith and landlords are still restrained from taking a prescribed action against a Tenant for non-payment of rent, outgoings, or other lease payments, including:

increasing rent;
exercising re-entry rights;
claiming on security; or 
taking (or continuing) other enforcement action for this extended period.

However, beyond 30 September 2020:

There is no longer a mandatory requirement for a landlord to offer a waiver in any negotiations with the tenant. Previously, the Regulation required the landlord to offer a 50% waiver of any negotiated amounts; and
Tenants must be:

a SME Entity with less than $50,000,000.00 annual turnover; and
eligible for the JobKeeper regime between 28 September 2020 and 4 January 2021. 

Other aspects of the Regulation that remain unchanged include:

the tenant’s ongoing obligation to provide turnover, financial, and other information in support of any request for relief;
the right for a tenant to seek further relief if there is a material change to their circumstances;
the ability of the parties to reach an agreement that may be inconsistent with the Regulation.

Landlords and tenants remain under obligations to negotiate in good faith to ensure the continuation of their leases during the COVID 19 pandemic for this extended period until 31 December 2020. 
From 30 September 2020, landlords are no longer required to offer waivers to their tenants as part of the offered relief (but may continue to do so if they wish). We anticipate that payment deferrals will be the basis of most offers and negotiated outcomes, which will also lead to security deposits being retained for significantly longer, until the deferred payments have been fully repaid.  
Marino Law has achieved successful outcomes for both landlords and tenants during the COVID-19 pandemic and our lawyers are available to assist landlords and tenants with any commercial leasing disputes under the COVID-19 regime.
The post QUEENSLAND EXTENDS PROHIBITIONS ON RETAIL AND COMMERCIAL LEASE EVICTIONS AND LANDLORD’S TAKING OTHER PRESCRIBED ACTIONS appeared first on Marino Law.

Power of Attorney and Advance Health Directive Forms
On 30 November 2020, new forms for granting a Power of Attorney and making an Advance Health Directive will take effect in Queensland, simplifying how these types of appointments are made.
The new forms can be found here:-
https://www.publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive-forms
These new forms have not been approved for use before 30 November 2020.
The old forms must still be used up until 30 November 2020 and any attorney or health directive appointment that is made prior to this date by correctly using the old forms will still be effective.
The old forms will be removed from the Queensland Government’s website by 1 December 2020 and the newer, user friendly forms must be used on or after that date.
Advance Health Directives are also required to comply with the amended s 29(2) of the Power of Attorney Act 1998 (Qld), which provides that any appointment of an attorney in an Advance Health Directive of a person who is service provider for a residential service where you are a resident will not be effective after 30 November 2020.
Capacity reform
There are also changes that will introduce the new “Queensland Capacity Assessment Guidelines” (‘Guidelines’) made by the Attorney General and Minister for Justice, which contain general information about capacity, guidelines to follow for assessing a person’s capacity to make personal, health and financial decisions for themselves and the legal tests for a person’s capacity to make a Power of Attorney or an Advance Health Directive.
Capacity tests may be utilised for:

Medical treatments (or whether an adult can consent to a particular procedure);
Whether an adult requires assistance in understanding a decision or making that decision;
Deciding whether to apply to the Queensland Civil and Administrative Tribunal (‘QCAT’) for appointment of a guardian or an administrator or providing evidence in such proceedings;
Deciding if an attorney’s power under an enduring power of attorney has commenced.

The Guidelines can be found here:
https://www.publications.qld.gov.au/dataset/capacity-assessment-guidelines/resource/23e5bde1-40d7-4115-a15d-c15165422020
The Guidelines also provide principles including (without limitation) that every person with capacity has the legal right to make their own personal, health and financial decisions and when assessing capacity, privacy and dignity must be respected. Capacity is fluid and can be influenced not only by traumatic events (such as car accidents, debilitating injuries, mental illnesses such as dementia or otherwise) but also by the complexity of the decision, support available to the person and the time the decision is made.
Remedies for breach of duty
Where a currently or formerly appointed person (attorney, administrator or guardian) breaches their duties, the reforms now empower QCAT to order not only the payment of compensation to the adult or their estate, but also to account for any profits that may have been derived as a consequence of such breach.
QCAT is also empowered to compel that attorney to file records and audited accounts to explain transactions undertaken on a Principal’s behalf.
Other changes
It is beyond the scope of this article to fully set out all of the incoming changes, which include:

Entry into conflict transactions (there are different requirements for attorneys, administrators and guardians);
The rule of ‘ademption’ now has a statutory exemption. Ademption is a legal concept that occurs where a will gifts a specific asset to a beneficiary and at the time of the Will maker’s death, that asset has been lost or is no longer part of the Will maker’s estate due to actions of an attorney or administrator. The exception provides that the beneficiary will no longer just ‘lose out’ and will instead be entitled to the same interest in any surplus money or other property (the proceeds) arising from a sale, mortgage, charge or disposition or other dealing with the lost asset by the administrator or attorney, as the beneficiary would have had in the asset, had it not been sold or otherwise dealt with;
Protection of whistle blowers who disclose confidential information about persons with impaired capacity;
Investigative powers for the Public Guardian into claims of neglect, abuse or similar;
Limitation on the appointment of any person whom has been a paid carer for the appointor (Principal) in the last 3 years prior to the appointment;
Must not be a service provider of a residential service where the Principal resides; and
Procedures for QCAT to have the power to appoint an administrator for a missing person, where QCAT is satisfied significant financial harm may be suffered if the appointment is not made. This type of appointment is revoked upon the person turning up alive or by a declaration of death by the Supreme Court, a Coroner or by registration with the Department of Births, Deaths and Marriages; and
The recognition of Australian interstate and New Zealand Enduring Powers of Attorney that have been validly and correctly made.

Marino Law has extensive experience in assisting clients with Powers of Attorney, Advance Health Directives, Guardianship matters and Wills and Estate Administration. Our Lawyers regularly advise as to the dangers of not properly planning for unforeseen events such as death or incapacity (temporary or otherwise) and the importance of seeking proper legal advice to ensure that you, your hard earned assets and your loved ones are properly and carefully safeguarded should such an event occur.
Please do not hesitate to get in touch with us and speak to one of our experienced lawyers about your own circumstances today.
 
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On 23 July 2020, the Building Industry Fairness (Security of Payment) and Other Legislation Amendment Act 2020 (BIFOLA Act) received assent. Provisions of the BIFOLA have received proclamation with further provisions rolled out on 1 October 2020. 
The first tranche of amendments relating to Project Trust Accounts was rolled out on 27 August 2020. You may be familiar with ‘Project Bank Accounts’ as referred to in the Building Industry Fairness (Security of Payment) Act 2017 which is essentially a trust account whereby payments from the Principal to the Head Contractor are paid, amounts payable to a subcontractor and amounts the subject of dispute are held. The trust account must be held by a financial institution approved by the Queensland Building and Construction Commission. The phased introduction of Project Bank Accounts (PBA) will see private projects with a value about $1M requiring a project trust account. 
The phased implementation will occur as follows: 
1 March 2021 
From this date, the previously named ‘project bank account’ will now become ‘project trust account’ and will apply as follows: 

the contracting party (i.e. means the party to the contract for whom the building work is to be carried out) is the State, the contract price is $1 million or more but not more than $10 million, and more than 50% of the contract price is for project trust work (i.e. the erection or construction of a building, the renovation, alteration, extension, improvement or repair of a building among others including work prescribed by regulation to be project trust work); or 
the contracting party is a State authority (i.e. a corporation that is owned or controlled by the State) that has decided a project trust is to be established for the contract, the contract price is $1 million or more and more than 50% of the contract price is for project trust work. 

1 July 2021 
The project trust accounts regime will be expanded to include circumstances where the contracting party is the State, or a Hospital and Health Service and the contract is valued at $1 million or more. 
1 January 2022
The project trust accounts regime will be expanded to include the private sector and local government where: 

the contracting party is “a state authority, a local government, an individual, a private entity or a hospital and health service”; and 
more than 50% of the contract price is for project trust work; and 
the contract price is $10 million or more.

1 July 2022 
The extended application of project trust accounts and retention trusts to contracts for $3 million or more. 
1 January 2023 
All eligible contracts where more than 50% of the contract price is for project trust work and the contract price is $1 million or more. 
After the project trust account regime is fully integrated, subcontractors can take some comfort in knowing that there exists a retention trust, held primarily for their benefit with added protections for deposits to and withdrawal of funds from the retention trust account. This is especially important in these times of continued economic uncertainty. 
On 1 October 2020, the Building Industry Fairness (Security of Payment) Act 2017 was amended insofar as a person (the claimant) recovers money owing, as follows: 

the claimant must ensure the payment claim is accompanied with a supporting statement stating that all subcontractors have been paid all amounts owed to them by the claimant at the date of the payment claim; or if payment has not been made, the reasons the amount was not paid in full. 
When an adjudicated amount has not been paid in full, a head contractor can lodge a payment withholding request against a financier to their principal to withhold monies out of the related amount payable to the developer. 
When an adjudicated amount has not been paid in full, the head contractor may request a charge over the property where the work was carried out if it is owned by the respondent or a related entity.

