As digital transactions become the majority of all transactions, from Paypal to Venmo to tap-and-go, so too does the potential for ‘fat fingering’. Maybe the man at the café charged you 45c instead of $4.50 for that coffee, or maybe a friend sent you $100 for dinner instead of $10. What does the law say in regard to this sort of mistake, and do you have to give the money back?
The Honourable Justice Elliot is considering these issues in the case of Foris GFS Australia Pty Ltd v Manivel. An employee of Crypto.com, a cryptocurrency exchange, went to transfer a $100 refund to a customer. Instead of typing in $100 into the “Amount” field, the employee typed in Manivel’s account number 10474143, resulting in an 8-digit windfall for the lucky Manivel. “Extraordinarily”, in the words of Elliot J, this mistake was not realised until 7 months later.
Unfortunately for Crypto.com, Manivel decided to share the money among 6 other people, and generously bought a $1.35m house in Craigieburn for her sister in Malaysia.
Unsurprisingly, the sister became very hard to contact when Crypto.com came asking for its money back.
Crypto.com then went off to court to try get its money back. Although Manivel used the money to buy a house and transferred it to her sister, the money is traceable. The money would not have been in her sister’s hands if it had not been accidently made by Crypto.com. In this sense, her sister was “unjustly enriched”. Crypto.com therefore is able to get the $1.35m purchase price back from Manivel’s sister, plus penalty interest. The ‘tactic’ of simply not answering the door or picking up the phone when people come asking for their money back doesn’t work.
There are two key takeaways we can glean from this.
The first is that despite all the anti-state, anti-bank marketing, even crypto companies drop the “immutable ledger no takebacks” sales pitch, and run off to court to have a bank help them out.
The second and more important lesson is that just because you handed a small pile of coins to the barista, and they handed you a $10 note back, it doesn’t mean that money is yours. If you get given too much money by mistake, you should give it back. Penalty interest hurts!
Contact us today at nevileco@nevile.com.au to find out how we may be able to help.
DISCLAIMER The contents of this newsletter are of a general nature and cannot be relied upon as legal advice. However, if you need legal advice please do not hesitate to contact any one of our lawyers.
Whether E-scooters are a miracle solution or simply another roadside nuisance depends on how many times you refresh your newsfeed. Regardless of the conflicting opinions, their rise in popularity is increasing pressure and demand for clearly defined laws surrounding their use.
Previously, the guidance provided by RACV and VicRoads stated that only electronic scooters which:
are permissible on public roads.
To put this into perspective, mobility scooters have a 250 watt capacity with a maximum speed range of 25-35 km/hr, which the average wattage across the e-scooter board is 1145 watts.
Those who did not meet the criteria, but still insisted upon challenging their grandma’s mobility scooter to a street race, could expect to receive a $909.00 fine.
Currently however, the restrictions have been tightened. According to the Road Safety Rules 2017 (Vis), riding a privately owned scooter on public roads is prohibited. The only exception is if the rider is using an e-scooter that is part of a commercial share scheme. Although this may seem disheartening for e-scooter enthusiasts, there is a silver lining.
VicRoads is currently undertaking trials within restricted regions to determine whether e-scooters can harmoniously co-exist with other vehicles and pedestrians.
These trials are ongoing and expected to produce a clearer idea for the future of privately owned e-scooters and finally set the headlines straight.
DISCLAIMER The contents of this newsletter are of a general nature and cannot be relied upon as legal advice. However, if you need legal advice please do not hesitate to contact any one of our lawyers.
The State Revenue Office (SRO) is particularly talented in raising funds for the State Government, however it also grants stamp duty concessions to those who are eligible.
If you purchase an off-the-plan property, and building works are yet to commence or conclude, you may be eligible for the Off-the-Plan Concession.
There are a number of requirements that will determine your eligibility:
The residence requirement:
Fairly recently, the legislation was changed so that a purchaser must use the property as their principal place of residence within 12 months for a continuous period of 12 months from settlement.
The reason the off the plan concession is so attractive to purchasers is that is reduces the dutiable value considerably. It is often seen as the market value less the construction costs which the vendor will provide prior to settlement in order for the purchasers representative to calculate the applicable duty.
The key point is when the Contract of Sale was signed, so even if you purchase property by way of a nomination, you may still be entitled to the off the plan concession provided that you use the property as your principal place of residence within 12 months of settlement.
There are two methods for calculating the off the plan concession which the vendor will determine prior to settlement. This will be either the fixed percentage method, or the alternative method, both of which use information only available to the vendor.
In order to calculate the concession, the transferor or vendor must:
The off the plan concession is applied for prior to settlement through your lawyer or conveyancer and is calculated through the duties online forms and claimed via PEXA workspace where settlement occurs electronically.
For more information or assistance in applying for the Off the Plan Concession, please contact our property team at nevileco@nevile.com.au
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
The nature of an employment contract can have serious consequences on a worker’s superannuation, annual and sick leave payments. Previously, where the lines between employee, causal employee or independent contractor have been blurred, the courts have relied on assessing the entirety of the relationship. This broad scope enabled the courts to observe post-contractual conduct in order construe the type of employment relationship between the parties.
Recently however, the High Court has shown that even though a zebra may appear to change colour when it is running, its core will always remain black and white. Employment contracts have proved to be no different.
As such, the High Court’s decision in Workpac Pty Ltd v Rossato [2021] HCA 23, has narrowed the scope of consideration to purely that of the contractual terms between the two parties. As a result, courts are limited to categorising the nature of employment based on the rights and obligations held by each party under their contract. Subsequent conduct, once the contract has been initiated, cannot be relied upon to prove one’s employment category.
Indeed, while Rossato related to casual employment, the decision catalysed the overturing of numerous Full Federal Court decisions regarding contractors and employees.
