We previously advised that Schedule I-Award flexibility during the COVID-19 pandemic’ in the Clerks – Private Sector Award 2020 (the Clerks Award) had been extended until 30 June 2021.
However, on 22 December 2021 the definition of ‘Remote Work’ was redefined under clause I.2.1 to mean ‘work undertaken by an employee from their home or any other location of their choosing that is not the premises of their employer’. The following additional flexibilities are also provided:

employees may elect to work their hours in a non-continuous manner while undertaking remote work;
part-time employees may select their own starting and finishing times when undertaking remote work, with agreement from their employer;
flexibility in relation to the taking of meal or rest breaks by employees undertaking remote work, subject to agreement with the employer.

The span of hours for days workers undertaking remote work remains unchanged.
To ease employer’s administrative burdens, employers who issue a direction or make a request under Schedule I no longer need to advise in writing their consent that a dispute about the direction, request or agreement is to be settled by the Commission through arbitration. Nevertheless, the direction or request to work remotely must be given in writing.
If you have any questions about how to apply this award, please contact Suzanne Wishart or Matt Bell on 1300 068 736.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post Employer Alert Clerks-Private Sector Award 2020 – COVID-19 Flexibility Provisions Amended and Extended to 30 June 2021 appeared first on Murdoch Lawyers.

In this podcast, Murdochs’s Family Lawyer Kaylah Vejle demystifies the process behind property settlements.

The post What You Need to Know About Property Settlements appeared first on Murdoch Lawyers.

We are well and truly into the holiday season, the kids have finished school, decorations are up and shoppers are frantically running around trying to find those last minute presents. If that wasn’t enough to keep you busy, separated parents also have to consider the parenting arrangements for their kids, which unfortunately at times can be difficult.
We have put together some basic tips leading into the crux of the holiday season for separated parents to keep in mind:

Celebrate in moderation
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We find that there are a number of allegations that can flow from excessive celebrations at Christmas and New Year’s.
If one parent has concerns that the other parents’ celebrations may get out of hand, they may seek drug and alcohol screening as a pre-requisite for the children’s visits.  This can be an onerous and invasive process, with collections requiring supervision to meet chain-of-custody requirements, and is administratively challenged by the routine closure of most legal offices as well as the Court over the festive season.
Depending on the type of test sought, drug usage can be detected days, weeks or months afterwards.  Similarly, regular and ongoing use of alcohol will often appear on liver function tests regardless of whether a party abstains from drinking in the days immediately before the sample is taken.
Tips: be mindful of the risks associated with excessive festive celebrations and keep celebrations discreet (especially around social media).
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Travel
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There is often a lot of travelling happening for the children over the Holidays but more so over Christmas Eve, Christmas Day and Boxing Day as people travel to see their extended family and then also travel to attend changeover.
If you are going to be late to changeover for whatever reason, send a text message to let the other know you will be late.
If you intend to travel with the children, let the other parent know where the children will be going so they are aware.
Tip: being courteous never hurt anyone.
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Communication is key
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Parents should keep the communication between them as civil and respectful as possible. An ill thought out text message sent in the heat of the moment, is likely to create or escalate tension, as will a number of calls or text messages to the other parent within the space of minutes.
Whilst this is likely to be unhelpful in making arrangements for your children, depending on the content and number of texts/calls, this could also give rise to a Domestic Violence Application.
Tips: communicate only when necessary, and keep all contact respectful.
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Quizzing children about what they did in the other parents care
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Quizzing a child on the goings-on in the other parent’s home is fraught with danger, as this can cause a series of problems for both parent and child. Children will often tell a parent what they want to hear, which can result in misplaced judgment, and usually escalates that parent’s anxieties which is then projected onto the child.
It also has the potential to unnecessarily involve the children in the separation, exposes children to tension, make them feel as though they need to protect a parent from another, all of which has the very real chance of causing them emotional and psychological harm.
Tip: Avoid quizzing the child on the ins and outs of the other parent’s home.
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Social media
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Finally, one thing that we do see a lot of is parents posting various content over social media of poor behaviour or posts that denigrate the other parent. Whilst you may have your account set to private and the other parent might not be your friend on Facebook, more times than not there is a distant friend that you forgot you had taking screenshots of the posts you are making.
Avoid posting anything on social media to do with the other parent or the parenting arrangements. They have a funny way of making their way into evidence before a Court.
Tip: Think before you post.

If all else fails, remember this rule of thumb: – if you wouldn’t like the other parent to do it, think twice before you choose to do it yourself.
Have a happy, safe and hopeful stress-free holiday season.
If you find yourself going through a separation and need assistance please do not hesitate to contact Murdoch Lawyers now.  We have an experienced and dedicated Family Law team who are ready to assist and give advice leading into the festive season.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post Last Christmas I gave you my heart, this year to save me from tears… Parenting arrangements over the holidays appeared first on Murdoch Lawyers.