Queensland Building and Construction Commission Act 1991 (QBCC Act)
The QBCC Act will be amended to implement new regulations on licences issued by the QBCC, enhance sharing of license information across jurisdictions, amendments about excluded individuals entitlement to a site supervisor’s licence and clarify the QBCC’s powers to impose a condition on a license restricting the scope of works. 
The following amendments were introduced on 1 October 2020: 

prevent excluded individuals from holding a site supervisor licence;
improve sharing of licensing information across jurisdictions; and 
introduce a new penalty for delaying or obstructing the rectification of building work. 

(source: https://www.hpw.qld.gov.au/news-publications/legislation/building/bifola-2020)
Building Act 1975
The Building Act 1975 will be amended to improve the standards and to strengthen the regulatory framework of the certification and inspection process. These reforms will commence on 1 October 2020. 
Architects Act 2002 and Professional Engineers Act 2002
From 1 March 2021, the BIFOLA Act will improve the powers of the Board of Architects of Queensland and Board of Professional Engineers of Queensland to enter places, to search and seize, more thoroughly investigate complaints and impose conditions on an architect’s or professional engineer’s registration without their consent. 
What does this mean for you? 
Well, with the advancements made to the security of payment regime fast approaching, it is important that you consult with an experienced construction lawyer to ensure that you are aware of, and understand, the changes ahead of time. 
At Marino Law, we have an expert team of building and construction lawyers that can assist with all aspects of building and construction law from the contract negotiation and preparation stages through to enforcement and litigation of same. Contact us today for a consultation to discuss how we can assist you.
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The Federal Government has announced that the temporary insolvency relief implemented in March of this year pursuant to the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) (the “Act”) will be extended for a further three (3) months to 31 December 2020.
As you will recall, pursuant to the Act, various amendments were made to the Corporations Act 2001 (Cth) and the Bankruptcy Act 1966 (Cth). Pursuant to those amendments:

the time within which:
an individual debtor is required to comply with a bankruptcy notice; and
a corporate debtor is required to comply with a creditors statutory demand,

has been temporarily extended from 21 days to six (6) months;

there are now temporary increases to the threshold at which creditors can issue a:
bankruptcy notice (from $5,000.00 to $20,000); and
creditors statutory demand (from $2,000.00 to $20,000.00); and
directors of corporate businesses will not be personally liable for debts incurred during defined periods during the COVID-19 pandemic as long as those debts are incurred during the ordinary course of the company’s business.

The above temporary changes were due to expire on 30 September 2020. The Federal Government will now extend that relief until 31 December 2020.
Rationale for the Extension
In extending the temporary insolvency relief, the Federal Government is attempting to give viable businesses an opportunity to recover from the financial effects of the COVID-19 pandemic rather than seeing those businesses being forced into some form of external administration.
While we understand the rationale for the extension of the temporary relief, Marino Law considers that the government’s approach simply pushes the problem into next year. While the government’s aim is to assist viable businesses, it does nothing to recognise that there are many businesses that were in trouble before the COVID-19 pandemic that will inevitably fail. We consider that a more effective approach would have been for the government to reduce the temporary monetary and time thresholds from $20,000.00 and six (6) months to $10,000.00 and three (3) months for example in the case of a corporate debtor. This would enable the economy to transition from the temporary measures in a more orderly and efficient manner.
We also consider that the government’s decision fails to properly take into account the position of businesses that are owed money. Those companies, many of which may be viable businesses that the government is hoping to assist, are at risk of failing the longer the temporary measures remain in place.
Conclusion
Marino Law continues to advise its clients that while businesses may benefit from the temporary measures referred to on the above paragraphs, they are now presented with an opportunity to restructure their operations so that their businesses can continue to operate once the temporary relief ends. If your business is experiencing financial difficulties as a consequence of the COVID-19 pandemic, now is the time to seek advice.
Marino Law has extensive experience acting for liquidators, administrators, lenders, brokers, financiers and creditors in the administration of all corporate and personal insolvency appointments. Our highly experienced lawyers regularly advise clients in the following areas of corporate and personal insolvency:

voluntary administrations;
liquidations;
business and asset sales;
enforcement of securities;
statutory demands and bankruptcy notices; and
debt agreements and personal insolvency agreements.

Should you require assistance in any of the above areas, please contact one of our highly experienced lawyers.
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Australia is nearing its fifth month of travel restrictions and while the majority of Australia is faring well (save Victoria), it begs the question, how long can we keep this up?
As of March 2020, Australia closed its borders to international travellers whilst simultaneously shutting off international (and at times domestic) travel to onshore Australian Citizens and permanent residents. The cost of quarantining has since migrated from the Australian taxpayer to the incoming traveller in the majority of circumstances however, with Australia now in a recession for the first time in 29 years, there is a call to ease travel restrictions to boost both domestic and international travel, which will aid Australia’s crippling economy. 
Departing Australia –
Temporary Visa Holders –
Temporary visa holders are free to depart Australia as they wish, provided that their home country’s borders are open and they can secure a flight (which presently appears to be easier said than done). However, returning to Australia at any time in the near future may prove to be on the verge of impossible for some.
Temporary visa holders, some of whom have been in Australia for many years, establishing careers and families, are not afforded any specific exemption to return should they choose, or worse, need to depart Australia during the pandemic. This has been subjected to extensive criticism with many highlighting that there should be an exemption available to persons who have established lives in Australia, as contributing and positive members of society. Travel exemptions are presently only available to a finite few temporary visa holders, such as employees working in a critical sector or with critical skills, or providing critical or specialist medical services.
The Department of Home Affairs has reiterated that onshore temporary visa holders must continue to hold a valid visa. Should you find yourself faced with an upcoming visa expiry and you wish to remain onshore, please contact Marino Law today to explore your visa options.
Australian Citizens and Permanent Residents –
Australian Citizens and Permanent Residents are not currently afforded the same freedom to international travel as temporary visa holders, much less the rest of the democratic world. Whilst seemingly broad exemptions are listed on the Department’s website, the likes of travelling on ‘compassionate or humanitarian grounds’ and ‘urgent and unavoidable personal business’, surprisingly many of those who expect to meet these criteria have been met with refusal.
Some sources have estimated up to 75% of applications to depart Australia have been refused. If attending the funeral of your grandmother abroad is not considered a valid enough reason to depart Australia (death certificate and all), it certainly does not seem probable that applications to maintain international vacation plans will be approved.
Visiting Australia –
Automatic travel exemptions –
If you are an Australian Citizen or permanent resident, technically you can come home, but it will cost you. Currently, flights are limited with international scheduled passenger travel into Australia down by 98.1% since June 2019 according to The Department of Infrastructure, Transport, Regional Development and Communications. Airlines are continually being criticised for selling tickets for ‘ghost flights’, flights cancelled at the 11th hour, ultimately leaving Australian’s stranded abroad indefinitely.
Additionally, challenges also exist by virtue of the ‘caps’ placed on international arrivals by respective State governments. Presently, Victoria and Tasmania are receiving no new international arrivals, with Sydney accepting the most international travellers, at a maximum of 350 per day (with all other States receiving significantly less than this). Caps on international arrivals is projected to remain until at least late October.
Upon arrival, individuals must complete the mandatory 14-day quarantine in an approved facility (typically a state-appointed hotel) before being allowed to return to their place of residence. Should you not be fortunate enough to land in your home State, an increasingly common problem given the limited availability of flights, you may be further forced to complete an additional 14-day quarantine period upon arrival in your home State. Quarantine exemptions are currently reserved for a select few including flight crew, unaccompanied minors and government officials.
Automatic travel exemptions also apply to immediate family members of Australian citizens and permanent residents. Whilst claimed to be ‘automatically exempt’, in addition to holding a valid visa, individuals whom meet this criteria (but do not hold a Partner or Child visa) must first provide evidence of their relationship to the Department of Home Affairs and await approval prior to being allowed to travel to Australia.
New Zealand nationals (and their families) whom are usually a resident in Australia are also automatically afforded an exemption to travel to Australia. Fortunately, these travellers must simply present proof of an Australian residence at check-in to officials.
Should you require assistance in obtaining a travel waiver or exemption, to either depart or travel to Australia, please get in touch with Marino Law today.
 
