Publications

25

Bills of lading – Who might you mislead?

In October this year the District Court of New South Wales handed down a judgment in the matter of Australian Capital Financial Management Pty Limited (ACFM) v Freight Solutions (VIC) Pty Limited (Freight Solutions) [2017] NSWDC 279 that provides a clear warning to freight forwarders and all those issuing bills of lading. Freight Solutions (an … Read more


Tax Insight: Draft legislation released on withholding GST on property transactions

On 6 November 2017, Treasury released for public consultation Exposure Draft legislation on a new GST withholding regime. These changes are to implement the announcement in the 2017-18 Federal Budget that purchasers of new residential premises or new residential subdivisions would pay the GST on the purchase price directly to the ATO as part of … Read more


Competition law changes come into force TODAY

Last month two Acts implementing the biggest changes in Australia’s competition laws in over 20 years were passed into law. On Thursday last week a commencement date of 6 November 2017 was proclaimed for these changes.  Most changes are therefore in force TODAY – earlier than was generally expected. From today: The controversial ‘effects test’ … Read more


Australian Government Agencies Privacy Code: your one-page cheat sheet

The Australian Government Agencies Privacy Code was registered on 27 October 2017 and will come into effect next year. It requires agencies to take a range of specific steps to move towards a best practice approach to privacy governance. Click here for a handy one-page summary on what you need to do to prepare.


Internal or external investigation?

The difficult decision of whether to undertake an internal or external investigation Employers regularly deal with allegations of inappropriate or unlawful conduct. Although not all allegations will amount to a breach of the law or be substantiated, it is still important for employers to actively manage any allegations to limit the risk of claims (e.g. … Read more


Federal Treasury’s new proposals: reforms to corporate misconduct penalties, the regulatory sandbox and whistleblower protection

The Australian Government Treasury department (Treasury) has commenced consultation on a number of new proposals which will have significant implications for financial institutions and other corporations. Treasury has last week released draft legislation and position papers in respect of the following: ASIC Enforcement Review (Enforcement Paper) – which proposes to strengthen corporate and financial misconduct … Read more


Tax Insight: Foreign equity distributions to Australian companies via partnerships & trusts

The Australian Taxation Office (ATO) has recently issued Taxation Determinations TD 2017/21 and TD 2017/22 (the ATO Determinations) which are relevant to Australian companies that receive foreign equity distributions (eg dividends) via an Australian partnership or trust. Broadly, an Australian company is not subject to tax in Australia on foreign equity distributions where certain conditions … Read more


Crowd-sourced funding legislation

On 29 September 2017 new legislation came into effect for equity crowd-sourced funding (CSF) allowing small unlisted public companies to obtain funding in an innovative way by raising small amounts of capital from a large number of investors. This is a key alternative to the current fundraising options permitted under the Corporations Act 2001 (Cth) … Read more


ACCC successfully enforces the B2B UCT law in court action against waste management provider, JJ Richards

The ACCC has been successful in its first court action enforcing the business to business unfair contract terms regime. The action was taken against JJ Richards & Sons Pty Ltd (JJ Richards), one of the largest privately-owned waste management companies in Australia and concerned JJ Richard’s service agreement. Background From 12 November 2016, the business … Read more


Competition Law in Australia enters uncharted waters

The Federal Government last week passed the Competition and Consumer Amendment (Competition Policy Review) Act. This and the linked Competition and Consumer Amendment (Misuse of Market Power) Act amend the Competition and Consumer Act 2010 (CCA) to implement recommendations from the ‘Harper Review’ of competition law that commenced in 2014. Together, the two Acts implement … Read more


Tax Insight: Reduced corporate tax rate – New passive income test

Yesterday, the Treasury Laws Amendment (Enterprise Tax Plan Base Rate Entities) Bill 2017 was introduced in the House of Representatives, placing further limits on the eligibility for the reduced corporate tax rate, currently 27.5%. What’s changed? Currently, a company qualifies for the reduced corporate tax rate of 27.5% if they are a corporate tax entity … Read more


21st Edition – National Insolvency & Reconstruction Quarterly Review

Welcome to the latest edition of our National Insolvency & Reconstruction Quarterly Review for the period 1 July 2017 to 30 September 2017. A significant amount of activity has occurred in our space over the last quarter and we outline a few of those matters in this edition. In particular, our team: Examines some of … Read more


Pre-appointment work – where is the line?

