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Domestic Violence during the COVID-19 pandemic: Raising Awareness and Providing Assistance

With an increase in working and studying from home, together with the restriction of social activities outside of the home and closure of many non-essential services due to social distancing measures, there have been concerns expressed that these restrictions will inadvertently lead to an increase in domestic or family violence within the family home, whether this is in the form of acts of physical abuse, sexual assault, or psychological harm against adults and/or serious neglect of children. There is a greater concern, that persons experiencing domestic or family violence may be further apprehensive in seeking assistance from community organisations.

The Federal Government has announced additional measures to help persons experiencing domestic or family violence during the COVID-19 pandemic by raising awareness through its Help is Here Campaign as well as providing extra funding to the Salvation Army and the Men’s Referral Service as a part of its Domestic Violence Support Package.

Help is Here Campaign

The Help is Here campaign aims to raise awareness to promote that violence and abuse against either women or men are never acceptable in our society, regardless of whether are people feeling an increase in stress or anxiety, or families are experiencing new financial difficulties during the COVID-19 pandemic. The campaign broadcasts this message to the community through a variety of media and print services, providing the contact information for the two key national services, which are in operation at all hours:

1. 1800RESPECT (tel: 1800 737 732) and www.1800respect.org.au

2. MensLine Australia (tel: 1300 789) and www.mensline.org.au

Through accessing either of the two national telephone services, persons are then directed to appropriate help by trained staff.

Salvation Army’s Keeping Women Safe in their Homes for its Safer in the Home program

This program aims to keep women and their children, who have experienced violence, in the family home, where it is safe and appropriate to do by implementing additional measures, such as installation of alarms, security screens and locks, conducting sweeps and de-bugging of cars and homes and phone security breach scanning.

The Federal Government’s grant of additional funding to this program will provide access to the service for up to 200 more women. Women accessing this service will be able to engage the Salvation Army to conduct home safety audits, risk assessment and safety planning, as well as home security upgrades.

Contact: Domestic Violence Line (tel: 1800 65 64 63)  https://www.salvationarmy.org.au/need-help/family-and-domestic-violence/find-help-for-domestic-violence/#sith

If you are experiencing domestic or family violence, please seek urgent help from any of the appropriate community organisations available to you.

For emergencies, please contact the police (Tele: 000).

Source: Minister for Families and Social Services, Media Releases 3 May 2020 and 7 May 2020.

Disclaimer

This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

External Administration: A Way out Australian Businesses in Financial Distress?

On 21 April 2020, Virgin Australia, Australia’s second largest airline, went into ‘voluntary administration’ due to financial distress, marking the most prominent victim of the COVID-19 pandemic. In Virgin’s own words, the voluntary administration will recapitalise Virgin’s business and help it emerge in a stronger position after the pandemic.

What is voluntary administration? How does it work? Is it an effective way out for Australian businesses in financial distress? This article will briefly outline the answers to these questions.

What is administration?

Under the Australian Corporations Act 2001 (‘the Act’), what Virgin refers to as ‘voluntary administration’ is a procedure undertaken by a company when it is or likely to be insolvent. An administrator, who is external to and independent of the company, will be appointed to administer the company’s affairs to achieve specific outcomes. The process is also termed ‘external administration’ or simply ‘administration’ under the Act.

Under the Act, the purpose of administration is two-fold. It is either:

  1. to maximise the chances for the company and its business to survive; or
  2. if survival is impossible, to have the company wound up immediately for the benefit of its creditors and shareholders.

Procedure of administration

External administration of company usually consists of the following steps:

  1. the company’s directors resolve that in their opinion, the company is insolvent or is likely to become insolvent in the near future, and an administration should be appointed
  2. appointing an administrator
  3. first directors’ meeting with the administrator
  4. administrating the company affairs by administrator
  5. meeting with the company’s creditors to decide the company’s future
  6. outcome of administration – normally one of the following:                                                                             (1) the company executes a deed of company arrangement with the administrator;                             (2) the company creditors resolve that the administration should end;                                           (3) the company creditors resolve that the company should be wound up.

Who can be an administrator?

An administrator must be a registered liquidator free of connections to the company. The following types of persons or body corporates are excluded by the Act from being an administrator except with leave of the court:

  1. a debtor to the company or its related companies indebted for more than $5,000;
  2. a creditor of the company or its related companies for a debt more than $5,000;
  3. directors, secretaries, senior managers, employees and auditors of the company and their partners, employers or employees etc; and
  4. directors, secretaries, senior managers and employees of a secured party in relation to the company’s property.

How does the administrator work?

The administrator assumes control over the company with a broad range of powers in order to achieve the purpose of administration. Such powers include:

  1. control of the company’s business, property and affairs;
  2. access to the company’s books;
  3. appointment and removal of directors;
  4. execution of documents; and
  5. bringing or defending legal proceeding in the company’s name.

The administrator has two fundamental tasks, namely:

  1. investigate the company’s business, property, affairs and financial circumstances to determine which outcome of administration is suitable in the interest of the its creditors; and
  2. report to the Australian Securities and Investments Commission (ASIC) about offences or misconducts of the company’s officers, employees or shareholders.

The company’s directors must assist the administrator by providing the administrator with:

  1. access to and information of the company’s books;
  2. information of the company’s position; and
  3. information of the company reasonably required by the administrator.

Protection of the company during administration

In order to maintain the company’s property during administration, a range or actions against the company are either restricted or suspended, including:

  1. winding up;
  2. exercise of third party property rights such as charges;
  3. proceedings against the company; and
  4. enforcement processes.

Outcome of administration

Approaching the end of the administration, a meeting will be held with the company’s creditors to decide the company’s future where the creditors may resolve on the outcome of administration.

If the creditors resolve that a deed of company arrangement be executed, the executed deed will bind all the company’s creditors and deal with the company’s debts in accordance with its terms. The administrator will administrate the deed unless otherwise resolved by the creditors.

However, if a deed of company arrangement is impractical, the creditors may also resolve that the administration should end or the company be wound up.

Conclusion

To conclude, when the company is insolvent or likely to become insolvent, external administration could be a way of achieving a better outcome of the company. However, administration may also lead the company to winding up if the circumstances of the company are so grim that a company arrangement with its creditors is impracticable. Thus, external administration must be choice carefully made by the company in the light of its circumstances, such as its assets and debts, potential of restructuring and so on.

For more information relating to company insolvency, please refer to our article Risk and Avoidance of Insolvent Trading During COVID-19 Pandemic.

Please contact our firm for advice specific to your circumstances.

Disclaimer

This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Risk and Avoidance of Insolvent Trading during COVID-19 Pandemic

The COVID-19 pandemic has brought financial difficulties to Australian business due to reduced customers, reduced trade, and hence reduced income. In this context, it is imperative for company directors to keep track of the company’s balance sheet and business activities to avoid ‘insolvent trading’, for which they may be personally liable under the Australian Corporations Act 2001 (‘the Act’).

In this article, we will give you an outline of what ‘insolvent trading’ is, its consequences, avoidance, defences and special relief provisions during the pandemic.

What is insolvent trading?

A company is ‘solvent’ if it is able to pay all its debts when they become due and payable. Otherwise, the company is ‘insolvent’.

‘Insolvent trading’ occurs in either circumstance below:

  1. a company incurs a debt when the company is insolvent; or
  2. a company becomes insolvent by incurring debt.

A company may incur debt in various ways in the sense of insolvent trading. Apart from incurring debts in the usual sense, it also includes paying a dividend, buying back shares, issuing redeemable preference shares, financially assisting a person to acquire shares etc.

Director has a duty to prevent insolvent trading

A director of a company contravenes the Act if the director fails to prevent the company from insolvent trading when he or she is a director (‘contravening director’). Depending on the circumstances, the contravening director may incur civil or criminal liability.

A director may incur civil liability if the director fails to prevent the company from incurring debt in either of the following circumstances:

  1. the director is aware that there are grounds for suspecting that the company is insolvent when incurring the debt, or would become insolvent by incurring that debt; or
  2. a reasonable person in a like position, given the company’s circumstances, would be aware of such grounds for suspecting.

A director may incur criminal liability if:

  1. the company is insolvent when incurring the debt, or would become insolvent by incurring that debt;
  2. the director suspects the above, but nonetheless fails to prevent the company from incurring that debt; and
  3. the director’s failure of prevention was dishonest.

Director’s liability of insolvent trading

A contravening director may face legal actions by the Australian Securities and Investments Commission, the company, liquidators or creditors. The court may make various orders against the contravening director including:

  1. a compensation order, to compensate the company or the creditor;
  2. a relinquishment order, for the contravening director to pay to the federal government the benefit obtained by the director by contravening the Act (‘benefits by contravention’); and
  3. a pecuniary penalty order, for the contravening director to pay a monetary penalty up to 5,000 penalty units (currently $1.05 million) or 3 times the benefits by contravention, whichever is greater.

Where criminal liability is involved, a contravening director may incur up to 5 years of imprisonment to addition to monetary penalties.

Further consequences for the contravening director include:

  1. if the director is unable to pay for the compensation order, relinquishment order or monetary penalties, the director may be bankrupted; and
  2. the director’s bankruptcy or criminal conviction may disqualify the director from managing a company.

How to avoid liability of insolvent trading?