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In a joint statement issued earlier this month by Alan Tudge, MP and Prime Minister Scott Morrison, an expansion of visa options available to Hong Kong Nationals, both in Australia and overseas, was announced. The announcement stems from the recent passing of China’s controversial national security laws, which in effect, drastically increases mainland Chinese officials’ ability to operate in the historically semi-autonomous territory and allows Hong Kong residents to be extricated to mainland China to be prosecuted by Chinese authorities. The extradition and security laws are in direct contravention of the Sino-British Joint Declaration on Hong Kong and the “One Country, Two Systems” principle.
In light of the Chinese refusal to abide by Sino-British Joint Declaration, Australia has followed in the footsteps of several other Western countries to expand its visa program to afford Hong Kong Nationals wishing to relocate from the Special Administrative Region, which has been plagued by political unrest in recent months.
Student Visa holders – subclass 500 visa
Among other visa subclasses, the Australian Government has afforded extended opportunities to Hong Kong Nationals presently holding Student Visas (subclass 500) both onshore and abroad. Once Australia reopens its international borders, this opportunity will be extended to individuals wishing to commence study in Australia in the future.
Applicants will still need to meet the relevant visa criteria, such as the applicable health and character requirements, in addition to evidencing that they intend to be a ‘genuine temporary entrant’. However, now upon conclusion of their studies, students will be eligible to apply for a graduate visa which, if granted, will allow them to remain onshore for up to five (5) years post-study, with the potential to then pursue permanent residency.
For students studying at campuses considered to be in ‘regional Australia’, visa holders will only need to wait three (3) years post-qualification to be eligible for permanent residency.
Visa applicants are permitted to include dependent family members such as their spouse or child(ren) provided they too meet the relevant health and character requirements.
Temporary Skilled Workers – subclass 482 visa
Including, but not limited to, the subclass 482 visa and the recently introduced subclass 491 visa, current temporary skilled workers will be afforded a five (5) year extension on the duration of their current visa, irrespective of any time previously spent in Australia. Further, visa holders will be provided the opportunity to pursue a pathway to permanent residency upon the conclusion of the five (5) years.
A recent article issued by the Department of Home Affairs outlined that future Hong Kong temporary skilled visa holders will be eligible for a five (5) year visa should they ‘have qualifications listed on the occupational skills lists and meet Labour Market Testing requirements’. Individuals who meet these requirements will be presented with a pathway to permanent residency.
Global Talent Program: 
The aforementioned government article also outlines that Hong Kong nationals would be eligible for a five (5) year visa should they ‘qualify through the Global Talent temporary visa scheme, which is for exceptional talent where the sponsoring employer pays above the Fair Work High Income Threshold’.
The Australian Government has further expressed that they will prioritise the migration of Hong Kong’s ‘best and brightest’ to Australia via the Distinguished Talent visa (subclass 124 for offshore applicants and subclass 858 for onshore applicants). Additionally, a dedicated government official has been allocated the task of solely processing applications by Hong Kong nationals, in effect prioritising their processing over other applications.
The Global Talent Independent Program targets individuals in particular sectors who first must express their interest in the program. Their eligibility will then be assessed by the Department who will then issue them with a unique identifier should they meet the program requirements. Applicants must furthermore be endorsed by an eligible individual or organisation.
This is a permanent visa and successful applicants can enter Australia upon grant regardless of the present international border closure. At present, it is unknown whether there are processing delays within the Department relating to these subclasses at present.
Business Innovation – subclass 188 visa
There is a keen focus on investors in a bid to boost both the Australian economy and bolster Australian employment in response of the economic downturn caused by COVID-19. The Business Innovation and Investment (Provisional) Visa and particularly, the Business Innovation Stream, affords eligible individuals the opportunity to engage in new or existing business opportunities in Australia.
This subclass is a points-based application, considering factors such as age, English language ability and business experience. Further the subclass 188 visa opens up opportunities to individuals over the age of 45 (with the cut off for the subclass 188 visa being 55 years old) as opposed to the vast majority of visa subclasses which typically exclude them.
The Australian Government is currently establishing economic incentives to encourage Hong Kong nationals via the Innovation stream, suggesting that applicants will again, receive priority in the processing of their applications. The subclass 188 visa offers holders a pathway to permanent residency via the subclass 888 visa should applicants meet the relevant requirements.
Protection Visa – subclass 866
Australia has protection obligations under both the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). Individuals who have a ‘well-founded fear of persecution’ under the newly implemented security laws may be eligible for a protection visa.
Although the threshold to evidence a well-founded fear of persecution is high, given the severity of the security laws, it is certainly a viable option to individuals who can substantiate fear of ‘serious harm’ for reasons based on race, religion, nationality, membership of a particular social group, or political opinion. The laws are ‘extra-territorial’ and as a result, Hong Kong nationals currently in Australia, who engage in activities perceived to undermine the Chinese state may be persecuted upon re-entry to the country, revealing the prospective gravity of the laws in action. Successful applicants will be granted permanent residency to live, work and study in Australia indefinitely.
Marino Law has extensive experience in Migration Law. Should you wish to explore your migration options, including any of those discussed above, please contact us today.
 
 
 
 
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In a decision with important ramifications for financial lending institutions, a verdict handed down last week by the Victorian County Court represents a resounding victory for the defendant, and Gold Coast based law firm, Marino Law.
Acting for the defendant, a victim of mortgage fraud in case C & F Nominees Mortgage Securities Ltd v Karbotli & Ors [2020] VCC 987, Marino Law argued that the plaintiff, C & F Nominees Mortgage Securities Ltd had not taken reasonable steps to verify the identity of the supposed mortgagor.
Marino Law Special Counsel, Mark Steele said the outcome of this matter, which commenced approximately two years ago, has important ramifications for mortgagees who fail to take reasonable steps to verify the identity of the mortgagor, namely that the mortgage may be void.
“The ruling has significant consequences for lenders, who in similar situations, may lose their security and be out of pocket considerable sums advanced,” Mr Steele said.
In this case it was proven that the lender did not take reasonable steps to verify the identity of the elderly defendant, whose son had fraudulently signed her name on mortgage documents using her Queensland and Victorian properties as security against borrowings.
The lender relied upon a certificate from a solicitor who said he had interviewed the defendant, when in fact he had not.
Marino Law specialises in, litigation and dispute resolution, commercial and business law, property and real estate law, corporate law, personal and corporate insolvency, family law, migration law and estate and succession planning law.
For the case summary click here.
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In C & F Nominees Mortgage Securities Ltd v Karbotli & Ors [2020] VCC 987 (the “Proceedings”) the County Court of Victoria has determined that a mortgagee of a mortgage procured by fraud failed to take reasonable steps as required pursuant to section 87A of the Transfer of Land Act 1958 (Vic) (the “TLA”) to verify the authority and identity of the mortgagor to ensure that the person executing the mortgage as mortgagor was the same person who was the registered proprietor of the land the subject of the mortgage.
As a consequence of the mortgagee’s failure to comply with its obligations pursuant to section 87A of the TLA, in accordance with sections 87(3)(b) and 103(1) of the TLA, the Registrar of Titles can now be ordered to remove the mortgage from the title rendering that mortgage void pursuant to section 87A(5) of the TLA. Orders to that effect will shortly be submitted to the Court.
The result represents a substantial victory to our client Ms Issa, as was noted by His Honour Judge Macnamara.
Facts
By mortgage registered on 3 April 2017, Hend Karbotli, also known as Hind Issa (“Ms Issa”), mortgaged a property in Bullen, Victoria (the “Property”) to secure a principal sum of $800,000.00 advanced by C & F Nominees Mortgage Securities Ltd (“C & F”) to Mazop Pty Ltd (“Mazop”), a company operated by Ms Issa’s son James Karbotli.
Mazop ultimately defaulted in the payment of principal and interest to C & F. As a consequence of Mazop’s default, on 22 November 2017, C & F issued a Notice to Pay that was not complied with by Ms Issa. Accordingly, C & F commenced the Proceedings against Ms Issa claiming that, amongst other things, it was entitled to possession of the Property pursuant to sections 78 and 81 of the TLA.
In her defence and counterclaim, Ms Issa argued that she did not sign, or authorise anybody else to sign, the mortgage to C & F.  Ms Issa claimed that the mortgage was fraudulently signed by her son without her knowledge. Ms Issa argued that C & F failed to take the reasonable steps to verify her identity as required at section 87A of the TLA such that the mortgage was void. In the alternative, Ms Issa claimed that if C & F did in fact comply with its obligations at section 87A of the TLA, she was entitled to be compensated by the Registrar of Titles pursuant to section 110 of the TLA in circumstances where she would have lost the Property as a consequence of fraud.
Forgery
Ms Issa gave evidence at the trial that she did not sign the mortgage. That evidence was not challenged during cross-examination. There was also unchallenged evidence from a handwriting expert to the effect that the signature on the mortgage was not Ms Issa’s. Based on those matters, His Honour Judge Macnamara proceeded on the basis that Ms Issa’s signature on the subject mortgage was a forgery.
Reasonable Steps
C & F argued that it had complied with its obligations at section 87A of the TLA. In doing so C & F relied upon:

material generated by a “100-point check” being a copy of the biographical page of Ms Issa’s passport, a copy of Ms Issa’s Medicare Card and a copy of Ms Issa’s expired driver’s licence;
various documents such as a certificate of insurance, bank statements and statements from the Australian Taxation Office; and
a solicitors certificate from Stephen Picken, a practising solicitor in Queensland at the time.

