As of 1 April 2019, the Director Penalty regime changed in a small but very significant way.
Under the Director Penalty regime, directors of a company can become personally liable for certain company tax debts, including PAYG and superannuation. The ATO may issue a Director Penalty Notice in one of two forms:

A non-lockdown DPN – which allows directors to remit the penalty within 21 days of receipt of the DPN by either paying the debt, placing the company into administration or winding up the company; or
A lockdown DPN – the only way to remit the penalty is to pay the debt within 21 days of receipt of the DPN, and directors are not able to escape personal liability by placing the company into administration or liquidation.

Prior to the change, a non-lockdown DPN was issued in circumstances where the unpaid amount of PAYG or superannuation was reported within 3 months of the original due date. If reported more than 3 months after the due date, then a lockdown DPN would be issued by the ATO.
Now, for superannuation debts the 3 month grace period is no longer available. Non-lockdown DPNs will only be issued where the unpaid SGC obligation is reported by the due date (that is, within 28 days of the end of each quarter). If it is reported late, a lockdown DPN will be issued.  The regime in respect to PAYG debts remains unchanged.
Given the potentially grave consequences for directors, it remains as important as ever to ensure all reporting obligations are up to date.
If you would like more information, or you have received a DPN, then please call us 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 UPDATE – Changes to Director Penalty Notice Regime appeared first on Murdoch Lawyers.

In this podcast, Agnes Redulla from our Litigation, Dispute Resolution and Insolvency team briefly discusses defamation in the context of online reviews.
Transcript
Given the rise of technology over the last few decades, many businesses now have an online presence, and customers are able to post online reviews for other potential customers to consider as to whether or not they engage someone for their services or purchase goods from them. These reviews can have serious consequences for a business and there is an important legal line to be drawn between a negative, but truthful, review, or a review that expresses the reviewer’s honestly held opinion, and a defamatory review which is false, and which review is expressed by the reviewer to be a statement of fact.
To briefly discuss defamation in the context of online reviews, we are speaking today with Agnes Redulla, a Lawyer with the Murdoch Lawyers Litigation and Insolvency team.
Agnes, are there rules about what people can post in an online review?
Yes, just like any other publication which will be read by a third party, any online review posted by a person about a business or individual must ensure that it does not cross the line into defamation. If you intend to post a negative review, then you should be very careful about how that review is worded. You need to ensure that your review is true, or is otherwise clearly your opinion, rather than a statement of fact. If you post false information that damages a person’s or business’ reputation or leads them to be avoided, ridiculed or despised by others, then you may have crossed the line to defamation and be subject to legal proceedings and significant compensation claims.
There is no doubt that with the rise of online platforms, defamation via online reviews can easily occur and can cause genuine harm to individual or their businesses.
Have there been any recent cases dealing with defamation with respect to online platforms?
Yes. On 24 June 2019, the Supreme Court of New South Wales ordered a defendant to pay more than $500,000 in damages for defamation in relation to online reviews.
In short, the case, called Tavakoli v Imsides (No 4), involved a woman by the name of Cynthia Imsides who was alleged to have posted a negative review on Google about Dr Kourosh Tavakoli, a plastic surgeon based in Sydney.
According to Court documents filed in the defamation proceeding, Ms Imsides claimed in her review that Dr Tavakoli performed surgery on her nose and cheeks in February 2017. She also claimed that she had been charged for another procedure, but that Dr Tavakoli had not performed that procedure at all. Ms Imsides published her negative review on Dr Tavakoli’s Google page in September 2017.
Within a week after that review was posted by Ms Imsides, evidence presented to the NSW Supreme Court showed that traffic to Dr Tavakoli’s website dropped by more than 23%.
In late September 2017, Ms Imsides was served with a Court order relating to the review, and the review was removed from the site. However, one week before the trial of the defamation proceeding, Ms Imsides published yet another negative review on Google.
Justice Stephen Rothman found that when Ms Imsides published the online Google review she knew that the statement she made about Dr Tavakoli charging her for a procedure that was not performed was untrue.
In his judgment, Justice Rothman stated that “the allegations contained in the publication are extremely serious and go to the heart of the reputation of the plaintiff in his profession”.
Given the damage suffered to Dr Tavakoli’s reputation, Ms Imsides was ordered to pay more than $500,000 in damages and also Dr Tavakoli’s legal costs.
Can I take legal action if I think someone has made a defamatory online review about me?
Yes, if you think someone has defamed you or your business by an untrue online review, and as a result you or your business has suffered reputational and financial loss, then above case shows that the Courts may compensate you for that loss.
However, there are a number of elements that must be proven in a defamation case and, as always, it is a serious step to commence legal action. Before doing so, legal advice should always be obtained from an experienced litigation lawyer.
Is this something Murdoch Lawyers can help with?
It certainly is. The Litigation team at Murdoch Lawyers is experienced in dealing with all types of disputes, including defamation. If you need advice on a possible defamation case, then please call us on 07 4616 9898 and we will be able to assist you.
The post Defamation and Online Reviews: Have You Crossed the Line appeared first on Murdoch Lawyers.

