Family Trusts in a nutshell

We often associate family trusts with high income earners and their children who attend private schools, but that is not always the case. If you want to protect your hard-earned assets from creditors and stream the income earned from the trust assets to beneficiaries in the most tax-efficient way possible, then a family trust is for you. This article will briefly explain to you the essential elements of a family trust and how it works.

What is a trust?

A trust is an arrangement where a trustee, being a person or company, holds assets as the legal owner for the ‘benefit’ of one or more beneficiaries. Types of assets that you can put in the name of a trust include shares, real property and cash. Income earned from the assets is passed to the beneficiaries.

A trust is recorded in the form of a deed, which contains many rules including how the trust must be run, what the trustee can do and lists who the beneficiaries are. In New South Wales, a trust can last for up to 80 years and can also be varied from time to time. The laws around trusts can be very complicated therefore it is essential that you appoint a solicitor to draft the trust deed.

What is a family trust?

A family trust is a popular type of trust, where the beneficiaries have no fixed interest in the assets. Every family trust has four roles that need to be filled before it can begin operation.

1. The trustee plays a significant role in the trust and has a few powers and obligations. The trustee chooses the beneficiaries and decides the amount that each beneficiary receives every year. Moreover, the trustee carries out all transactions for the trust. In terms of obligations, the trustee is responsible for the tax obligations of the trust including the lodgment of income tax returns. Furthermore, the trustee owes a fiduciary duty to the beneficiaries and must always act in their best interest.

2. A beneficiary can be a person or a company. Beneficiaries can be divided into two categories: primary beneficiaries, who are specified in the trust deed, and general beneficiaries, who are usually relatives of the primary beneficiaries.

3. The appointor has the power to appoint and remove the trustee. However, they do not have the power to operate the trust. If a sole appointor dies or goes bankrupt, a majority of the primary beneficiaries can appoint a new appointor.

4. Finally, the settlor is the person who creates the trust and identifies the beneficiaries, the trustee(s) and appointor. The settlor should not be a beneficiary or a trustee for tax reasons. After the trust deed has been signed, the settlor will no longer be involved with the trust.

If you set up a trust in New South Wales, the state government will charge you $500.00 for stamp duty, which must be paid within three months.


Trusts should not be an arrangement that is tied to the wealthy only because it has considerable value in the long-term for any individual. A family trust may help protect your assets and minimise the impact of tax. However, a family trust deed is a sophisticated document which is normally drafted by a lawyer. If you are interested in setting up a family trust today, please do not hesitate to contact our office for a free initial consultation.

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.

Sexual Touching in NSW Explained

You have probably heard of offences like ‘rape’ (which is now coined as ‘sexual assault’) and ‘grooming’, but have you heard of ‘sexual touching’? Sexual touching is a relatively new offence that was inserted into the Crimes Act 1900 (NSW) at the end of 2018, and it replaced the offence of ‘indecent assault’. Given that sexual touching carries a maximum imprisonment of five years and is relatively easy to prove, you should be aware of its basic elements. This article will explain, with a real-life example, the elements that the Police will try to prove.

What constitutes sexual touching? (s 61HB)

Section 61HB of the Crimes Act 1900 (NSW) defines sexual touching as touching the alleged victim:

  1. with any part of the body or with anything else, or
  2. through anything, including anything worn by the person doing the touching or by the person being touched,

in circumstances where a reasonable person would consider the touching to be sexual. Circumstances include touching the alleged victim’s genital area, anal area or breasts and where the touching was for sexual arousal or sexual gratification.

Like most criminal offences, there are physical elements and mental elements. For this offence, the alleged offender has to know that the alleged victim was not consenting to the sexual touching. Consent means that he or she freely and voluntarily agrees to that sexual activity. Knowledge comprises of three mental states:

  1. the alleged offender has actual knowledge that the victim does not consent
  2. the alleged offender is reckless as to whether the alleged victim consents; and
  3. the alleged offender has an honest belief that alleged victim consented but has no reasonable grounds for that belief.

Case Law – R v Shanmugam

In a recent Disctrict Court case, R v Shanmugam (No.2) [2020] NSWDC 482, the physical elements and mental elements are set out clearly. The offence happened in early January 2019. After a belated work Christmas party, Shanmugam, the victim and a female workmate ended up at the victim’s home. They all slept in the same bed. Although the victim and Shanmugam had cuddled earlier in the night, there was no expectation by either of them at the time to have sexual relations. The victim woke and saw Shanmugam masturbating. He then rolled towards her and laid against her in the spooning position. He was still masturbating, with his hand against her night shorts while she was facing the wardrobe pretending to be asleep. After she brushed him off, she rolled onto her back to stop him from repeating what he had done. He then put his hands down the front of her pants and rubbed the exterior of her vagina with his hand. She brushed him away, rolled onto her side. She was in shock and reported the incident to the Police.

The conduct of laying against the victim, putting his hands down the front of her pants, and rubbing the exterior of her vagina with his hand satisfied the physical element of sexual touching. In terms of the mental element, the victim continually rolled onto her back, tried to ignore the accused, and tried to stop him. Here, a reasonable person would infer that the victim had not given consent. Shanmugam witnessed these reactions from the victim and continued to sexually touch the victim without her consent. Therefore, he was at least reckless as to whether the victim consented. Shanmugam was sentenced for 1 year and 3 months.


Sexual touching can be a serious offence depending on the circumstances, and the Police can generally satisfy the elements with little difficulty. Our lawyers have rich experience in this area so please contact us on 02 9283 8588 immediately if you need legal representation. We are committed to protecting your legal rights.

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.

What you should know about common assault as a criminal charge.

Common assault is one of the most common criminal charges in Australia. In 2019, there were 67,661 victims of assault recorded in New South Wales. It can arise out of a physical fight, a heated verbal argument or even a verbal threat from someone. Depending on the circumstances, the punishment can be severe; the length of imprisonment can reach up to two years if the matter is dealt with in the Local Court. For less serious types of common assault, punishment could be a criminal record and a fine.

The legal meaning of common assault is broad as it can be generally divided into two categories: assault by force and assault by threat of force.

Assault by force

This could arise when you use force or make unlawful contact with another person’s body without consent. You need to be aware that no injury is required by this offence. Therefore, even the merest physical touch may be sufficient.

