The insolvent trading relief that was announced by the Federal Government in March this year has been extended until 31 December 2020. The temporary changes which were due to end on 30 September 2020 aim to help financially distressed businesses to manage the economic hardships experienced as a consequence of COVID-19 pandemic. The key noteworthy changes that will remain on foot are:
Industry experts have expressed concerns, however, of potential adverse legal and economic impacts as a consequence of the relaxation of insolvency laws. Some say the Government’s regulatory changes are a short-term fix to a long-term problem and that the extended relief may ultimately result in greater levels of outstanding debt. Companies that are no longer trading and would normally have gone into administration, are continuing to operate in circumstances where the pre-COVID insolvency regime would likely have resulted in the appointment of an administrator. These companies are colloquially known as ‘Zombie Companies’ and companies like these potentially risk negatively affecting otherwise other companies in the supply chain.
Winding up in insolvency is not necessarily a fait accompli for companies suffering from an ability to pay their debts as and when they fall due, as the voluntary administration has a vital role in rehabilitating and restructuring businesses.
There have been various suggestions to the current changes that have been enforced. These include suggestions to adjust the thresholds to debts, the time given to creditors to respond to demands and suggestions to adjust the insolvency process to allow small businesses to make arrangements with creditors rather than directly entering into voluntary administration or liquidation.
Much like the curve of new coronavirus cases, adequate changes need to be made in order to flatten the curve of new insolvent companies. Banks are preparing for the influx of insolvent companies in 2021 once the temporary changes are understood to come to an end.
Family law matters are generally heard in either one of two Courts, the Federal Circuit Court of Australia (the FCC) or the Family Court of Australia (the FCA).
Orders made by either of those Courts are capable of being reviewed. This process is called an appeal.
Appeals are heard in a superior Court called the Full Court of the Family Court of Australia (the FCFCA). If you are appealing orders from the FCC, the matter will be heard by a single judge of the FCFCA unless otherwise directed. If you are appealing orders from the FCA, the matter will be heard by three judges of the FCFCA.
Time lines are critical in the conduct of an appeal. If one aspect is missed or forgotten, it can be fatal to the outcome of the appeal. The “Appellant” is the person who is asking for the appeal, the “Respondent(s)” are those people who are responding to the appeal.
| Timeframe | Action |
| Within 28 days of primary orders being made Appellant wishes to appeal | Appellant must file a court form called a Notice of Appeal, together with a copy of the orders you wish to appeal, together with the filing fee
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| Following filing of Notice of Appeal | The Chief Justice of the FCA determines whether or not the matter will be heard by a single judge or three judges
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| Within 14 days of filing Notice of Appeal | Notice of Appeal must be served on all parties
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| Within 14 days of being served Notice of Appeal | Respondent’s may file a cross-appeal, together with the filing fee
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| Within 28 days of filing Notice of Appeal | Appellant must file a draft appeal book index (this is an index of all documents the Appellant proposes to use for the purpose of the appeal from the substantive proceedings). NOTE: if this does not happen, the appeal is deemed abandoned and does not proceed beyond this point
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| Following filing of draft appeal book index | The appeal is listed for a procedural hearing and the parties will be notified of the date. This will take place before either a Registrar or a Judge
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| The procedural hearing | Orders will be made for the conduct of the appeal, timeline for filing any further documents, settling the draft appeal book index with further directions for preparation and service of the appeal books (which is a consolidated and paginated book which contains all documents for the appeal), together with a date usually being provided for when the appeal will be heard
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| File the Appeal books | NOTE: if this does not happen, the appeal is deemed abandoned and does not proceed beyond this point
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| The appeal hearing | To take place on the date advised to the parties |
This is the typical pathway which denotes the conduct of an appeal. If one aspect is not complied with, there are pathways available to you and you should speak with an expert family lawyer who can advise which of those is appropriate for your circumstances.
Time is of the essence in an appeal, it is essential to be organised and diligent in the conduct of your matter in this jurisdiction.
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What is bankruptcy
Bankruptcy is the legal process undertaken when you cannot pay your outstanding debts, whereby you give up control of your finances and possession of assets and as a result will be absolved of most of your debts. Although bankruptcy can provide relief from the strain of large debts, it can have a significant impact on your life, so it is essential to understand the consequences.
When you become bankrupt, a trustee will be appointed and take control of your property and affairs. Powers of trustees are contained in section 134 of the Bankruptcy Act 1966 (Cth) and include powers such as selling your property.
Property is defined in the Act as “real or personal property of every description, whether situated in Australia or elsewhere and includes any estate, interest or profit, whether present or future, vested or contingent, arising out of or incident to any such real or personal property.”