A director may avoid liability of insolvent trading if, after starting to suspect that the company is insolvent or may become so, the director starts developing a course of action reasonably likely to give the company a better outcome. A debt incurred when such a course of action is in place might not be taken as a debt leading to insolvent trading (‘contravening debt’).

In this regard, what the director must do include:

  1. understand the company’s financial position;
  2. take appropriate steps to prevent misconduct by company officers or employees what could compromise the company’s solvency;
  3. take appropriate steps to ensure that the company keeps proper financial records;
  4. take professional advice (by giving the professional sufficient information); and
  5. develop or implement plans to improve the company’s financial position, such as restructuring.

Furthermore, the director must ensure that the company continues to pay its employees’ entitlements and file tax returns.

Relief of liability of insolvent trading during COVID-19 pandemic

Section 588GAAA of the Act in relation to insolvent trading during COVID-19 took effect from 25 March 2020 for 6 months subject to any regulations. When Section 588GAAA is in effect, a company’s debt is not taken as a contravening debt if it is incurred in the ordinary course of the company’s business.

What defences are available in the event of insolvent trading?

If insolvent trading occurs, a director might rely on the following defences:

  1. the director had reasonable grounds to expect, and did expect that the company was solvent and would remain solvent by incurring the contravening debt; Please note that such a reasonable ground may include the director’s reasonable belief in another person who is competent and reliable in providing information of the company’s solvency;
  2. the director did not participate in the management of the company when the contravening debt was incurred, because the direct was ill or for some other good reason; or
  3. the director took all reasonable steps to prevent the company from incurring the contravening debt.

Please contact our firm for advice specific to your circumstances.

Disclaimer

This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Rent Relief for Small & Medium Enterprises in NSW amid COVID-19 Pandemic

On 7 April 2020, Australian states and territories agreed to adopt a National Cabinet Mandatory Code of Conduct—SME Commercial Leasing Principles During COVID-19 (‘Code of Conduct’) to address the pressing need for helping small and medium enterprises (SMEs) through the pandemic where they have difficulties in paying their rent as they face falls in trade, restrictions and even forced shut down of business. The Code of Conduct was formally implemented in New South Wales on 24 April 2020 under the Retail and Other Commercial Leases (COVID-19) Regulation 2020 (NSW) (‘the Regulation’).

The Regulation serves to enforce the principles in the Code of Conduct in the form of law with effect from 24 April 2020 for 6 months. In this article, we will outline the essential provisions in the Regulation.

Which leases are subject to the Regulation

The Regulation applies to commercial leases including those of:

  1. retail shops;
  2. shops in retail shopping centres; and
  3. other land or premises for commercial purposes such as offices, excluding agricultural tenancies.

The applicable lease must be:

  1. a leases entered into on or before 24 April 2020; or
  2. a leases entered into after 24 April 2020 by option or other means to extend or renew the lease on the same terms as the existing lease entered into on or before 24 April 2020.

Which lessees are eligible

An eligible lessee under the Regulation, termed ‘impacted lessee’, is an SME whose turnover of business in the 2018-2019 financial year was less than $50 million (‘turnover threshold’). The turnover threshold applies to the group turnover if the lessee is a member of a corporate group, but it applies to the lessee’s own turnover if the lessee is a franchisee. Notably, turnover includes that derived from internet sales.

Apart from the turnover threshold, the impacted lessee must also satisfy the fall in turnover test under the government JobKeeper scheme. Normally, the lessee’s turnover (monthly or quarterly) from March 2020 must have fallen by at least 30% compared to the same month or quarter in 2019.

For more information about the JobKeeper scheme, please refer to:

https://www.ato.gov.au/General/JobKeeper-Payment/

Freeze on rent increase

A freeze period is imposed on rent increases. Rent under commercial leases with an impacted lessee except turnover-based rent cannot increase before 24 October 2020. Moreover, the amount by which the rent could have been increased during that period cannot be recovered from the lessee afterwards.

Moratorium on eviction etc

A moratorium is also imposed to protect impacted lessees who have any of the following circumstances (‘Impacting Event’):

  1. failure to pay rent;
  2. failure to pay outgoings (such as lessee’s contribution to the expenses of the management, operation, maintenance or repair of a retail shop building);
  3. failure to operate business under the business hours specified in the lease; or
  4. doing or not doing a thing required under a federal or state law in response to the pandemic.

Before 24 October 2020, lessors will be prevented by the Regulations from unilaterally seeking actions against the impacted lessee for an Impacting Event, including (‘Recovery Actions’):

  1. termination of the lease;
  2. requiring payment of interest on unpaid rent;
  3. eviction of the lessee (including re-entry, seeking possession, or distraint of goods); and
  4. drawing on the bond of guarantee to recover unpaid rents and damages.

Lessor-Lessee negotiation & mediation process

In order to seek the above actions for the lessee’s payment of rent, the Lessor must first undergo the lessor-lessee negotiation & mediation process below or otherwise agree with the lessee.

The negotiation, which can be request by any party to the lease, must take into account the economic impacts of the pandemic and the principles in the Code of Conduct. Under the essential principles of the Code of Conduct, the lessor is required to:

  1. offer the impacted lessee rent relief – the percentage of the rent relieved corresponds to the percentage of the lessee’s drop in turnover during the pandemic period and a subsequent reasonable recovery period afterwards.
  2. relief the rent in accordance with the legislation: (a) at least half should be waived; (b) the remainder of the rent must be deferred and amortised over the greater of 24 months or the balance of the lease term;
  3. offer the lessee extension of the lease for a period equivalent to the rent waiver or deferral, so that the lessee has more time to trade on existing lease terms for recovery after the pandemic;
  4. reduce the lessee’s contribution to tax, statutory charges (e.g. council rates) and insurance payments to the extent that the amounts of these charges payable by the lessor are reduced (for example, see the Land Tax Reduction below).

The lessor must not charge fees, interests or other punitive charges against the lessee regarding the rent relieved.

If the negotiation fails, the lessor needs to submit the matter to the New South Wales Small Business Commissioner for mediation. Only after the failure of the mediation as certified by the  Commissioner in writing can the lessor seek Recovery Actions.

Lessee must adhere to the terms of the lease

It is imperative that the lessee adhere to the terms of lease subject to any variation as a result of the negotiation, because the Regulation does not prevent Recovery Actions for reasons not related to the pandemic such as damage to the premises.

Land Tax Reduction

To stimulate rent relief, a lessor of commercial property in New South Wales may have the land tax payable in the 2020 land tax year (1 January to 31 December 2020) in relation to the leased property reduced by up to 25% if:

  1. the property is leased to an impacted lessee; and
  2. the landlord reduces the rent of the impacted lessee, the amount of rent reduction will be the amount of land tax reduction.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Remote Document Witnessing in NSW amid COVID-19 Pandemic

Various types of legal documents in Australia must be signed by a party in person before a witness. Such a requirement poses public health risks amid the COVID-19 pandemic as parties and witnesses such as legal practitioners have to travel to workplaces to proceed with the signing and witnessing, which expose them to the risk of infection.

In response, New South Wales recently introduced amendments to the Electronic Transactions Regulation 2017 (NSW) (‘the Regulation’) to allow the signing and witnessing of documents through audio visual link from 22 April 2020. The Regulation will be in force for 6 months unless otherwise resolved by the state Parliament. In this article, we will give you a brief outline of such an arrangement.

Technical Requirement for audio visual link

The link technology used by the signatories and witnesses at different places must meet the following criteria:

  1. the technology enables both audio and visual communication between the parties; and
  2. the communication must be continuous and contemporaneous.

Where audio visual link can be used

Where a document must be signed in the presence of a signatory, witness or other person, the person can be present by audio visual link. Particular circumstances where audio visual link can be used include:

  1. signing a document in the presence of a witness
  2. attesting a signature
  3. certifying matters required by law
  4. seeing the face of the signatory
  5. confirming or verifying the identity of the signatory
  6. swearing or affirming the contents of an affidavit

What document can be witnessed by audio visual lin

Documents that can be witnessed by audio visual link under the Regulation include:

  1. Deeds or agreements
  2. Wills
  3. Powers of attorney
  4. Enduring powers of attorney
  5. Enduring guardianship appointments
  6. Statutory declarations
  7. Affidavits (including its annexures or exhibits)

How audio-visual link witnessing works

Step 1:

A signatory and a witness meet by audio visual link such as video conference.

Step 2:

The signatory signs the document, with the witness observing the signatory sign the document in real time.

Step 3:

The witness confirms the witnessing of the signature. For the way of confirmation, two examples are specified in the Regulation:

  1. Signing a counterpart – after the witnessing the signing, the witness signs a counterpart of the document as soon as practicable.
  2. Countersigning – as soon as practicable after the witnessing of the signing, the signatory scans and sends a copy of the signed document to the witness electronically, and the witness countersigns that document.

The witness must be reasonably satisfied that the document signed by the signatory is the same document as that signed by the witness.

Step 4:

The witness endorses the signed document with a statement which specifies the method of witnessing and that the document was witnessed in accordance with clause 2 of Schedule 1 to the Electronic Transactions Regulation 2017.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Public Health Orders in New South Wales amid COVID-19 Pandemic

As at the date of this article, New South Wales has recorded over 2,000 confirmed cases of COVID-19 accounting for nearly a half of the national case number in Australia. Empowered by the Public Health Act 2010 (NSW) (‘the Act’), the state government has issued a series of public health orders in order to control the pandemic.

