Thursday, 15 November 2018
TARGETED DIVISION 7A AMENDMENTS COULD BRING INCREASED COMPLIANCE COSTS, DOUBLE TAXATION: Sladen Legal's Neil Brydges, Patricia Martins and Sam Campbell discuss Treasury’s proposed amendments to Division 7A, which, they argue, could come at a significant cost. Submissions in response to the Consultation Paper close 21 November.
DUTY OF CARE BREACHED BUT WRONGFUL BIRTH CLAIM FAILS: Barry Nilsson Insurance and Health Special Counsel Melinda Drew discusses the decision in Nouri v Australian Capital Territory where the plaintiffs failed in their suit for the wrongful birth of their severely disabled child, even though a breach of duty of care had been found. The plaintiff parents argued they would have terminated the pregnancy if they had known of the disability.
NEW LONG SERVICE LEAVE REGIME BRINGS WELCOME CHANGE: HLB Mann Judd Partner Michael Gummery and Audit Manager Leonze Downs discuss the new Long Service Leave Act 2018 (Vic) which began this month. The new legislation may be fairer and more flexible for women, parents and carers, they write.
ANOTHER AUDITOR LIABLE FOR SMSF INVESTMENT LOSSES - RYAN WEALTH HOLDINGS PTY LTD: Tracey Scotchbrook, SMSF Specialist Advisor and Director of Superology, discusses the latest case involving an SMSF auditor being found liable for investment losses suffered by a Self-Managed Superannuation Fund. The decision in Ryan Wealth Holdings Pty Ltd v Baumgartner has some similarities to a recent case, Cam & Bear Pty Ltd v McGoldrick, she writes.
DO EMPLOYEES HAVE A RIGHT TO TAKE SMOKE BREAKS? MDC Legal lawyer Madeleine Brown discusses the legal ins and outs of workers taking smoke breaks, with reference to the case of Bajada v Trend Windows and Doors Pty Limited  FWC 5937, where an employee was sacked for flouting their employer's smoke break policy.
PROPER CONDUCT IN MARKETING AND COMMUNICATIONS: Norton Rose Fulbright Partner Georgina Hey and Associate Isobel Taylor, in the first of a two-part series on advertising regulations and trends, discuss advertising definitions and what requirements apply in each situation.
PLUGGING GAPS IN BUSINESS SUCCESSION PLANNING: Shadforth Insurance Specialist Kunaal Parbhoo, in the final article of his three-part series on the problem of under-insurance in Australia, discusses how an often overlooked part of business ownership is keeping the end in mind. Using life insurance to fund a business exit strategy is a popular option, he writes.
ASIC BANS EX-FINANCIAL SERVICES REPRESENTATIVE AFTER SUPERANNUATION STEALING CONVICTION: ASIC has permanently banned Mr Craig James Wilson from providing financial services and engaging in credit activities, after he was convicted in the District Court of Western Australia of four counts of stealing.
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CHALLENGES WITH OPEN PLAN OFFICES, HOT DESKING: Leadership Coach and Business Psychologist Jasbindar Singh discusses how open plan offices affect different personality types and how "setting up shop” every day in hot desking environments can cause stress. Generally, more introverted workers struggle with the constant activity around them in an open plan office, she writes.
ENRON AND YOUR ETHICAL COMPASS: WOULD YOU SACRIFICE VALUES AND INTEGRITY FOR MONEY? Stephen Drain, Partner at PwC, revisits the Enron scandal and asks readers to check their ethical compass. Many white collar criminals don't necessarily start out as crooks, but a combination of circumstances led them to flout the law, he writes.
ENGLISH HIGH COURT IN DALAMD: WHEN CAN A BROKER ARGUE THE ASSURED’S CLAIM SHOULD BE AGAINST THE INSURERS? Duncan Cotterill Partner Jonathan Scragg and Special Counsel Professor Rob Merkin, QC, discuss a recent decision in the English High Court, Dalamd Ltd v Butterworth Spengler Commercial Ltd, which determined an important and previously unresolved issue on insurance brokers. The facts are complex, they write.