Property that can be taken
Once you are declared bankrupt, generally your appointed trustee is given legal ownership or interest in all your property and assets. Some of your property and assets are protected under the Bankruptcy Act, and some can be liquidated in order to repay your creditors.
Your house and any property you own may be sold to repay your creditors. If you have a mortgage over a property, your secured creditor (bank or lender) may repossess and sell this property.
Money in your bank account may be taken by your trustee, but they may leave enough for modest living expenses. Compensation payments not related to personal injury, life insurance payments received before bankruptcy, and inheritances are all able to be taken by your trustee. Shares, dividends, lottery prizes, gifts, tax refunds and cryptocurrency may also be claimed by your trustee.
Property you can keep
Joint assets
If you jointly own assets with another person, such as your partner, your trustee has ownership of your share in the property. If you jointly own a vehicle, you may keep it if your share in its value is less than the threshold (currently $8,000). If your share value is over this threshold, your trustee may sell the vehicle and pay out the co-owner for their share, or the co-owner may purchase your share of the vehicle. Similarly, for jointly owned houses or property, your trustee may sell the property and take your share value, or your co-owner may negotiate with the trustee to buy out your share. Even if you aren’t on the certificate of title, property your partner owns may be claimed by your trustee. The trustee will make an assessment of the title or loan documents, the use and history of the property, including contributions made by you, and your relationship with the owner of the property.
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Bankruptcy can have a significant impact on all aspects of your life, and these may last well beyond the three years and 1-day bankruptcy period. Once your bankruptcy has come to an end, rebuilding your credit score and improving your financial situation may seem to be an impossible task. Although your options may be limited, it is possible to take out loans and improve your credit after your bankruptcy.
Credit reporting agencies, such as Equifax, Illion and Experian, maintain credit scores and keep a record of your bankruptcy for either five years from the date you became bankrupt or two years from when your bankruptcy ends (whichever is later). Lenders will be able to obtain your credit report, which may affect your chances of being approved for a loan. Additionally, your name will permanently be on the National Personal Insolvency Index, which is a public register which contains your personal details, and status and period of your bankruptcy.
Once you are declared as a discharged bankrupt, you will be able to apply for loans and other credit products. Most major lenders will not approve a loan for someone who is a discharged bankrupt or previously bankrupt as they see it as a high risk. There are still options, however, for future lending.
Tips for lending after bankruptcy
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In the recent decision of Charter Pacific Corporation Limited v Securicom (NSW) Pty Limited (in liq) (No 3) [2020] NSWSC 1067, some plaintiffs asked the Court for an interlocutory injunction – an immediate stop – preventing some defendants from saying they owned, or had a licence to use, some patents.
The defendants accepted they didn’t own the patents and, indeed, the issue had been the subject of previous litigation.
Despite this the defendants’ website said the defendants had an exclusive licence to use the patents and even suggested that one of the defendants owned or exclusively controlled them.
The plaintiffs said this was misleading and deceptive, and that an interlocutory injunction should be granted.
The Court had to consider (i) whether there was a serious question to be tried and (ii) whether the balance of convenience favoured an injunction.
There was factually complicated and lengthy argument about various versions of patent licence deeds prepared and entered into over the years.
The defendants argued a certain deed was valid, mean the licence had been granted. A valid licence, the defendants said, would mean the website was not misleading. However, the Court found it was seriously arguable that this was wrong and the deed was not valid.
There was also another serious question to be considered: even if the licence was valid was the liquidator’s s568(1) disclaimer of it as an “unprofitable contract” effective?
The Court found that the important “serious question to be tried” test has been passed comfortably.
Next the Court considered the balance of convenience – whether the possible impact of any injunction on the parties meant an injunction should not be granted. The Court considered the parties’ business affairs at length and found that the balance of convenience was in favour of the injunction being granted.
The Court granted the injunction, meaning the defendants had to immediately stop publishing the misleading material on its website.
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It seems obvious that if you are injured at work, your employer should pay you for your time off work. However, it’s not that simple. There are some essential steps you must take straight after you are injured at work, to be entitled to weekly compensation. Below, we will explain these steps in greater detail concerning the ACT workers’ compensation process.
The first thing you need to do is to provide your employer with a written notice of your claim (see our earlier article – ‘How to make a workers compensation claim in the ACT’). As soon as you give notice, your employer must start paying your weekly wages. If you skip this step, you can put your claim back on track quickly, but you will more than likely miss out on those early weekly wages.
