Bankruptcy – it’s not as easy as it seems!

August 31, 2010 by 3 Comments

The theory is, that bankruptcy enables ordinary people to get out of debt, to get back on their feet and so get on with their lives.

The theory is, that bankruptcy brings peace of mind.  Bankruptcy is not a punishment.  The theory is that bankruptcy is a legitimate fresh start for those in legitimate financial difficulty.

They’ll tell you – or your client-  that you’ll be able to sleep well again, that bankruptcy will improve your quality of life. That you/ your client won’t have to repay their debts, just by making some private administrator simple regular payments.  That Bankruptcy only lasts for 3 years and is  recorded on one’s credit history for a further 4 years but there are no restriction during this time.  Read more of this post

Filed under Insolvency/Liquidation

Trust Deed Income – The Bamford Decision

August 29, 2010 by Leave a comment

In March this year the High Court issued its Judgment in FCT v Bamford [2010] HCA 10, in relation to how trust deeds distribute income.

In light of that, in June the ATO issued releases to clarify how it will treat the determination of trust income.

In short, the High Court’s Judgment in Bamford confirms it is possible to define and modify “trust income” through the drafting of a trust deed. You can define and modify trust income to remove adverse tax consequences or even allow more beneficial tax outcomes. Read more of this post

Filed under Business Entities

The Impact of Bamford on Trust Deeds and Trust Resolutions

August 26, 2010 by Leave a comment

On 30 March 2010 the High Court handed down its much awaited decision in FCT v Bamford [2010] HCA 10.

In response to Bamford on 2 June 2010 the ATO released a Decision Impact Statement (“DIS”) and Practice Statement Law Administration PS LA 201011 which outlines how the ATO will treat the determination of trust income. Read more of this post

Filed under Business Entities

SMSF Borrowing: Recent law changes

August 21, 2010 by Leave a comment

As you may know, some new rules came into effect recently that clarified certain aspects of the law in this area. They apply to all borrowings entered into after 6 July 2010.

The most important change is that only a single acquirable asset can be purchased.  This is intended to allow a purchase of say BHP shares, but not a mixed bag of shares (in which case you would need a separate Custodial Trust and borrowing arrangement for each type of shareholding). Read more of this post

Filed under Business Entities

The practical solutions to a lost SMSF deed

August 16, 2010 by 2 Comments

The question seems simple enough: what to do when a trust deed for a self managed superannuation fund (‘SMSF’) is lost?  This question has become increasingly important as more and more trust deeds for SMSFs are being lost.

Naturally, an SMSF is a trust and a trustee must obey the terms of the trust.  To do so, a trustee must be familiar with the terms of the trust. Therefore, if a trust deed is lost, a trustee should take timely action to confirm the terms of the trust.

There are numerous other reasons why having a trust deed is important. These include: Read more of this post

Filed under Business Entities

When is a redundancy not a “genuine redundancy”?

August 9, 2010 by Leave a comment

If Fair Work Australia (FWA) is satisfied that a dismissal was for reasons of genuine redundancy, then the dismissed employee cannot claim unfair dismissal under the Fair Work Act 2009. 

“Genuine redundancy” is defined by s 389 of the Act.  That definition extends beyond the usual meaning of redundancy, and brings in considerations of whether the employer complied with any obligation to consult, and whether the employee could have been redeployed to another position.

A dismissal will only be a genuine redundancy for the purposes of the unfair dismissal provisions of the Fair Work Act 2009 where each of the following three conditions is satisfied. Read more of this post

Filed under Specialised Areas of Law

E-Commerce Contracts

August 6, 2010 by Leave a comment

The proliferation of e-commerce technology continues to transform the way companies and individuals do business with each other.  As the opportunity for cross-border commerce greatly increases, the traditional physical indicia of ‘bricks and mortar’ businesses are disappearing. So are traditional paper-based contracts.

Whilst there have been no earth-shattering developments in the law specifically regarding to on-line transactions,  recent authorities indicate that electronic transactions are to be regarded as having exactly the same governing principles, at least in Australia and New Zealand, as “bricks and mortar” transactions. I deal with these in my forthcoming E-Commerce and the Internet – a Practical Handbook on Law, Practice and Precedents. Read more of this post

Filed under General

Building and Construction Contracts in Australia

August 5, 2010 by 2 Comments

When I was in practice and advising on building and construction contracts, I lamented the lack of a practical handbook directed at the practitioner which included useful precedents at an accessible cost. It’s a very difficult area. You have to forget everything you’ve learned about contract law. Forget about certainty of terms, in particular. Forget about fixed payment in respect of fixed performance of fixed promises. Forget about fixed times.

In most construction contracts there is no fixed definition of the exact nature of the works, let alone their timing, their costing or their implementation. And yet, construction contracts are written every day of the week for projects large and small, projects which seem to run to some sort of schedule with some sort of payment plan and achieve … well, something like they were meant to achieve. Read more of this post

Filed under Conveyancing & Property

Lexcursions – The Adventures of Anthony Jucha: August Edition

August 3, 2010 by Leave a comment

How golden was my gavel?  The following is an edited version of my Golden Gavel swansong on 21 May 2010 for Law Week. I had been asked to speak on the topic: ‘Barristers: without solicitors, they’re really just fluff and stuffing’.

[Anthony walks on stage wearing what is effectively a fat suit made of teddy bears: one stuffed up his shirt, one in the back of his pants and one  stuffed halfway down the front of his pants.] … Read more of this post

Filed under General

Follow

Get every new post delivered to your Inbox.