On the 30th of November 2020, Enduring Power of Attorney forms throughout Queensland changed to the new approved form issued by the Queensland Government.
What is an Enduring Power of Attorney
An Enduring Power of Attorney is the document where you appoint the people you choose (your Attorneys) to make your personal/health and financial decisions, if at any future date you are to lose capacity.
What is changing?
Whilst the new Enduring Powers of Attorney document will remain similar in substance to the existing forms, some changes to note are:

you will now have option to place further restrictions and requirements on your Attorneys, for example:

requiring your personal/health attorneys to provide notice to another person before acting for the first time;
requiring your financial attorneys to provide notice to another person before acting; and
specifying what details your financial attorneys must provide to the other person, such as financial records, a financial management plan, and a summary of income/expenditure; and

Further contact details will be required for each Attorney than in previous versions.

Is my Current Enduring Power of Attorney still valid?
Yes, the legislation is very clear that any current form Enduring Power of Attorney signed on or before the 29th of November 2020 remains valid.
Which version should I sign?
Any Enduring Power of Attorney signed from the 30th of November 2020 onwards should be new Version 2 (sort form) or Version 4 (long form) document.
What do I need to do?
If your current Enduing power of attorney reflects your wishes, there is nothing for you to do. This document remains valid, and your Attorneys may act in accordance with it, if required.
That said, the release of the new form Enduring Powers of Attorney is good opportunity to review whether your existing Enduring Power of Attorney meets your current requirements, particularly in light of the ability to now place further restrictions on (or give further directions to) your Attorneys.
If you need to make any changes to your existing Enduring Power of Attorney or would like to speak with someone about creating a new Enduring Power of Attorney, Please contact our Estate Planning team today on 07 4616 9898.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post Enduring Powers of Attorney documents have changed in Queensland: What do I need to do? appeared first on Murdoch Lawyers.

Murdoch Lawyers, Director, Andrew Crooke and Special Counsel, Yolanda Battisson have been recognised in the 2021 Doyle’s Guide Family Law in Queensland.
This recognition follows other areas of practice at Murdoch Lawyers, where our team have been identified as leaders in their field by their peers and other professionals, testament to our pursuit of excellence across the firm.
Andrew is humbled to be listed for the following;

Leading Family Lawyers – Toowoomba & Western Queensland, 2021
High-Value Family Lawyers – Regional Queensland, 2021
Parenting Lawyers – Queensland, 2021
Recommended Family Law Mediators – Regional Queensland, 2021

Yolanda Battisson is recognised for the following;

Recommended Family Lawyers – Toowoomba & Western Queensland, 2021

Murdoch Lawyers was also recognised as a Leading Family Law Firm for Toowoomba and Western Queensland. Both Andrew and Yolanda acknowledge the support and contribution by the talented Family Law team who continue to deliver quality solutions to our clients.
The post Murdoch Lawyers Claims National Recognition appeared first on Murdoch Lawyers.

On 13 November 2020, the Full Court of the Fair Work Commission confirmed their decision to extend COVID-19 pandemic flexibility provisions to 29 March 2021.
Schedule I, “Award flexibility during the COVID-19 pandemic”, was added to the Clerks – Private Sector Award 2020 (the Clerks Award) and came into operation on 28 March 2020. Originally intended to cease operation on 30 June 2020, it has now been extended again to 29 March 2021.
The provisions of Schedule I are aimed at preserving the ongoing viability of businesses and preserving jobs during the COVID-19 pandemic. Eligibility criteria apply to both employers and employees.
An employer may (with a minimum of 72 hours’ notice) request an employee to take paid annual leave, provided that the request does not result in the employee retaining a balance of less than 2 weeks annual leave after the leave is taken.
When working from home, where an employee requests and the employer agrees, the spread of ordinary hours of work for day workers is between 6am and 10pm, Monday to Friday, and between 7am and 12.30pm on Saturday.
An employer and the full-time and part-time employees in a workplace may agree to temporarily reduce ordinary hours of work by 75% for a specified period if at least 75% of the full-time and part-time employees in the relevant workplace or section approve.
These directions or requests must be given in writing and must be reasonable in all of the circumstances.
Please contact Suzanne Wishart or Matt Bell on 1300 068 736 with any queries.
The post Clerks Award 2020 – Extension of Covid-19 Flexibility Provisions appeared first on Murdoch Lawyers.

What are my debt recovery options?
Unless you hold security, your debt recovery options will depend on what type of entity owes you the debt, the value of the debt owed to you, and the terms of your contract or agreement with the debtor.
Who owes you the debt?

An individual, including an individual trading with an ABN; or
A Pty Ltd company.

An Individual
Your options are:

Send a letter of demand for payment.
Commence legal action by filing an application with the Queensland Civil and Administrative Tribunal (QCAT) if the debt is considered a minor civil dispute and the value of the debt is under $25,000.
Commence legal action by filing a claim and statement of claim with the relevant Court depending on the value of the debt, as follows:

Magistrates Court – Debt up to $150,000;
District Court – Debt between $150,000 – $750,000; or
Supreme Court – Debt more than $750,000.