In this article, we will make an overview of these public health orders covering aspects of social distancing, quarantine, and protection of vulnerable groups of the community. It is highly advisable to comply with these orders for protecting oneself and the community. A failure to comply may incur substantial fines and even imprisonment.

Social distancing

Strict social distancing rules are imposed by the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 as follows:

  1. A person must not leave his place of residence without a reasonable excuse such as obtaining food or other goods and services, traveling to work or school if that cannot be done at home, exercise or medical or caring reasons. It is particularly stressed that taking a holiday in a regional area is not a reasonable excuse.
  2. No more than 2 persons can gather in public places except for work, care or assistance of vulnerable persons, emergency assistance, gathering by members of the same household, weddings attended by no more than 5 persons, funerals attended by no more than 10 persons, moving of home or business premises. Exemptions also apply to exempted premises such as courts, emergency services, schools, supermarkets etc.
  3. Non-essential business premises are either closed, such as entertainment and sports facilities, or restricted in operation, such as food and drink premises confined to take-away services.
  4. The occupier or operator of premises other than a person’s place of residence or exempted premises must ensure that less than 500 persons be allowed to enter or stay on an outdoor premises at the same time, and less than 100 allowed to enter or stay on an indoor premises at the same time. The occupier or operator must deny entry or stay if the premises is not large enough to keep each person there 4 square metres apart from another.

This order commenced on 31 March 2020. Its expiry remains at the direction of the government for it specifies no expiry date. Moreover, the government has a general power under the Section 7 of Act to make orders it thinks fit.

Quarantine

Under Public Health (COVID-19 Air Transportation Quarantine) Order 2020, persons arriving in the state by air who has been overseas within 14 days before his arrival must be quarantined upon arrival for a certain period, which is currently 14 days.

Under Public Health (COVID-19 Maritime Quarantine) Order 2020, persons on a vessel arriving in the state from a port outside the state must not disembark unless authorised by the Commissioner of Police or required as a result of emergency. Person allowed to disembark must also be quarantined for 14 days upon landing.

Under Public Health (COVID-19 Self-Isolation) Order 2020, a person diagnosed with COVID-19 must immediately self-isolate at a place of residence, or go to a hospital if a health practitioner thinks necessary. After being discharged from the hospital, the person still needs to self-isolate immediately. The person must remain in self-isolation until he is assessed by a medical practitioner to be free of the COVID-19 virus.

The person in self-isolation must not leave his place except for obtaining medical care or medical supplies or emergency circumstances. He cannot let anyone else in except those usually living with him, those for medical or emergency purposes, or those for delivery of food or essential items.

The order relating to arrival by air will be repealed on 25 June 2020, and the one on self-isolation on 23 June 2020. No such expiry date is specified in the order relating to maritime arrivals.

Protection of vulnerable groups

According to Public Health (COVID-19 Residential Aged Care Facilities) Order 2020, access to a residential aged care facility is restricted to its residents, prospective residents, employees or contractors of the facility operator, and persons providing necessary goods or services, health services, care and support visit on the day, end-of-life support, emergency management and law enforcement, unless exemption applies granted by the Minister of Health in writing.

However, persons except residents are denied access to aged care facilities if the person has a fever or other symptoms of acute respiratory infection, does not have up-to-date flu vaccination, or if within 14 days before the proposed access, the person has arrived from overseas or had known contact with another person who has a confirmed case of COVID-19. Persons under 16 are also denied access except for providing end-of-life support for a resident.

Lord Howe Island, an island group 600 km from the New South Wales mainland with a few hundred inhabitants, is also subject to access restriction and quarantine upon arrival measures under the Public Health (COVID-19 Lord Howe Island) Order 2020.

The order relating to aged care facilities is to end on 22 June 2020, and the one relating to Lord Howe Island on 18 June 2020.

Consequences of failure to comply

It is an offence under Section 10 of the Act not to comply with the public health orders, such as violating social distancing rules, opening up business when it should have been closed, or breaking out of self-isolation or quarantine. Currently

  1. An individual offender may be fined up to $11,000 with a further $5,500 fine for each day the offence continues. The offender may even be sentenced to imprisonment for up to 6 months.
  2. A corporation offender may be fined up to $55,000 with a further $27,500 fine for each day the offence continues.

Moreover, the police have powers to arrest an offender and take him back to his home or place of quarantine, and issue penalty notices to offenders. Such powers will be in effect for 1 year since 25 March 2020 according to Sections 71A and 118 of the Act.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

 

Legal Issues regarding Domestic Violence amid COVID-19 Pandemic

Domestic violence involves violence (including physical, psychological, financial or other forms of abuse) in relationships of family, de facto partnership, cohabitants etc. Concerns are aroused to a potential rise in domestic violence as a vast population is sent home without a job as a result of the COVID-19 pandemic. Such a concern is made clear as the Australian government included in its pandemic relief package $150 million for support related to domestic violence.

In this article, we will briefly explore some legal issues relating to domestic violence in New South Wales in the midst of the pandemic, including the potential release of domestic violence offenders and changes to the justice system relating to domestic violence cases in response to the pandemic.

Release of domestic violence offenders

Correctional premises such as prisons attract public health concerns during the pandemic given the dense concentration of inmates on those premises. In New South Wales, the Crimes (Administration of Sentences) Act 1999 has been amended to empower the Corrective Services to release an inmate on parole if its Commissioner is satisfied that the release is reasonably necessary considering the risk of public health and the good order and security of the correctional premises. Such a power lasts for 6 to 12 months from 25 March 2020. In this context, what if domestic violence offenders are released from prison and pose a risk to victims of their domestic violence after they return home?

Such a concern can be addressed by multiple safeguards in the relevant laws and regulations.

First, offenders that might be released are confined to those who face higher health risks during the pandemic because of existing medical conditions or vulnerability, such as old inmates, and inmates who might expect a release in no more than 12 months ahead. Moreover, the Corrective Services cannot release serious offenders or sex offenders. Only low-risk inmates might be released.

Second, the Commissioner of Corrective Services must take into account a range of factors when considering the release of an offender. For domestic violence offenders, the Commissioner must consider, in particular, the impact on the victim of domestic violence and persons who are likely to reside with the offender after the release. Therefore, no decision can be made lightly.

Third, an offender is only released on parole subject to parole conditions including that the offender must maintain good behaviour and must not commit any offence. If the offender breaches the conditions, minor breaches will be dealt with by Community Corrections. If the breach is serious, Community Corrections can report it to the Parole Authority which has the power to revoke the parole and have the offender arrested and returned to custody. For offenders released on parole during the pandemic by the Corrective Services, the Commissioner also has the power to impose parole conditions and revoke the parole for any reason. Therefore, should domestic violence occur again, it is possible for the offender to be taken back to prison.

Therefore, although possibility exists for domestic violence offenders to be released before completing their prison terms, multiple legal safeguards are in place to minimise their risk to the victims of domestic violence and the community.

Protection of domestic violence victims

In general, protection available to victims of domestic violence remains unchanged. In the event of domestic violence, including the victim being harmed or being threatened of harm by the offender, it is common for the victim to report to the police which might on behalf of the victim apply for an Apprehended Violence Order (AVO). If the police refuse to apply for the AVO, the victim can apply for the AVO on their own. An AVO imposes restrictions on the offender’s behaviour to protect the victim.  It is an offence to breach the restrictions under an AVO with penalties including fines and imprisonment.

What is changed amid the COVID-19 pandemic relates to court procedure aiming at reducing the risk of spreading the virus through court proceedings.

In New South Wales, an AVO application is filed with the Local Court which will schedule a court hearing to hear the case and, if circumstances so justify, make a final AVO. In response to the pandemic, the Local Court has adjourned existing AVO proceedings for at least 3 months and postponed AVO hearings. Despite that final AVO decisions will be delayed as a result, the victims can still be protected as the court can issue a provisional AVO or an interim AVO. A provisional AVO is applied for by the police if they think it necessary to give the victim immediate protection upon the victim’s report. An interim AVO is made when a victim applies for an AVO on their own or the AVO proceeding is adjourned. Moreover, the Local Court will continue to deal with urgent applications and issue interim AVOs promptly when necessary. When the parties need to communicate with the court, they are required to do so in writing or by email.

If the domestic violence offence is so serious as to be heard before the District Court or the Supreme Court, the court may direct, or the party can apply for a direction, that a witness give evidence by audio-visual link. The court may also order that the victim give evidence in a separate evidential hearing rather than in a jury trial. Such an evidential hearing will be recorded and then played in the jury trial.

To conclude, the pandemic only brought changes to court procedure in relation to domestic violence cases for reducing the risks of parties contracting the virus by attending court hearings. The protection available to victims of domestic violence under Australian law remains unchanged.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Residential Tenancy Relief Measures in NSW amid COVID-19 Pandemic

The COVID-19 pandemic makes it difficult for a large number of Australians to pay rents for their residence as they either lost or suffer a significant reduction in their income. They risk being evicted from their homes and rent recovery actions by landlords. On 29 March 2020, the Australian states and territories agreed on a moratorium period on eviction of tenants during the pandemic which moratorium is to be implemented in the respective states and territories.

In New South Wales, not only were relevant regulations amended to impose a 6-month moratorium period from 15 April 2020, the government also grant land tax reductions to help ease the financial stress of landlords and tenants. In this article, we will make an overview of such relief measures.