His Honour held that the documents at (a) and (b) above enabled C & F to establish that Ms Issa was a real person whose name had been variously recorded over the years. However, His Honour determined that, in themselves, those documents were incapable of establishing that Ms Issa was the person who purported to execute the mortgage.
The document that C & F relied upon to establish that Ms Issa was in fact the person who purported to execute the mortgage was the solicitor’s certificate at (c) above. In that certificate, Mr Picken certified that:

he had been asked to interview Ms Issa;
he had explained to Ms Issa, before she signed the requisite documents, the general nature and effects of the documents including the risk of loss of any security property;
Ms Issa had stated to him that she:

understood the general nature of the documents; and
was signing the documents freely and voluntarily and without pressure from any other persons; and

it appeared to him that Ms Issa had understood the general nature of the documents.

There was unchallenged evidence at trial that Mr Picken had not in fact conducted a face to face interview with Ms Issa. Despite that admission, C & F argued that it was entitled to rely on the representations contained in the certificate.
His Honour determined that reliance on the certificate was not a reasonable step pursuant to section 87A of the TLA. In reaching this conclusion, His Honour noted that the certificate was not framed for the purposes of verifying a mortgagor’s identification. In this regard, the certificate contained no representations that the person signing the mortgage was one in the same as the registered proprietor. The certificate was framed for the purposes only of establishing that the mortgagor had been given advice as to the nature of the documents she was signing and that she understood that advice.
Based on the above matters, His Honour determined that C & F did not comply with its obligations at section 87A of the TLA.
Mortgage Secures Nothing
In her defence, Ms Issa also argued that the mortgage, on its proper construction, secured nothing. Ms Issa argued that the covenant to repay any debt to C & F was premised upon the money having actually been advanced to, and received by, Ms Issa, being the borrower on the face of the mortgage. Ms Issa further argued that in circumstances where no money was actually advanced to her, there was simply nothing to which the alleged debt could attach.
After reviewing a number of relevant authorities, His Honour agreed with the above arguments.
Indemnity Claim
Pursuant to section 110 of the TLA, the Registrar of Titles is liable to indemnify any person who suffers loss or damage a consequence of being deprived of an interest in land.
Given the findings with respect to section 87A of the TLA, His Honour held that he did not have to address the broad issue of indemnity as Ms Issa had not been deprived of the Property by fraud. However, His Honour considered that a question remained as to whether Ms Issa could recover the outlay by way of costs which she had made in the proceeding to the extent that they are not recoverable from C & F.
During the trial the Registrar argued that, pursuant to section 110(3)(b) of the TLA, it was only required to indemnify Ms Issa with respect to costs incurred in the proceeding if the Registrar had in fact consented to her defending those proceedings. The Registrar argued that it had not provided that consent.
Ms Issa argued that, prior to defending the Proceedings, she had written to the Registrar pursuant to section 87A(3)(b) of the TLA asking that the mortgage be removed from the title to the Property in circumstances where the mortgage had been fraudulently executed and where C & F had failed to comply with its obligations at section 87A of the Act. In response to that request, the Registrar advised Ms Issa that it was a matter for the courts to decide whether section 87A of the TLA had been complied with and that the Registrar’s discretion to remove the mortgage would not be exercised.
Ms Issa argued that the Registrar’s response constituted an acquiescence to her defending the proceeding such that the Registrar had in fact consented in accordance with section 110(3)(b) of the TLA. His Honour agreed with Ms Issa’s arguments and determined that any unrecoverable legal costs incurred by Ms Issa could form part of any relief claimed by her pursuant to section 110(3)(b) of the TLA. In this regard His Honour noted that any such indemnity was partially dependent on the costs order to be made in the Proceedings and that the parties should be entitled to make further submissions and perhaps adduce further evidence following the publication of his reasons.
C & F also claimed that if the Court determined that it had not complied with section 87A of the TLA, it was entitled to be indemnified pursuant to section 110 of the TLA in circumstances where it would suffer a loss as a consequence of the mortgage being set aside. C & F argued that it was a victim of a sophisticated fraud. In response to this claim, the Registrar argued that, pursuant to section 110(3)(a) of the TLA, it was not required to indemnify C & F for any loss in circumstances where that loss was substantially caused by its own  neglect. His Honour agreed with the Registrar’s arguments and refused C & F’s claim for indemnity.
Implications
The decision is a timely reminder to financiers of the importance of taking appropriate steps to verify the identity of parties entering into mortgage transactions. This is particularly so given the significant financial consequences that can flow in circumstances where a mortgage is held to be void.
This decision also confirms that any unrecoverable legal costs that a party incurs as a consequence of a fraudulent mortgage being registered on title can form part of an indemnity claim pursuant to section 110 of the TLA. However, to be eligible for such a claim, the Registrar of Titles must first consent to the commencement or defence of the proceedings.
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The National Cabinet’s Mandatory Code of Conduct – SME Commercial Leasing Principles During COVID 19 (“Code”) was first announced by the Federal Government on 3 April 2020. After nearly two (2) months of waiting and on 28 May 2020, Queensland has finally enacted the enabling Regulation, being the Retail Shop Leases and Other Commercial Leases (COVID 10 Emergency Response) Regulation 2020 (“Regulation”), which is made pursuant to the COVID 19 Emergency Response Act 2020 (“Act”) to give the Code legal status.
The Act and its Regulation provide direction for both Landlords and Tenants, in the form of procedures for the parties to negotiate in good faith to lessen the effect of the ongoing COVID 19 emergency and the establishment of a Small Business Commissioner, to assist in the resolution of disputes.
The key definitions under the Regulation that are referred to are summarised at the end of this article.
Operation of the Regulation
The Regulation prohibits a Landlord from taking any Prescribed Action under an Affected Lease for:

Failure to pay rent or outgoings for a period that is wholly or partially within the Response Period; and
The business at the premises not being open during the hours required under the lease during the Response Period.

Either party has the right to write to the other party (“Initiator”) and request to negotiate the rent and other terms of the Lease (“Request”), provided such a Request contains the following:

A clear statement about what the Initiator is seeking and why the lease is an Affected Lease;
Supporting information (which the Regulation deems to be confidential) that is true, accurate, correct and not misleading that allows the parties to negotiate in a fair and transparent way. Examples include:

Accurate financial information or statements about the Tenant’s turnover;
Information demonstrating that the Tenant is an SME Entity;
Evidence of eligibility for or participation in the JobKeeper scheme;
Steps the Tenant has taken to mitigate the effects of COVID 19 on the business;
Details of any assistance being received by Federal, State or local Government.

Within thirty (30) days from receipt of an Initiator’s Request, the Landlord must offer a reduction in the amount of rent and any other proposed changes to the lease terms. At least 50% of the offered rent reduction (for example if the Landlord offers a 40% reduction, then at least 20%) must be a waiver. The offer must take into account the Tenant’s reduction in turnover (but not necessarily mirror precisely with same) and the other matters and circumstances set out in the information supplied by the Initiator, as well as the Landlord’s own financial position and any relief that the Landlord may be entitled to receive (such as from its Mortgagee or in connection with outgoings, such as land tax relief).
The offer must also give the Tenant the option to extend the term of the Lease for the equivalent period that rent is waived or deferred, except where the Landlord has genuine reasons for being unable to do so or requires the Premises on expiry for its own purposes.
All negotiations following the initial offer must be undertaken in good faith with both parties cooperating and acting reasonably.
If an agreement is reached that involved the deferral of rent, outgoings or other payments (or a proportion of them), then the deferral:

Cannot require repayment of the deferred rent to begin until the day after the Response Period has ended (at present, this is not before 1 October 2020, but this may be extended);
Must require payment to be amortised over at least 2 years, but no more than 3 years; and
Cannot require any penalties or interest to be paid on deferred amounts.