The highly emotive issue of voluntary euthanasia became a headline issue this past month with Australia’s only current laws becoming active in the state of Victoria (making it the only Australian state where assisted dying is legal).
Stringent criteria and safeguards apply including eligibility being restricted to those who meet the following criteria:

A Victorian resident (for at least 12 months);
being an Australian citizen;
18 years or older;
who has the capacity to make decisions themselves and has independently made the decision at the time of being unwell;
who is in intolerable pain; and
has an incurable disease, illness or medical condition that will likely cause death within 6 months (or 12 months for neurodegenerative diseases).

The person must make the request themselves (and not, for example, an attorney) and follow a strict process including being assessed by a medical practitioner. Any person who is the beneficiary of a person’s Will cannot be among the two witnesses required to sign the relevant application. The criteria also prevents people from travelling from other states to Victoria to be euthanised (unless meeting the above residency criteria).
Despite the support for the laws, opposition remains including from representatives from The Australian Medical Association (who support better palliative care) and the Catholic Church. Other Australian states, including Queensland, are watching closely having also already explored similar laws.
The post Euthanasia Laws in Australia appeared first on Murdoch Lawyers.

In this podcast, our Agnes Redulla from our Litigation, Dispute Resolution and Insolvency team discusses how to avoid unfair preference claims by liquidators.
Transcript
We are here today with Agnes Redulla, Lawyer from our Litigation, Dispute Resolution and Insolvency team at Murdoch Lawyers to discuss how to avoid unfair preference claims by liquidators.
Firstly, what is an unfair preference payment?
An unfair preference payment is a transaction between a company and a creditor that can be “voided” by a Liquidator. There are a number of elements that a Liquidator must prove in order for such a payment to be an unfair preference payment, however it generally occurs when, at any time within the six months prior to a company entering into liquidation, and whilst the company is insolvent, the company pays the debt of an unsecured creditor, while other unsecured creditors are not paid.. Such a payment is called an unfair preference payment because the unsecured creditor who received payment has unfairly been given preferential treatment over other unsecured creditors of the company that were not paid.
What happens when a company that has gone into liquidation has made an unfair preference payment?
The liquidator may seek to recover the unfair preference payment directly from the creditor by the creditor voluntarily repaying the payment it received, or otherwise by Court order.
The liquidator has a duty to distribute the assets of the company to its unsecured creditors on an equal basis. As part of this process, the liquidator must determine whether the company paid the debts of any unsecured creditors prior to the liquidation, and more importantly, consider whether or not such payments were fair and equitable to all other unsecured creditors. For example, let’s say a company owes two unsecured creditors $30,000 each. Prior to entering into liquidation, that company then pays $20,000 to one of the creditors, and nothing to the other. If the company was insolvent when that payment was made, the liquidator will try to reclaim the $20,000 to add to the pool of company assets to distribute to all unsecured creditors on an equal basis.
Secured, rather than unsecured, creditors who receive payments in the 6 months prior to a company entering Liquidation cannot be pursued for unfair preference payments by a liquidator.
If the liquidator tried to reclaim this type of payment directly from the creditor, and the creditor refused to give it back, what would the liquidator do next?
If a creditor refuses to voluntarily repay the money to the liquidator, then the liquidator may commence Court proceedings to obtain an order from the Court that the money be repaid.
There are a number of essential elements the liquidator must prove, in order for the Court to make an order that the creditor received an unfair preference payment and so must repay the money to the liquidator on behalf of the company:

A transaction was entered into between the company and its creditor;
The transaction took place when the company was insolvent. This means the company must have either been insolvent at the time of the transaction, or became insolvent because the transaction was made;
The payment(s) were made within the legal period after the relation-back day (6 month period);
The transaction gave the creditor an advantage over other creditors of the company; and
The creditor suspected, or had reason to suspect, that the company was insolvent.