The next step is to make a formal compensation claim. If you don’t do this within seven days of notifying your employer of an injury, your employer will probably stop your weekly wages. That can be bad enough. However, if at the end of those seven days you haven’t made a formal claim, your employer will stop paying your weekly wages, and you are not entitled to any wages for that period until you make a claim. Some exceptions apply. It is easy to imagine a situation where you forget to make a formal claim for a month or more after your injury. In that situation, you will miss out, and nothing can be done to retrieve those wages.
Once you have made a compensation claim, you are entitled to receive your normal pre-injury earnings for the first 26 weeks following your injury. During this time, the workers’ compensation insurer may decide that your injury is not an injury covered by the Workers Compensation Act 1951 (ACT). If that happens, and you think your injury is related to your work, you should seek urgent legal advice. If the workers’ compensation insurer accepts liability for your injury, you should receive your weekly wages, as long as you are certified unfit (partially or entirely unfit) to work and you provide your employer or its insurer with a compliant ACT Workers Compensation Medical Certificate.
Tip: In order to be eligible to receive your full pre-injury wage, you must not unreasonably reject or discontinue suitable employment opportunities.
Generally speaking, after the first 26 weeks, your weekly wage will drop. In some cases, it can drop to 65% of your pre-injury salary. However, the more you work, the more that percentage will increase towards your pre-injury wage. Calculations of your entitlement to weekly wages can be complicated, but we can help. We are happy to meet with you for an obligation free consultation. All you need to do is provide a copy of your last two payslips prior to the injury. We can take it from there.
It is essential to know that even if you get back to work after your injury, your claim is not over. In most cases, if your injury stops you from being able to work in the future and it is the same injury (or aggravation of that injury), then you are entitled to receive your wages for any time off work.
If you have any doubts about whether you are entitled to weekly wages under the Act, or if you think the workers’ compensation insurer has made a mistake calculating your weekly wages, please contact us immediately.
Your initial meeting with us is free.
The claims process under the Workers Compensation Act 1951 (ACT) should be easy, as long as you take some very simple steps soon after you are injured at work.
1. Early notice to the employer
Tell your employer that you were injured at work as soon as you possibly can, and make sure to register the details of your injury in your employer’s register of injuries. It is mandatory for an employer in the ACT to keep a register of injuries, and if your employer does not have one, you should seek legal advice. The benefit of registering your injury in this way is that the employer must report your injury to its workers’ compensation insurer within 48 hours, which means that the insurer can get involved quickly. However, this does not mean that you have made a claim – see below under “making a claim”.
2. Go to your doctor
Go to your doctor as soon as you possibly can, following a workplace injury. You should tell your doctor exactly how the injury happened and at the end of the consultation you should ask your doctor to give you an ACT Workers’ Compensation Medical Certificate. This isn’t the usual certificate that your doctor gives you if you have a day of work unrelated to a claim. The ACT Workers’ Compensation Medical Certificate requires your doctor to provide specific details about your injury and must be given to your employer (or the workers compensation insurer) when you make your claim.
3. Making a claim for compensation
Once you have notified your employer (above) and seen your doctor, you should make a formal claim for workers’ compensation entitlements. As soon as you can, ask your employer for a workers’ compensation claim form – your employer must give you one. Fill out the form and return it to your employer with a copy of your ACT Workers’ Compensation Medical Certificate. Your employer is then obliged to pass those documents on to its insurer.
If you have any difficulty completing the form, Chamberlains can assist you to complete this.
4. Keep all of your receipts
If you are injured at work, all of your reasonable expenses (visits to your GP, medications, etc.) should be paid by the workers’ compensation insurer. Sometimes the workers compensation insurer can take time to make a decision about your claim; in the meantime, you should keep copies of all receipts and tax invoices spent on your treatment.
Tip: If you go to the same provider (GP, pharmacy, physiotherapist, etc.) it will be much easier to keep track of your expenses. Usually those providers are happy to provide you with a print out of all treatment or medication provided to you.
5. Seek legal advice
Strict time limits apply to most stages of a workers’ compensation claim. Even if the process seems simple enough, a good lawyer can often provide you with tips to make the process faster and smoother. At Chamberlains we are happy to meet with you to discuss your workers’ compensation claim.
Your initial appointment is free.
NSW Builder Commissioner to shortly acquire significant new regulatory powers
The NSW Building Commissioner, David Chandler OAM, will shortly acquire significant new enforcement powers aimed at preventing the sale of defect laden apartments, and preventing developers from compelling off-the-plan purchases not built to design, when the Residential Apartment Buildings (Compliance and Enforcement Powers) Act 2020 (NSW) (RAB Act) comes into effect on 1 September 2020.