In the event you obtain a Court or QCAT judgment that is not paid, you can then take steps to enforce the judgment and recover your money.
Enforcement options can include commencing bankruptcy proceedings against the debtor if the judgment obtained from the relevant Court is for more than $20,000. The $20,000 threshold (increased from $5,000) applies until at least 31 December 2020 because of the COVID-19 protection measures introduced by the Federal Government.
A Pty Ltd Company

If the debt owed to you is at least $20,000 or more (increased from $2,000 because of the COVID-19 protection measures introduced by the Federal Government), then the debtor company may be insolvent and you are entitled to issue a Creditor’s Statutory Demand (Demand).
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The Demand process should only be used if there is no genuine dispute about the existence or the amount of the debt you are owed by the debtor company.  The Demand, once served, presently gives the debtor company a strict limit of 6 months (increased from 21 days because of the COVID-19 protection measures introduced by the Federal Government) to:

pay the amount of the debt stated in the Demand; or
come to agreed terms with you for payment of the debt; or
file and serve an application in Court to have the Demand set aside.

If the 6 months allowed lapses and the debtor company has not exercised one of the above options, then it is presumed to be insolvent, and you are entitled to commence winding up proceedings based on this presumption.
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The COVID-19 changes to the Demand process apply until at least 31 December 2020.

Commence legal action by filing an application with QCAT if the debt is considered a minor civil dispute and the value of the debt is under $25,000.The COVID-19 protection measures introduced by the Federal Government do not affect a creditor’s right to commence legal proceeding in QCAT.

Commence legal action by filing a claim and statement of claim with the relevant Court depending on the value of the debt, as follows:

Magistrates Court – Debt up to $150,000;
District Court – Debt between $150,000 – $750,000; or
Supreme Court – Debt more than $750,000.

The COVID-19 protection measures introduced by the Federal Government do not affect a creditor’s right to commence legal proceeding in the Courts.
Other Considerations
Sometimes your terms of trade, contract or agreement with the debtor (individual or company) may include a charging clause or a personal guarantee.  Should that be the case, you will usually be in a better position to recover your debt, and have additional options to those outlined above.
Should you be a secured creditor, having, for example, a mortgage registered over the debtor’s land, or a properly registered security on the Personal Property and Securities Register over the debtor’s personal property, then you should obtain legal advice as to enforcing that security to recover your debt.
If you wish to pursue a debt, or you would like legal advice regarding the above, then please contact our debt recovery experts at Murdoch Lawyers on (07) 4616 9898.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post Debt Recovery Update in the Time of Covid-19 appeared first on Murdoch Lawyers.

On 30 October 2020, the Fair Work Commission (FWC) published a 4 year review concerning overtime for casuals under modern awards. [1]
In this review, the FWC outlined changes to wording to clarify whether the compounding or cumulative approach to calculating penalty rates for casual employees applies to particular awards.
The compounding approach means overtime penalty rates are applied to the casual rate inclusive of the casual loading, e.g. hourly rate x 125% casual loading x 150% overtime loading.  This may increase the rate payable as interpreted by many employers.
The cumulative approach means casual loading and the overtime penalty rate are added separately to the minimum hourly rate. This is the lower rate.
On 20 November 2020, the following changes will take effect (unless otherwise stated):

Aged Care Award 2010 – amendment to clarify that the compounding rate applies. Due to the disproportionate effect of the COVID-19 pandemic on the aged care sector, 1 March 2021 will be the operative date of the variation.
Building and Construction General On-site Award 2010 – amendment to clarify that the cumulative rate applies.
Electrical, Electronic, Communications and Contracting Award 2010 – an amendment to clarify that the compounding rate applies.
Health Professionals and Support Services Award 2020 – an amendment to clarify that the compounding rate applies.
Pastoral Award 2020 – an amendment to clarify that the cumulative approach applies. This change will take effect from 6 November 2020.

The FWC will also change wording to make it clear that a full hour need not be worked to attract payment for overtime for casuals under the Labour Market Assistance Industry Award 2020, Miscellaneous Award 2020 and the Textile, Clothing, Footwear and Associated Industries Award 2010.
The Miscellaneous Award 2020 will be amended to specify that casual employees have an entitlement to overtime, however casual loading will not be paid for overtime hours.
If you have any concerns about how these changes may affect your employment or business, please contact Suzanne Wishart or Matt Bell on 1300 068 736.
________________________________________
[1] [2020] FWCFB 5636; (AM2017/51)
The post Changes to Overtime for Casuals appeared first on Murdoch Lawyers.