To be considered a preference payment, the creditor must have received more from the transaction than it would receive if the creditor returned the money to the liquidator and was paid equally with other creditors. If that’s not the case, then it is likely there was no preferential treatment or advantage to the creditor.
Say I am a creditor and I have received payments from a company, which then goes into liquidation after a few months. What can I do to defend an unfair preference claim by a liquidator?
You should seek legal advice as soon as possible. The Liquidator needs to be able to substantiate to you as the creditor all the legal elements required for a preference payment transaction to have occurred (see above). These elements should be reviewed before repaying any money as demanded by the Liquidator.
Even if the Liquidator can substantiate all the elements required, there are defences then available to a creditor having received such a payment from a company. The most common defence to this type of claim is the “good faith” defence. Here, the onus is on the creditor to prove that the creditor:

Provided consideration for the payment (such as the supply of goods/services in return for the payment, or a loan to the company);
Received the payment in good faith; and
Had no reason to suspect that the company was insolvent.

The last point is usually what creditors struggle to prove.
A company is considered solvent only if it is can pay its debts as and when they fall due.
In the lead up to the point where a company enters into liquidation, a company may start to delay payments and/or make part payments to creditors, and sometimes even notify its creditors that it is having cash-flow issues, hence the delayed/part payments . This being the case, and even if a company does not specifically tell creditors it is having cash-flow problems, it is usually clearly apparent to a creditor that the company is in financial difficulty and so becomes very hard for a creditor to say it had no reason to suspect the company was insolvent when it received the payment from the company.
If a company has made payments to me, and I have doubts about its solvency, what should I do?
If you have any doubts about a company’s solvency, and are owed money by that company, you should ask the company for proof of solvency before accepting any payment from it. Ask that a Director of the company provide an affidavit or statutory declaration that not only states that the company can pay its debts as and when they fall due, but also particularises why he or she believes that. This may include referring to, and attaching copies of, the company’s financial records, including up to date profit and loss statements and balance sheets which shows the company is solvent. This will be good evidence if you need to rely on the “good faith” defence in the future if approached by a Liquidator to repay any payment(s) received.
Is requesting proof of solvency something creditors should do on their own?
It may seem like an easy thing to do on your own, but you should really get some proper advice from your lawyer if you want to be able to rely on an affidavit or statutory declaration provided to you by a company to defend any possible unfair preference claims by a liquidator in the future. This is because the wording used in an affidavit or statutory declaration, as well as the information provided in any supporting documents, will ultimately determine whether or not the proof is good enough for you to be satisfied that the company is solvent.
Is this something that you could help with?
Yes. Our team at Murdoch Lawyers are experienced in all areas of insolvency law. If you need our help to review and respond to a demand for repayment you have received from a Liquidator, or require advice on how to best protect yourself before receiving payments from a company you suspect may be insolvent, please give us a call and we will be able to assist.
The post Liquidator Preference Claims and How to Avoid Them appeared first on Murdoch Lawyers.

On 19 June 2019, the High Court handed down its decision in Carter Holt Harvey Woodproducts Australia Pty Ltd v The Commonwealth [2019] HCA 20. This was an appeal from the decision of the Victorian Court of Appeal in Amerind[1] in which it was held that the priority regime under sections 433, 556 and 560 of the Corporations Act 2001 applied to distribution of proceeds from the realisation of trust assets (where the insolvent company carried on business solely as trustee of a trading trust), as it was held that the Company’s right of indemnity against the assets of the trust was “property of the company”. At first instance[2] the primary judge had earlier determined that the company’s right of indemnity was not “property of the company” with the effect that the statutory priorities for the payment of debts and claims in a winding up, including the priority afforded to employees, was not available and all unsecured creditors of the trust ranked equally.
The High Court confirmed that, in the winding up of a corporate trustee, the “property of the company” includes the trust assets the company would, in exercising its right of indemnity, be entitled to apply in satisfaction of the claims of trust creditors, with the result that the priority regime in the Corporations Act applies to give priority to employees of an insolvent company trading as the trustee of a trust, as it would for employees of a company trading in its own right.
The High Court’s decision will be of great interest to insolvency practitioners, as it puts to rest a question which has been the subject of differing lines of authority across various courts in Australia and has vexed practitioners, lawyers and judges for more than 30 years.
If you would like more information then please call us 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.

