Facts
In April 2015, administrators were appointed to several companies within the NewSat Group. Secured lenders appointed receivers who attempted, unsuccessfully, to restructure the business. Following this, the group was placed into liquidation.
A creditor of the NewSat Group commenced a claim against secured lenders for breach of an implied duty of good faith or unconscionable conduct. The liquidator consented to the claim on the condition that proceedings would not be served until funding terms were agreed.
No agreement was reached and the creditor brought an application to appoint a special purpose liquidator to pursue the proceedings under section 90-15(1) of Schedule 2 to the Corporations Act 2001 (Cth), the Insolvency Practice Schedule (Corporations).
Result
The Court declined to appoint the special purpose liquidator as funding had not been secured and the Court found it would not be beneficial to the creditors as a whole. The fees and costs of the special purpose liquidator had the potential to be enormous and would reduce the prospect of creditor returns.
Takeaways
The Court will consider whether the appointment of a special purpose liquidator will be just and beneficial to creditors. If the special purpose liquidator is going to pursue recovery actions, the terms and fees will be closely analysed by the Court. If the fees exceed market rates, justification will need to be made to ensure that the appointment is beneficial to the winding up and creditors as a whole.
If you have any questions or concerns please contact Chamberlains and talk to one of our insolvency and restructuring lawyers today.
There is growing concern in business news and media about the increase in insolvency appointments. Many experts are warning that the country is going to see a significant rise in insolvencies following the pandemic.
What’s the cause?
The Covid-19 Pandemic and associated restrictions led to the introduction of measures to ensure that companies were still able to trade. The Australian Taxation Office hasn’t been chasing outstanding debts since 2020 and the JobKeeper wage subsidy allowed many companies to stay open. These measures lowered the number of insolvencies in 2020 and 2021, compared to what would be expected in a regular year.
The lifting of these measures is combining with recent activity by the banks who are beginning to claim unpaid debts and to raise interest rates. Other contributing factors to financial pressures are the rising cost of living, rising fuel price, supply chain delays, staff shortages and the Russia-Ukraine conflict. Companies are now unable to hide the fact that they are not solvent.
What’s coming?
The increase in court-ordered liquidation appointments seems to suggest that insolvency is on the rise. Court-appointed liquidations rose 114 percent in the third quarter of the 2021-2022 financial year, compared to the previous year.[1]
The ATO is actively chasing unpaid debts and has advised that it is issuing between 30-40 director penalty notices each day.[2]
We also see an increase in insolvency occurring quite drastically in the construction industry. Many large construction companies are unable to cover increasing costs under fixed price contracts. This may be replicated in many other industries.
If England is any indicator of what is to come for Australia, the 60 year high in insolvency appointments is very concerning.[3]
What can you do about it?
Now is a great time to check through your finances and ensure that your company or business is solvent. If you have received a statutory demand, bankruptcy notice, director penalty notice, creditor’s petition, winding up application, or any other demand, summons or claim, you must act quickly as the different regimes all have very tight timeframes in which you must respond. If you have received any of these documents or you have any other concerns, please contact us to seek legal advice to determine what steps should be taken.
***Assisted by Bronte Johnson***
[1] King; https://www.accountantsdaily.com.au/business/17110-insolvency-drought-about-to-break
[2] Cathro; https://www.mondaq.com/australia/insolvencybankruptcy/1195816/insolvencies-to-spike
[3] Cathro; https://www.mondaq.com/australia/insolvencybankruptcy/1195816/insolvencies-to-spike
If you have any questions or concerns please contact Chamberlains and talk to one of our insolvency and restructuring lawyers today.
An Enduring Power of Attorney is one of the most important estate planning documents you can have. It allows you to choose who will manage your financial affairs (and in some states, your personal and health decisions) if you lose decision-making capacity.
Although the core idea is similar across Australia, each state and territory has slightly different rules and terminology. This article brings together the position in New South Wales, Queensland, the Australian Capital Territory and Western Australia.
In all four jurisdictions, a Power of Attorney lets you appoint an attorney to make financial decisions and manage your assets on your behalf. Typically, your attorney can:
You can also give extra powers, such as authority to:
These powers can be tailored in the document to suit your circumstances.
A General Power of Attorney usually only operates while you have decision-making capacity. It will normally end if you lose capacity (for example, due to illness, injury, brain damage or dementia).
An Enduring Power of Attorney is different:
Because loss of capacity can be temporary or permanent and can occur at any age, it is important to put an Enduring Power of Attorney in place while you are of sound mind.