The Current Situation
Over the last few years, these has been a significant rise in the number of senior Australians looking outside the box for alternative care arrangements rather than enter an aged care facility.
This has resulted in the increasing popularity of what is known as a ‘Granny Flat Arrangement’. This is an unflattering term to describe the situation where a person exchanges assets or money for a right to live in someone else’s house for the rest of their life.
Up until now, many families have been hesitant to document their Granny Flat Arrangement in writing for fear of Capital Gains Tax (CGT) implications when the property is ultimately sold.
This leaves these families with an ambiguous and unenforceable verbal arrangement, placing the occupier of the Granny Flat at risk of financial abuse.
Announced Reform
The new measure announced as part of the 2020 Federal Budget will remove any potential CGT implications to formal Granny Flat Arrangements which provide accommodation to older Australians or those with a disability.
Removing this final barrier will hopefully encourage more Australians currently living in a Granny Flat Arrangement to formally document the agreed terms of their arrangement.
These new measures are expected to be implemented as of 1 July 2021.
Overview of Granny Flat Arrangements
In a typical situation, it is the parents looking to enter into a Granny Flat Arrangement with an adult child.
This usually falls into one of three categories:

the parents pay to construct a custom built granny flat on the child’s property;
the parents pay an agreed amount a child for a right to live in part of the child’s existing home; or
the parents transfer their home to the child, with all parties to then live together in the property (with the child now as the legal owner).

For scenarios 1 and 2, often the parents will sell their family home and give part (or all) of the sale proceeds to the child in exchange for their Granny Flat Arrangement.
I am considering a Granny Flat Arrangement – where to from here?
There are many matters that should be considered by both parties before entering into a Granny Flat Arrangement. If you are considering whether a Granny Flat Arrangement might suit you, it is crucial to obtain specialist legal and financial advice before committing funds, time and energy to the project. Contact us today on 1300 068 736.
The post 2020 Federal Budget gives further incentive to document your Granny Flat Arrangement appeared first on Murdoch Lawyers.

Vulnerable parties in family law proceedings will have more support thanks to a new pilot program under the Lighthouse Project.
The program will allow the Family Court of Australia (the FCoA) and the Federal Circuit Court of Australia (the FCCoA) to screen matters for family safety risks, triage cases according to risk profile and create a specialist list of high risk matters.
Currently, the courts take a ‘telescope approach’ in which every case is treated the same way. The pilot program is designed to better match resources to risk.
It will be rolled out in the Adelaide, Brisbane and Paramatta Registries of the FCoA and FCCoA. At the moment, it only applies to ‘parenting only’ matters, which make up the majority of applications.
If successful, the program will be expanded nationally and to other family law applications, such as consent orders.
The pilot has three elements.

A bespoke risk screen, known as DOORS Triage, through a secure online platform. Litigants who are filing or responding to a parenting only application will be asked to complete an online questionnaire. This will screen them for various risks including the potential for child or partner abuse, mental health issues and substance abuse.
Triage and case management based on the identified level of risk. High risk cases will be contacted by a family counsellor to develop follow up assessments and develop safety and well being plans. Medium risk cases may also be offered safety planning and service referral, while low risk cases may be targeted for family dispute resolution.
The ‘Evatt List’, a specialist list in the FCCoA, will be established to resolve high risk matters. Like the Magellan List in the FCoA, it will provide Judges with comprehensive information about the family, including records from state courts, child welfare authorities and police. If a case is on the Evatt List, it acts as a signal to the Judge that it is a high risk case which needs more insight into the circumstances and background of the case to help inform their decisions.

The pilot is part of a larger project named the Lighthouse Project. The aim is to provide guidance and support to families who are experiencing, or at risk of, family violence. The overall aims include:

Better risk screening to identify at-risk clients early in the process
Tailored court processes that offer more support to litigants who are experiencing family violence
More information made available to the Court to improve case management decisions and outcomes for litigants
Greater opportunities to settle early where appropriate, for example through alternative dispute resolution for low risk matters. This will free up court resources so that high risk matters can be resolved more quickly.

If you have any questions regarding the Lighthouse Project please contact our family law team on 1300 068 736.
The post Lighthouse Project pilot program to be trialled in Parramatta, Brisbane and Adelaide appeared first on Murdoch Lawyers.

On 19 August 2020, we wrote about the amendment of the Miscellaneous Award 2020 (Award) (Read Here) which significantly expanded coverage to a large number of employees, previously thought to be Award-free.  A recent Fair Work Commission decision highlights the significance of the amendments and the impact it had on a redundancy during COVID-19.
Recap of the 2020 amendments
Historically, the 2010 Award had limited application.  Any employee employed by an employer who was covered by another industry award was excluded from being covered by the Award.
This exclusion rendered the 2010 Award largely irrelevant for many of employers.
On 1 July 2020, the Award was substantially redrafted, renamed with the 2020 date and the exclusion relating to industry coverage was removed.
Recent decision – Mr Darren Roche v Tunstall Plant Hire Pty Ltd (U2020/10682)
The employer’s business involved sourcing and supplying sub-contractors to perform civil construction services in exchange for a fee.
The employee was paid an annual salary of $76,440 and his duties required him to receive phone calls from customers and arrange sub-contractors to perform civil construction services.
The employer was suffering a significant down turn due to COVID-19 so it decided to make the employee’s job redundant.
The employee argued he was unfairly dismissed, while the employer argued the dismissal was not unfair and was a case of genuine redundancy.
An employee’s dismissal is only a case of genuine redundancy under the Fair Work Act 2009 (Cth) if:

the person’s employer no longer requires the person’s job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise; and
the employer has complied with any obligation in a modern award or enterprise agreement to consult with the person about the redundancy.