Thursday, 8 November 2018
ATO DATA MATCHING TO CRACK DOWN ON SHARE INCOME: Adrian Abbott, of Sydney Tax Advisory, and Gregory Ross, of Eakin McCaffery Cox, discuss the latest on how the ATO is cracking down on undeclared income through data matching. The Tax Office has announced it will keep an eye on income and capital gains on the sale of shares, they write.
AUSTRALIAN FINANCIAL COMPLAINTS AUTHORITY OPEN FOR BUSINESS: David Huggins, principal of Huggins Legal, discusses what effect the AFCA might have on legal practitioners. The most likely source of increasing disputes in the short-term will be disputes about lending to make residential property investments, he writes.
SPECIAL LEAVE GRANTS BY HIGH COURT AT 10-YEAR LOW: Melbourne Law School Professor Jeremy Gans analyses the numbers from the High Court and finds that last month, special leave grants were at their lowest in a decade. The drop in grants appears to be part of a broader pattern of the Court hearing fewer and fewer cases, he writes.
ASIC WELCOMES $9M PENALTIES AGAINST FINANCIAL SERVICES BUSINESS OVER BREACHES: A Melbourne-based financial services and credit business has been ordered by the Federal Court to pay penalties of $8,980,000 after it engaged in numerous contraventions of financial services, credit and consumer protection laws.
AVOID A NASTY SURPRISE - LANDHOLDER DUTY CAN APPLY IN UNEXPECTED SITUATIONS: Matthew McKee, Partner at Brown Wright Stein, discusses how private landholder duty can apply in unexpected circumstances in NSW. The potential for such duty hinges on two concepts - ‘landholder’ and ‘relevant acquisition’ – and these are extremely broad, he writes.
TIME'S UP FOR TAX-FREE INSTAGRAMMABLE FAME: Norton Rose Fulbright Partner Georgina Hey and Associate Isobel Taylor explore the taxable "Insta value" of publicity-seeking celebrities who use a separate entity to cash in on their image rights. In bad news for these individuals, major changes to how they are taxed will start next financial year, they write.
AVOID AN OFFER OF COMPROMISE NOT BEING CONSIDERED A COMPROMISE: HWL Ebsworth Partner Rebecca Hosking and Paralegal Edward Basha discuss circumstances where an offer is and is not a compromise, with reference to the NSW Uniform Civil Procedure Rules and recent cases of Dr Leo Shanahan v Jatese Pty Ltd [No 2] and South Western Sydney Local Health District v Gould (No 2).
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FROM CCTV TO BODY CAMERAS, IS WORKPLACE SURVEILLANCE LAWFUL? MDC Legal Senior Associate Nikita Barsby and Associate Renae Harg discuss the growing accessibility of surveillance technology and whether it's legal in the workplace. Monitoring an employee’s activities in the workplace, without their consent, will likely breach legislation relating to surveillance devices, they write.
CLIENTS COMMONLY NEGLECT PLANNING FOR DEATH, TAXES: James Tng, Partner and Director at Moore Stephens, discusses key areas which clients overlook as they age. Companies, trusts and super funds are more commonplace now, and clients should be aware these generally continue to run beyond death, he writes.
LEADING THROUGH TIMES OF CHANGE AND UNCERTAINTY: Leadership Coach and Business Psychologist Jasbindar Singh discusses how great leaders can lead and live through constantly changing times. When the unexpected happens, it invariably throws us and we react, she writes.
Thursday, 1 November 2018
AUTOMATED ATO 'DECISION' LETTER GENERATES UNCERTAINTY AFTER HIGH COURT BID FAILS IN PINTARICH: Sladen Legal Associate Sam Campbell discusses the opportunity for the ATO arising from a Clayton's decision. In Pintarich v Deputy Commissioner of Taxation, the taxpayer sought to challenge, unsuccessfully, whether a letter from the ATO, which purportedly remitted the taxpayer’s general interest charge, amounted to a "decision" by the Commissioner, he writes.