TERMINATION OF TENANCY FOR RENTS OR UTILITY CHARGES IN ARREARS

  • Relevant law

The residential tenancy is regulated in New South Wales by the Residential Tenancies Act 2010 (‘the Act’) and its subordinate legislation Residential Tenancies Regulation 2019 (‘the Regulation’). Under the Act, if rents or utility charges for water, electricity, gas or oil remain in arrears for 14 days or more, the landlord can terminate the tenancy by giving the tenant at least 14 days’ of notice.

After the termination date in the notice, if the tenant fails to vacate the premises, the landlord can apply to the New South Wales Civil and Administrative Tribunal (NCAT) for a termination order and a possession order. The possession order is enforceable as the NCAT may issue a warrant of possession and have a sheriff’s officer to evict the tenant from the premises.

  • Who benefits from the moratorium

On 15 April 2020, the Regulation was amended to impose a 6-month moratorium period on eviction of an “impacted tenant”.

An impacted tenant is a member of a household which is “impacted by the COVID-19 pandemic”. Under the Regulation, any of the following events which happened to any rent-paying member of a household as a result of the pandemic can be regarded as an impacting event:

  1. loss of employment or income;
  2. reduction in work hours or income;
  3. stopping of work or material reduction of work hours because: the member or another member fell ill with COVID-19; or the member has to take care of another member who fell ill with COVID-19.

A household is ‘impacted by the COVID-19 pandemic’, and thus benefits from the moratorium, if its weekly household income fell by at least 25% compared to that before an impacting event above occurred.

It should be noted that the moratorium does not apply to social housing tenancies as they have their own rental arrangements.

  • Notes on weekly household income

First, “household” means ‘any tenants or other persons living together in the same residential premises’. They can be a family, or mere co-tenants, or even head tenants and sub-tenants (e.g. one tenant having a head tenancy with the landlord, while the other tenant having subtenancy with the first tenant).

Second, “income” is that of all the rent-paying members of the household combined. Thus, even if only one member is impacted, if the impact on that member is so great that the weekly income of the entire household dropped by at least 25%, then the moratorium still applies.

Third, “income” refers to income after tax, but it includes government payments such as social security benefits. For example, if a tenant loses his job for the pandemic but receives the JobSeeker payment, the payment will be included in the weekly household income. If that income is not at least 25% lower than the weekly household income before the tenant loses his job, then the moratorium does not apply.

  • Termination of tenancy during the moratorium

During the moratorium, if an impacted tenant is unable to pay the rent or utility charges, the landlord must first, in good faith, participate in a formal rent negotiation process with the tenant. If the landlord and the tenant cannot reach an agreement in private, they must seek assistance from NSW Fair Trading to facilitate a formal rent negotiation.

More information in this regard can be found the website of NSW Fair Trading:

https://www.fairtrading.nsw.gov.au/

Following the formal negotiation process, the landlord can issue the termination notice or apply to NCAT for termination and possession orders on or after 14 June 2020, if it is fair and reasonable in the circumstances to do so.

Note: the standard of fair and reasonable is based on a range of factors which the NCAT will take into account, including:

  1. financial positions and nature of financial stress of the landlord and the tenant;
  2. payments made by the tenant towards the rent;
  3. circumstances affecting the tenant such as vulnerability, alternative accommodation options etc;
  4. public health risks related to eviction and moving of residence; and
  5. advice from NSW Fair Trading relating to the negotiation process, e.g. whether a reasonable offer about rent was made or refused.
  • Listing in residential tenancy database

According to the Act, if the amount that the tenant owes the landlord exceeds the rental bond, or the NCAT makes a termination order, the tenant’s personal information can be listed in a residential tenancy database for landlords and agents to decide whether to give the tenant a tenancy.

However, under the amended Regulation, impacted tenants who breached their tenancy only because of rents or utilities charges in arrears cannot be listed in such databases.

TERMINATION OF TENANCY ON OTHER GROUNDS

Under the Act, the tenancy can be terminated by the landlord on a number of grounds to which different notice periods apply.

During the moratorium period, the landlord must give the tenant at least 90 days’ notice for terminating the tenancy on the following grounds:

  1. end of a fixed term tenancy;
  2. termination of a periodic tenancy, or a long term tenancy for 20 years or more; or
  3. breach of tenancy terms other than rent or utility charges in arrears.

Termination of tenancy by the landlord on other grounds remain unaffected, such as sale of premises, serious damage to the premises or injury to the landlord or agent caused by the tenant, use of premises for illegal purposes, hardship to landlord etc.

LAND TAX REDUCTION

In New South Wales, a property owner must pay land tax annually unless an exception applies such as the property being the owner’s principal place of residence or the total taxable value of the property being below the land tax threshold (which changes every year and is $734,000 for the 2020 land tax year).

A landlord of residential property may have the land tax payable in the 2020 land tax year (1 January to 31 December 2020) in relation to the leased property reduced by up to 25% if:

  1. the property is leased to an impacted tenant; and
  2. the landlord reduces the rent of the impacted tenant, the amount of rent reduction will be the amount of land tax reduction

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Justice amid COVID-19 Pandemic in New South Wales

To tackle the COVID-19 pandemic in New South Wales, which unfortunately has the most confirmed cases, the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 commenced on 25 March 2020. The general goal is to enforce social distancing and reduce travels and contacts of people, in order to control the spread of the virus and protect the general public from it.

The justice system, where personal contact such as appearance in courts and jury trials play an essential role, face changes under the measures introduced by the Bill. Such measures are temporary for at least 6 months after its commencement, but not more than 12 months as prescribed by regulations.

Alternative appearance in proceedings

An accused person in bail proceedings will appear by audio visual link unless the court directs otherwise.

The court may also direct, or a party may apply for a direction, that an accused person, a witness, or a legal practitioner representing a party appear in a proceeding by audio visual link. To make the direction, the court must consider the interest of justice and give the parties an opportunity to be heard. The court must also be satisfied that a party has a reasonable opportunity to communicate with his legal representative in private.

A person may appear before the Mental Health Review Tribunal for the purposes of mental health inquiry by way of telephone upon the Tribunal’s approval, if the Tribunal thinks it necessary due to the COVID-19 pandemic.

Trial by jury

The sheriff may exempt a person from being selected to be summoned for jury trials or coronial inquests by considering the safety or welfare of that person or the community at large.

A court may order that an accused person be tried by a judge alone if the accused having received legal advice consents such an arrangement. The court must also consider the interest of justice if the prosecutor does not agree to the arrangement.

Use of pre-recorded evidence

For criminal proceedings in the District Court or the Supreme Court, the court may order that evidence be given in pre-recorded evidence hearings without a jury. Such pre-recorded evidence is then viewed or heard in subsequent jury trials of the case. Subsequently, if there are new trials in all courts because the original trial is discontinued for any reason, or new trials ordered upon an appeal against conviction, then the pre-recorded evidence can also be admitted in such new trials unless the court declines admission on the ground of unfair disadvantage to the accused.

Witnesses eligible to give evidence in pre-recorded hearings are complainants in proceedings of sexual offence, domestic violence offences and serious indictable violence offences, as well as those who are more susceptible to COVID-19 because of age or health. Having given pre-recorded evidence, the witness will need the court’s leave to give further evidence in trials and subsequent proceedings.

To make such an order, the court must be satisfied with the interest of justice of doing so. In particular, the court must consider the wishes and circumstances of the witness and the availability of necessary facilities. The accused person must have received legal advice in this regard, and both parties must be given an opportunity to be heard. Moreover, and all the pre-trial disclosure and case management requirements are complied with.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

The Use of Listening Devices and Admissibility of Pre-recorded Evidence

Privacy is important to everyone in a civil society. NSW Parliament in 2007 enacted the Surveillance Devices Act 2007 (the ‘SDA’) to regulate the use of surveillance devices, including the installation, use and maintenance of listening devices.

Surveillance Devices Act 2007

Under section 4 of the SDA, a “listening device” means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation. The most common listening devices nowadays are mobile phones.

The SDA prohibits the use of listening device without the consent of the person whose conversation is recorded.

Section 7(1) provides that a person must not knowingly install, use or cause to be used or maintain a listening device to:

(a) Overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) Record a private conversation to which the person is a party.

Section 11 prohibits communication or publication of private conversations or recordings of activities.

It should be noted that section 7(3) of the SDA provides two exceptions to the prohibition.

Firstly, all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used.

Secondly, a principal party to the conversation consents to the listening device being so used and the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party or is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.

Admissibility of Pre-recorded Evidence

Generally speaking, the pre-recorded evidence obtained by a surveillance device is not admissible as it contravenes the SDA. But there are three ways by which the recording evidence may be successfully admitted.

1. “Reasonably necessary for the protection of the lawful interests”

By arguing that the application of ‘reasonably necessary for the protection of the lawful interests’ under s 7(3) of the SDA, the recording evidence may be admitted as lawfully obtained evidence.

For instance, in Dong v Song [2018] ACTSC 82, the recording made by the plaintiff as to confirming the content of previous talks immediately before the commencement of a civil proceeding was held to be reasonably necessary to protect the plaintiff’s lawful interests and thus was admissible.

2. The court’s statutory discretion under evidence legislation

The party that unlawfully obtains the evidence may still be able to rely on the evidence if the court exercises its statutory discretion to admit it under the evidence legislation across all Australian jurisdictions.