The Landlord is entitled to hold any security (bank guarantees, bonds etc) until all of the deferred rent has been paid in full.
Rent may still be reviewed during the Response Period but no increases may be put into effect until after the Response Period has expired and the Tenant will continue to pay the same rent immediately prior to any such review date pending expiry.
Once an agreement is reached, if there is a material change to a party’s circumstances, the Regulation permits the parties to renegotiate. The Regulation does not affect agreements that have been already reached and it also permits the making of agreements that are inconsistent with the Regulations.
If the parties are unable to reach an agreement through good faith negotiations, then either party is at liberty to lodge a dispute notice with the Small Business Commissioner, who is empowered to nominate an independent mediator to convene a mediation between the parties, which will take place seven (7) days after the Small Business Commissioner accepts the dispute notice. The Regulation provides for this to occur privately, without legal representation (unless agreed by the mediator) and on a ‘no admissions’ basis, preventing the subject matter of the mediation being used by a party against another in later Court or Tribunal proceedings. Each party bears their own costs and the Small Business Commissioner pays the mediators fees and costs for holding any mediation conference.
If agreement is still not reached through mediation, then either party is at liberty to apply to a Court or Tribunal to have the matter judicially determined.
Any lease disputes that existed between the beginning of the Response Period and the date of enactment of the Regulation (ie between 29 March 2020 and 27 May 2020) that have not been resolved, completed or finalised will be stayed until the Response Period has ended.
The Regulation only permits a Landlord to take Prescribed Action in relation to an Affected Lease if:

The Landlord is doing so on a ground that is not related to the effects of COVID 19;
The Landlord is doing so pursuant to an agreement that the parties have entered into in accordance with the Regulation, that has not been complied with; or
Despite genuine and good faith attempts by the Landlord, the Tenant has substantially failed to comply with its obligations to negotiate in good faith. This includes any failure of the Tenant to provide a complete and properly made Request in the first instance.

The Regulation also permits a Landlord to cease or reduce services to the premises, to the extent that it is reasonable to do so if the Tenant is unable to operate, thereby reducing the cost of outgoings to the Premises, for the benefit of both parties.
Key Definitions

Affected Lease:
Included:
·    Retail Shop Leases;
·    Commercial Leases including Agreements for Lease or Offers to Lease that are binding on the parties as at 28 May 2020, even if the commencement date has not yet passed;
·    Tenant is a SME entity;
·    Tenant or a connected, affiliated or related entity (such as a service company or a  employs staff for the business) is eligible to participate in the JobKeeper scheme;
·    Franchise arrangements where the lease is a head lease to a franchisor or leasing entity that is connected, affiliated or related to the franchisor and the premises are sublet to and occupied by a franchisee.
Excluded:
·    Most farming, agricultural and pastoral leases.

Response Period:
The period from 29 March 2020 to 30 September 2020.

Prescribed Action:
Starting a proceeding in a Court or Tribunal or taking an action under a lease or any other agreement to:
·       Recover possession or exercise a right of re-entry or forfeiture;
·       Terminate the lease;
·       Seize goods or property to secure payments;
·       Seek damages;
·       Charge interest or penalties on unpaid rent or outgoings;
·       Call up a bank guarantee, bond, indemnity or other security;
·       Take action against a Guarantor; or
·       Exercise or enforce another right of the Landlord under the Lease or another agreement.

SME Entity:
·    Business carried on by a sole trader;
·    Business employing fewer than 20 fulltime, or fulltime equivalent employees;
·    Tenant’s turnover was less than $50,000,000.00 for the 2018/2019 financial year or is likely to be less than $50,000,000.00 for the 2019/2020 financial year.

Affiliate and ‘connected with”
As defined in the Income Tax Assessment Act 1997 (Cth).
If the Tenant is connected with or an affiliate of another entity, it is their combined turnover that is assessed to determine whether they are a SME Entity.

Small Business Commissioner
The supervising authority empowered to deal with disputes that are not settled through good faith negotiations between the parties.

Summary and conclusion
For Tenants that are suffering from the effects of COVID 19, the making of an initial Request to your Landlord (or its solicitors) can be a daunting task and the strength of such a Request will often dictate how the parties begin their negotiations. This should be as compelling as possible to achieve the best result possible.
For Landlords, their own financial position is often directly affected when a Tenant is struggling to meet the financial obligations in their Lease. The importance of receiving proper legal advice regarding the strategies that a Landlord can deploy to reach an outcome that balances the Landlord’s own financial interests with the Tenant’s ongoing ability to perform the Lease cannot be overstated.
Irrespective of whether you are a Landlord or a Tenant, our experienced commercial or property lawyers are able to assist you in providing a comprehensive and compelling Request, assisting you throughout all stages of negotiation, mediation and if necessary, Court or Tribunal proceedings and otherwise providing prudent and practical advice in these unprecedented times.
Contact us today should you require assistance with any of your leasing matters.
The post QUEENSLAND’S NEW RETAIL AND COMMERCIAL LEASING LAWS EXPLAINED appeared first on Marino Law.

For separating couples, uncertainty generated by the COVID-19 pandemic brings additional anxiety around the questions of whether to commence, continue or delay property settlement in the event that assistance from the court is required for resolution.
Importantly, there is no ‘one size fits all’ approach to property settlement as each case presents its own unique set of circumstances. For some it will be prudent to wait, for others it may be essential to push on.
Things to consider
Time limitations apply to matters concerning property settlement, applications must be received by the court within two (2) years from the date of separation, or within twelve (12) months of a divorce order being issued.
If a limitation date is not imminent, considerations prior to commencing legal action should include the nature of the asset pool – for example, does it comprise a share portfolio, property, superannuation entitlements or business interests – and to what degree its components and valuations, have thus far been impacted by the COVID-19 pandemic, keeping in mind that this continues to be an evolving situation with uncertain outcomes ahead.
Couples who may be mid-way through a property settlement should seek legal advice before ratifying an agreement. If asset valuations are not current, the proposed division of assets may no longer reflect the intended outcome. Additionally, if individual assets have been impacted differently, one party may be disadvantaged.
Despite a reduction in the value of some shares, superannuation and property values resulting from the pandemic, a fair division of assets can still be obtained through use of percentage division as an alternative to agreeing to a base amount from the sale of an asset which may not yield the expected outcome due to the current level of uncertainty in the market.
A percentage split of sale proceeds between parties protects individuals from inequities which can result from agreeing to predetermined dollar values and distributes the burden of risk equally during times of economic uncertainty.
To protect public health and observe social distancing requirements, the hearing of non-urgent matters by the courts is being delayed which may affect the hearing of settlement matters.
 
Is dispute resolution a better alternative?
An alternative option outside the courtroom, is dispute resolution whereby negotiation and mediation may expedite the path to resolution, ideally saving time and reducing costs.
To protect public health, mediation can be conducted using telephone conferencing and online conference tools such as Zoom, avoiding the need to appear in court and any associated court delays that may be experienced as a result of social distancing.
When an agreement is reached through mediation, consent orders can be filed online with the court, finalising the property settlement matter.
If you would like legal advice as to the best way to approach your property settlement, reach out to our highly credentialled Family Law team for assistance on 5526 0157.
The post Should I resolve my property matter during COVID-19? appeared first on Marino Law.

A recent decision of the Supreme Court of Queensland, Sunstate Land Pty Ltd v Hiview Design & Construction Pty Ltd[2020 QSC 181], is one of the few cases in which the application of the Coronavirus Economic Response Package Omnibus Act 2020 (Cth) has been considered.
In delivering his decision, Justice Callaghan referred to the objectives of the Act to provide “flexibility to temporarily adjust legal obligations”, which included the facilitation of the “continuation of business”.
On 20 March 2020, the respondent, Hiview Design & Construction Pty Ltd (Hiview) executed a “creditor’s statutory demand for payment of debt” pursuant to paragraph 459E(2)(e) of the Corporations Act 2001 (the “Act’’) (the ‘’Demand’’).
The Demand described two amounts in the schedule for the aggregate sum of $275,840.72 and required payment within the former statutorily described period of “Twenty-one days after service … of (the) demand.” The Demand also informed Sunstate Land Pty Ltd (Sunstate) that it could apply for an order setting the demand aside, and that: “Such application must be made within 21 days after the demand is served”.
Hiview invoked the authority of the Court on the issue of service of the Demand by relying on sections 7 and 29 of the Commonwealth Acts Interpretation Act. Callaghan J, after considering an affidavit sworn by a director of the accountancy firm which serves as the registered address of Sunstate, accepted that the Demand was received by Sunstate’s agent on 1 April 2020 pursuant to section 109X of the Act being 1 week after commencement of the relevant schedule of the Coronavirus Economic Response Package Omnibus Act 2020 (the “Omnibus Act”).
The relevant schedule (12) of the Omnibus Act commenced on 25 March 2020 which extents the period allowed for compliance with a statutory demand issued pursuant to the Act to 6 months from 21 days as it then read.
Sunstate sought, pursuant to section 459G of the Act, to have the Demand set aside.
The Court accepted that the relevant provisions of the Omnibus Act applied to the Demand which meant that the Demand was defective meaning that “it lacks something which is necessary or essential for completeness” as explained by Callaghan J in the Judgment and outlined below:

where paragraph 3 of the Demand states a period of demand, it should, by force of law, state a period of 6 months;
where paragraph 5 of the Demand states the period of 21 days, it should, by force of law, state 6 months; and
the Demand was not in the prescribed form 509H as set out in the current iteration of the Corporations Regulations.