Assault by threat of force

Threat of force means your conduct causes another to apprehend immediate infliction of force without consent. For example, if you trap the victim in your van and say to the victim, “I am going to take you to my mate’s house, he will really fix you up” – you could be charged with common assault.


There are a handful of lawful excuses available if you are charged with common assault. Generally, you are not criminally responsible for an offence if you carried out common assault in self-defence and believed the conduct was necessary to defend yourself or another person, and the conduct was reasonable.

Aggravating circumstances

You also need to be aware of aggravating circumstances, which can make the offence more serious. For example:

  1. The victim is a special person like a police officer, emergency services worker and judicial officer;
  2. Violence was involved;
  3. The offence was committed in company of other people; and
  4. The offence was committed without regard for public safety.

Section 10 Dismissal

A charge of common assault usually leads to a criminal record, which can ruin a person’s career and reputation. However, under section 10 of Crimes (Sentencing Procedure) Act 1999, the Court can find you guilty but not record a conviction under specific circumstances. To learn more about a section 10, please see our article here.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

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.

Drug Possession in NSW

Possession of prohibited drugs is a criminal offence in NSW under the Drug Misuse and Trafficking Act 1985 (the Act). Schedule 1 of the Act provides an extensive list of prohibited drugs including cannabis (also known as weed or marijuana), cocaine, ketamine, heroin. According to the National Drug Strategy Household Survey, around 3.4 million Australians reported using a prohibited drug in 2019. This article will explain the elements of drug possession that the Police need to prove, and the penalties attached.

The elements

The Police must prove the following two elements beyond reasonable doubt:

  1. The prohibited drug was in the person’s ‘custody’ or ‘control’. Importantly, a person may be charged with drug possession even if the substance is found in their car.
  2. The person knew the substance was in their possession and knew that the substance was a prohibited drug.

Generally, a person licensed or acting in accordance with an authority to have possession of the prohibited drug is not unlawful. These licensed people may include medical practitioners, pharmacists and registered nurses. If a person obtains a prohibited drug which has been lawfully prescribed or supplied, the possession is also not unlawful.


The penalties for possession of prohibited drugs can vary significantly. The amount of prohibited drug found in your possession is a major factor in determining the severity of the penalty. For example, a person with 1g of cocaine would usually be charged with drug possession because 1g is classified as a small quantity and would have the matter dealt in the Local Court. If the person possessed 5g of cocaine, then they would probably be charged with supply and have the matter dealt with in a higher court with more severe penalties.

In the Local Court, the maximum fine is $2,200.00 and the maximum term of imprisonment is 2 years. Other penalties that can be imposed by the Local Court include a conditional release order, an intensive corrections order, and a community corrections order. If it is a first-time offence, you can apply for a section 10 dismissal under the Crimes (Sentencing Procedure) Act 1999, which allows you to maintain a clean criminal record. Our law firm can act for you to secure the best chance of a section 10 dismissal.


In NSW, drug possession requires two key elements to be proved beyond reasonable doubt, and the penalties attached can be detrimental. One of the basic principles of our criminal law system is that a person is innocent until proven guilty. In other words, if you find yourself being charged by the police with drug possession, you are still innocent until you plead guilty or the Court finds you guilty. Our team of criminal law specialists have a track record of exceptional results and are available to defend you.

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.

Understanding Retail Leases in NSW

A retail lease is a contract between a landlord, who usually owns the property, and a tenant, who has the right to occupy the property and sell goods or provide retail services. The term ‘retail’ implies a sale to the public and excludes wholesale transactions. This article covers the important aspects of a Retail Lease that landlords and tenants should be aware of.

Types of retail leases

In New South Wales, retail leases are governed by the Retail Leases Act 1994 (NSW) (‘the Act’). Subject to certain special exclusions, the Act applies to two essential types of retail leases.

The first type is when a tenant rents a premises to run a business prescribed the Act and its regulations. You can check Schedule 1 of the Act to confirm whether your business is covered. Examples include books and toy shops, barbers and art galleries.

The second type is when a tenant rents a premises in a retail shopping centre (for whatever business unless excluded by the Act).

Documents that must be provided before signing a retail lease

Before any retail lease is signed, the landlord must share three documents with the tenant:

a completed lessor’s disclosure statement;

a draft copy of the Lease; and

a copy of the NSW Retail Tenancy Guide.

Lessor’s disclosure statement

The purpose of a lessor’s disclosure statement is to enhance transparency between the landlord (also known as a lessor) and the tenant (also known as a lessee), and reduce the risk of dispute in the future. Under the Act, the landlord is required to answer all questions in this document and pass it to the tenant at least seven days before the Lease begins. Inside, there are important information about the shop, the Lease, estimates of outgoings and the tenant’s financial obligations.

The Lease

Below are the key aspects that you should be familiar with:

‘Term’ is another word for length of the Lease with the start and end dates. The Act will only apply to your shop if the term is between 6 months and 25 years.

‘Rent’ is a key term in a Lease. When the Lease is signed, the tenant agrees to pay the rent for the full term of the Lease. If the tenant is late with rent, the landlord has the right to take possession of the shop and lock the tenant out.

‘Outgoing’s are expenses related to the shop that the tenant has agreed to pay on top of the rent. They include council rates, water rates, land tax and public liability insurance.

A ‘bond’ is a fixed amount of money given to the landlord at the beginning of the Lease. It is financial security for the landlord if the tenant fails to meet its lease obligation.

Costs for preparing a Lease

Under the Act, the landlord is responsible for the cost of drafting the lease and the mortgagee consent fee (if any). On the other hand, the tenant would need to pay their own legal costs for reviewing the lease and usually the costs of registering it. If the term of the Lease is 3 years or more, it must be registered at the NSW Land Registry.

Dispute resolution

If one side failed to meet its lease obligation such as failure to pay rent or failure to return the bond, the other side can try mediation or seek orders from the NSW Civil and Administrative Appeals Tribunal (NCAT).


Leases and lessor’s disclosure statements should be carefully reviewed before signing. Before you sign a lease, revisit your business plan and make sure it is realistic and covers all contingencies. You should also consult our experienced legal team before you sign the lease, which may save you a lot of time and money in the long-term.