[1] The Commonwealth v Byrnes & Hewitt as receivers and managers of Amerind Pty Ltd (receivers and managers appointed) (in liq) [2018] VSCA 41
[2] Re Amerind (receivers and managers appointed) (in liq) [2017] VSC 127
The post Breaking News – High Court Dismisses The Amerind Appeal appeared first on Murdoch Lawyers.

Currently in Queensland, if a paper Certificate of Title is issued for a lot, it must be presented to the Land Titles Office when any dealings are lodged.
Paper Certificates of Title aim to provide protection by preventing anyone dealing with your property if they don’t hold the Certificate of Title, for example if someone forges a Transfer and the Certificate of Title is issued, they can’t register it without the Certificate of Title.  However, the requirement to lodge any issued paper Certificate of Title can also lead to difficulties as unfortunately they are often lost and it can be a time consuming and expensive process to apply to dispense with the need for them.
Over the last 25 years paper Certificates of Title have been getting phased out, i.e. when they were lodged with the Land Titles Office with any dealing they were automatically cancelled (and you needed to apply for a new Certificate of Title if you wanted one).
The Land Titles Office estimates that only approximately 11% of titles in Queensland still have a paper Certificate of Title in existence.
With the onset of electronic conveyancing, legislation was passed in March 2019 which will mean that from 1 October 2019 paper Certificates of Title will no longer need to be lodged with the Land Titles Office and won’t have any legal effect.  The electronic title held in the Titles Registry will be the point of truth for ownership and other interests in land in Queensland.
Any paper Certificates of Title still in existence on 1 October 2019 won’t need to be dispensed with for a transaction to proceed and won’t need to be destroyed or delivered to the Land Titles Office, but they will no longer have any legal effect and will essentially only be items of historical or sentimental value.
It’s important to note however that even though these changes will commence on 1 October 2019, any paper Certificates of Title still in existence will still need to be submitted with any dealing lodged before 1 October 2019.
The post No More Paper Certificates of Title appeared first on Murdoch Lawyers.

When you think about philanthropy, it might be something like the Bill and Melinda Gates Foundation that comes to mind, but philanthropy isn’t just for retired billionaires. In fact, anyone can set up their own perpetual charitable fund with as little as $50,000 and enjoy the satisfaction that comes from making a real difference.
We recently sat down with Amanda Sartor, Manager of Elston Philanthropic Services, to see how she is helping people connect with causes that are close to their heart.
It’s clear that she is passionate about her job, commenting “for me, it’s wonderful seeing someone find a way to not only give, but also get so much in return.”
Here’s an excerpt from our interview with Amanda.
Is Philanthropy related to fundraising and volunteering?
Absolutely. If you’re giving your time, skills or money to support causes in your community, then philanthropy is already a natural part of your life. You might be sitting on the board of a Not-For-Profit or volunteering at the local surf club, that’s philanthropy too.
And what about leaving a gift in your Will?
Yes, making a charitable bequest or setting up a charitable trust through your Will is also philanthropic and something that is important to consider, but it’s not the only way to give that will have a lasting impact. We often discuss with clients the various options available to them while they are still here and can enjoy the process, as opposed to gifting only via their Will. Another important discussion we have with our clients is the potential risks involved with leaving a bequest, such as even if they have instructed through their Will that a charitable donation be made after they pass, it may not proceed if their estate is litigated.
What are some other giving options?
In 2001 the Australian government established a Private Ancillary Fund (PAF), which is a type of ‘giving structure’ that allows taxpayers to do three things:

they can donate (pre-tax) money;
they can invest the money for perpetuity; and
they can typically grant the income over time to the charities they are passionate about.