Sunstate submitted that substantial injustice would be caused unless the Demand is set aside. The substantial injustice arose because the legislation provided, and Sunstate would have understood it to provide, that the period identified in the notice was no longer applicable. By reason of the defects with the Demand, Sunstate was not in law obliged to comply with the Demand. However, if the Demand was not set aside Sunstate would be presumed to have committed an act of insolvency.
In reaching his decision to set aside the Demand, his Honour referred to specific provision being made in the Omnibus Act in respect of debt incurred during the six-month period starting on the day the new laws commenced. His Honour indicated that it was the intention of Parliament to provide “Flexibility to temporarily adjust legal obligations” and that the new legislation facilitates the “continuation of business”.
His Honour concluded by saying that the Omnibus Act “has had an irresistible impact on the present circumstances and, pursuant to both section 459J(1)(a) and (b) of the Corporations Act” ordered that the Demand issued by Hiview to Sunstate, be set aside.
If you intend to issue a statutory demand under the current regime it is important that you consult with an experienced litigation lawyer who can assist with preparing and issuing a creditor’s statutory demand for payment of debt that complies with the current iteration of the Corporations Regulations.
Marino Law has extensive experience acting for creditors issuing creditor’s statutory demands, corporations responding to creditor’s statutory demands, applications to set them aside and applications to wind up a company. Should you require assistance in any of the above areas, please contact one of our highly experienced corporate litigation lawyers.
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The recent COVID-19 pandemic has caused considerable difficulties for separated parents, particularly those living interstate from their children.
Parenting orders are binding on both parties, irrespective of what may be happening in society at large.  Accordingly, a parent who breaches a parenting order due to the existence of coronavirus itself may find themselves facing a contravention application, and it is expected that the Court will not look favourably upon those parents if they do not have genuine cause for concern.
A Court order sealed by the Federal Circuit Court of Australia or the Family Court of Australia creates legal obligations with which the parties must abide.  If a party breaches or contravenes a Court order, the other party may commence further proceedings by way of a contravention application.
Contravention applications will often result in a remedy or punishment against the breaching party.  Contravention proceedings are quasi-criminal in nature and the standard of proof relates directly to the relief the innocent party is seeking to achieve from the application.
A person is taken to have contravened a parenting order if:

The person is bound by the order and the person has:

intentionally failed to comply with the order; or
made no reasonable attempt to comply with the order.

It is a defence to a contravention application if the person is taken to have had a “reasonable excuse” for contravening the order. Pursuant to section 70NAE of the Family Law Act 1975 a person may have a reasonable excuse for contravening a parenting order if:

the person believed on reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child); and
the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to above.

The Court is ultimately concerned with meeting the best interests of the child and if there is any risk, even a small one, that the child may be exposed to the virus then the Court may decline to make a finding of contravention.
In the recent decision of Kardos & Harmon [2020] FamCA 328, the Family Court had to consider whether the Mother’s refusal, due to COVID-19 related concerns, to allow her 3 year old child to travel by plane from Adelaide to Queensland to spend time with the Father pursuant to final Orders was a contravention; that is a breach of the Orders without a reasonable excuse.
The child in this case lived with the Mother in Adelaide and pursuant to 2018 Orders, spent regular time with the Father in Brisbane.  The Orders required the parents and the child to undertake regular interstate travel and to conduct handovers at the airports.
The arrangements had been without incident until March 2020 when the Mother failed to facilitate the child travelling to Queensland to spend time with the Father pursuant to the Orders.  The Father commenced contravention proceedings.
Due to the COVID-19 virus, the Mother proposed that the Father travel to South Australia to spend time with the child, to reduce the child’s exposure to the virus whilst travelling through airports and on-board aircraft.
The Court dismissed the Father’s contravention application and found that the Mother’s concerns for the health of the child were a reasonable excuse for non-compliance with the Orders.  Instead the Court took the opportunity to suspend the final Orders and vary them requiring the Father to travel to South Australia to spend time with the child and, if that was not possible, for make-up time at some point in the future.
This recent decision provides some guidance to separated parents with children who are required to travel interstate to spend time with the non-residential parent pursuant to a parenting order.  If one parent raises concern about the child’s exposure to COVID-19 whilst in transit, this may be a reasonable excuse to not allow the time to occur pursuant to the Orders.
Each individual case will however turn on its own facts, particularly given that each State and Territory has its own rules and guidelines regarding self-isolation and border crossings.
If you have parenting orders which provide for interstate travel, we strongly recommend you seek legal advice prior to considering any non-compliance with those orders at this time.  As restrictions are lifted, any concerns of exposure to the COVID-19 virus and associated health risks will start to ease and it is likely that this will no longer be considered a “reasonable excuse” by the Court for non-compliance with parenting orders.
Recently recognised for the third consecutive year as a leading Family Law firm on the Gold Coast by the Doyle’s Guide, if you have a parenting dispute then we are available to assist you to resolve your matter with as little conflict as possible, aiming to exit the family law system with an outcome that has longevity and the best interests of your children at heart.
Contact our family law team on 07 5526 0157 to discuss your parenting matter or any other aspect of family law.  We are available to provide you with cost effective, strategic and resolution focused advice in person or by phone.
The post Parenting Orders – Contravention Applications During COVID-19 Pandemic appeared first on Marino Law.

As a consequence of the financial impact that COVID-19 has had on the economy, Australia has entered a recession for the first time in 29 years.
If your business is experiencing financial difficulties as a consequence of the COVID-19 pandemic, now is the time to seek advice with respect to the various restructure options detailed further below.
Businesses are currently being subjected to significant financial distress. In response to that distress, a variety of measures, government and non-government, have been implemented to assist businesses to continue to trade during the COVID-19 pandemic.
Marino Law has previously detailed the various measures that have been introduced to assist businesses during the COVID-19 pandemic. In this regard, please see our article “COVID-19 Impact on Commercial Dealings”.
Pursuant to the above measures:

the time within which:
an individual debtor is required to comply with a bankruptcy notice; and
a corporate debtor is required to comply with a creditors statutory demand,

has been temporarily extended from 21 days to six 6 months;

there are now temporary increases to the threshold at which creditors can issue a:
bankruptcy notice (from $5,000.00 to $20,000); and
creditors statutory demand (from $2,000.00 to $20,000.00);
directors of corporate businesses will not be personally liable for debts incurred during defined periods during the COVID-19 pandemic as long as those debts are incurred during the ordinary course of the company’s business;
the various State governments have enacted laws to implement the National Cabinet’s Mandatory Code of Conduct (the “Code”) pursuant to which, during defined periods:
parties to commercial leases are required to negotiate appropriate rental waivers and deferrals; and
tenancy evictions are essentially suspended. For more detail regarding the implementation of the Code in Queensland, please see our previous article;
eligible businesses can apply to receive $1,500.00 per eligible employee per fortnight;
businesses can apply for assistance packages from the government; and
businesses can apply for various forms of relief with respect to mortgage payments to be made to commercial banks.

What happens when the above measures come to an end?
The above measures effectively enable distressed businesses to survive during the COVID-19 pandemic. However, once those measures cease, we expect to see a perfect storm of claims directed towards such entities.
Marino Law is already aware of numerous creditors that are owed money from distressed businesses and are simply waiting for the debt recovery restrictions to cease so that they can issue statutory demands and bankruptcy notices, or commence recovery and eviction proceedings, against recalcitrant tenants for example.
Businesses are being impacted in a variety of ways by COVID-19, with the above measures perhaps simply delaying inevitable bankruptcy or external administration for those who were suffering severe financial distress before the COVID-19 pandemic hit.
For other businesses that were operating profitably prior to the pandemic, the resulting falling revenues and increasing debt levels now see them suffering distress. Once the above measures cease, they may be called upon to repay debts that have been effectively deferred during the COVID-19 period. This could see such businesses face significant claims from various creditors at the same time, that could ultimately lead to bankruptcy or external administration where relevant.
Restructure options
While benefiting from the temporary measures referred to above, businesses are now presented with an opportunity to restructure their operations in order to continue operating solvently once the temporary assistance stops.
Marino Law can work with businesses now to implement various informal and formal measures to restructure their business operations.
Distressed businesses can engage in informal measures such as negotiating debt restructures with a businesses’ creditors that could lead to the forgiveness of debt and/or the extension of the time within which a debt is to be repaid. Such measures can be more readily implemented now before creditors start to aggressively chase debts when the temporary measures referred to in the above paragraphs are lifted. While such measures can be cheap and quickly implemented, their effectiveness can be limited where deals can be done with some creditors but not others such that recovery action is taken that ultimately leads to the appointment to the business of a bankruptcy trustee or liquidator as the case may be.
Distressed businesses can also restructure their operations through asset and business sales to related and unrelated third parties. While such measures may enable a business to transfer assets or a business to a related entity for example that does not have the same debt restrictions, care needs to be taken to ensure that the transaction is not an illegal phoenix or a voidable transaction that a liquidator subsequently appointed to that company could claw back.
Recent amendments to the Corporations Act 2001 (Cth) give a liquidator the power with respect to creditor-defeating dispositions, being transfers of company assets for less than market value that prevent, hinder or significantly delay creditors’ access to the company’s assets in a liquidation. Advice should be sought from a professional advisor such as a lawyer, accountant or insolvency practitioner before entering into such transactions.
Businesses suffering financial distress can also look to implement formal measures available to them in the Bankruptcy Act 1966 (Cth) and the Corporations Act 2001 (Cth). Such measures include:

the appointment of a voluntary administrator. Pursuant to the administration process, a distressed business could be sold or restructured by the administrator. By entering into a Deed of Company Arrangement for example, the debts of the distressed business could be restructured such that the operation of the business is able to continue past the appointment of the administrator;
the entry into formal agreements with an individual’s personal creditors. Unlike an informal debt negotiation, such agreements if agreed to by a majority of an individual’s creditors, are binding on all creditors. However, if an agreement cannot be reached, any creditor can use that fact as the basis for the commencement of bankruptcy proceedings against that individual; and
in the direst of situations, the appointment of a liquidator or bankruptcy trustee as the case may be.

Marino Law has extensive experience acting for directors, liquidators, administrators, lenders, brokers, financiers and creditors in the administration of all corporate and personal insolvency appointments.
Our highly experienced lawyers regularly advise clients in the following areas of corporate and personal insolvency:

voluntary administrations;
liquidations;
business and asset sales;
enforcement of securities;
statutory demands and bankruptcy notices; and
debt agreements and personal insolvency agreements.

Should you require assistance in any of the above areas, please contact our team on 07 5526 0157.
 
The post A window of opportunity for restructure appeared first on Marino Law.

Following on from our articles ‘The Essence of Casual Employment’ and ‘Recent Developments in Casual Employment’ there have been significant developments in case law relating to casual employment over recent months.
Background
Briefly, our prior two articles on this subject dealt with casual employees who were held to be improperly classified by their employers as casual when an objective review of the facts showed that such employees were more accurately classified as permanent part-time or permanent full-time employees. Traditionally, the common law and statutory provisions have been interpreted by the Courts to be that casual employees are paid an extra 25% casual loading in lieu of certain statutory entitlements such as annual leave and personal leave.
Recently however the Courts have found that employees which have been inappropriately classified as casual are entitled to retain their casual loading allowance as well as seek retrospective payment of employee entitlements, giving rise to the notion that ‘double dipping’ is permitted by affected employees.
WorkPac Pty Ltd v Skene [2018] FCAFC 131 (‘Skene’)
To refresh you, by way of background facts, WorkPac employed Mr Skene as a fly-in/fly-out casual employee from 17 April 2010 to 17 July 2010 and again from 20 July 2010 until 24 April 2012. He worked 7 days on, 7 days off varying between day and night shifts in accordance with his roster.
In summary, the Full Court of the Federal Court held that Mr Skene was not a casual for the purposes of either his enterprise agreement or the National Employment Standards because of the regularity of his work patterns even though his working hours varied on a day to day basis. Accordingly, Mr Skene was entitled to have been paid out his accrued annual leave on the termination of his employment with WorkPac, which is not unusual as detailed above. However, the Court also decided that he was to be paid his annual leave at the loaded rate rather than at a base rate exclusive of casual loading.
The Court analysed the various lines of authority and determined that the consistent approach of the Courts was to find that the ‘essence of casualness’ was the “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) an employee will work” and that irrespective of the label an employer gave to the employee’s status, the common law factors are the relevant considerations to be weighed when determining the true status of an employee’s employment.
Accordingly, Skene was awarded back annual leave despite it in effect constituting ‘double dipping’ if an employee was back paid annual leave at their loaded casual rate.
In response to Skene, the Commonwealth Government introduced new regulations which allow employers, in certain circumstances, to offset the casual loading paid to an employee against certain entitlements that may otherwise be owed to the employee if they are found in the future to be a permanent employee. The new regulations are aimed at preventing casual employees from ‘double dipping’ and claiming permanent entitlements in addition to their casual loadings.
The regulation, referred to as Reg 2.03A, can be applied immediately by employers and in circumstances where all the following criteria are met:

an employee is employed by their employer on a casual basis;
the employee is paid a casual loading that is clearly identifiable as being paid to compensate the employee in lieu of receiving entitlements that casual employees are not entitled to under the National Employment Standards, such as personal or annual leave;
despite being classified by the employer as a casual, the employee was in fact a full-time or part-time employee for some or all their employment for the purposes of the NES; and
the employee has made a claim to be paid for one or more of the NES entitlements (that casual employees do not have) that they did not receive for all or some of the time that they were incorrectly classified as a casual.

Where the above criteria are satisfied, an employer can make a claim to have the casual loading payments made to the employee considered when determining the entitlements or amount payable to the employee.
New Developments: WorkPac Pty Ltd v Robert Rossato (QUD724/2018)
Mr Rossato was employed by WorkPac as a production employee engaged to work on various mines within the Glencore Group.
During his employment, Mr Rossato was employed pursuant to six consecutive contracts of employment with WorkPac, each labelled as casual. Some contracts required Mr Rossato to work in accordance with a roster which allocated shifts up to seven months in advance. Relying on the decision of Skene, Rossato claimed that despite WorkPac labelling him as a casual, the employment relationship was not that of a casual employee.
WorkPac commenced proceedings in the Federal Court seeking declarations that Rossato was a casual employee and not entitled to paid entitlements under the Fair Work Act 2009 (‘FW Act’) or the applicable Enterprise Agreement.  In the alternative, it was argued that Rossato’s pay included a casual loading of 25% which was, in part, paid in lieu of entitlements payable to permanent employees under the FW Act and WorkPac was entitled to ‘set off’ any amount owed to Rossato in respect of those entitlements.
The Court found that an employee of labour hire business WorkPac engaged and paid as a casual was in fact ‘other than a casual employee’ for the purposes of sections 86, 95 and 106 of the FW Act. This entitled him to annual leave, compassionate leave and personal leave.
The decision reinforced that casual employment is ordinarily indicated by an absence of a ‘firm advance commitment as to the duration of the employee’s employment or the days/hours the employee will work.’
While Rossato was employed and paid as a casual, the way the contracts were performed pointed against such a characterisation. The Court found that the parties had agreed to employment of an indefinite duration which was stable, regular and predictable, including that:

the contracts provided for continuing work to be performed according to an agreed pattern of full-time hours;
despite some variability to the actual hours of work allocated, it was nevertheless pre-programmed long in advance and fixed by a roster; and
it was implied that Rossato was required to perform the work as allocated to him on the roster and was unable to elect whether to work a shift or not.

According to the Court, these characteristics indicated a firm advance commitment. By comparison, casual employment is unpredictable, irregular, intermittent and not pre-allocated.
The Court held that WorkPac was not able to rely on Reg 2.03A noting that Mr Rossato was not claiming payments in lieu of his NES entitlements, but was claiming the actual entitlements conferred by the NES. Based on this interpretation alone, it is difficult to see how this provision can now have any substantive operation. The Court also noted that having regard to the explanatory statement for Reg 2.03A, the Regulation was never intended to change the legal principles that apply to a “set off”.
WorkPac’s Arguments – Set off & Restitution
It is well established that an employer may implement a contractual term, or utilise common law appropriation, to ‘set-off’ a debt to an employee against payments already made to the employee in satisfaction of another obligation.
Based on these principles, WorkPac contended that the hourly rate paid to Rossato included a casual loading, which was, in part, paid in lieu of Rossato’s entitlements under the FW Act. WorkPac argued that if Rossato was in fact employed ‘other than a casual,’ it should be able to set off any of his entitlements with payments already made.
The Court did not agree and found that the contracts were not sufficiently worded to give an option for contractual set-off.  Further, the casual loading could not be appropriated. One of the Court’s reasons for this was that paying a casual loading is not a substitute for the absence of a right to enjoy the entitlement to paid leave.
The purpose of paid leave is to provide an authorised absence from work for rest and recreation without loss of remuneration.  The fact that cashing out restrictions are imposed on these entitlements emphasises this purpose.
The Court also rejected the relevance of Regulation 2.03A of the Fair Work Regulations, which aims to prevent double dipping of casual loading and permanent employee entitlements by allowing a set off when there is a claim ‘in lieu of entitlements.’
Since Rossato was seeking payment of his entitlements under the FW Act and not to be paid an amount ‘in lieu of’ such entitlements, the Regulation was inapplicable.
While the decision means that employers will not be able to set off FW Act leave entitlements, common law appropriation or contractual set off clauses can still be used in particular circumstances. For example, the ability to set-off overtime is likely still available, if the principles are applied correctly and the payments subject to set off are sufficiently correlated to one other.
WorkPac argued that, if Rossato was in fact ‘other than casual’ and entitled to the claimed benefits, it was entitled to restitution of the casual loading paid, or any amount paid in excess of what Rossato would have been paid as a permanent employee under the Enterprise Agreement.
WorkPac’s claim for restitution was founded on two grounds:

that the parties were mistaken as to the employment relationship and accordingly, casual loading was paid by mistake; and
there had been a failure of consideration for the casual loading amount which deemed it unreasonable for Rossato to retain the benefit.