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.

NSW bail applications for serious offences

Last time, we explored a basic overview of a bail application in New South Wales. In this article, we will take a deeper dive into what the Judge considers when a bail application is heard in relation to a serious offence. We will also examine two real-life cases that were heard in the higher courts.

Firstly, the Judge will consider reasons why detaining the accused is not justified. If the Magistrate is not satisfied, then bail would be refused. If the Magistrate is satisfied with the reasons, then the Magistrate will apply the ‘unacceptable risk test’. The accused must be refused bail if there is an unacceptable risk that the accused will:

  • fail to appear at any proceedings for the offence;
  • commit a serious offence;
  • endanger the safety of victims, individuals or the community; or
  • interfere with witnesses of evidence.

McAndrew v R [2016] NSWCCA 58

Mr McAndrew was charged with a serious offence, namely armed robbery, and he failed to convince the Court of Appeal that his detention was not justified.

Mr McAndrew submitted four arguments:

  1. He needed to take care of his newborn child;
  2. He was unable to adequately grieve the loss of his grandmother whilst he was imprisoned;
  3. He intended to plead not guilty; and
  4. He needed to take care of his mother who had suffered a series of strokes.

The Court rejected all arguments from Mr McAndrew and concluded that his personal and family reasons do not easily translate into a demonstration that his continued imprisonment should not continue. Therefore, Mr McAndrew’s bail application was refused.

R v BNS [2016] NSWSC 350

BNS was charged with a serious offence that is, possession of a commercial quantity of a prohibited drug. The Court dismissed BNS’ bail application for the following reasons:

  1. The Prosecution had a very strong case.
  2. BNS has a high risk of not appearing in Court because he is a citizen of a foreign country and has no familial or community ties to Australia.
  3. BNS is likely to face a substantial term of imprisonment if convicted.

Although BNS’ mother was prepared to offer AUD$1,000,000.00 as a bond, the Court was not convinced that BNS had any sense of obligation to his mother with respect to that money. Furthermore, the Court could not assess the relative impact of the loss of that sum to BNS or his mother in the event that he does not appear.


Convincing the Court to grant bail is not an easy task, especially in relation to serious offences. Our lawyers have been instructed to apply for bail on many occasions and have a very clear understanding of what Judges are looking for. Recently, our team successfully obtained bail for a client who was charged with aggravated sexual assault. If you have been charged with a serious criminal offence, we can help you attain the outcome you deserve.

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.

Section 10 Dismissal and preserving your criminal record

Crimes like murder and sexual assault stir the most attention in the media, but it is important to be aware of non-serious offences as well because they are more common. When people engage in fights or arguments, they could be charged with common assault. When people drive dangerously, they could be charged with drink-driving. If you are guilty of these non-serious offences, there is a chance that you will have a criminal record. No one wants a criminal record because it can stop you from getting the job you want; prevents you from travelling to certain countries; and damages your reputation. In this article, we will talk about how we can help you prevent a criminal record.

A Section 10 dismissal is the most popular term in NSW criminal matters for a good reason. It is a potential lifeline, when you are found guilty of a non-serious offence, because the Judge may decide not to record a conviction. In Australia, criminal offences can vary in severity: murder and sexual assault are very serious; while drink-driving, possession of illicit drugs, and common assault are usually non-serious. The Judge considers many factors before granting a Section 10 dismissal including the person’s character, prior convictions, age, health, mental condition and so on.

To prepare for a Section 10 application, you will need at least three character references and a letter of apology. Depending on your charges, you may need further supporting documents.

A good character reference is written by people who are of good reputation. This means that they have not been in trouble with the police and are respected in the community. They could be your close friends, colleagues, neighbours and members of a group which you belong e.g. sport and church.

A good letter of apology would be addressed to the victim of the offence; acknowledge the foolishness of your behaviour; express feelings of remorse; and share reasons why you will not re-offend again.

For international students and new immigrants, being aware of a Section 10 dismissal is highly important. A criminal offence is related to condition 8303 of student visas and other temporary visas. It states that “you must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community”. Therefore, if a visa holder has a conviction recorded, his/her visa will be cancelled and he/she will no longer be allowed to return to Australia. In August 2020, our team successfully applied for a Section 10 dismissal for two international students in a common assault matter.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

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.

Common pitfalls in a commercial lease

A commercial lease is a contract between a landlord and a tenant, who has the right to occupy the property like an office or a warehouse. Commercial leases differ from retail leases because they have different regulatory frameworks. Unlike retail leases, commercial leases are not as tightly regulated which means that parties of a commercial leases have more flexibility to negotiate terms. The legal jargon used in commercial leases can be difficult to understand and there are a few terms that often trigger disputes between landlords and tenants. This article will cover clauses on option to renew, rent review and repair and maintenance.

Option to renew

After you determine the term of the lease, the starting date and the terminating date, you may want to consider the ‘option to renew’ clause. The option is the tenant’s right to demand another fixed term of the lease on the same terms as the existing lease (except for the rent and duration). For example, a five-year lease may have a five-year option, making the total duration ten years if the tenant chooses to exercise the option.

Without an option to renew, the landlord has two options at the end of the term: either offer the premises to the same tenant on different terms and conditions or offer the premises to a different tenant.

It is often in the interests of both parties to include this term if they want to maintain a long-term commercial relationship. The landlord will have more financial security and a more valuable property. Conversely, the tenant benefits from building a strong reputation and goodwill by maintaining the same location for their business.

If an option to renew clause is inserted, the duration of the new terms should be sufficiently long and the preconditions of an option for renewal should be clearly outlined. Examples of preconditions include: ‘that the tenant must have punctually paid rent throughout the lease term’, and ‘that there is no subsisting breach of any lease covenants by the tenant at the date of serving notice of exercise of the option’.

Rent review

The next term that all landlords and tenants should consider is the rent review clause. There are various ways to review rent such as by a fixed percentage, by movements in the Consumer Price Index (CPI) and by market rent. Landlords and tenants should be aware of any ‘ratchet’ clause in the lease as it can give rise to considerable problems in lease drafting and litigation. A ratchet clause prevents the rent to reduce after market rent review. Hence, inserting a ratchet clause is in the landlord’s interest.