Can that provide for multi-generational giving?
Absolutely. A giving structure can last a lifetime, or two, or three! You can effectively create a multi-generational legacy of giving.
Are these structures popular?
They are quite popular, there are currently around 1,800 Private Ancillary Funds operating in Australia and almost 2,000 charitable sub-funds, and the number of these giving structures is rapidly increasing.
Is that because of the tax advantages?
Yes, that is a significant attraction. You can actually claim your tax deduction before you donate, which is especially good for people who have sold a property or a business and are going to incur a large tax event in a particular year. They may be ready to donate a large amount of money, but they may not be ready to choose the particular charity to give to. A giving structure allows them to make the donation and claim the deduction now and then have more time over the coming years to choose which charities or projects they want to support.
So a giving structure can keep giving?
Definitely. You have the ability to invest your initial donations and any future donations in a tax-free environment and grow the funds over time. This allows you to give money for longer and could also magnify your donations as your capital grows so that you can give more than your original donation. With the right planning, you can create a perpetual legacy.
I understand some families use philanthropy to support their family succession plan. How does this work?
Yes, they do. A foundation is a formal way of saying to your family “we value giving back and making a difference in the lives of others”. It can inspire younger generations to build respect (and have fun) by using the family wealth to give back to causes they are interested in. It also gives them the opportunity to practice their investment and governance skills by sitting on the board of the family foundation.
Do real people really do this?
Yes, they do, and they’re not all Rockefellers, they’re just people like you and me who want to give and make a real difference.  Two real stories include John Grenshaw and Belinda Seaton. Click on the links below to learn more about their own personal giving journeys, to understand their motivations and goals, and the process they went through when setting up a charitable foundation.

John Grenshaw’s article with Philanthropy Australia: https://www.philanthropy.org.au/stories-john-grenshaw
Elston’s podcast with Belinda Seaton: https://www.elston.com.au/philanthropy-is-personal/

If  you’d like to know more about the different ways to donate to charity, click through to Effective Ways to Donate to Charity on the Elston website.
Expressions Of Interest – Philanthropy Seminar
If this article has sparked any interest for you, please let us know if you would be interested in attending a Philanthropy Seminar later in the year hosted by Amanda Sartor (Elston) and Kiri Edyvean (Murdoch Lawyers). We will be presenting more detailed information on philanthropy in an intimate setting with the option for a Q & A. We also plan to share the journey of other philanthropists to understand their story and what lead them to philanthropy. If this sounds like something you would be interested in, please get in touch with either Amanda or Kiri, we would love to hear from you!
About Amanda
Amanda Sartor is the Manager of Elston Philanthropic Services. Amanda specialises in supporting successful individuals, families and businesses give back and get more. Amanda is passionate about giving back and is actively involved in several giving initiatives including Women & Change Giving Circle, 10×10 Philanthropy and works as an Associate Consultant to the peak body, Philanthropy Australia.  Amanda is a Certified Financial Planner (CFP), holds a Graduate Certificate in Business (Philanthropy & NFP studies) at QUT and is completing her Masters in Philanthropy & Social Investment at Swinburne.
E | [email protected]
P | 07 3002 386
W | www.elston.com.au
The post You don’t have to be Bill Gates to be a Philanthropist appeared first on Murdoch Lawyers.

When a relationship ends in a legal separation, each parent still has an obligation to support a child or children from the relationship until they reach the age of 18, including providing ongoing financial assistance. This process of arranging child support can initially be difficult and open to conflict between the parties, which is why seeking out the right advice on your rights and obligations is highly advised.
The Child Support Agency (CSA) manages the assessment of child support arrangements and is the best place for all separated parents to go to firstly understand their rights and obligations, and to ensure their children will be financially protected. The CSA will determine the amount of ongoing financial support that is legally required to be paid and to whom. This is achieved through the use of a tailored formula which takes into account factors including:

The costs of raising each child (which is pre-determined and contained in the relevant legislation, based on independent research);
each parent’s taxable income and the parents’ combined income;
how much time each parent cares for the child/children from the relationship; and
children of previous and subsequent relationships.

