Publications

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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


Brisbane Commercial e’Newsletter – September 2017

Welcome to HWL Ebsworth’s Commercial e-Newsletter for Queensland. We trust that you will find the information in this edition useful, timely and practical. HWL Ebsworth’s Commercial group offers a diverse range of expertise including in Mergers & Acquisitions, Capital Markets, Corporate Governance, Commercial Contracting, Taxation, Energy & Resources, Intellectual Property, Information & Technology and Franchising, … Read more


From office to bedroom – Romantic relationships in the workplace

There has recently been significant media attention concerning certain high profile executives having “inappropriate relationships” with employees within their organisations. These stories raise questions about the scope of an employer’s ability to regulate personal relationships in the workplace. So, when does a personal relationship become an employer’s business? Dating a colleague – Whose business is … Read more


Victoria to overhaul environmental regulation

The Victorian Government will overhaul its approach to environmental regulation, taking a more preventative approach. The Victorian Environment Protection Authority (EPA) revealed the plans at a recent Australian Environment Business Network seminar hosted by HWL Ebsworth. The new approach is expected to be included in a draft Bill, due next year, which will rewrite the … Read more


Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 – Commences

The Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 received Royal Assent on 14 September 2017. The amendments to the Fair Work Act 2009 commenced today 15 September 2017. Importantly, responsible franchisor entities and holding companies can be held liable for contraventions of specified civil remedy provisions of the Fair Work Act by their franchisees … Read more


Tax Insight: Legislation introduced on foreign owner annual vacancy fee

As foreshadowed in the 2017-18 Federal Budget, on Thursday 7 September 2017 the Treasury Laws Amendment (Housing Tax Integrity) Bill 2017 was introduced in the House of Representatives to implement an annual vacancy fee on foreign owners of residential real estate. In this Tax Insight we explore this new cost on foreign investment. When will … Read more


Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Bill) Passed

On Tuesday 5 September 2017 the Fair Work Amendment (Protecting Vulnerable Workers) Bill 2017 (Bill) was passed by the House of Representatives after a long period of debate and following a number of amendments which were made by the Senate. The Bill amends the Fair Work Act 2009 (Act) and introduces several new reforms that … Read more


Project Bank Accounts under the Building Industry Fairness (Security of Payment) Bill 2017

Building industry fairness (security of payment) bill 2017 The Building Industry Fairness (Security of Payment) Bill 2017 (Bill) was introduced to the Queensland parliament on 22 August 2017. It’s main purpose is said to be1 “to help people working in the building and construction industry in being paid for the work they do.” The Bill primarily seeks to … Read more


Trends in sustainability reporting and carbon risk disclosure

Sustainability reporting is not mandatory in Australia but many companies report voluntarily on social and environmental performance to meet annual disclosure obligations, assist with stakeholder engagement and demonstrate a commitment to corporate social responsibility (CSR). A recent survey conducted by the Australian Centre for Corporate Social Responsibility (ACCSR) found that 53% of the Australian respondents … Read more


Australia: SVC risk and regulation

The Australian Transaction Reports and Analysis Centre (‘AUSTRAC’) has recently published its first ‘Money Laundering and Terrorism Financing Risk Assessment: Stored Value Cards’ (‘SVC Assessment’), which analyses the potential of stored value cards (‘SVCs’) to be used for money laundering or terrorism financing (‘ML/TF’) purposes. HWL Ebsworth Partner, Michael Anastas and Trainee Solicitor Elizabeth Singleton … Read more


Gig economy no safe haven against employment laws

The South Australian Employment Tribunal (Tribunal) has held that an Uber driver was in an employment relationship with the Company that provided him with his vehicle. In taking the common law approach to the ‘gig economy’ relationship, the Tribunal considered the following factors supported a finding that an employment relationship existed: The Company provided the … Read more


Queensland’s first conversion application heard in the Planning and Environment Court

Under the former Sustainable Planning Act 2009 (Qld) (SPA), and the current Planning Act 2016 (Qld) (PA), developers may apply to a local government to convert non-trunk infrastructure to trunk infrastructure.  Until last week, this new area of the law had been untested. A recent decision of her Honour Judge Kefford in The Avenues Highfields … Read more


Energy update – Victorian embedded networks

The Victorian Government has today released its final determination on exemptions for embedded networks, with the intention that there will be a new exemption order issued replacing the previous “General Exemption” order in council applicable to Victorian embedded networks and on-selling. The final paper contemplates adopting multiple “deemed / registrable / individual” classes along the … Read more