Repairs and maintenance

Clauses pertaining to repairs and maintenance are often disputed because parties do not clearly specify who is responsible for repairing or maintaining certain items in the premises. The exact obligations for repairs will usually differ with each lease. Generally, if the damage to the property is beyond fair wear and tear, the tenant has the responsibility pay for the cost of repairs. A large hole in the wall is an example of beyond fair wear and tear. The landlord is normally responsible for repairing the roof, the ceiling, the external walls and the floors of the property.


Therefore, landlords and tenants need to be alert to certain terms in a commercial lease otherwise costly disputes can arise. If you want to enter into a commercial lease, get in touch with our experienced legal team so that we can review your lease and protect your interests.

How to Fight against Domestic Violence

According to a 2020 report by the Australian Institute of Criminology, more than half the women who experienced coercive control from their partners reported the escalation of emotionally abusive, harassing or controlling behaviours during the COVID-19 pandemic.

The rise in domestic violence is attributable to a combination of factors including increased time spent at home, increased social isolation, increased financial stress and job insecurity. What can you do when you experience domestic violence? In this article, we will explain the fundamental elements of domestic violence in NSW and Apprehended Domestic Violence Orders (ADVO).

What is domestic violence?

First, you may notice that the definition of domestic relationship is actually quite broad. Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘the Act’), the definition encompasses marriage, de facto relationships, intimate relationships, and couples living in the same household.  Under the Act, domestic violence means an offence committed by a person against another person with whom the person who commits the offence has (or had) a domestic relationship, being:

  1. A personal violence offence; or
  2. An offence which is intended to coerce or control the person and cause intimidation or fear.

Furthermore, Intimidation includes:

  1. harassment or molestation of the person, such as cyberbullying by publication or transmission of offensive material over social media or via email;
  2. conduct causing the person to fear for his or her life by telephone, text messaging, emailing and other technological means;
  3. conduct causing apprehension of injury;
  4. damage to property.

Are you a victim of domestic violence?

In NSW, you can ring the Domestic Violence Line (1800 65 64 63) to speak with a caseworker from the NSW Department of Communities and Justice. Alternatively, you could seek an ADVO which is a court order to protect people from violence and intimidation (including harassment) by another person. We can help you apply for an ADVO in the Local Court.

When an ADVO is granted, some mandatory conditions are attached to the ADVO including:

  1. the defendant is prohibited from assaulting, threatening, stalking, harassing, or intimidating the protected person, or damaging property;
  2. the defendant must not approach the protected person; and
  3. the defendant must not come within a certain distance of the premises where they reside or work.

Have you been served with an ADVO?

If you are served with an ADVO, your rights are adversely affected. For example, you may have to move out of your home; you may lose your job after your employer runs a police check; or you may lose your right to see your children in the Family Court. If you are a visa holder, you could even lose your right to stay in Australia.

If you think you are involved in a domestic violence matter, please contact our professional lawyers to help you. Our team has rich experience in domestic violence and family law matters, and we are committed to protecting your rights and your best interests.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

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.

What to do when someone owes you money

Does a tenant owe you rent? Does your boss owe you wages? You loaned money to someone and he/she did not pay you back? Pursuing people for money that belongs to you can be irritating and time-consuming. One way to recover your money is to sue the person or company owing you money (also known as a debtor), but this is generally the most expensive way of resolving a dispute. Before going to court, it is worth considering alternatives such as issuing a ‘letter of demand’ to the debtor, and mediation. In this article, we will explain to you the initial steps in your journey to recovering your debt.

Letter of demand

A letter of demand is exactly what it sounds like. This document is addressed to the debtor and contains your demand for money which belongs to you. The most effective letters are succinct and can include the following:

  • The amount owed to you in dollar value;
  • A copy of the invoice which has not been paid or a copy of the contract that has been breached;
  • The deadline for repaying the debt (usually within 7 days of the date of the letter);
  • The method of repayment (e.g. electronic funds transfer, cheque or cash); and
  • Your intention to sue the debtor if the debt is not repaid.

Take the time to ensure that you have correctly identified the debtor or debtors including address and email. You also want to make inquiries about the debtor’s assets and ascertain whether or not the debtor can satisfy your debt. If you would like an effective letter of demand to be drawn up, feel free to contact our team.


Another affordable way to resolve a monetary dispute is through mediation. It involves the parties, usually with their lawyers, attending a meeting with a mediator trained in settling disputes. At first, the mediator meets the parties and their lawyers altogether, at which each side makes an opening statement of their position, followed by some negotiation. At this stage, you want to find out why the debtor has refused to return your money. Next, the parties and their lawyers are placed in separate rooms, while the mediator moves between each room, presenting offers of settlement, and trying to bring each closer to the other’s position.

Attempting mediation is generally expected by judges before court proceedings begin.

The NSW Community Justice Centres and NSW Small Business Commissioner offer cheap mediation services.

Statement of claim

If the two options above are unsuccessful, then you can consider filing and serving the statement of claim to the debtor. The statement of claim is a written declaration by you, the creditor, containing the facts that are to be relied upon to a support a claim against the debtor, and the relief claimed. It can be an effective way of bringing the debtor to the negotiating table. However, this pathway is costly and can take many months before a trial takes place. If you do go to trial and obtain a judgment in your favour, you can legally force the debtor to repay you.

For debt up to $100,000.00, the statement of claim would be filed in the Local Court.

For debt between $750,000.00 and $100,000.00, the statement of claim would be filed in the District Court.

For debt greater than $750,000.00, the statement of claim would be filed in the Supreme Court.


Therefore, there are various options available to recover your money, and we recommend that you try resolving the dispute outside of court first. Issuing a letter of demand and attending mediation are not only cost-efficient, but they are also short in duration and have a relatively high success rate. If you need any assistance with drafting an effective letter of demand or need legal representation, please contact our team.

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.

Applying for a partner visa and the impact of the 20/21 Federal Budget

A partner visa is one of the most important type of visas because it affects a substantial number of families. This visa allows a foreigner to stay in Australia so that he or she can be united with his or her Australian partner. Following the Australian federal budget 2020-21, several changes are made to the partner visa scheme with significant implications. In this article, we will take a brief look at such changes and their impact on partner visas.