For example, section 138 of the Evidence Act 1995 (NSW) allows the court to admit the unlawfully obtained evidence if the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Family law authority indicates that for the purpose of determining important family issues, the court may exercise its discretion and admit the pre-recorded evidence even though the SDA has been contravened (see for example Gin & Hing [2019] FamCA 779 at [61] per Wilson J).

However, in the context of family law, whether or not the evidence occasioned by surveillance device will be admitted by the court with the exercise of its discretion depends on the facts of each case. Factors such as the relationship between the partners when the evidence is occasioned, the nature of the surveillance device, the occasion where the private conversation happens and the location of the surveillance device may play a role in the court’s decision (see for example Gawley & Bass [2016] FCCA at [70]-[73] per Baker J).

3. Evidence obtained by a lawful search warrant

If an unlawful recording leads to a lawful search warrant, then subsequent evidence is obtained legally and admissible unaffected by the previous illegality.

In Kadir v The Queen [2020] HCA 1, the High Court held that the evidence obtained by the execution of a lawful search warrant is admissible although the search warrant was issued following an unlawful recording which contravened the SDA.

The Counsel for one of the appellants, Ms Grech, argued that the Court of Criminal Appeal read s 138(1)(b) of the Evidence Act too narrowly. According to Ms Grech, the ‘way’ evidence is obtained is to be understood as referring to the entire chain of causation and not merely the final link in the chain. (Kadir at [39]).

The High Court rejected that argument, holding that the US jurisprudential theory of ‘fruit of the poisonous tree’ is not reflected in Australian evidence legislation (Kadir at [40]). Thus, the evidence obtained by a lawful search warrant is not the consequence of the contravention of the SDA, and is admissible.

Therefore for criminal proceedings, if the evidence is obtained by lawful procedure, the unlawful method which reveals the existence of illegal facts will not affect the admissibility of the final evidence.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Recognition and Enforcement of Foreign Judgements at Common Law Precedents in Victoria

The year of 2019 has seen two significant cases concerning Australian Courts recognising and enforcing Chinese civil judgements. In Suzhou Hainshun Investment Management Co Ltd v Yue’e Zhao & Ors [2019] VSC 110 and Xu v Wang [2019] VSC 269, Cameron J of the Victoria Supreme Court handed down two decisions which treated two Chinese civil judgements differently. In Suzhou Haishun, her Honour granted summary judgement for the plaintiff though the defendant argued that the Chinese judgement was of a penal nature and denied the defendant’s access to natural justice. On the contrary, in Xu v Wang, her Honour refused to recognise and thus to enforce a Chinese civil judgement on the ground of abuse of process on the part of the applicant.

The General Rule and Exceptions

As we talked about in the previous article, four conditions must be satisfied before a foreign judgement is recognised by common law. Nonetheless, there are several exceptions that might hamper a foreign judgement’s recognition and enforcement in Australia. These exceptions are briefly summarised by Cameron J in Suzhou Haishun [2019] VSC 110 at [93]. Namely：

(a) granting enforcement of the foreign judgment would be contrary to Australian public policy;

(b) the foreign judgment is obtained by fraud (including equitable fraud) by the parties or by the foreign court;

(c) the foreign judgment is penal or a judgment for a revenue debt; and

(d) the enforcement of the decision would amount to a denial of natural justice.

What you should know as a respondent in a case of a foreign judgement’s recognition and enforcement?

First, it is difficult for you to argue that enforcing the foreign judgement would be contrary to Australia’s public policy. In fact, the public policy argument is the least favourable approach.

Second, the argument that the foreign judgement is obtained by fraud is not as easy as it seems to be. In Doe v Howard [2015] VSC 75, J Forrest J citing the New South Wales decision Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 said that although there might be exceptional cases, ordinarily perjury is not enough to set aside the judgment (at [107]).

Third, in case of monetary judgement concerning debt recovery, it is hard to argue that the foreign judgement is penal in nature even though the damages or interest granted may be punitive. Cameron J in Suzhou Haishun confirmed that for a foreign judgement to be penal in nature, there must be some public element (at [97]). Whether there are sufficient public elements to generate a penal nature depends on the facts of each case, regards are to be had to the attitudes of the foreign courts, the category of the cause of cation of that foreign judgement and the purposes of relevant foreign laws (United States of America v Inkley [1989] 1 QB 255, 265).

Following Bleby J’s statement in Benefit Strategies Group Inc v Prider (2005) 91 SASR 544, 565-6 Cameron J held that if an Australian court finds that part of a foreign judgment is penal in nature, or relates to a law that is penal in nature, this does not necessarily render the judgment unenforceable in its entirety (at [101]). In fact, her Honour said that if part or all of the interest ordered to be paid by the Chinese court is held to be penal in nature, it will be entirely possible to sever those remedies from the Chinese judgments, and to enforce the remainder. As to the particular facts of Suzhou Hainshun the defendant argued that the interest rate granted by the Chinese court (quadruple the benchmark interest rate released by the People’s Bank of China for loans of the same type at the same period) was penal in nature, and Cameron J held that even though such interest rate was penal in nature, the judgement of repayment of debt was not affected and is enforceable by an Australian court.

Fourth, denial of nature justice may be the best approach to challenge the recognition and enforcement of a foreign judgement, but it will not be the case if you deliberately evade the foreign court’s lawful jurisdiction and service. In Xu v Wang, the essential reason why the Court refused to recognise the foreign judgement was that with the knowledge of the respondent’s Australian residence and contact information, the applicant instituted a proceeding in China against the respondent by substituted service, i.e., public announcement which was allowed by Chinese law. Therefore, the respondent’s right to fair trial was sacrificed.

Nevertheless, the public announcement was considered to be fair and reasonable in Suzhou Hainshun because the applicant did not know the respondent’s whereabout when the Chinese proceeding started. The respondent evaded the Chinese court’s jurisdiction, and the applicant had reasonably attempted to service the notice.

What you should know if you are the applicant?

Do not waste Australian courts’ time and judicial resources. International legal shopping is loathed by Australian courts. In Xu v Wang, after the case was listed by the Victoria Supreme Court, the applicant went to China and instituted proceedings despite the fact the respondent resided in Australia and the disputed issues took place in Australia as well. The Chinese judgement was made quickly in favour of the applicant. Cameron J noted that the applicant could have informed the Court of the Chinese judgement. This fact contributed to the finding of abuse of process.

You must reasonably fulfil your procedural obligations under the foreign law to guarantee the respondent’s right of natural justice. Reasonableness depends upon the facts of each case, and regardless of the lawfulness of the foreign legal procedures. The applicant must genuinely and reasonably ensure that the respondent’s right of natural justice is not violated.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Case summary: Hua v Minister for Home Affairs [2019] FCAFC 158

Facts:

Van Phat Hua, the Appellant, a Vietnamese national, had an extensive criminal record dating back 30 years including drugs and violent crime offenses for which he was convicted multiple times, including armed robbery, cannabis cultivation, heroin trafficking, arson and assault. On 30 July 2014, he was convicted of arson, reckless conduct endangering life, making threats to kill, recklessly causing injury, intentionally destroying property, theft, and cultivation of cannabis. This resulted ultimately in a 3 and a half-year custodial (jail) sentence.

The Appellant’s temporary visa was subsequently automatically cancelled on 4 January 2016 pursuant to s 501CA of the Migration Act 1958 (Cth) . The Appellant made submissions to the Minister to revoke the mandatory cancellation. Among the documents submitted to the Minister in the course of the Minister’s decision were:

  • a Statutory Declaration submitted by the Appellant concerning his remorse at his actions (This Statutory Declaration was submitted in relation to a further incident for which the Minister invited submissions, where the Appellant got in a fight with another prisoner); and
  • The Appellant’s submissions in relation to the prison incident also included a letter from his assigned prison officer (‘the Leggett Letter’).

The Minister issued a decision not to revoke the mandatory cancellation on grounds that the Appellant’s threat to the community, having regard to all the facts, outweighed the counter- considerations of his ties to the community, the evidence of his wife (whom the Appellant had abused) that he had reformed, the needs of his disabled child, and his own expressions of remorse. Part of the Minister’s reasons mentioned that the Appellant did not make ‘direct expressions of remorse’ to the Minister.

The Appellant attempted to have the failure of the Minister to revoke the mandatory cancellation of his visa judicially reviewed on the grounds that the Minister had not considered the Statutory Declaration and the Leggett Letter, and that this failure to consider that evidence amounted to jurisdictional error.

The primary judge concluded that it was not made out that the Minister had no regard for the Statutory Declaration. The Primary judge also found that even if the Statutory Declaration was overlooked, it was not material. A similar conclusion was reached in respect of the Leggett Letter: the better explanation for the failure of mention was not a failure of consideration, but even if it was, there was no jurisdictional error.

This matter was appealed to the Federal Court of Australia, and further review was sought on the basis that the Primary Judge erred in regarding the Statutory Declaration and the Leggett Letter as not significant in the circumstances of the case.

Held by the Judge:

The failure of the Minister to consider the particular evidence of the Statutory declaration was found to be not material, as the underlying issue was whether the Appellant was remorseful, and even stronger evidence than the statutory declaration, namely the testimony by the Appellant’s wife, was considered, and the remorse was implicitly accepted in the Minister’s reasons. Moreover, the Appellant’s remorse was implicitly granted, and as just one factor in a multi-factor assessment of whether to revoke the visa cancellation, and unlikely to change the Minister’s decision in any event. This was sufficient for the judge to find that the Statutory Declaration was not material. The risk to the Australian Community was an overriding concern in the Minister’s decision, and would have overridden even good evidence of the Applicant’s remorse.