In conjunction with the Design and Building Practitioners Act 2020 (NSW) (DPB Act), which imposes a statutory duty of care for those involved in the construction of buildings and will enable owners and purchasers to sue if that duty is breach, the government hopes to restore confidence in and bolster the crisis-ravaged residential construction industry. It follows a NSW parliamentary enquiry into building standards in the state.
The RAB Act, which was not opposed by either Labor or the Greens, will enable the Commissioner from 1 September 2020 to personally enter and inspect construction sites, issue rectification and stop-work orders, and prevent settlement of properties not built to design or with defects from occurring.
The legislation aims to shift commercial risk in the industry to developers and builders, as it will prevent them compelling purchasers to complete a sale where there are defects present, or where the build is not in accordance with the design specified.
Certifiers are also firmly in the Commissioner’s sights, with Mr Chandler stating that the days of “signatures for sale” are now over, noting that certifiers fulfil a role as public officials regardless of who is retaining them.
Under the DBP Act, all engineers, designers and construction contractors practicing in the state will also be required to be assessed and registered under the new comprehensive legislative framework.
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If you have an outstanding debt that has not been paid, there is a possibility that you may be served with a bankruptcy notice by the person or organisation to whom you owe money to. A bankruptcy notice is a formal demand for payment of outstanding monies to a creditor and are served to enforce a court judgment worth $5,000.00 or more.
Upon being issued with a bankruptcy notice, there are essentially four options you may take to deal with the notice:
1. Attend to payment of the amount owed
If the bankruptcy notice was issued to you before 25 March 2020, you have 21 days to attend to payment of the amount owed. Due to the circumstances surrounding the coronavirus pandemic, where a bankruptcy notice was issued on or after 25 March 2020, you have 6 months to pay the amount owed, from the day the notice was received.
If you do not make payment of the amount owed, the relevant creditor may seek to make you bankrupt by way of a court order. This is known as a sequestration order.
2. Arrange an alternative agreement with your creditor
As per the previously mentioned timeframes, you will have 21 days to reach an alternative agreement with your creditor for a bankruptcy notice that was issued to you before 25 March 2020. For bankruptcy notices that were issued on or after 25 March 2020, you will have 6 months to reach an agreement with your creditor.
You may seek to contact your creditor to discuss the notice, invoices for the debts and payment options such as payment instalments or other mutually agreed payment plans.
3. Make an application to the court
Another option is to make an application to the court to set aside the judgment or court order that led to the bankruptcy notice being issued. You may also make an application to set aside the bankruptcy notice.
4. Take no action
If you do not take any action such as making payment of the debt or entering into an alternative arrangement with your creditor, this will be considered an ‘act of bankruptcy’ and your creditors may use this to make you bankrupt via a court order.
Chamberlains Law Firm are experts in the field of bankruptcy and insolvency. If you or someone you know has been issued with a bankruptcy notice, please contact Chamberlains Law Firm for a free initial consultation
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If you are suffering from an injury after seeing your Doctor or Surgeon, you have a range of options to get your health back on track. However, even doctors make mistakes, and it is important you understand your rights if you think they have. If you continue to experience issues here are some paths and how we can help.
Surgical Mistakes
In relation to medical negligence claims, surgical mistakes are when something goes wrong during, shortly following or as a result of surgery, which could reasonably have been avoided.
Surgery is a highly skilled area of medical practice and there are risks involved with every surgery. Although the standard of surgical care in Australia is generally high, things can go wrong. Sometimes, complications arise despite excellent medical skill and care being provided. Common examples include operating on the wrong body part, carrying out surgery that is not indicated or necessary, causing damage to another part of the body not involved in the surgery or failure to properly advise on the impact of the surgery.
Doctors Mistakes
A misdiagnosis describes a situation when your doctor tells you that you have some illness or condition, but it is incorrect. It has been estimated by Melbourne University study that the diagnostic error rate in Australia in a general practice setting is 10–15%, being 140,000 cases. Fortunately, most of these errors do not cause harm to patients, but some do. Concerningly, MDA National’s data indicates diagnostic error is the underlying cause of approximately half of the medical negligence claims involving Australian GPs, with hundreds of patients dying every year as a result.
Making a Claim
Medical mistakes do not always amount to medical negligence. To do so, it must be shown that:
Situations can also occur where the risks of surgery are not properly communicated to a patient, causing a patient to undergo surgery they would not have had if they had been made fully aware of the risks involved. In such circumstances, if the undisclosed risk materialises, causing damage or injury to the patient, the patient may be able to sue the doctor or hospital for damages.
Legal Advice
It is important to seek legal advice in relation to medical negligence claims as strict time limits apply for making a claim. If you believe you have suffered injury as a result of medical negligence come see our team for a free consultation.
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