The visa applicant must be ‘sponsored’ by his or her partner who is an Australian citizen, Australian permanent resident, or a New Zealand citizen who satisfies specific criteria. The visa applicant’s partner must first apply to and be approved by the immigration authority to be a sponsor.

The visa applicant’s partner must be visa applicant’s ‘spouse’ or ‘de facto partner’. In either case, they must be committed to each other in a shared life to the exclusion of others. Moreover, they must live together or not be separated permanently. For a de facto partnership to be recognised, it must have lasted for at least 12 months.

To be granted a partner visa, the partnership must be proved as genuine and continuing. All circumstances of the partnership must be considered by the immigration authority, including four essential aspects, namely financial aspect, nature of household, social aspect and nature of commitment to each other.

Application process

There are permanent and temporary partner visas: a permanent visa grants permanent residency in Australia, while a temporary partner visa allows the applicant to stay in Australia before the permanent visa is granted. The applicant must apply for a temporary visa and a permanent visa at the same time. Assessment of the permanent visa application will normally start two years after its lodgment.

Partner visas can be applied for either in Australia (on-shore) or outside Australia (off-shore). An interesting fact is that an offshore applicant can apply for a prospective marriage visa to come to Australia to marry his or her Australian partner. After the marriage, the applicant can apply for onshore partner visas.


The Australian Federal Budget 2020-21 has brought significant changes to the partner visa scheme including:

  1. more visa places allocated to partner visas;
  2. priority to regional residents;
  3. mandatory character check for sponsors; and
  4. English requirements.
More visa places

In the 2020-21 visa program year (starting from 1 July 2020), the Australian Government has planned to grant 72,300 partner visas, compared to 39,799 in the 2019-20 program year.

Priority to regional sponsors

Partner visa applications will be given priority in the application process if the sponsor lives in ‘designated regional area’ such as Perth, Adelaide, the Gold Coast and Canberra. In other words, applicants with a regional sponsor might obtain permanent residency faster.

Sponsor’s character check and obligations

The sponsor applicant must provide the immigration authority with a police check. Moreover, the sponsor applicant must consent to the immigration authority disclosing his or her criminal records to the visa applicant.

The sponsor is obliged to provide the visa applicant and his or her children with accommodation and financial assistance 2 years after the temporary partner visa is granted, even when the permanent visa is granted before the 2 years expiry. The visa may be cancelled if the sponsor fails to perform his or her obligations.

English requirement

Both the partner visa applicant and the sponsor are required to have ‘functional English’ by the time the permanent partner visa is granted. They must at least demonstrate that they have made reasonable efforts to learn English. Such efforts may be demonstrated by, for example completing 500 hours of free English language classes through the Adult Migration English Program.


Applying for a partner visa is a long process and has a handful of requirements. This year, the Australian Government has created more opportunities for partner visa applicants and tightened the requirements for sponsors. At Legal Point Lawyers, we can help you with your application and offer a service that is smooth and efficient.

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.

Getting bail – an overview

The actor Gao Yunxiang (Gavin Gao), who is also known as “Hugh Jackman of China”, was charged with sexual assault in 2018. The famous Chinese actor was granted bail by Justice McCallum, but in return he would have to satisfy multiple bail conditions. Gao was ordered to pay $3 million surety for bail, stay at a $6000-a-month Chatswood property, obey a nightly curfew, wear an electronic monitoring bracelet, and to stay 100m away from Sydney International Airport. You may wonder how complex a bail decision is. In this article, we will explain to you the fundamental elements of a bail application.

What is bail?

The term ‘bail’ is the authority to be at liberty for an offence until the proceedings for the offence finish. In other words, the accused can be released from custody on the condition that they attend court when required and abide by other bail conditions.

Steps leading up to Court

If you have been charged and arrested, the police will quickly decide whether or not you can go home or stay in custody. Generally, the police will refuse bail if the alleged offence is a serious one. If the offence is minor, then you may have a right to release. If bail is refused by the police, you will be brought before the Court as soon as practicable for a bail application. Remember you have a right to contact a lawyer for help with bail.

Court considerations

Some of the matters that the Court will consider include:

  1. Your criminal history and community ties;
  2. The nature and seriousness of your offence;
  3. The strength of the prosecution case;
  4. Whether you have a history of violence;
  5. The length of time you are likely to spend in custody if bail is refused;

In Gao’s case, Her Honour outlined that her main concern was the risk of flight because there is no extradition treaty with China.

Examples of bail conditions

There are different types of conditions that can be imposed on bail including:

  1. Conduct requirements such as reporting to police every day, living at a specific address, surrendering your passport and obeying a curfew;
  2. Security requirements such as giving a security bond;
  3. Character acknowledgments by an acceptable person; and
  4. Enforcement conditions such as answering a police check.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

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.

Application for Divorce in Australia

You probably heard the news about Bill Gates and his wife filing for divorce recently, but did you know that almost 50,000 divorces were granted in Australia in 2019? This figure is quite substantial given than just over 100,000 marriages were registered in the same period.

Divorce is the legal end of the marriage between two spouses. Deciding to divorce is arguably one of the most difficult decisions that a person has to make, but the application process does not have to be. This article will go through the two essential preliminary issues you need to consider and the application process.

Issues before applying for divorce

Before applying for divorce, you should consider who gets what, that is to determine how the matrimonial pool of assets is divided. Another issue that must be resolved prior to a divorce application is the children’s future. The Court may not grant a divorce if the parties have failed to make appropriate arrangements for the children such as child support, accommodation and supervision. These two issues can be complex, and you should contact a family law lawyer for legal advice.

The application process

Under the Family Law Act 1975 (Cth), the Federal Circuit Court has the power to deal with all divorce applications. Divorce applications must be filed online unless the parties are in a same sex relationship. An application fee of $930.00 (FY20/21) also needs to be paid. However, if payment of the full fee would cause you financial hardship then you may be qualified for a reduced application fee of $310.00 (FY20/21). You can either apply for divorce by yourself or together with your former partner. Each option has different formalities.

The one and only ground for divorce is ‘irretrievable breakdown of the marriage’. To prove to the Court that your marriage has irretrievably broken down:

  1. You and your partner must have lived separately and apart for at least 12 months; and
  2. There is no reasonable chance of getting back together.