The Minister was held to have had due regard to the Leggett Letter implicitly, as part of the evidence for the Appellant’s behaviour in custody.

The appeal was dismissed with costs.

An important lesson to draw from these proceedings is that visa cancellations, especially for weighty considerations like threat to the Australian public, are difficult to appeal on technical points, because any point significant enough to invite judicial review as jurisdictional error must be capable of producing another result that what was actually decided.

Law Applied

Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 at 263, [45].- helped to find that ‘A breach is material to a decision only if compliance could realistically have resulted in a different decision.’

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Recognition of Foreign Judgments in Australia

Persons or organisations seeking to recognise and enforce a Judgment made by a Court within the People’s Republic of China into an Australian state jurisdiction may be able to do so in certain circumstances. Our team, acting on behalf of Judgment Creditor, was recently successful in attaining Court Orders granting recognition of two Judgments made by a Chinese District Court, including the Judgment of the proceedings at First Instance and ‘the Enforcement Verdict’ into the State of Victoria jurisdiction. This recognition has now enabled our clients to enforce the outstanding Judgment Debt in Victoria through subsequent enforcement procedures, such as obtaining a Warrant of the Seizure and Sale of Land, which otherwise would not have been permissible.

In addition to attaining status of the foreign judgment, our clients were also able to recover reasonable legal costs incurred in commencing such Court proceedings as well as interest accrued up to the date of registration. Notably, the Court calculated the accrued interest in accordance with the higher interest rate stipulated by the foreign judgment at First Instance, rather than the interest rates stipulated by Victorian legislation.

Relevant Law

Recognition and enforcement of foreign judgments in Australia are usually possible pursuant to the Foreign Judgments Act 1991 (Cth). However, this statutory regime does not apply to judgments of all foreign jurisdictions. For example, as China is currently not within the scope of the Foreign Judgments Act 1991 (Cth), a person or organisation seeking to recongise and enforce a Chinese judgment in Australia may rely upon common law principles.

Four Conditions

For an Australian court to make orders for the recognition and enforcement of a foreign judgment under common law principles, the party seeking to rely upon the foreign judgment must establish the following four conditions:

1. The foreign court must have exercised jurisdiction that Australian courts recognise.
The foreign court must have had jurisdiction over the defendant at the time when the jurisdiction of the foreign court was invoked. The defendant (a natural person), therefore, must have been domiciled or ordinarily a resident in the foreign jurisdiction, have voluntarily submitted to the jurisdiction of the foreign court or needed to have been physically present in the foreign jurisdiction when served with the originating process for the foreign proceedings. Similarly, a defendant corporation, at the time of service, must have carried on business within the jurisdiction of the foreign court.

2. The foreign judgment must be ‘final and conclusive’.
The matters within the foreign proceedings must be concluded prior to commencing court proceedings in Australia. The key test of finality is whether the foreign court treats its judgment as res judicate, meaning there has already been a final judgment of the issues in dispute as between the parties. This condition is not negated by the fact that the Judgment Debtor may appeal the decision of the foreign court or that appellate proceedings are pending. However, the status of foreign judgment proceedings are likely to be stayed until the outcome of such an Appeal is made by the foreign court.

3. The identity of the parties to the foreign judgment must be the same as the parties to the Australian enforcement proceedings.

4. The foreign judgment must be for a debt or definite sum of money. The debt must, however, not be for a Revenue Debt.

Defence

In circumstances where a party is able to establish the four conditions, the other party may challenge the recognition of the foreign judgment only on limited grounds. A defence may be raised on such grounds, including, but not limited to:

  • The foreign judgment is contrary to Australian public policy
  • The foreign court acted contrary to natural justice
  • The foreign judgment was obtained by fraud
  • The foreign judgment is penal

The formal requirements and procedure applicable to commence court proceeding in status of foreign judgment matters pursuant to common law principles does vary between state jurisdictions within Australia. Generally, the originating process must be accompanied by a supporting Affidavit which must annex the following documents:

  • A copy of the foreign judgment certified by the proper officer of the foreign court and authenticated by its seal; and
  • If the foreign judgment is not in English, a translation of the judgment certified by a Notary Public.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Immigration Limit At 10-year Low; New Regional Pathways To Permanent Residency

The Australian Department of Home Affairs have released the latest figures and reports on permanent residency visas granted under Australia’s skilled migration programme. All potential applicants to Australia should pay heed to the trends we summarise below:

The Australian immigration System

The Australian immigration system divides applicants into various ‘streams’- the ‘Skill’ Stream focuses on applicants with particular skills, but there is also the ‘Family’ stream and the ‘Child’ stream, which are more relevant to family immigration. The ‘Skill’ stream is the largest stream, accounting for 68.4 percent of the total Migration Programme outcome.

Most Frequently Granted Countries

People from India, China and the United Kingdom made up the top three nationalities granted permanent residency visas in the skill stream between 2017 and 2018. In this period, a total of 162,417 permanent residency visas were granted.

Most Frequently Granted Professions

The professions most frequently granted permanent residency visas in the period between 2017-2018 are as follows, in order of most numerous to least.

  • Accountants
  • Software Engineer
  • Registered Nurses
  • Developer Programmer
  • Cook

Immigration is getting tougher

However, the immigration environment in general is getting tougher, as new statistics for the 2018-2019 period reveal fewer permanent residencies were granted in the 2018-2019 period under the Permanent Migration Program (160,323 visas out of a ceiling of 190,000) than at any time in the last 10 years. In turn, migration for the 2019-2020 period has been capped at 160,000 places. Going forward permanent residency visa applications in the skill stream seem like they will be more more competitive than ever.

The Australian Government’s regional focus

Migration to regional Australia remains a priority for the Australian government. According to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, David Coleman,

“We’re also dedicating 23,000 places for regional skilled migrants and have announced two new regional visas to help fill some of the tens of thousands of job vacancies in regional Australia.

“We’re directing migration to those smaller cities and regional areas that are crying out for more people and those regional economies that simply cannot fill jobs with local workers.”

The Australian Government’s focus on regional migration is emphasised by the introduction of new visas focused on regional migration.

The Skilled Employer-Sponsored Regional (Provisional) visa will be for skilled migrants sponsored by an a regional employer while the Skilled Work Regional (Provisional) visa will cover migrants nominated by a State or Territory government or sponsored by an eligible family member.

The visas will be for a period of five years, with the possibility to apply for Permanent Residency only after living in the region for three years.

Applicants for permanent residency in Australia would do well to consider whether regional migration is right for them, if they want to improve their chances of a successful immigration application.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Sunset Clause – Legal Protections for off-the-plan property purchasers

What is Sunset Clause? How important Sunset Clause is to your property contact? We note that the NSW Government passed the Conveyancing Amendment (Sunset Clauses) Act 2015 on 17 November 2015 and that this act grants further protections for off the plan purchasers.

This act, (Sunset Clauses) Act 2015 is now found in Division 10 of the Conveyancing Act 1919 and is titled, ‘off-the-plan contracts’. Division 10 of this sunset clause act raises apprehension about the fact that some developers use the ‘sunset clause’ in order to terminate an off-the-plan contract and thereby gain financial benefits from such termination. As addressed in the government bill, some are concerned that developers take advantage of the sunset clause by intentionally delaying a building project. When this occurs, essentially, the purchaser receives their deposit back but will not be able to recover their legal fees; this may leave them out of pocket and unable to purchase a replacement property.

The purpose of an off-the-plan contract is to sell vacant land or strata property before it is actually built. Therefore, these contracts do not allocate separate titles at the time they are entered into but rather, on completion of the building; lots will be identified for each prospective purchaser. Off-the-plan contracts are conditional contracts and must ensure there is a clause catering to a scenario where for whatever reason, the development does not reach completion. The clause delivering such protection is referred to as the ‘sunset clause’.

The sunset clause provides for rescission of the contract if the lot has not been completed and built by the sunset date as per the contract. The sunset date is the last date on which the lot can be completed and have its own title allocated to it. The sunset clause will allow either party to rescind the contract if the development is not completed within the final contract date.

As we have noted above, Division 10 of the Conveyancing Act 1919 inhibits developers from unfairly calling of the off the plan contracts for residential property. Residential property has the same meaning within the act and covers, a parcel of land (less than 2.5 hectares) on which no more than two dwellings exist (or are undergoing construction), vacant land on which construction of one place of residence is not prohibited by law, a lot or lots (including proposed and not yet developed lots) and a lot or more than one lot (including proposed lots once again) under the strata schemes development legislation intended to be utilized as a single place of residence.

Under the new protective laws, vendors intending to rescind an off-the-plan contract must give each purchaser, being a party to that contract, 28 days written notice prior to rescinding the contract and thereby exercising the sunset clause. The notice is required to outline why the vendor wishes to rescind and the notice must also give reasons for the delay.

In order for the vendor to successfully rescind under a sunset clause, we note that the lot must have not yet been created and the vendor can only rescind if the purchasers give written consent to the vendor’s rescission, or the rescission is permitted by reason of regulations (this is yet to be seen as no regulations have been developed) or the vendor obtains an order from the Supreme Court allowing the rescission.