You should appoint someone you trust absolutely to act in your best interests. This may be:
If you appoint more than one attorney, you can specify whether they act:
The major practical difference between the four jurisdictions is which decisions can be made under the Enduring Power of Attorney, and whether a separate “guardian” document is needed.
| Jurisdiction | What the Enduring Power of Attorney Covers | Separate Guardian Document? | Tribunal if You Have No EPA |
| NSW | Financial and legal decisions only | Yes – Enduring Guardian for medical and lifestyle decisions | NCAT (NSW Civil and Administrative Tribunal) can appoint a financial manager; NSW Trustee & Guardian may be appointed and charge fees |
| Queensland | Financial and personal/health decisions (unless limited) | No – one EPA covers both | QCAT (Queensland Civil and Administrative Tribunal) can appoint an administrator; Public Trustee of Queensland may be appointed and charge fees |
| ACT | Financial, personal and health-care decisions (unless limited) | No – one EPA covers both | ACAT (ACT Civil and Administrative Tribunal) can appoint a financial manager or guardian; Public Trustee and Guardian (ACT) may be appointed and charge fees |
| Western Australia | Financial and property decisions only | Yes – Enduring Guardian for medical and lifestyle decisions | SAT (State Administrative Tribunal) can appoint an administrator; Public Trustee of WA may be appointed and charge fees |
In NSW, an Enduring Power of Attorney:
If you do not have an Enduring Power of Attorney and you lose capacity:
In Queensland, an Enduring Power of Attorney can cover:
Queensland does not use a separate “Enduring Guardian” document.
If you lose capacity without an EPA:
In the ACT, an Enduring Power of Attorney can authorise your attorney to:
There is no separate guardianship instrument as in NSW and WA.
If you have no EPA and lose capacity:
In Western Australia, an Enduring Power of Attorney:
If you lose capacity without an EPA:
Each state and territory has its own requirements for Powers of Attorney and for recognising documents made elsewhere. While an Enduring Power of Attorney made in one jurisdiction may be recognised in another, in practice it is common to:
In many cases, this is easier and more cost-effective than registering a single document from one state into another jurisdiction, and it reduces uncertainty for banks, professionals and service providers dealing with your attorney.
If you:
it is wise to obtain legal advice about whether your existing documents are still suitable and what additional steps may be needed.
An Enduring Power of Attorney is about control and certainty:
Putting documents in place before you lose capacity is essential. Once capacity is gone, you cannot validly sign an Enduring Power of Attorney.
A person who dies without a valid Will is referred to as dying ‘intestate’. This means that their testamentary wishes are not considered, and their estate is not distributed according to their preferences.
In NSW, this means the deceased’s estate is distributed according to the hierarchy outlined in the Succession Act 2006:
In the ACT, the deceased’s estate will be distributed according to the Administration and Probate Act 1929:
In the case of Pender v Pender [2021] NSWSC 1591, the deceased died intestate with a small estate. She had married in 1972, but the relationship was unhappy and involved domestic violence by her husband. The couple separated in the mid-1980s, but did not divorce and the couple had not been in contact since this time.
The deceased had four children from that marriage, including three sons with whom she had little to no contact. She also had a daughter who regularly visited her at the nursing home and diligently cared for her. As the deceased died intestate, her estate ordinarily would have passed to her ex-partner as they were still married at the time of her death. However, her daughter made a family provision claim on her mother’s estate, with the deceased’s ex-partner and three sons ‘informally’ disclaiming opposition.
The Judge awarded the deceased’s entire estate to her daughter under section 59 of the Succession Act (as well as administration in respect of her mother’s estate). The judge’s reasons for this order included:
It is important to understand that if you die without a Will, your estate will be distributed according to the statutory requirements of the State or Territory in which you live. Your assets will not be distributed according to your personal preferences, and no assets will be distributed to anyone outside your next of kin (e.g., a charity, niece, nephew, or important friend).
Additionally, dying without a Will can create uncertainty and delay. Legal disputes may arise if those left behind feel they have not been adequately provided for. The costs of those legal disputes will generally come out of the assets of the estate. It is therefore much better to avoid these disputes in the first place by making sure you have a valid Will which reflects your wishes, with the help of wills and estate planning lawyers.
In November 2021 the Federal Court found in the matter of Dutton v Bazzi [2021] FCA 1474 that Shane Bazzi had published a tweet which defamed MP Peter Dutton (now Leader of the Opposition). Mr Bazzi was unsuccessful in arguing that he was exercising fair comment and honest opinion by publishing the (now deleted) tweet, and was accordingly ordered to pay $35,000.00 in damages to Mr Dutton.