If you can prove the above in Court, then a divorce order will be made and be effected one month and one day later. The Court will not acknowledge allegations of fault such as cruelty, adultery and desertion as a ground for divorce.

Furthermore, at the time of application, either spouse must be an Australian citizen, or domiciled in Australia or an ordinarily resident in Australia.

How long does it take to get a divorce in Australia?

At least 16 months from the date of separation, which starts on the day after one spouse considered the marriage to be broken down and imparts this fact to the other. At filing your Application for Divorce, you will be able to select a listing date for the Divorce Hearing from a range of available dates. Hearings are normally listed in 2 to 3 months’ time from the date of filing. The length of time can increase due to the other party’s opposition to a divorce application or issues with serving court documents to the other side.


Overall, applying for divorce is a lengthy and complex process with many issues to consider including the distribution of family assets and the children’s future. Over the past decade, the Court has streamlined the procedure and converted it online for ease and efficiency. If you are thinking about divorce and want to discuss your options, feel free to contact our team of family law lawyers for a consultation.

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.

Drink driving in NSW

On 20 May 2019, the NSW Government implemented tougher penalties for drink-driving offences to reduce the number of injuries and deaths from car crashes. One reason for this change is because a person is killed or hospitalised every 41 minutes due to a car crash on NSW roads. To ensure that drivers are obeying the law, you will find the Police conducting random breath tests on the road at different times of the day. This article will briefly explain to you the current drink-driving laws and how we can help you if you are tested positive to a high PCA (Prescribed Concentration of Alcohol in a person’s breath or blood). By reading the information below, you could potentially save your driver licence, prevent a fine and protect your criminal record.

The Law

The law governing drink-driving offences can be found in section 110 of the Road Transport Act 2013 NSW. There are five separate categories for this offence which vary in severity of punishment and PCA.

Novice range PCA: A person who holds a learner licence, provisional licence or interlock driver licence must not have more than a PCA of 0 grams when he/she is driving the motor vehicle.

Special range PCA: a special category driver (see s107 of the Road Transport Act 2013 NSW) must not have a PCA of 0.02 grams or more when he/she is driving the motor vehicle

Low range PCA: A person who holds a full driver licence must not have a PCA of 0.05 grams or more, but less than 0.08 grams, when he/she is driving the motor vehicle.

Middle range PCA: A person who holds a full driver licence must not have a PCA of 0.08 grams or more, but less than 0.15 grams, when he/she is driving the motor vehicle.

High range PCA: A person who holds a full driver licence must not have a PCA of 0.15 grams or more when he/she is driving the motor vehicle.

Penalties for the above categories include a suspension of driver licence, fines, a criminal record, a requirement to install an alcohol interlock device and even imprisonment. A higher PCA generally results in more significant penalties. If you are found guilty by the Police, your driver licence will be immediately suspended. Suspension means that you need to hand your licence to the Police and make alternative arrangement to return home. In the case of a first offence, the driver licence can be suspended for 3 months and an on-the-spot fine can also be issued.

How we can help

If you have received a penalty notice or an immediate suspension for a drink driving offence from the Police, we can appeal the suspension for you in Court. Depending on your circumstances, we could rely on several defences to preserve your innocence such as ‘honest and reasonable mistake’ and arguing that the breath test was ‘unlawfully obtained’.

If it is your first drink-driving offence, we can help you persuade the Court to dismiss a conviction by means of a ‘section 10’. If we are successful, your licence would be returned to you and you will not be penalised. You can find out more information about a ‘section 10’ in our article here:

If it is your second drink driving offence within a 5-year period, we can help you reduce the severity of the punishment such as decreasing the length of your licence suspension; reducing your fine; and help you avoid imprisonment.

Therefore, drink driving laws in NSW should not be taken lightly because the penalties can be detrimental to your career and your future. Our drink driving solicitors have appealed many matters in Court with a high level of success and client satisfaction. If your driver licence has been suspended by the Police, you should obtain legal advice.

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.

Default judgments and how to enforce them in debt recovery matters

What is a default judgment?

A default judgment is a sanction of the court which effectively disposes court proceedings without a trial. You will often hear about this after the plaintiff has served a statement of claim or summons on the defendant, and the defendant failed to respond in time. A default judgment is available in the civil jurisdiction of the Local Court, District Court and Supreme Court.

In the context of debt recovery, obtaining a default judgment would order that the defendant must pay you money or return your goods. However, a default judgment is not the end of the story; it is merely the precondition for a range of court remedies. According to s 17 of the Limitation Act 1969 (NSW), you have 12 years, from the date the default judgment is entered, to enforce it. This article will briefly explore the three most popular remedies, namely bankruptcy, garnishee order and writ for levy of property.


This is a term that appears in the media quite often. Particularly in 2020, we have heard a number of companies crumble under crippling debt including Virgin Australia. The purpose of bankruptcy is to liquidate most of the assets of the defendant and obtain some of the earnings of the defendant for up to 3 years after the date of bankruptcy. Bankruptcy proceedings can be started in the Federal Courts soon after default judgment is handed down, provided the total judgment debt amounts to at least $10,000.00. However, the method of bankruptcy can be costly, lengthy and very technical. Another disadvantage is that there may be other secured creditors, who rank ahead of you in priority, and thus full payment of the debt may not be received.

Garnishee order

As for the garnishee order, the third party (known as the “Garnishee”) will be compelled to pay their debt to you instead of the defendant. Examples of Garnishees include banks, employers, real estate agents, debtors and other financial institutions.  The debts have to be existing debts which are due at the time of serving the garnishee order. The debtor’s cheque accounts, term deposits in banks, saving accounts in banks, money held on fixed deposit are subject to a garnishee order. If the defendant’s bank account balance is too low, the bank does not have to comply with the order.

Writ for levy of property

To successfully execute the writ for the levy of property, you must know that the defendant has the relevant property which can be seized by the sheriff to satisfy the debt. The relevant properties may include any goods in which the judgment debtor has a beneficial interest, money belonging to the judgment debtor, cheques, bills of exchange, promissory notes, bonds or other securities.

Order for Examination

If you do not have enough information about the defendant’s income or assets, you could issue an order for examination which compels the defendant to appear in Court and present answers.