Additionally, there is an option for the CSA to collect the assessed child support payment on behalf of the receiving parent and then transfer it to them. Other separated parents may choose to arrange private collection of the child support amount between the paying and receiving parent.
Can the CSA assessment be reviewed?
The CSA’s assessment of child support is designed to ensure that each child’s day-to-day living expenses in the house where they primarily reside are covered, however if unexpected/exceptional circumstances arise, the assessment can potentially be reviewed.
Additional factors to consider are expenses related to education and healthcare. For example, if the parents intend for their child/children to attend private schooling, or if there are heath cost concerns (such as chronic illness, dental, etc.), the assessment could be reviewed (with relevant evidence) as the CSA formula typically does not cover those types of expenses. A parent can request that the CSA factor these additional costs into the assessment and, if successful, issue an adjustment to reflect the changes.
The assessment can also be reviewed for some other exceptional circumstances, however if you feel this reflects your situation it is strongly recommended that you seek specialised advice from a family law professional prior to making your claim.
If you believe the CSA used incorrect information when making their assessment, or it did not apply the law correctly for your circumstances, it is possible to object to its decision. If there are ongoing disputes about the child support assessment and you have exhausted all the necessary avenues through the CSA, sometimes it can become necessary to apply to the Court for an order departing from the assessment. If this happens, the Court will then decide what amount would be appropriate to meet the children’s (reasonable) needs.
The risks of private collection
Some parents choose to bypass the CSA and establish private child support arrangements between each other. Excluding a governing body from the child support process carries some risk, so to ensure these private agreements are legally binding and properly replace a child support assessment (or in some cases, sit alongside it), the parents need to enter into a Binding Child Support Agreement or a Limited Child Support Agreement. There are different requirements and benefits associated with respect to each of these and you should speak to an experienced family lawyer so that you can tailor child support arrangements to best align with your circumstances and the needs of your child/children.
Arranging and maintaining child support can become complex and difficult to navigate at times, particularly in circumstances where parents do not agree with the CSA’s original assessment. There can also be additional issues apart from the existing financial question, such as when paternity is being contested.
Be aware that the CSA has specific timelines which must be met in the application, objection and review processes. It is important that specialised advice is sought if you have a specific query or concern, as well as to meet the relevant timelines. Our experienced Family Law teams in Brisbane and Toowoomba are readily able to assist you with these queries so please contact us today.
The post Understanding Child Support appeared first on Murdoch Lawyers.

Although clearing Category X vegetation may be allowable under the Vegetation Management Act, a recent Court of Appeal decision has confirmed that it is also important to ensure that the clearing is also allowable under other clearing restrictions and particularly, the local town planning scheme.
Under the Vegetation Management Act clearing Category X vegetation is considered to be accepted development on freehold land and leasehold land for agricultural and grazing purposes, and no notification or permit is required to clear under that Act.
Although clearing Category X vegetation is “exempt clearing work” under the Planning Regulation, as it is not categorised under the Regulation as either prohibited, assessable or accepted development, it can be dealt with under the local Council’s town planning scheme.  The local Council can therefore provide in its town planning scheme that “exempt clearing work” (including clearing of Category X vegetation) can require approval. It’s also important to note that these provisions apply to all “exempt clearing work” listed under the Regulation and not just clearing Category X vegetation.
Interestingly, as the Planning Regulation provides that clearing native vegetation to which an accepted development vegetation clearing code applies is accepted development under the Regulation (so long as it complies with the Code), it can’t be  governed by the local town planning scheme.  This means that although clearing Category X vegetation can be made assessable development under the local town planning scheme, clearing Category B or C vegetation under their accepted development clearing codes is accepted development under the Regulation and can’t be governed by the local town planning scheme.
Before clearing any native plants you also need to determine if the Flora Survey Trigger Mapping for the area (under the protected plant provisions of the Nature Conservation Act) shows that there are any “high risk areas” on it.  If there are “high risk” areas you will need to arrange for a flora survey of the clearing impact area and if the survey identifies endangered, vulnerable or near threatened plants (“EVNT plants”) and the impacts on them can’t be avoided, a clearing permit is required before any clearing can be undertaken.
Unfortunately clearing Category X vegetation is not as clear cut as many believe and before undertaking any clearing you need to not only confirm its categorisation under the Vegetation Management Act, but also check the Planning Regulation, the local town planning scheme and the protected plant mapping.
The post Warning for Clearing Category X Vegetation appeared first on Murdoch Lawyers.