These arguments did not succeed.
On the first ground, the Court determined that the parties had created the employment relationship they had intended (being employment with ‘firm advance commitment’ to ongoing work). Even if there had been a mistake as to the characterisation of the employment relationship, WorkPac could not demonstrate that the mistake caused the payment of the loading amount, as Rossato received more than a casual employee would have been entitled to under the applicable Enterprise Agreement. This indicated that the hourly rate paid to Rossato was reflective of the market rate as opposed to any mistaken legal entitlement.
On the second ground, the Court found that there were a number of occasions during the course of his employment when Rossato would have made use of accrued leave entitlements if they had been available to him. The consideration received by WorkPac was the benefit of Rossato’s services when he would have otherwise accessed leave.
In any event, the Court said it was not open to WorkPac to seek restitution in circumstances where the payments were made pursuant to fully executed and enforceable contracts which were not void or rescinded. The contracts did not provide for any restitution or recovery in this regard.
A carefully drafted restitution clause in a casual employment contract which contains a separately identifiable and severable casual loading (that is not subsumed within a higher loaded rate) might assist an employer in claiming back the casual loading where permanent NES entitlements are claimed. Accordingly, it would be prudent for employers to take the opportunity now to review the terms of their casual employee contracts.
Key Considerations
Due to the current uncertainty in what is otherwise a complex area, it is important that employers minimise their exposure to risk. To reduce risk around the status of casual employees, employers should:

avoid where practicable providing casuals with a ‘firm advance commitment’ of ongoing and indefinite work by ensuring that:

casual employees are not rostered well in advance;
casual employees can elect whether or not to work when work is offered to them; and
there is fluctuation in the employee’s days and hours of work;

ensure that the employment contracts accurately reflect the casual nature of the employment and provide:

that there is a casual loading and that the loading compensates for permanent entitlements such as paid annual leave and personal leave, notice of termination and redundancy (and the casual loading should be reflected on payslips);
a mechanism pursuant to which the employee can accept or reject shifts;
that should an employee be found to be engaged on a permanent basis, the employee is required to repay to the employer the casual loading component of wages previously paid to them;

employment relationships can evolve over time and the nature of the employment may change. Employers are encouraged to conduct regular reviews of existing casuals and to consider the reality of the employment at the review time (which may be different to when the employment commenced);
if employees would be more appropriately engaged as permanent employees (i.e. if there is that advance commitment to ongoing and indefinite work), consider converting their employment from casual to permanent. Most modern awards and enterprise agreements give casual employees the right to elect to convert after a certain period (however, in practice, often employees eligible for conversion do not request to do so, which is often considered to be due to the preference of receiving the 25% casual loading); and
if an employee rejects the offer of conversion to permanent employment, keep a record of this, and monitor the relationship on an ongoing basis (that is, it may be appropriate to offer permanent employment on further occasions, particularly for long term regular casuals).

What’s Next?
A High Court challenge by Workpac is widely expected and it is anticipated that the High Court will agree to hear the case.
There have also been political discussions about reforming industrial relations in the wake of the coronavirus and recent Court decisions such as Skene and Rossato, however such discussions are at a preliminary stage only.
How we can help?
At Marino Law, we can review your employment documentation and policies and audit your employment arrangements in order to advise you if any of your casual employees are at risk of being classified as permanent. In those cases, we may recommend that such employees have new contractual document issued clarifying their status (and offset provisions in respect of leave loading) or we may recommend that they be offered full time or part-time employment at a reduced rate of pay noting their associated entitlements. We can advise you in this event so that your employment arrangements are in proper order and you are not at risk of incurring significant liabilities on an employee’s application to the Court.
We can also prepare a suite of employment documentation for your business including employment agreements, deeds of employment, written warnings and policy documents. We offer reliable advice concerning the termination of employment on a variety of grounds including poor performance, serious misconduct and redundancy so that you do not inadvertently bring on an unfair dismissal or general protections (adverse action) claim under the Act. In the event that any such claims are brought against you, we are able to defend you with a view towards resolving the matter commercially with the least possible time and expense.
Contact one of our expert employment lawyers today to commence the audit process and avoid finding yourself in financial distress as a result of utilising a system of employment potentially fraught with risk.
The post Casual Employment: Employees’ right to double dip confirmed – what employers need to know about recent decisions appeared first on Marino Law.

Arguably one of the greatest milestones of your life has just occurred, you have said the magic ‘yes’ or ‘will you’ and are ready to walk to down the aisle and promise the even bigger, ‘I do’. Only you are separated by oceans and an incredibly rigorous Australian migration system which does not seem to want to let you live out your happily ever after.
At the close of the financial year of 2018, the Australian Federal Government had built up a backlog of over 80,000 partner visa applications, with average processing times reaching two years. For the years 2019 to 2020, the family migration program has allowed for around 39,799 places.
Annually, between 3,000 to 7,000 of the family visas that come through the Department’s doors are Prospective marriage visas.
The following are matters that the sponsoring Australian partner and the non-Australian applicant should consider when embarking on the journey to say, ‘I do’ in Australia.
It is important to keep in mind that the requirements the Department is assessing will vary depending on the case officer deciding on the matter and on each case’s personal circumstances.
Basic Considerations
When you are granted the Prospective Marriage Visa, you will be issued with a nine-month window to enter Australia and officiate your wedding day with the Court. Once your magic moment is signed and sealed, you will be eligible to apply for the Onshore Partner Visa (subclass 820/801) and move onto the pathway towards permanent residency.
The primary criterion for both Partner Visa applications and Prospective Marriage Visa applications is that the sponsor and the applicant are in a genuine and continuing relationship. The assessment is made based on supporting evidence that is provided to the Department by the applicant and the sponsor.  Partner Visas however, have a much higher evidentiary threshold to cross to demonstrate a genuine continuing relationship. There are certain times where this may not be available to all applicants. In comparison, the Prospective Marriage Visa threshold is significantly less onerous.
Below are some common scenarios where applying for a Prospective Marriage Visa would more suitable and advantageous than applying for a full Partner Visa:

For Partner visas you must demonstrate significant cohabitation, which you may not have the ability to do due to religious reasons.
You haven’t yet started living together and are happy to wait to move in together.
Generally, you feel you may not have a strong enough application with respect to satisfying the evidentiary burden to provide genuineness, but you and your partner are committed to one another and wish to demonstrate that in a matrimony ceremony.

Costs
The current cost of the Prospective Marriage visa is $7,715. This is a significant amount of money and you should be well informed of your prospects of success prior to pursuing this application. The fee covers only the visa application charge. The applicant will also be required to complete extensive health checks which incur further costs. The applicant must also obtain a national police clearance certificate for each country in which they have resided for at least one year in the last ten years. Each of these clearances are time consuming and costly.
It is important to note that the Australian government has specific requirements for different countries regarding police clearance certificates.
If you are unsure in which format to provide certain documents, it is advisable to speak to an immigration lawyer first.
Next, keep in mind if you have documents which are not in English, they will need to be translated by an official language translator. The Department has strict guidelines when applying translations so you must ensure that your translator is aware of the most recent updates. An official translation can cost you anywhere up to AUD$100 per page.
Most importantly, you need to register your Notice of Intended Marriage with a local marriage celebrant or your local Court Registry. This document will give you a date that your marriage will be officiated.
Where should you tie the knot?
Firstly, you must be outside of Australia when you apply for the visa. Current processing times are between 16 to 22 months. This means when you apply for the visa, you may have to be flexible with organising dates.
You must complete your marriage and all paperwork in Australia, within the nine-month period allowed by the Department.
This application is very costly, time and document sensitive. You want to make sure you have everything completed correctly the first time. Planning a wedding ceremony at the same time is an extra stress to throw into the mix. Ensure you have the right advice and team with you to streamline the process and to ensure your costs are minimised. In the event that you are thinking of migrating to Australia via the Prospective Marriage Visa pathway or the Partner Visa pathway, contact one of our expert migration lawyers today to help you chart the best course forward.
The post Are you Eligible for a Prospective Marriage Visa (subclass 300) appeared first on Marino Law.