Take action now before it is too late. Contact Legal Point Lawyers today for a consultation. With over 15 years in the legal field, we can help you significantly boost your chances of recovering your debt quickly and smoothly.

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.

Negotiating with the Prosecution

In criminal law, negotiation is a mechanism of attempting to resolve competing interests between the Prosecution and the Defence. It is very important because the Defendant could secure the best outcome for himself/herself. In New South Wales, the Police Prosecutor deals with summary offences (e.g. drink-driving and common assault) while the Office of the Director of Public Prosecutions (DPP) deals with more serious offences (also known as indictable offences). Negotiation is not only prevalent in Australia, but also in other countries around the world including the United States of America, England and China.

What can be negotiated?

The most popular area for negotiation is that of which charges the Defendant might plead guilty to if the Defendant will admit certain allegations. Another popular area of negotiation is whether the Defendant will provide assistance to the authorities in the event that negotiation is successful. Examples of assistance include giving evidence against a co-accused at trial and assisting police in relation to different matters.

Why is negotiation important?

Firstly, it saves the Defendant and their friends and family a lot of stress in having the matter resolved earlier. The Prosecution process often takes years to finalise from the charge date to the sentencing date. Secondly, accepting a plea bargain could save the Defendant from a harsher punishment because they have a weak case at trial. For example, if the Defendant suffered significant memory loss and could not recall the alleged offence, then they would probably struggle to rebut the Prosecution’s arguments. Thirdly, an early guilty plea could lead to a sentencing discount because it shows the Judge that the Defendant is remorseful. Fourthly, it narrows down the issues to be dealt with at trial.

What the negotiation process could look like for summary offences:

Prior to the first court appearance, the Defendant writes to the Police to request a withdrawal of a charge(s). The Defendant could support their request with the following reasons:

– The Defendant has a good defence;
– The Police do not have enough evidence to prove the alleged offence; or
– The Defendant agrees to plead guilty to a less serious charge if the Police withdraws the more serious charge.

If the Police do not agree to withdraw the charge, then the Defendant will have to consider pleading guilty or not guilty at Court.

What the negotiation process could look like for indictable offences:

The DPP certifies the following charges:

No. Description Offence details Maximum imprisonment
1 Assault child with intention to have sexual intercourse with 13 years old child S66D Crimes Act 1900 16 years
2 Grooming 13 years old child for unlawful sexual activity S66EB(3) Crimes Act 1900 12 years
3 Intentionally sexually touches a child who is 13 years old S66DB(a) Crimes Act 1900 10 years


A week later, the Defence writes to the DPP and offers a plea of guilty to the following charge only.

No. Description Offence details Maximum imprisonment
3 Intentionally sexually touches a child who is 13 years old S66DB(a) Crimes Act 1900 10 years


Before deciding, the DPP will consider three factors, including:

1. Whether the evidence available can satisfy each element of the alleged offence;
2. Whether there is no reasonable prospect of conviction by a jury; and if not
3. Whether discretionary factors nevertheless determine the matter should not proceed in the public interest.

A lesser charge may be accepted if the Prosecution is satisfied it is in the public interest after considering the following matter:

– The alternative charge sufficiently reflects the criminality of the Defendant’s action and the plea provides enough scope for sentencing; and/or
– The Prosecution case is weak; and/or
– The saving of cost and time weighed against the likely outcome if it continued to trial is significant; and/or
– It will save a witness from the stress of testifying in a trial; and/or
– A victim has expressed a wish not to proceed with the charges.

If the DPP accepts the offer, then the matter would progress to sentencing before the Court. If the DPP rejects the offer, then negotiations will either continue or progress to Court for a trial date.

Guilty plea discounts for offences in NSW

The following sentencing discounts are prescribed for indictable offences based on the timing of the plea (Part 3, Division 1A, Crimes (Sentencing Procedure) Act 1999 (NSW)).

Timing of guilty plea 


Before committal in the Local Court


Up to 14 days before the first day of trial in the District or Supreme Court (for plea or notice of plea)


In any other circumstances



Overall, negotiation is an important aspect of the Prosecution process as it can lead to the best outcome for the Defence and for the community. If you have been charged with a serious offence, our experienced criminal law team at Legal Point Lawyers are able to assist.

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.

Your rights when flights are cancelled

The lifting of border restrictions between New South Wales and Victoria recently is a step-forward in reviving the airline industry. However, borders can also close very quickly if there is a sudden spike in Covid-19 infections, meaning flights may have to be cancelled or postponed. Last year, many Australian consumers waited over six months to obtain a refund on their plane tickets. Thus, it is no surprise that the pandemic resulted in 24,210 complaints to the Australian Competition and Consumer Commission (ACCC), which is an increase of 497 per cent compared to the same period in 2019. This article will share recommendations on what you need to be aware of before purchasing a flight ticket and what you can do when flights are cancelled.

Before purchasing a ticket

Paying attention to the terms and conditions of your booking is very important because they will determine whether you are entitled to a refund for cancelled bookings due to government restrictions. In some cases, consumers might not be entitled to a full, or any, refund of their booking. Some travel providers offer travel credits rather than refunds. If you receive travel credits, you should check when the expiration date is.

Terms and conditions will vary between travel providers (e.g. Qantas, Jetstar and Virgin). Terms and Conditions can also vary between different time periods. If you purchased a ticket via a travel agent, you should also read the travel agent’s terms and conditions.

When flights are cancelled

When cancellations occur due to government restrictions, consumers are not automatically entitled to a refund as they would be in normal circumstances under the consumer guarantees of the Australian Consumer Law (ACL). However, the pandemic does not permit business to engage in misleading, deceptive or unconscionable conduct.

If you paid by credit or debit card and you selected credit, you can ask your bank for a credit card charge back. Sometimes your bank reverses the disputed transaction with the merchant’s bank in accordance with the rules set by Visa, Mastercard and American Express.


Therefore, it is prudent for consumers to look closely at the terms and conditions of their booking before making payment. If you think you have been treated unfairly by a travel provider, we are available to help you.

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.