In December 2021, Mr Bazzi appealed the decision on the basis that Justice White had made an error in the primary judgment by making the determination that his tweet carried the meaning, or imputation, that Mr Dutton ‘excuses rape’.
On appeal, Mr Bazzi’s legal representatives argued that the tweet had been considered on an isolated basis, when it ought to have been read alongside the contents of the relevant Guardian article, a link to which was contained within the tweet itself.
In particular, the appellant contended that the ordinary reader would have clicked on the link and subsequently reviewed the Guardian article after having read the tweet. From here, the ordinary reader would be able to discern between the notion that Mr Dutton ‘excuses rape’, and the contents of the article which referred to ‘scepticisms’ held by Mr Dutton with respect to allegations of rape made by refugees on Nauru.
On Tuesday 17 May 2022, the Full Court of the Federal Court (comprising of Justices Rares, Rangiah and Wigney) overturned the preliminary decision of Justice White. In the reasons for judgment in Bazzi v Dutton [2022] FCAFC 84, the bench found that the tweet in question did not, in fact, carry the relevant defamatory imputations, a decision in line with the arguments led by the appellant, Mr Bazzi.
Although the judiciary agreed that the tweet may have been ‘offensive and derogatory’, they noted that it did not extend so far as to be defamatory. Further, they found that Justice White had made an error by failing to explain how the ordinary reader would have understood the tweet as conveying the defamatory imputations. The Full Court expressly noted that the ‘meaning his Honour found for the word “apologist” was not that of an excuser but of a defender’.
As a result, the primary judgment was set aside and the proceedings dismissed. The judiciary will shortly consider the question of costs following submissions made by both parties in circumstances where Mr Bazzi raised crowdfunding to assist in the payment of his legal fees.
Paired with the recent and proposed amendments to the defamation legislative framework, the outcome of this appeal confirms the movement towards higher thresholds for plaintiffs seeking damages in defamation applications in our ever-evolving and dynamic online age.
There are many milestones in the early stages of every relationship: first date, exclusivity, going ‘official’, the list goes on.
Not every relationship follows the same path and not all couples will experience the same milestones. In fact, the number of couples choosing to get married in Australia has been declining over time with the marriage rate declining by 23.7% between 2000 and 2019.
With less people choosing to get married, the legal status of a relationship can be less clear cut and more difficult to determine. This makes the question of whether a relationship meets the criteria of being legally recognised as ‘de facto’ ever more important, especially if you are in the process of separating.
This is significant as relationships must be legally recognised (i.e. a marriage or de facto partnership) in order for parties to be entitled to apply to the court for property settlement or spousal maintenance orders.
So, what makes a relationship qualify as de facto rather than merely dating?
Section 4AA of the Family Law Act 1975 (the Act) defines de facto relationship to be where two people are living together on a genuine domestic basis as a couple. A number of factors are used by the court to determine whether you were a de facto couple for the purposes of the Act. These include:
A relationship will not be de facto if you are legally married or related by family (whether biologically or through adoption).
The law takes a holistic view to these factors: they do not all need to be satisfied for a de facto relationship to be made out.
Generally, a couple who has lived together for two years or longer will be considered de facto. This is not a hard and fast rule, and a relationship can still be established to have de facto status on the basis of other factors.
The easiest way to establish the exact date a relationship moves from merely dating to becoming legally de facto is through mutual agreement. Otherwise, evidence of living as a couple on a genuine domestic basis include shared bank accounts, bills, rental contracts, mortgages in both parties’ names, and supporting statements from friends will also assist in establishing when a relationship became de facto.
Our family law experts at Chamberlains Law Firm can assist you with the legal questions arising out of your relationship.
As businesses are slowly coming out of COVID-19 restrictions, employers are commencing a gradual return to work and easing mandatory work from home requirements. With most businesses having enforced work from home arrangements for so long, employers have been left to grapple with how to reasonably direct employees to return to work whilst maintaining flexible working arrangements.
In the recent decision of Jason Lubiejewski v Australian Federal Police [2022] FWC 15, the Fair Work Commission (FWC) has determined that an employer’s direction for an employee to return to the workplace, was indeed lawful and reasonable. Moreover, the consequential termination of said employee was justified, as he refused to comply with a lawful instruction.
Background Facts
Mr Lubiejewski, an employee of the Australian Federal Police (AFP) filed an unfair dismissal application in the FWC, claiming that the instruction from the AFP that he to return to the office was unreasonable as the AFP failed to provide him with flexible working arrangements, considering his (non-work related) mental health issues.