The parties were unable to resolve their dispute at conciliation so the matter went to trial in the Fair Work Commission.
Deputy President Masson (DP Masson) found the employer had a valid reason for making the employee’s position redundant as, due to the impact of COVID-19 on Victoria’s economy, the employer had seen quarterly declines in business of 37% and 70% in the period from April to September 2020.
Interestingly, both parties believed the employee was award free.  However, DP Masson considered the coverage provisions of the Award and found that it applied to the employee.  Accordingly, the employer should have complied with the consultation obligations under the Award but failed to do so.
Having regard to the duties of the employee, DP Masson was satisfied the employee would fall within the classification found at clause 12 of the Award.
12. Classifications
12.1 A description of the classifications under this award is set out below.
(a) Level 1
An employee at this level has been employed for a period of less than 3 months and is not carrying out the duties of a level 3 or level 4 employee.
(b) Level 2
An employee at this level has been employed for at least 3 months and is not carrying out the duties of a level 3 or level 4 employee.
(c) Level 3
An employee at this level has a trade qualification or equivalent and is carrying out duties requiring such qualifications.
(d) Level 4
An employee at this level has advanced trade qualifications and is carrying out duties requiring such qualifications or is a sub-professional employee.
While it was not clear, whether the employee had a trade or other formal qualification, DP Masson found he would certainly be classified as a Level 2 which requires that he had been employed for 3 months and not required to carry out duties at or above the trade qualified Level 3.
In failing to comply with the Award’s consultation obligations, DP Masson found:

the employee’s dismissal was not be a case of genuine redundancy;
the employee was unfairly dismissed; and
the employee was entitled to compensation.

What employers should do
Any employer who has previously employed workers on an award-free basis should review their arrangements and confirm whether the Award now applies.
If Award applies, an employer should:

notify its affected employees of the change, the employee’s classification under the Award and document the arrangement in a new employment agreement;
ensure they are meeting minimum financial obligations under the Award (which are more generous than the National Minimum Wage Order which would have previously applied);
review the Award and ensure they comply with it;
review its policies and procedures to ensure they are based on industry best practice;
when dealing with a major workplace change, irrespective of whether an Award applies, consult with the employee about the major workplace change is best practice.

Getting help
If you need assistance reviewing your current employment arrangements in light of these changes please contact:

Suzanne Wishart on 07 3164 1121 or [email protected]
Matt Bell on 07 4616 9860 or [email protected]

The post Award free employee… not any more appeared first on Murdoch Lawyers.

The end of the school year is fast approaching and so is Christmas! In family law this is a time when we start to see families make arrangements for the school holiday’s and Christmas (if they haven’t already done so).
Unfortunately, if no agreement can be reached between you and your former partner as to how the children will spend time with each of you during this period, then you might be left with no other option but to seek the assistance of a Court.
If that is the case, it is important to remember that any parenting Application to the Court, seeking Orders for school holiday time, needs to be made by no later than 4pm on the second Friday in November. This year, the deadline is 4pm, Friday 13 November 2020.
If you don’t file your Application by this time, your Application may not get considered prior to the school holiday or Christmas period, but sometime in the New Year.
If you need to put in place some arrangements for the upcoming school holiday period, please do not hesitate to contact our family law team on 1300 068 736.
The post Parenting arrangements for summer school holidays appeared first on Murdoch Lawyers.

In September 2020, the Office of State Revenue (OSR) introduced an important exemption for transfer duty and vehicle registration duty.  The new exemption relates to small business restructures and removes a considerable barrier to restructuring sole traders, partnerships and discretionary trusts into private companies in certain situations.
The Barrier
Ordinarily, restructuring a small business so that it operates as a company involves paying transfer duty based on the market value of the business and its assets even though no money may be changing hands. Often, the cost of the transfer duty is too significant for the restructure to be viable.

To transfer a small business with a dutiable value of
Duty payable

$5,000,000
$268,025

$4,000,000
$210,525

$3,000,000
$153,025

$2,000,000
$95,525

$1,000,000
$38,025

$500,000
$15,925

The new exemption makes it considerably more affordable to restructure small businesses, provided they are eligible transactions.
The exemption applies to sole traders, partnerships and discretionary trusts:

with a dutiable value of $10,000,000 or less;
conducting business in Queensland;
wholly or partly supplying land, money, credit, goods or services to customers in Queensland;
having an annual turnover of $5,000,000 or less.