Victorian Court Arrangements during the Second Lockdown

Due an unfortunate surge of COVID-19 cases, Victoria is now under a second lockdown with metropolitan Melbourne facing the strictest stay-at-home and curfew restrictions which will last for at least 6 weeks from the beginning of August. In this context, how the Victorian judiciary, which traditionally relies heavy on face-to-face hearings, adapt to the second lock-down deserves special attention. This article will take a brief look at such adaptive measures.

Courts operating protocols

In general, Victorian courts and tribunals remain accessible, but they now only hear urgent and priority matters. Most non-urgent matters are either postponed to a later hearing date or scheduled to be heard via video conferencing instead. For those who are required to attend the county court physically, they must adhere to the face covering rules inside the court.

Supreme Court of Victoria

The Supreme Court of Victoria normally deals with the most significant cases. Currently, most hearings at the Supreme Court are being heard remotely. If you are unable to attend court due to COVID-19, you must notify the Prothonotary by email as soon as possible.

County Court of Victoria

In the second lockdown, the County Court will only grant permission for matters to be conducted in person at court on a case-by-case basis where such physical attendances are necessary and urgent with no reasonable alternative. Examples of such cases include those concerning the liberty of a person, or cases involving highly vulnerable participants or dying litigants.

Other hearings are conducted via video conferencing (eHearings) where participants will be able join remotely.

Magistrates’ Court

Like the County Court, the Magistrates’ Court is managing many of its matters remotely and you should not attend court unless otherwise instructed by prior arrangement. A range of non-urgent matters have been adjourned and most matters are now being heard in the Online Magistrate Court ( OMC) premises. The Courts are now also utilising “webex” that allows certain matters to proceed remotely. 


VCAT, which mainly deals with small claims, is still accepting new cases and you can still apply for matters that fall within the VCAT’s jurisdiction for determination. However, VCAT is able to issue summons at your request. VCAT is conducting hearings via telephone and video conferencing. Most cases that require face to face contact have been adjourned and rescheduled for hearing for a later date. Parties will be informed of how to attend their scheduled hearing by the tribunal.

Federal Circuit Court

The Federal Circuit Court has suspended all face-to-face hearings in the Melbourne and Dandenong registries for the next six weeks unless exempted by the Chief Justice. The court will conduct all trials and hearings electronically via telephone or Microsoft Teams. Regarding family law cases in particular, the court has asked parties to cooperate and ensure that the best interests of the child are being addressed by complying with court orders. If strict adherence to parenting orders are not possible, all amended arrangements must reflect the essence of the orders.

To sum up, thanks to remote conferencing technology today, Victorian courts are able to maintain public access to the court system while safeguarding public health and safety during the COVID-19 pandemic. It is notable, however, that specific arrangements vary depending on the type of court and the case they deal with. If you are involved in a court case or plans to initial legal proceedings, it is advisable to look at the arrangement of the applicable court and keep in close contact with your lawyer.

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.

A Liquidator’s Rights to the Books of a Subject Company under External Administration

Undoubtedly, recent news about big company entering into external administration attracts a lot of public attention. As part of the winding up process of a subject company placed under external administration, an appointed liquidator (or a “provisional liquidator”) may serve a formal Notice pursuant to s530B of the Corporations Act 2001 (Cth) upon a person who is in control of the subject company’s books, requiring that person to deliver such “books of the company” to the liquidator within a limited timeframe.

Unlike other rights conferred upon the liquidator by other parts of the Corporations Act 2001, s530B imposes an obligation on persons generally, rather than just upon officers of the subject company, and may include or third parties / unrelated entities of the subject company, or various professional groups such as accountants, financial advisers or solicitors that may have previously acted for, or given advice to the officers of the subject company.

As a person who is served with a Notice is not entitled, as against the liquidator, to retain possession of the “books of the company” or claim or enforce a lien on such books, they must give careful consideration to their response, as a failure to comply with a Notice is a strict liability offence.

How to respond to a Notice issued pursuant to s530B of the Corporations Act 2001?

Firstly, ensure that the Notice complies with the formal requirements of s530B, including that the Notice must:

  1. be in writing;
  2. specify the “books of the company” that are in the person’s possession; and
  3. specify a period of at least 3 days as the period in which the Notice must be complied with.

Secondly, carefully review the specified list of “books of the company” requested to determine what books have been correctly captured by the Notice.

What documents and/or records constitute “books of the company”?

Although s9 of the Corporations Act 2001 broadly defines the term “books” to include a register, any other record of information, financial reports or financial records (however complied, recorded or stored), and a document, the Courts have narrowly interpreted the meaning of “books of the company”. The Courts have limited the scope of what “books” can be captured under a Notice issued pursuant to s530B, and interpreted the expression “books of the company” to refer to books which are owned or belong to subject company under external administration, or those books which it can claim a proprietary interest in.

In the matter of Cromwell Corporation Limited [2019] NSWSC 1608, Her Honour, Lees J set out the relevant authorities at [20] to [33] in relation to the interpretation of “books of the company”. In particular, at [23], Her Honour stated:

His Honour referred to consideration of the expression “books of company” in different sections of the Corporations Act in Hall v Sherman (2001) 40 ACSR 40; [2001] NSWSC 810 and Caratti v Harris & Kirman as Joint Liquidators of GH1 Pty Ltd [2019] FCAFC 124. Pausing to examine those authorities, in Hall v Sherman, Austin J considered the meaning of “books of the corporation” under section 431 (rights of a controller of property of a corporation to inspect books of the corporation that relate to that property) and “books of the company” under section 530B  (the liquidator’s entitlement to the books of the company). In respect of  section 530B , his Honour held at [47]: (emphasis added)

… The liquidator’s right to obtain or retain possession of books, as against other persons, is confined to “books of the company”. As a matter of natural meaning, those words refer to books which belong to the company, and may extend to books to which the company has some lesser but proprietary interest. …

Given the narrow interpretation of “books of the company” by the Courts, a person is therefore only obligated to deliver to the liquidator books which can be identified as belonging to, or which the subject company can claim a proprietary interest.

If you have been issued with a Notice pursuant to s530B of the Corporations Act 2001 by a liquidator or via its solicitor, you should seek legal advice about your obligations on an urgent basis and before delivering any documents and/or records to the liquidator and/or its solicitor.


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.

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

2. MensLine Australia (tel: 1300 789) and

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)

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.


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.


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.


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.


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:

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.


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.