The importance of a Declaration of Independence, Relevant Relationships and Indemnities (DIRRIs) and the independence of external controllers has been a focus for an extended period of time, since before the ASIC v Franklin decision.  In increasingly large and complex insolvency matters, the issues of independence and its perception of independence are matters that not … Read more


In the matter of Ten Network Holdings Limited (Administrators Appointed) (Receivers and Managers Appointed) and Others [2017] NSWSC 1247

Background The Ten Group of Companies (Ten Group) entered into voluntary administration on 14 June 2017 and appointed Mark Korda, Jarrod Villani and Jenny Nettleton of Korda Mentha as joint and several administrators (Administrators) of each of the companies within the Ten Group. On 7 August 2017, the Administrators invited the submission of recapitalisation and … Read more


Insolvency Law Reform – A new world for creditors after 1 September 2017

The Insolvency Law Reform Act 2016 (Cth) (ILRA) has introduced an extensive suite of changes to insolvency law. The reforms have been implemented in two tranches, the first of which commenced on 1 March 2017 and the second tranche of reforms commenced on 1 September 2017. As part of the reforms to insolvency law, the … Read more


Limitations to the right of set off

Introduction A recent decision of the Supreme Court of Western Australia has held that where a company is in liquidation: The only right of set off available to a debtor is pursuant to section 553C of the Corporations Act 2001 (Cth) (Act) and contractual and other rights of set off are not enforceable; and Where … Read more


Creditors beware: a judgment debt is not always enough

Introduction It is well-known that Bankruptcy Courts have the power (and obligation) to ‘go behind’ a judgment in certain circumstances to determine if there is a genuine debt.  Most attempts to do so involve either a default judgment or allegations of improper conduct. What has not been clear was when the Bankruptcy Courts would be … Read more


Door rolls open for administrators to recover remuneration for work impliedly requested: the latest in a line of cases on invalid appointments

Darwin is not ordinarily regarded as a petri dish of insolvency jurisprudence, but the Northern Territory Supreme Court’s recent decision in Blackadder v McQuinn (No. 2) [2017] NTSC 57 has broken new ground by expanding the extent to which invalidly-appointed administrators can claim remuneration and expenses. Ordinarily, when a company is validly placed into voluntary … Read more


Changes to the Queensland Planning Regulation to allow development applications to be lodged prior to remediation or validation of contaminated land

On 10 August 2017, we provided our first in a series of e-alerts regarding difficulties with the implementation of the new Planning Act 2016 (Planning Act) and the Planning Regulation 2017 (Regulation).  As at the date of our previous e-alert, a development application for a material change of use for a sensitive use or a commercial use involving an … Read more


5th edition – Life Insurance Quarterly Newsletter

We are delighted to welcome you to the fifth edition of the HWL Ebsworth Life Insurance Quarterly Newsletter. With insurance lawyers in each capital city, HWL Ebsworth has one of the largest insurance practices in Australia, dedicated to assisting clients in all aspects of insurance and reinsurance. Within the national practice group we have a … Read more


Updated Bushfire Management Overlay introduces new permit requirements across Victoria

New Bushfire Management Overlay (BMO) mapping and schedules were introduced by Ministerial Amendment GC13 on 3 October 2017. These long anticipated changes to the BMO mapping were made after targeted consultation with local government and other stakeholders. The new BMO mapping and associated permit requirements take effect immediately. The new BMO mapping may affect development … Read more


Rogue roos on runways

Seat belts fastened, tray tables stowed, phones switched off…and watch out for kangaroos? The beloved Aussie symbol of the ‘flying kangaroo’ takes on a whole new meaning following a recent decision of the NSW District Court, which saw a local Council held liable to an aircraft owner, Five Star Medical Centre Pty Limited, after a kangaroo … Read more


Australian Appeal Court reduces air carrier’s share of liability for death of cattle after shipper fails to provide a load plan.

The New South Wales Court of Appeal has allowed in part, an airline’s appeal against the decision of Norton DCJ in the NSW District Court, reducing the airline’s share of liability from 60% to 20% for the death of cattle on board one of its flights after the shipper failed to provide it with a load plan. Background … Read more


Banking and Finance Disputes Monthly – Regulatory Spring Clean

September has seen a lot of government regulatory activity in the regulators’ continued effort to spring clean the financial services sector and the corporate sector at large. This follows a hive of activity in recent months across the regulatory spectrum, with regulators such as AUSTRAC, APRA (its independent inquiry into the Commonwealth Bank) and the … Read more