WHAT THE NEW FAST-TRACKED SMALL BUSINESS TAX CUTS MEAN FOR YOUR BUSINESS: Michelle Maynard, Partner at Carbon Accountants and Business Consultants, discusses the SME tax cuts which are on their way soon, following the passing of new legislation in Federal Parliament last month. Corporate SMEs, with an annual turnover of up to $50 million, will soon pay a flat tax rate of 25%.
NEW THREE-YEAR VALIDITY PERIOD FOR GIFT CARDS SOLD IN AUSTRALIA: Allens Partner Jacqueline Downes and Associate Sarah Rodrigues discuss the passing of the Treasury Laws Amendment (Gift Cards) Bill 2018 (Cth) into law, which introduces a new validity period for Australian gift cards. The Government's decision to impose a mandatory validity period of three years is an attempt to strike a balance between consumer welfare and businesses' liabilities, they write.
CAN AN EMPLOYER DISMISS AN EMPLOYEE WHO HAS MADE A VEXATIOUS OR BASELESS COMPLAINT? MDC Legal lawyer Gemma Little discusses whether an employee can be dismissed for making a vexatious or baseless complaint in the workplace. The employer will likely need to divert considerable resources away from the business to respond to, investigate and manage the complaint, and it is likely to be a stressful and destabilising matter, Gemma writes.
CHURCH NEGLIGENT IN RISK ASSESSMENT FAILURE AFTER GO-KARTING INJURY: Barry Nilsson insurance law solicitor Andrew Clarke discusses the recent decision in Apostolic Church Australia Ltd v Dixon, where a church was found to be negligent because it failed to conduct a proper risk assessment of a go-kart event. This highlights the importance of undertaking a thorough risk assessment, Andrew writes.
UNDERSTANDING THE LIQUIDITY CHALLENGE FACED BY SMSF TRUSTEES: Shadforth Insurance Specialist Kunaal Parbhoo, in the second of a three-part series "Shedding Light on Financial Exposure" for Legalwise News, continues exploring the under-insurance problem in Australia and specifically, the liquidity problems which SMSF trustees face. Kunaal previously wrote that we are over-reliant on Government, under-insured and financially exposed.
HOW CHARITABLE COMPANIES CAN ACHIEVE A 'BEAUTIFUL' CONSTITUTION - PRACTICAL TIPS AND HELPFUL PROCESSES: Emil Ford Lawyers’ Joseph O’Mara, Associate, revisits the key points from his recent presentation at Legalwise’s annual Charities and Not-For-Profits Symposium, where he encouraged charities to strive for a "beautiful" constitution. A charity’s constitution is its fundamental document, he writes.
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BROKEN TRUST IN BUSINESS AND PERSONAL RELATIONSHIPS: Leadership Coach and Business Psychologist Jasbindar Singh discusses the betrayal of trust in business and personal relationships. Good relationships are based on trust; we like to interact and do business with people we feel comfortable with and have some degree of trust and rapport with, she writes.
CAN PEOPLE WHO LACK MENTAL CAPACITY OR LIVE OVERSEAS, OPERATE AN SMSF? Legal Consolidated Barristers and Solicitors’ Adjunct Professor Dr Brett Davies discusses whether such people can operate a Self-Managed Superannuation Fund. Failure to satisfy specific criteria will lead to an SMSF being declared non-complying and taxed up to 47 per cent, he writes.
KNOW YOUR BLOCKCHAIN FROM YOUR BITCOIN - DISTRIBUTED LEDGER TECHNOLOGY EXPLAINED: Piper Alderman Partner Michael Bacina deciphers the hype around distributed ledger technology and discusses the ins and outs of Blockchain. Cryptocurrencies such as Bitcoin are but one use of Blockchain technology, much as email is a useful application built on top of internet technology, he writes.
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