Since 2017, Mr Lubiejewski’s, workstation was moved from the AFP’S headquarters Corporation Communications area as per medical advice on account of various illnesses suffered by Mr Lubiejewski. Subsequently, in March 2020 Mr Lubiejewski’s psychologist advised that Mr Lubiejewski should be seated further from people, or alternatively, permitted to work from home to reduce and manage sensory overload, allowing him to perform his work duties more effectively. Soon after this, due to COVID-19 lockdowns, Mr Lubiejewski began working from home, as well as taking a period of mental health related personal leave.
In March 2021 the AFP attempted to discuss Mr Lubiejewski’s return to the office arrangements on several occasions, via phone and email. The AFP formally directed Mr Lubiejewski, to attend work in the Corporation Communications office three (3) days per week, allowing him to work from home for the remaining two (2) workdays. Despite this formal direction, Mr Lubiejewski continued to work from home, stating that there was no operational reason requiring him to return to the office.
The AFP continued to direct Mr Lubiejewski to return to the office and requested up to date medical evidence, however he failed to comply with those directions, asserting that he was exercising his legal entitlement to flexible working arrangements, and his work from home arrangements were reasonable. On 13 May 2021, Mr Lubiejewski then provided the AFP a medical certificate dated 10 February 2021, which stated that Mr Lubiejewski would ‘benefit from working from home’.
Mr Lubiejewski’s employment was subsequently terminated on 25 May 2022 due to his failure to comply with the AFP’s lawful and reasonable directions.
Following this, Mr Lubiejewski filed an unfair dismissal application asserting that the directions to return to the office were unreasonable.
FWC’s Considerations
The FWC considered that the AFP’s directions were in fact, lawful and reasonable and that it was reasonable for the AFP to require up to date medical evidence to assess what reasonable adjustments were required for Mr Lubiejewski to work safely. The FWC went on to note that it was unreasonable for Mr Lubiejewski to have continued to refuse to comply with those directions and this failure gave rise to a valid reason for dismissal.
As such Mr Lubiejewski’s unfair dismissal application was dismissed.
Key Take Away Points
Employers should take note of this case as an exemplar of sufficient attempts to discuss return to work arrangements and provisions allowing the employee reasonably opportunities to comply. Employers should:
Book now with Antonia Tahan from the Workplace Law Team for an initial free consultation.
In the aftermath of Covid-19, a harsh reality riddled with strict public health orders and convoluted work, health and safety mandates have left employers scratching their heads. Recent case law has emerged in the unfair dismissal space that highlights the paradox between non-compliance with legislation versus non-compliance with loosely drafted workplace policies.
The Fair Work Commission has increasingly scrutinised employers for harshly dismissing employees for breach of workplace policies that are poorly drafted or sparsely enforced in the workplace. In the recent matter of Angela Daddona v Menarock Aged Care Services Pty Ltd [2022], Ms Daddona was summarily dismissed for breaching their work, health and safety policy by wearing her mask below her nose when delivering food to her patients.
Ms Daddona was observed by an auditor from the Aged Care Quality and Safety Commission wearing her PPE gear incorrectly. Shortly after, she was required to attend a disciplinary meeting where she explained that she only lowered her mask because residents with hearing disabilities could understand Ms Daddona better that way, and that this was common practice at the facility.
Although the Fair Work Commissioner determined that aged care residents had a
“special vulnerability” to Covid-19 warranting staff to always wear PPE gear correctly, the worker’s conduct did not amount to serious misconduct due to the weak enforcement of their work, health and safety policy and haphazard approach to disciplinary action. For example, it was common practice for the facility to spot check and remind workers to pull their masks up, rather than imposing an instant dismissal or formal performance management.
It was therefore determined that:
Ms Daddona was awarded with five (5) weeks’ compensation discounted by ten percent (10%) for her misconduct.
It is imperative that employers stop ‘turning a blind eye’ to workplace misconduct by adopting living, breathing policies and procedures that are reinforced through an active culture of compliance.
Employers can reduce exposure to vicarious liability claims from third parties and minimise risk to unfair dismissal claims by demonstrating that they have taken reasonable steps to prevent non-compliance, including having current policies that do not collect dust in a bottom drawer and are reinforced through thorough training.
Don’t foster a workplace culture of ‘turning a blind eye’ and contact our workplace law team today. Contact Chamberlains Workplace Law Team to prepare updated workplace policies and procedures, advise on consultation and implementation, and facilitate on-site training.
What is a Director Penalty Notice (DPN)?
A DPN is a are notice issued by the Australian Taxation Office (ATO) to a director of a company if they have not met their debt obligations with respect to PAYG withholding, Superannuation Guarantee Charge and Goods and Services Tax (GST). If a DPN is issued, subject to the conditions of the DPN, it will hold the director personally liable to meet the company’s tax and superannuation obligations.