Eliminating unfair contract terms in small business lending contracts

The Australian Securities and Investments Commission (ASIC) and the Australian Small Business and Family Enterprise Ombudsman (ASBFEO) has issued a joint media release (accessible here) welcoming the changes agreed to by the big four banks to eliminate unfair contract terms in small business lending contracts. The changes will be applied by the big four banks … Read more


Banking & Finance Disputes Monthly – August 2017

The use of cheques reached its peak in 1995 but since then has been in decline as we transition to electronic payment alternatives. Despite their decline, cheques are not extinct and are not immune to the potential chain of events that can adversely impact funds that are the subject of the cheque during the period … Read more


Planning, Environment and Government Newsletter – August 2017

Welcome to the August 2017 edition of HWL Ebsworth’s Planning, Environment and Government e’Newsletter for New South Wales. We trust that you will find the information in this edition useful, timely and practical. HWL Ebsworth’s Planning, Environment and Government Group offer strong planning advisory expertise and a forward thinking approach to planning and environmental law. … Read more


New Housing Code in the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008

The State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) allows home owners to develop property without lodging development applications with Council where the development is classified either as exempt, requiring no consent, or complying, requiring certification from an accredited certifier or Council. On Friday 16 June 2017, the NSW Department of … Read more


Intellectual Property, Technology and Media Newsletter

Welcome to our Newsletter, bringing you the latest in Intellectual Property, Technology and Media Law news. Recent accolades for our IP, Technology and Media team  Daniel Kiley (Senior Associate, Adelaide) was recently named by Doyle’s Guide as a ‘Rising Star’ for Intellectual Property and TMT in Australia. Nicholas Pullen was recommended for TMT in Victoria.Our … Read more


Merchant Surcharging Rules Commence 1 September 2017

From 1 September 2017, new merchant pricing standards will apply to all merchants that accept credit card, debit card and prepaid card payments (Eftpos, MasterCard and Visa cards and AMEX companion cards). 1. New ban takes effect for all merchants from 1 September 2017 New laws that ban excessive payment surcharges by merchants will apply … Read more


The new South East Queensland Regional Plan released

The Queensland Government has released the final South East Queensland Regional Plan 2017, also known as ‘ShapingSEQ’. ShapingSEQ took effect on Friday 11 August 2017, replacing the South East Queensland Regional Plan 2009 – 2031. Click here to view the final version of ShapingSEQ. ShapingSEQ is supported by new Regulatory Provisions in the Planning Regulation … Read more


HWL Ebsworth advises the South Australian Government on the Lands Services commercialisation

HWL Ebsworth is pleased to be advising the South Australian government as the external legal adviser on the commercialisation of its transactional land services. HWL Ebsworth has worked under the leadership of the Crown Solicitor’s Office Chief Commercial Counsel, Chris Gray, since being appointed in August 2016. On Thursday it was announced that Land Services … Read more


ACCC puts new car industry on notice about alleged consumer law breaches

The Australian Competition and and Consumer Commission (ACCC) has today released a draft report of its market study into Australia’s new car retailing industry. The draft report makes three key findings and makes a number of draft recommendations to address those findings which include law reform and enforcement action. The draft findings and recommendations have … Read more


HWL Ebsworth Lawyers advises ResourceCo on clean energy funding

Leading national law firm HWL Ebsworth has assisted ResourceCo Pty Ltd in relation to its $30 million funding facility with the Clean Energy Finance Corporation to build two new plants to transform waste materials into solid fuel, known as Processed Engineered Fuel (PEF). The first plant will be built at Wetherill Park in Sydney and … Read more


Holden gives ACCC enforceable undertaking for ACL guarantees

The Australian Competition and Consumer Commission (ACCC) has today announced that it has accepted a court enforceable undertaking from GM Holden Ltd (Holden) in relation to Holden’s consumer guarantee obligations under the Australian Consumer Law (ACL). The ACCC can choose to accept an enforceable undertaking under section 87B of the Competition and Consumer Act 2010 (Cth) in order to settle or … Read more


WA Supreme Court decision may delay the clean up of toxic sites

In Western Australia, the Contaminated Sites Committee (CSC) determines responsibility for the clean up of contaminated sites. A recent WA Supreme Court decision1 has confirmed that the jurisdiction of the CSC to determine responsibility is limited to sites that are classified under the Contaminated Sites Act 2003 (WA) (Act) as ‘contaminated – remediation required’. Implications for your business If you … Read more


20th Edition – National Insolvency & Reconstruction Quarterly Review

Welcome to the latest edition of our National Insolvency & Reconstruction Quarterly Review for the period 1 April 2017 to 30 June 2017. A large 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 the recent … Read more