There are three types of restructures, which will benefit from the exemption.
Sole trader to private company owned by the sole transfer

Partnership to private company owned by the partners

Discretionary trust to private company owned by the beneficiaries of the trust

If in a restructure there is a change in the ownership proportions, eg partner A owns 20% in a partnership before restructure, but then seeks to own only 15% of the shares post restructure because a new owner is being introduced, the exemption will only apply to the 15%.
Problem with sole traders
A sole trader is the simplest structure to use, however, it offers no asset protection.  The assets of the sole trader are completely exposed to the risk of a claim relating to the business.
Using a company to operate a business provides some asset protection.
Problem with partnerships
In addition to the asset protection issues, one partner can be liable for the acts or omissions of another partner – they are jointly and severally liable.
Effective structuring
Effective structuring involves identifying the at risk individuals, utilising limited liability entities to minimise any detrimental impact on personal wealth and creating asset silos which segregate claim risk.
Getting a small business ready for sale
Restructuring into a private company can make a small business more attractive to a third party buyer.
In Queensland, provided the company is not land rich, transfer duty is not imposed on the transfer of shares. If, however, the company’s assets are to be sold to a third party, transfer duty will apply.
Transfer duty can be a considerable transaction cost.  Removing it opens the door to significantly more transactions.
Financial, tax and accounting advice
Before doing any restructure, in addition to getting legal advice, a small business should get financial, tax and accounting advice which is specific to their circumstances. The impact of capital gains tax should be understood so it can be effectively managed.
For further information on this, please contact:
Matt Bell
T 07 4616 9860
E [email protected]
Leanne Matthewson
T 07 4616 9812
E [email protected]
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post Queensland transfer duty barrier removed for small business restructures appeared first on Murdoch Lawyers.

On 1 October 2020, changes to the Building Industry Fairness (Security of Payment) Act 2017 (BIF Act) came into effect in Queensland.
These changes provide enhanced protection to subcontractors where a principal or contractor higher in the contractual chain fails to pay an adjudication amount awarded to the contractor under the BIF Act by:

For all contractors, introducing payment withholding requests (PWR) to secure payment; and
For head-contractors, permitting the lodging of a statutory charge over the project property to secure the adjudicated debt owing to the head-contractor.

Payment Withholding Requests (PWR)
After a successful adjudication claim by a contractor under the BIF Act, and should the adjudicated amount not be paid to the contractor by the due date specified in the adjudicated decision, then:

A head contractor can lodge a PWR against their principal’s financier (e.g. bank); and
Any other contractor (or subcontractor) can lodge a PWR on the next higher party in the contractual chain.

The issuing of a PWR by a contractor means the financier or higher party in the contractual chain must withhold money (which would otherwise be payable to the principal or contractor) to the value of the adjudicated amount in order to secure the payment of the adjudicated amount to the contractor.
If the financier or higher party fails to retain sufficient money, the financier or higher party becomes jointly and severally liable with the principal or contractor for the adjudicated amount owed to the subcontractor.
So, for example, a subcontractor can give a PWR to its principal, and a head contractor can give a PWR to its principal’s financier, to secure payment of the adjudicated amount owing.
Not surprisingly, a PWR cannot be issued against a resident owner.
Charge over the project property – head contractors
If the successful claimant for an adjudication amount under the BIF Act process is a head contractor, and the respondent principal does not pay the adjudicated amount within the time allowed, the head contractor may request the Queensland Titles Office to register a charge over the relevant project property.
In order to do so, the head contractor must:

Have lodged the adjudication certificate as a judgment debt in the relevant Court; and
Ensure that the principal (company or individual), or a related entity to the principal, is the registered owner of the project property upon which construction work was carried out or related goods and services supplied by the head contractor.

Once registered, the charge remains over the project property for a period of 24 months (unless, for example, the charge is extended or set aside).
A head contractor may then apply for a Court order that the project property be sold to satisfy the adjudication debt owed by the principal. Of course, any recovery of money by the head contractor pursuant to its charge, and via the sale of the property, will depend upon the amount of equity available in the project property after the claims of any secured lenders (for example, banks under their registered mortgage) are first taken into account.
That is because the charge will rank in priority behind other earlier registered security interests in the project property.
Take Away
While both of the newly introduced protection measures have their limitations, the overall effect is to better protect payment to contractors in the Queensland building industry.
If you are a contractor involved in the Queensland building industry and are experiencing problems with the recovery of money owed to you, or would like more information or advice about the matters raised above, please contact our litigation experts at Murdoch Lawyers on (07) 4616 9898.
This publication has been carefully prepared, but it has been written in brief and general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post New Protections for Contractors – Security of Payment Update appeared first on Murdoch Lawyers.

Tony Randall, Murdoch Lawyers Director and Property Law Accredited Specialist has shared his thoughts on Solar Wind Farm Lease Considerations in QLS Proctor.
Read what he has to say here.
The post Solar and wind farm lease considerations appeared first on Murdoch Lawyers.