Since 13 May 2022 the ATO is suspected to be issuing around 30-40 DPNs each day with expectations of that number to increase. The ATO’s sudden aggressive stance in this regard is likely due to the easement of the associated leniencies granted by the ATO to both directors and companies following the COVID-19 pandemic. It appears such leniencies have ended in light of an estimated 52,000 DPNs being issued by the ATO as of 16 May 2022.
Will I receive a DPN?
DPNs are issued to directors who have breached their obligations with regard to the payment of the following company taxes:
Types of DPNS
There are two types of DPNs:
The 21-Day DPN, commonly known as a Non-lockdown DPN, is the most common type of DPN issued by the ATO. This DPN may be issued where:
Furthermore, the Non-Lockdown DPN gives the opportunity for a director who has received the notice options to avoid the personal liability imposed by the DPN. These options include:
If any of these options are satisfied with within the 21 days of the ATO sending the DPN, the Director will not be held responsible for the personal liability imposed by the DPN.
While the personal liability under a Non-Lockdown DPN is also imposed under a Lockdown DPN, a Lockdown DPN provides no avenue for a director to which he/she can avoid this liability. Once the ATO sends this type of DPN the director is automatically and irrevocably considered personally liable. A Lockdown DPN is issued where a company has not lodged its BAS or SGC statements within the timeframes referred to above and have also not paid the relevant amounts owed to the ATO.
How to avoid getting a DPN
If you are a director of a company which has members in its employ, the best method of avoidance is prevention. By staying on top of your GST, PAYG and Superannuation Guarantees obligations you avoid any footing by which the ATO is able to issue these DPNs. The ATO issues such DPNs with the punitive and didactic purpose to dissuade directors from negating their obligations under the Act. Thus, if the above obligations are adhered to, then as a director you are protected from receiving these Notices.
Furthermore, submitting Business Activity Statements and Instalment Activity Statements with regard to the mentioned obligations reduces the capacity of the ATO to issue the more severe Lockdown DPNs. It is clear that with the pandemic subsiding, so are the associated leniencies previously granted by the ATO. This shift of stance emphasises the importance of understanding these DPNs, the penalties they possess and also the avenues available to avoid and prevent the imposed liabilities.
***Assisted by Connor Wilkinson***
If you have any questions or concerns please contact Chamberlains and talk to one of our insolvency and restructuring lawyers today.
Vaping has become extremely popular in recent years, particularly among younger generations (18 – 25 years old). Unlike cigarettes which have a natural “end point” once the cigarette has been consumed, vaporisers (commonly referred to as “vapes”) have no natural “end”. As a result of vapes being more readily accessible, their consumption indoors has become an increasing issue, particularly in workplace environments.
The vapour produced from vapes does contain toxins, although many are at lower levels than smoke produced by conventional cigarettes. However, exposure to some of these toxins (including heavy metals) may be greater than in conventional cigarettes. So, whilst these clouds of “candy-smelling” vapour are considered to be less harmful than cigarette smoke, they are not completely harm free.
Health NSW & World Health Organisation
The World Health Organisation (WHO) has stated that any level of exposure to the substances produced by vapour, may be harmful and should be avoided. It is also known that passive (or second hand) exposure to the vapour can aggravate existing chronic health conditions such as asthma or COPD.
Under the Smoke-free Environment Act 2000, people cannot use e-cigarettes (vaporisers) in smoke-free areas, or any places where smoking is banned. These include all enclosed public places and some outdoor public places that involve close contact with others and children (full details can be viewed here).
Health NSW provides that individual establishments, including workplaces, may develop their own smoke-free policies to ban the use of e-cigarettes within the premises.
This means that private workplaces are not always automatically smoke-free environments and may have to be dealt with separately by way of workplace policies.
Addressing vaping in the workplace
As stated above, employers should address vaping in the workplace in a similar way to smoking. When this is done, the rules on usage of vapes at work should be absolutely clear. If an employer already has existing smoking policies, this should be amended to cover off and include vaping e-cigarettes, so that the same rules apply to both.
It is also important to make clear when and where employees are allowed to use vapes and where smoking (whether conventional cigarettes or vapes) is permitted. This can include having a designated outdoor smoking area, or simply stating that vaping must only be done outside the work building and in accordance with all other legislative requirements in relation to smoking areas.
How can we help?
If you require any assistance with implementing a smoke-free policy that deals with vaping, we can assist by:
Book now with Antonia Tahan from the Workplace Law Team for an initial free consultation.
***Assisted by Grace Tully***