Whether or not the Supreme Court will be inclined to allow the vendor to rescind the contract depends on a variety of considerations. These considerations include but are not limited to:

  • Terms of the Contract;
  • Whether or not the vendor has acted unreasonably or in bad faith;
  • The reasons for the delay;
  • Whether the lot subject to the contract under proposed rescission has increased in value;
  • Any other matter the court considers as being relevant.

As a general rule, the vendor will be liable to pay the purchaser’s costs of any application made to the Supreme Court, unless there is evidence to show that the purchaser was unreasonable in refusing to consent to the rescission.

We note, the above new laws and protective provisions apply to any proposed rescissions taking place on or after 2 November 2015.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Vendor Statement and Breach of Section 32 of the Sale of Land

Here, at Legal Point Lawyers & Attorneys, we place great emphasis on conducting a thorough conveyancing process from beginning to end, whether we are acting for the vendor or purchaser whether located within or outside New South Wales.

Taking an example from Victoria, we focus on Section 32 of the Sale of Land Act that has received recognition Australia wide. Section 32 of the Sale of Land Act requires the vendor to provide a ‘vendor statement’ disclosing particular items of information in relation to the property they are selling. This in turn protects the purchaser from any unforeseen surprises in relation to their purchase.

Many cases now refer to Section 32 of the Sale of Land Act and a case of great relevance to this section is that of Nicolacopoulos v Khoury [2010] VCC 1576.

In this case, the conveyancer for the vendor, in preparing a ‘vendor’s statement’ failed to attach to it an Owners Corporation Certificate issued per Section 151 of the Owners Corporations Act 2006. The reason for this being that the conveyancer was of the opinion that the property was not affected by an owners corporation as they believed that there was no common property. This view was formed in reference to the fact that the subdivision was divided by separate road access. However, the property was on a subdivided plan and the Court found it to be affected by the Owners Corporation. Accordingly, per Section 32(5) of the Sale of Land Act, failure to attach the Owners Corporation Certificate allowed the purchaser to rescind the contract pursuant to Section 32(5). There was found to be a breach of Section 32(3A) and a right to rescind following from such breach, once again, per Section 32(5).

The vendor, in rebuttal, argued that Section 32(7) was to apply. In order for the vendor to argue this, effectively, the vendor had to prove that;

  • That the vendor had acted “reasonably” and
  • That the purchaser was “substantially in as good a position as if all the relevant provisions had been complied with”.

The first issue being point (a), raised the question whether or not the vendor was liable in relation to statements within the vendor statement. This issue has been subject to great debate over the years. Cases such as Payne v Morrison [1991] V ConvR 54-428 held the vendor to be vicariously liable for negligent conduct of their lawyer or conveyancer. One the reverse side, Paterson v Batrouney [2000] VSC 313 held that vicarious liability would not apply; rather the court held that personal liability was attributable.

There have been other cases addressing the issue without coming to a decisive view on the matter. Similarly in this case, the judge found that vicarious liability was not of issue and accordingly did not need to form an opinion. Instead, the judge found the vendor liable for personal negligence. The case turned here as the vendor should have been aware of the owners corporation and therefore should have disclosed so to the purchaser. The outcome in this case may differ to other cases as in determining vendor liability as courts consider what the vendor ought to have reasonably known and thus disclosed to the purchaser. It appears as though, if a fact or feature is so plain, fundamental or obvious to the vendor, there is no reason for failing to provide adequate disclosure, even if the error was made by the vendor’s representative, whomever that may be.

The second issue being point (b) addresses the effect of a vendor breaching the disclosure requirements and ultimately considers where it leaves the purchaser. Here the vendor argued that no misrepresentations were made under the ‘vendor statement’ and that the purchaser had not been affected adversely in any way. However, lawyers acting for the purchaser argued that the purchaser was interested in the property because the sale brochure stated, “say good-bye to the body corporate”. At the time of the proceedings, the purchaser had owned a strata property (subject to an owners corporation) and the purchaser did not want her new property to be also subject to an owners corporation. The vendor argued that the purchaser liked the brochure as a whole and that it would not have made a difference to the purchaser.

The vendor also argued that the owners corporation was dormant or inactive. The vendor gave evidence to the effect that the owners corporation had never convened meetings and that it had not issued any levies. However, the court was quick to dismiss this argument and held that just because the owners corporation had been inactive, that did not give sufficient rise to the assumption that it would never be active in the future. The owners corporation was held to be in existence.

Upon considering all the evidence, the Court held that if all the required information had been included as required by Sub-section 3(A) in the Vendor Statement, then there was a strong possibility that the purchaser would have not purchased the property. Accordingly, in this case the purchaser was able to establish that the breach occurred under Sub-section 3A.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Building Quality Defects in Off-the-Plan Purchase

The quality defects issue appears more often in an off-the-plan purchase.

A central issue surrounding quality defects is one where the purchaser is unhappy with the final product as built by the developer. Generally, the purchaser envisions the development to turn out as commercially advertised, but in reality, the development may not live up to its lavish advertising.

Reasons for difference in final product vs product as advertising

On the one hand, the purchaser is attracted to advertising surrounding the development and the lifestyle associated with buying into such a development. Conversely, the developer is busy working on a structured blueprint design of the building and is also working towards a strict budget. Therefore, often there is a discrepancy between what the purchaser envisioned and what the developer was able to provide.

How the developer may deal with the purchaser’s disappointment in regards to the final product of development.

In their contracts for sale, developers often insert an ‘entire contract’ special condition. This special condition operates to protect the developers from unreasonable purchaser expectations. The ‘entire contract’ condition does this by noting that any marketing tools surrounding the development may not exactly reflect the final product.

Nifsan Developments P/L v Buskey

In Nifsan Developments P/L v Buskey [2011] QSC 314, the purchaser addressed the marketing publications and stated that although the developer asked for payment to be made by the following week, the finished product was nothing like what the purchaser expected it to be. The developer had promised panoramic views but did not deliver. Another complaint of the purchaser was in relation to the size of the development being smaller than agreed. Here, the court acknowledged the ‘entire contract’ special condition but noted that it may not always be effective in protecting the developer. One can imagine a reason for this is that the ‘entire contract’ condition is overreaching and can potentially operate to protect the developer even where the developer’s final product has deterred greatly from the original advertised development.

A key issue with final developments: The actual size of the building

This is one of the key disappointments that purchaser’s face. Often, the final development built is much smaller than what the purchaser had originally agreed to. However, this can be as a result of architectural and structural issues arising during the construction process. It is to be noted that there are approximately three methods of measuring the area of a building. Usually, the developer opts to measure the area of a building according to the ‘external walls’ method. The purchaser will opt to utilize the ‘internal walls’ method, allowing for more space. Lastly, the purchaser’s financier will adopt the ‘minimalist’ method, which centres around useable space.

Birch v Robek Aust

In Birch v Robek Aust P/L [2014] VCC 68 the purchaser successfully avoided a contract where the building was much smaller than originally anticipated. In this case, the vendors were engaged in trade and commerce, therefore, the Australian Consumer Law was applicable. The Australian Consumer Law provides the purchaser with a list of rights reaching far beyond any rights under common law. In this case, the court applied the Australian Consumer Law and held that the architectural plans (with dimensions of the apartment) entitled the purchaser to expect that the final development would be reflective of those exact plans.

When calculating dimensions, it was shown that in one method, there was a deficiency of 16%, on another the deficiency was at 12% and on the developer’s calculation, there was a deficiency of only 2%. The court considered that the discrepancy exceeded 5% and thus applied the principle founded in Flight v Booth (1834) 131 ER 1160 in order to reach a decision favourable to the purchaser.

It was also noted by the court that the developer may have intended the measurements shown on the plans to be external, whereas the purchaser may have expected them to be internal dimensions. Nevertheless, the court concluded that intention as to external and internal dimensions was irrelevant in this case, as the end product, with its dimensions, was substantially less than what the plans had shown.

It is important to note that sometimes courts may hold opposing views on the issue of dimension measurement. For example, in the case of Sivakriskul v Vynotes P/L [1996] VicSC 479, the court denied the purchaser’s claim and decided to apply the ‘external walls’ method (utilized by the developer). We note that this case has not received acclaim by other courts and is yet to be cited. In coming to its decision, we also note that here, the court may have taken other factors into account and the circumstances of this case may have been very different from the cases discussed above.

Conclusion:

When purchasing a new off the plan development, it is important for purchasers to research the proposed developer, their company, and any buildings previously constructed by that same developer. It may be helpful to clarify the method by which dimensions are to be measured. Lastly, purchasers would be wise to keep in mind that often, advertisements are created to generate interest and that although the foundational elements of development should be present; some final products may not truly and wholly reflect the advertised product.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Land Tax Policies in NSW

If you own land in New South Wales and the value is above the land tax threshold, you may have to pay land tax unless you are exempt.

One main exemption is called the Principal Place of Residence (‘PPR’) exemption. Each family can only claim the PPR exemption for one property and the land should generally be used for residential purposes.

You need to continuously use and occupy the land as your PPR from 1 July to 31 December before the relevant tax year. In the case of joint owners, then at least one person needs to satisfy the requirement. The question of whether the land was continuously used and occupied is assessed objectively. That means, although your intention to live in the property is relevant, it will be considered against the actual number of nights you spent living in the property.