INSOLVENCY TRENDS – A bare trustee’s power of sale and avoiding receivership appointments to sell trust assets in exercise of the right of indemnity: a different approach for Queensland
There is a trend in the administration of insolvent trustee companies to seek Court appointment of receivers to trust assets in cases where the company, by virtue of its insolvency, has been disqualified from acting as trustee under the terms of the trust deed, and remains in possession of trust assets as a bare trustee only. Such an appointment puts beyond any question the issue, on which there has been a divergence of views in the authorities, as to whether a bare trustee of a trust has the power to sell trust assets in the absence of any order of the Court, and so secures, in giving effect to the lien, the company’s right of indemnity which, as property of the company, vests in the liquidator.
While prudent – for convenience and certainty in the administration – a necessity to obtain such orders does, however, inevitably increase the costs of an insolvent administration: a potentially widespread issue bearing in mind that in Australia, use of the trust as a trading structure is not uncommon; and a requirement for liquidators of insolvent corporate trustee to approach the Court for appointment of receivers, or judicial sale, in each and every case to enable recourse to trust assets – often the only assets – may lead to diminished returns to creditors.
Recent authorities such as Carrello, in the matter of Gembrook Investments Pty Ltd (in liq) [2019] FCA 1143, Carrello, in the matter of Caneland Holdings Pty Ltd (in liq) [2019] FCA 1144, and Cremin, in the matter of Brimson Pty Ltd (in liq) [2019] FCA 1023 held that there is a need for a Court order, and the appropriate course is to seek the appointment of a receiver, before an insolvent company in the position of bare trustee has power to sell trust assets; that the right of indemnity does not confer a self-help right on the part of an insolvent trustee to sell trust assets so that the proceeds can be used to pay creditors.
A different approach in Queensland
Notwithstanding this line of authority, in Queensland, at least, the position is otherwise.
An earlier, but not oft-cited, decision of Justice Dowsett in Barnet, in the matter of Fulkoto Pty Ltd (In Liquidation) [2013] FCA 595 held that in Queensland, by virtue of sections 4, 5, 31 and 32 of the Trusts Act 1973 (Qld) a bare trustee has a power of sale of trust assets 1.
It follows that, in Queensland, there ought be no need for a liquidator of a bare corporate trustee to seek to be appointed receiver so as to sell trust assets in the exercise of a right of exoneration.
This view has been confirmed in a recent, though unpublished, decision of the Supreme Court of Queensland on 21 July 2020 in the matter of Ward, In Re Lynch Insurance Services BS7274/20 (“Lynch”).
In that matter, Murdoch Lawyers acted for the Liquidator of a company which had apparently traded as trustee of a trust, but in respect of which no trust deed could be located. In those circumstances the Liquidator sought directions from the Court including as to whether he ought proceed with the winding up on the basis that the company had only ever traded as trustee of the trust, and his power to realise the trust property. (Ancillary directions as to the payment of creditors from proceeds of realisation of trust assets and the Liquidator’s remuneration in accordance with the Corporations Act 2001 (Cth) were also sought.)
In Lynch, Justice Boddice, after finding that the preponderance of evidence supported a conclusion that the company only ever traded as trustee of the trust, adopted the reasons of Justice Dowsett in Re Fulkoto and confirmed that the various provisions of the Trusts Act 1973 (Qld) support the conclusion that a bare trustee does have power to sell trust assets, and there was no need for the liquidator of a bare corporate trustee to be appointed receiver of the trust to sell trust assets in the exercise of the right of exoneration.
Conclusion
The approach in Queensland, averting the need for liquidators of corporate trustees always to seek appointment as receivers to sell trust property, makes good commercial sense, reduces uncertainty and cost and streamlines insolvent administrations for the benefit of creditors.
If you would like more information or advice about the matters raised above, please contact our insolvency and litigation experts at Murdoch Lawyers on (07) 4616 9898.
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1 Sections 4 and 5 of the Trusts Act, read together, make clear that the definition of “trust” includes bare trusts and “trust property” therefore includes property of a bare trust; section 32 of the Trusts Act confers a general statutory power of sale for all trustees to sell trust property.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post Insolvency Trends and Receivership Appointments appeared first on Murdoch Lawyers.

Earlier this year, in an article we published in March 2020 (read the article here), we briefly outlined changes made by the Federal Government to laws in the corporate insolvency and bankruptcy areas as a result of COVID-19.
These changes were initially scheduled to be in place for 6 months only, finishing on 25 September 2020.
Today, the Federal Government has announced an extension to at least some of these protections until 31 December 2020.
In announcing the extension until 31 December 2020, the Federal Government said:

Regulations will be made to extend the temporary increase in the threshold at which creditors can issue a statutory demand on a company and the time companies have to respond to statutory demands they receive.
The changes will also extend the temporary relief for directors from any personal liability for trading while insolvent.
These measures were part of more than 80 temporary regulatory changes the Government made designed to provide greater flexibility for businesses and individuals to operate during the coronavirus crisis.
The extension of these measures will lessen the threat of actions that could unnecessarily push businesses into insolvency and external administration at a time when they continue to be impacted by health restrictions.
These changes will help to prevent a further wave of failures before businesses have had the opportunity to recover.

