Getting the lessor’s consent to a transfer of lease – shortcuts and extra protection under the Retail Leases Act

A transfer of lease involves among other things,  obtaining the consent of the lessor.  This consent may be difficult and time consuming to obtain from an uncooperative landlord. After all, if a landlord already has a tenant and is receiving rent, what motivation to they have to consent to an assignment or transfer of the lease to another lessee? (assignment or transfer are two terms that are used interchangeably). Fortunately the Retail Leases Act 1994 (NSW) contains shortcuts and protections for the lessee looking to assign, provided they know how to make use of the provisions. They are not automatic in their operation. Read more of this post

Changes to Ability of a Company to Pay Dividends

The ability of a company to pay dividends has changed and is potentially much more difficult from 28 June 2010. 

The compliance burden on small companies has also increased in that dividends can now only be paid (amongst other criteria) where company accounts prepared in accordance with accounting standards show that company assets exceed liabilities.  This is the case even where the company is not required to prepare accounts in accordance with the accounting standards. Read more of this post

National Credit Reform – A Benefit for Consumers and Brokers alike

You may be aware that the Finance Industry is undergoing major credit reform.

This is being driven largely by the Australian Securities & Investment Commission (ASIC) with input from industry bodies such as the Mortgage and Finance Association of Australia (MFAA).

 It will result in a more professional industry, as at times the industry has been portrayed in a negative manner, due primarily to the deeds of a minority of unqualified brokers. Read more of this post

Trust Deed Income – The Bamford Decision

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

The Impact of Bamford on Trust Deeds and Trust Resolutions

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

SMSF Borrowing: Recent law changes

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

The practical solutions to a lost SMSF deed

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

Borrowing within super to invest in real estate – a marriage made in heaven

With the amount of money in super and continuing to pour into it, coupled with Australia’s love of property, it was always going to be a good marriage.

Changes to super laws in late 2007 allow borrowing within the superannuation environment.  This is starting to gather some traction in the marketplace, with increasing numbers of commercial and investment properties being purchased.

Previously, in line with the inherent purpose of super to invest for retirement with minimum risk, investors were not allowed to borrow against assets owned by a super fund. Read more of this post

Liability for commercial advice

Lawyers are not financial advisers but, when acting for a client in a commercial transaction, lawyers will be liable for the advice that they give, or fail to give, in relation to the commercial consequences of the client’s decisions. Two recent Victorian cases have considered the extent of these duties in the context of two reasonably common scenarios. In both cases the lawyers were assisted in their defence by the LPLC, which presumably therefore assessed the lawyers’ conduct as blameless, however in both cases the lawyers were held liable to the client in contract and tort. Read more of this post