For people who spend a lot of their time overseas for work or other reasons, it is likely that if you spend more time in the overseas property then the Australian property will not be considered to be your PPR. You might allow your family to use the property, but to claim the exemption your family member should be a joint owner of the property.

There are many concessions for the requirement to use and occupy the land as your PPR. For example, if you live in your property continuously for at least six months and then leave, you can claim the PPR exemption for up to six years. However if you own or occupy another place of residence in those six years, then the concession will not apply.

If you disagree with the land tax assessment, you may submit an objection to the Chief Commissioner of State Revenue. There are also options for further review.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

An Introduction to the First Home Buyers Policies

First Home Buyer Assistance Scheme (FHBA) and First Home Owners Grant (FHOG) are the current national schemes introduced by the government to benefit the first home buyers. It is funded by the States and Territories and administered under their own legislations.

First Home Buyer Assistance Scheme (FHBA)

This scheme provides an exemption or concession on stamp duty. An exemption from transfer stamp duty for eligible first home buyers purchasing a new home or existing home valued up to $650,000 and vacant land up to $350,000. Concessions are available on stamp duty for homes valued between $650,000 and $800,000 and vacant land valued between $350,000 and $450,000.

To be eligible for the Scheme, a home buyer (applicant) must satisfy the following requirements:

  • The Contract for sale of land is entered into after 1 July 2017
  • The applicant is an individual over 18 years old
  • The applicant and the spouse (including de facto spouse) have never owned any residential property in Australia
  • At least one applicant is an Australian citizen or permanent resident
  • At least one applicant will move in within 12 months after settlement for a consecutive period of 6 months

First Home Owners Grant (FHOG)

This scheme provides a one-off grant payable to the eligible first home owners. The amount of subsidy on stamp duty and the grant varies in each State and Territories. In NSW, the grant amount has been revised to $10,000 if the transactions was made on or after 1 July 2017.

To qualify, the purchase price of your new home must be no more than $600,000. If you’re buying land to build a new home, the total price – including the land and home – must be no more than $750,000.

To be eligible for the Scheme, a home buyer (applicant) must satisfy the following requirements:

  • The home is a new home (including renovated home)
    • which has not been previously occupied – this includes occupation by the builder, a tenant or other occupant; and
    • which has never been sold as a place of residence and it must be the first sale of that home; or
    • which has been substantially renovated or the home has been built to replace a demolished premises
  • The applicant is an individual over 18 years old
  • The applicant and the spouse (including de facto spouse) have never owned any residential property in Australia prior to 1 July 2000
  • At least one applicant is an Australian citizen or permanent resident
  • At least one applicant will move in within 12 months after settlement or completion for a consecutive period of 6 months

However, an applicant may be eligible if he/she or his/her spouse, including de facto spouse, have owned any residential property in Australia on or after 1 July 2000 and the applicant has not resided in that property for a continuous period of at least 6 months.

If application is made through the applicant’s financial institution, the grant will be made available for settlement or for the first draw down on contract to build. If application is made after completion, it must be made within 12 months of completion. It is an offence to apply for the Scheme if the applicant is not an eligible person.

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Who is Liable to Pay Vacancy Fees

What is a Vacancy Fee?

A Vacancy fee is an annual fee which must be paid by certain ‘foreign’ owners of real residential property in Australia if the property that they own is unoccupied for more than half of the year (183 days). The purpose of this fee is to discourage holding empty properties and improve access to housing for native Australians. This fee is administered by the Australian Tax Office (ATO). All foreign owners of residential dwellings are required to file a ‘Vacancy Fee Return’ so that the ATO can assess whether a Vacancy Fee needs to be paid.

Who is liable to pay vacancy fees?

Anyone liable to pay a Vacancy Fee must have all of the following characteristics:

  • They are a‘Foreign’ owner: A person who is not an Australian citizen and is not ordinarily resident in Australia (i.e., who has not stayed in Australia for 200 days out of the last year), who is
  • The owner of Residential property, which
  • Is not occupied or genuinely available on the market for at least 183 days out of the year, and who
  • Applied for FIRB (Foreign Investment Review Board) approval in buying the property.

Those to whom the Vacancy Fees apply will have received notice from the ATO with their FIRB approval.

Note that the criteria do not include people who did not have to apply for FIRB approval. As permanent residents typically do not have to apply for FIRB approval, someone who is a permanent resident at the time of purchase of their property, and thus who did not need to seek FIRB approval, is typically not required to pay Vacancy Fees or lodge Vacancy Fee Returns.

How to file a Vacancy Fee return?

All foreign owners of residential property who applied for FIRB approval in purchasing the property are required to file a Vacancy Fee Return annually. The Vacancy Fee Return is a document which records the details of the property and helps the ATO decide whether a Vacancy Fee is payable.

All foreign owners of residential property need to file this return regardless of whether the property is occupied for 183 days out of the year. If the ATO determines that no vacancy fee is payable based on the Vacancy Fee Return, no amount will be required.

The electronic form for the Vacancy Fee Return is available at: https://www.ato.gov.au/FIRBvacancyfee/

Filling out the form requires information provided in an email reminder to pay the Vacancy Fee, which the ATO sends to the email in the FIRB application.

The Return must be filed within 30 days after the end of every 12 month period you own it. The time when you own it is the time from which you gained the right to occupy the property- usually, the completion date.If you complete a property purchase on 1 Jan, you have to file a Vacancy Fee Return by 30 Jan every year. Friendly reminder to all foreign owners of property- keep an eye on the anniversary of your purchase, and remember to file the return every year! Late payments may result in fines or interest payments.

After lodgement of the Vacancy fee return, you will see a confirmation page containing reference details, any amount you need to pay and how to pay. The amount of payment and the payment due date will also be contained within an email sent in response to lodgement .

Are there any exceptions to paying a Vacancy Fee?

Even if one is a person who has to file a Vacancy Fee Return, there may be an exception to paying the Vacancy Fee if the property was unable to be occupied. If you meet the following conditions or similar, you may be able to waive the Vacancy Fee, but you will still need to file a Vacancy Fee Return to claim this exception, along with supporting evidence.

Criteria for exemptions due to unsuitability for occupation include:

  • the dwelling is damaged, unsafe or is otherwise unsuitable to be occupied as a residence
  • the dwelling is undergoing substantial repairs or renovations
  • occupation of the dwelling as a residence is prohibited or legally restricted, by an order of a court or tribunal or a law of the Commonwealth, state or territory; or
  • a person (who may or may not be the foreign person) who ordinarily occupies the dwelling was absent from the dwelling due to receiving long-term, in-patient, medical or residential care.

FURTHER INFORMATION:

For more information, please visit https://www.ato.gov.au/General/Foreign-investment-in-Australia/Annual-vacancy-fee/#Vacancyfeeexemptions

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Statutory Remedies for Oppression of Minority Shareholder

In companies controlled by a share structure, minority shareholders, who do not have a controlling stake in the Company, are often to a large degree at the mercy of the majority shareholders who hold a controlling stake. Often, special protections for minority shareholders can be found within the Company Constitution or a Shareholders Agreement.

However, there are also legal protections for shareholders are also built into Australian statute law, in particular, the provisions governing ‘oppressive conduct’ in Part 2F.1 of the Corporations Act 2001 (Cth) (‘The Corporations Act’). These provisions set out the grounds on which a shareholder may make an application for a court order, who may make a court order, and what remedies are available. As Commonwealth law, these protections apply to all companies subject to an Australian jurisdiction.

Standing

In order to apply for a court order, a person must have standing to apply. Typically, a person applying for a court order must be a member of the Company, or a person who has been removed as a member who is applying for a court order in respect of his removal, or any other person which ASIC (the regulatory authority for companies in Australia) deems appropriate. The full list of possible applicants can be found in Section 234 of the Corporations Act.

Grounds

A person who meets the requirements above can apply on grounds in section 232 of the Corporations Act for a court order on the grounds that the conduct of the company’s affairs, or any actual or proposed omission by or on behalf of the company, or any resolution or proposed resolution, is either:

  • contrary to the interests of the members as a whole; or
  • oppressive to, or unfairly prejudicial to, or unfairly discriminatory against, other members of the company, whether in capacity as a member or in any other capacity.

The case law has further developed tests for when conduct is ‘unfair.’ The test for unfairness is whether the ‘reasonable person’ would consider it unfair.The criteria for what a reasonable person might think are not clear cut, and each case must be considered on the individual merits.It is not enough for unfairness that one party is disadvantaged by an action; there must be an element of ‘unfairness’in the act which is more than the mere disadvantage.

Examples of unfair conduct can include but are not limited to:

  • Excluding minority shareholders
  • Redirecting business opportunities to oneself or one’s associates
  • Failure to consider minority shareholders’ requests and provide information due to them.

Unfair or oppressive conduct can include conduct technically permitted under the constitution of the company, so if you feel that you have been treated unfairly by a company of which you are a member, even if it is technically within the company constitution, it is still prudent to seek legal advice.

Available Remedies

The remedies available to a court under section 233 of the Corporations Act to assist oppressed parties are varied to address a variety of circumstances, and include but are not limited to:

  • that the company be wound up;
  • that the company’s existing constitution be modified or repealed;
  • for the purchase of shares with an appropriate reduction of the company’s share capital;
  • restraining or requiring a person to do a specific act

 

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys.  He has been admitted to practise law since 2005.  Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au