Whether there is any further extension to these protections past the new 31 December 2020 deadline, and exactly which of the original changes made by the Federal Government will be extended, remains to be seen.
For example, whilst not specifically mentioned in the Federal Government’s announcement today, we presume that the temporary changes made to the threshold at which creditors can issue a bankruptcy notice to an individual, and the time an individual has to respond to any bankruptcy notice they receive, will also be extended until 31 December 2020.
In the current economic climate, it remains more important than ever that businesses and individuals develop a clear strategy and plan to manage the issues that may have arisen over the past 6 months, including in respect to the solvency of their businesses or themselves, and obtain expert advice about those issues prior to 31 December 2020.
If you would like more information or advice about the matters raised above, please contact our insolvency experts at Murdoch Lawyers on (07) 4616 9898.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.
The post Federal Government Extends Temporary Insolvency and Bankruptcy Protections appeared first on Murdoch Lawyers.

Some good news for the team in recent weeks with some more 2020 Doyle’s Guide listings:

Tom has been named for the second year in a row as one of only 5 Preeminent Wills, Estates & Succession Planning Lawyers and is the only one who practises outside of Brisbane
Leanne has been named a Leading Wills, Estates & Succession Planning Lawyer
Juanita has been recognised as a Leading Wills & Estates Litigation Lawyer
The firm has been listed in the Leading Qld Firms for Estate Litigation 2020

While these listings name certain individuals they are in fact a recognition of the dedication and talent of a much bigger team with the lawyers playing a part of course but noting that the support of everyone across the business is integral in helping our clients every day.
The post Murdoch Lawyers Once Again Recognised By Doyle’s Guide appeared first on Murdoch Lawyers.

On 15 July 2020 the Queensland Government introduced the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 into Parliament.
The Bill seeks to amend the Criminal Code to criminalise the underpayment of wages to employees by employers by incorporating an additional definition of ‘stealing’ to include ‘a failure to pay an employee or another person on behalf of an employee, an amount payable to the employee or other person, in relation to the performance of work by the employee’. The amount is said to have been converted to the employer’s own use when it becomes payable under an Act, industrial instrument or agreement and it is not paid.
If the offender is, or was, an employer and the thing stolen is the property of a person who is, or was, the offender’s employee, the offender is liable to imprisonment for ten years.
The Bill also seeks to amend the fraud provisions in the Criminal Code to include consideration of whether the offender is, or was, an employer of the victim.
It is also proposed that the Bill will amend the Industrial Relations Act 2016 Qld to introduce a simpler wage recovery process for employees. The Industrial Magistrates Court will be given jurisdiction to hear wage recovery claims to provide to provide inexpensive and informal resolution functions for wage recovery claims.
The Bill has been referred to the Education, Employment and Small Business Parliamentary Committee for enquiry. Their report is due by 28 August 2020.
Takeaways
Despite the tough economic pressure many businesses are under, it is now more important than ever for employers to ensure that they correctly pay employees.
Employers should ensure that they are meeting their legal obligations under legislation, agreements and industrial instruments in payment of employee entitlements. Failure to do so could result in criminal sanctions following passing of this Bill.
If you require any advice about the impact of these legislative changes or need assistance to ascertain your employee entitlements, please contact Suzanne Wishart or Matt Bell on 1300 068 736.
The post Business Alert – Criminalisation of Underpayment of Wages appeared first on Murdoch Lawyers.

On 15 July 2020 the Queensland Government introduced the Criminal Code and Other Legislation (Wage Theft) Amendment Bill 2020 into Parliament.
The Bill seeks to amend the Criminal Code to criminalise the underpayment of wages to employees by employers by incorporating an additional definition of ‘stealing’ to include ‘a failure to pay an employee or another person on behalf of an employee, an amount payable to the employee or other person, in relation to the performance of work by the employee’. The amount is said to have been converted to the employer’s own use when it becomes payable under an Act, industrial instrument or agreement and it is not paid.
If the offender is, or was, an employer and the thing stolen is the property of a person who is, or was, the offender’s employee, the offender is liable to imprisonment for ten years.
The Bill also seeks to amend the fraud provisions in the Criminal Code to include consideration of whether the offender is, or was, an employer of the victim.
It is also proposed that the Bill will amend the Industrial Relations Act 2016 Qld to introduce a simpler wage recovery process for employees. The Industrial Magistrates Court will be given jurisdiction to hear wage recovery claims to provide to provide inexpensive and informal resolution functions for wage recovery claims.
The Bill has been referred to the Education, Employment and Small Business Parliamentary Committee for enquiry. Their report is due by 28 August 2020.
Takeaways
Despite the tough economic pressure many businesses are under, it is now more important than ever for employers to ensure that they correctly pay employees.
Employers should ensure that they are meeting their legal obligations under legislation, agreements and industrial instruments in payment of employee entitlements. Failure to do so could result in criminal sanctions following passing of this Bill.
If you require any advice about the impact of these legislative changes or need assistance to ascertain your employee entitlements, please contact Suzanne Wishart or Matt Bell on 1300 068 736.
The post Business Alert – Criminalisation of Underpayment of Wages appeared first on Murdoch Lawyers.