It is that time of year again and the Fair Work Commission’s expert panel has handed down its Annual Wage Review decision for 2019.
From the first full pay period after 1 July 2019, the national minimum wage will increase by $21.60 a week to $740.80, or $19.49 an hour.  The weekly rate is to be rounded to the nearest 10 cents.  This equates to an additional 56 cents an hour and is an increase of 3.0%.
Importantly, this increase also applies to modern awards.  All minimum wage rates in modern awards will rise by 3% from the first full pay period on or after 1 July 2019.  There will also be flow on effects to numerous allowances and penalty rates in modern awards.
This decision continues the trend of recent minimum wages increases which distinguish themselves from the more moderate increases of the past.  Looking backwards, the most recent annual wage increases have been:
2019 – 3.0%
2018 – 3.5%
2017 – 3.3%
2016 – 2.4%
2015 – 2.5%
As we have foreshadowed in our wage review articles over the last few years, employers need to prepare themselves for higher annual wage increases than we have seen in the recent past.
Employers should ensure their employees are paid at least the minimum amounts required under the applicable Award or Agreement.
An underpayment, even one which is an innocent mistake, exposes an employer to a number of claims and costs including:

back pay to rectify the underpayment;
contribution of additional superannuation (eg if wages have been underpaid, it is likely superannuation contributions have also been lower than they should have been);
fines for breaching an applicable Award or Agreement, the maximum fine, currently:

for a serious contravention:

$630,000 for a company; and
$126,000 for an individual;

for a breach which is not a serious contravention:

$63,000 for a company; and
$12,600 for an individual;

cost to audit past payments to establish the extent of an underpayment (note: the Ombudsman usually requires the employer to undertake the audit at their cost and to give the results to the Ombudsman to check); and
disruption to the employer’s business.

When it comes to underpayments, prevention is better than a cure.  If you require assistance checking pay rates, please contact our Business and Employment Law team:

Matt Bell on 07 4616 9860 or [email protected]; or
Michael Gibson 07 4616 9810 or [email protected].

 
The post 2019 Annual Wage Review – 3% Increase appeared first on Murdoch Lawyers.

What is a personal guarantee?
A personal guarantee is essentially a promise by an individual to be personally liable for the debts of another person or entity.  The guarantee creates a separate liability as between the guarantor and creditor in whose favour the guarantee is given.
One of the most common personal guarantees is where a director of a company guarantees the debts of that company.
The terms of the personal guarantee will determine whether it is an unsecured or secured guarantee as follows:

Unsecured – Where the guarantee does give the creditor any security (such as a mortgage) over a particular asset of the guarantor;

Secured – Where the guarantee is supported by the grant of security over a particular asset of the guarantor, such as a mortgage registered over real property owned by the guarantor.

A personal guarantee may also obligate the guarantor to pay other amounts, in addition to the actual debt guaranteed, that the creditor incurs in enforcing the guarantee; these other amounts usually include costs such as legal fees and interest.
What are the main risks of giving a personal guarantee?
Loss of personal assets and/or bankruptcy
Even if a guarantee is unsecured, if a creditor demands payment from you under the guarantee and you do not pay the debt, then that creditor may sue you personally and seek a Court judgment for the amount claimed. If judgment is obtained, then the creditor will be entitled to enforce that judgment against you, and which enforcement can include methods such as obtaining a warrant of seizure and sale of your property, a warrant of redirection of your debts or earnings, or commencement of bankruptcy proceedings (if the judgment is for more than $5,000).
End of director relationship with company does not mean automatic termination of personal guarantee
In a company director guarantee scenario, where a director has signed a personal guarantee, simply ceasing to be a director of the company does not automatically terminate the personal guarantee. Likewise, the fact that the company may be placed into external administration does not stop the personal guarantee from being called on against the director by a creditor (though there may be a moratorium period that stops this from occurring for a period of time). In order to be released from a personal guarantee, the guarantor must obtain the consent from, at least, the creditor in whose favour the guarantee was given and, in some instances, also the the debtor.
Obtain early legal advice
If you are asked to provide a personal guarantee, whether as a company director or otherwise, you should obtain professional legal advice before signing it so that all of the risks and consequences of becoming a guarantor can be explained to you.
Should you wish to protect your interests by requiring someone, such as a company director, to provide a personal guarantee, then you should also obtain professional legal advice in respect to the terms of the guarantee to ensure that it will have the intended effect, and give you maximum protection.
If you would like more information on guarantees, or any other debt recovery issue, then please call us 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.
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