Rippling Effects in Courts:
The decision in Jamsek v ZG Operations Australia Pty Ltd [2020] FCAFC 119 was subsequently overturned by the High Court. In this case, two former employees provided a 20-year longstanding service to their company under a contractor agreement. The previous court indicated that their uninterrupted commitment formed an integral part of the Company’s function beyond that expected of those conducting independent business. This conduct thus deemed them employees. However, the High Court examined their original contractual rights including the freedom to choose their routes and manner of conducting business, as well as the purchase and maintenance of their vehicles. In light of these factors, their status as contractors was affirmed as per the contract.
Alternatively, in the case of CFMEU v Personnel Contracting Pty Ltd [2020] FCAFC 122 the contract was also pivotal in classifying one’s employment. Despite the worker being referred to as a contractor, the terms of the contract specified a level of control (regarding where to allocate his labour and time) that was consistent with an employment relationship. The High Court thus characterised it as such despite the given labels.
Potential Effects for Employers
Given these recent and drastic changes in the manner that courts determine these chases, the Australian Tax Office (ATO) has initiated a review of its eligibility criteria regarding those who qualify as ‘employees’ for superannuation purposes. While the results of these changes are expected to emerge by October 2022, anticipation for core changes around the current framework is brewing. These are likely to have a substantial impact on employers and labour-for-hire agencies which operate with independent contractor agreements. Such changes may leave some businesses susceptible to liabilities.
At Nevile and Co, we are dedicated to providing premium services regarding matters where your business may be vulnerable. For further information, please contact us at nevile@nevile.com.au.
Disclaimer: This publication contains comments of a general and introductory nature only and is provided as an information service. It is not intended to be relied upon as, nor is it a substitute for specific professional legal advice. You should always speak to us and obtain legal advice before taking any action relating to matters raised in this publication.
1 July 2022 will see several Visa changes that will result in new skilled worker pathways to permanent residency, more places for working holiday makers, and the chance for graduates impacted by COVID-19 boarder closures to make up for their time locked out of Australia.
Temporary Skill Shortage Visas
Temporary skill shortage (TSS) subclass 482 visa holders will now find it easier to apply for permanent residency.
As at the 31st of March 2022, there were 52,440 people on 482 visas, or the related 457 visas that ceased offering new places to applicants in 2018.
From 1 July, these visa holders can apply for the Temporary Residence Transition (TRT) visa, which allows skilled workers, who are nominated by their employer, to permanently live and work in Australia. This new pathway will only be accessible for two years from this date. Those who are deemed eligible will need to have been in Australia for at least one year between 1 February 2020 and 14 December 2021.
The change will also apply to subclass 457 visa holders with an occupation on the Short-Term Skilled Occupation List (STSOL).
Age Limit Exemption
The second change impacting 457 visa holders means that they will no longer be restricted by age from applying for permanent residency through the TRT stream. 457 visa holders aged 45 and over have previously had no pathways to pursue permanent residency, despite being sponsored by employers after working in Australia for many years.
The change, which now specifies no age limit to pursuing this option, will also only be accessible for two years from 1 July. To be eligible for the age exemption, 457 visa holders will need to have held the visa from or since 18 April 2017. Those who are deemed eligible will also need to have been in Australia for at least one year between 1 February 2020 and 14 December 2021.
Need to discuss your migration options? Contact Nevile & Co. today.
On the 15th of June 2022, the Victorian State Revenue Office (SRO) confirmed changes to the duty payable arising from Late Settlement Interest. These will come into effect on the 1st of July 2022.
Why is duty paid on late settlement interest?
The 2020 case of 1043 Melton Highway Pty Ltd confirmed that late settlement interest is part of the consideration which ‘moves’ the transfer of the land. Therefore, the SRO states that it is a component that forms part of the dutiable value of the land and duty is payable as a result.
When is duty payable on late settlement interest?
For contracts of sale entered into after 1 July 2022, duty will be payable on late settlement interest amounts of $5,000.00 or more.
A transaction will therefore need to be re-lodged for reassessment within 30 days of settlement if:
Note, late settlement interest will not form part of the dutiable value of the land for the purpose of determining eligibility for the:
How is duty paid on late settlement interest?
The SRO must be notified by email and the transaction must be re-lodged within 30 days of settlement.
The following details must be provided:
Looking for assistance with your property transactions? Look no further! Contact Nevile & Co. today to find out how we can be of assistance.
The information contained on this page is general in nature and does not take into account your personal situation. It is not intended to be relied upon as, nor is it a substitute for specific legal advice. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice.
As we come to the beginning of the new financial year, the FCFCOA has confirmed both general federal law fees and family law fees will see an increase on 1 July 2022.
General Federal Law Fees:
Schedule Item No. |
Document or Service | Current Fee | New fee from 1 July |
201 | Filing a document by which a proceeding in the Court seeking final orders is commenced, other than an proceedings mentioned in items 202, 204 to 206, 208 to 214 or an application under the Trans-Tasman Proceedings Act 2010 | Corporation $1,680
Any other case $700 |
Corporation $1,765
Any other case $735 |
201A | Filing of a document by which a proceeding is commenced in the Federal Circuit Court seeking final orders in exercise of:
|
(a) full fee—$3,365, or
(b) if a Registrar or an authorised officer has determined that the person may pay a reduced fee under section 2.06A—$1,680 |
(a) full fee—$3,535, or
(b) if a Registrar or an authorised officer has determined that the person may pay a reduced fee under section 2.06A—$1,765 |
202 | Filing of an application under section 46PO or 46PP of the Australian Human Rights Commission Act 1986 | $55 | no annual increase |
203 | Filing a bill of costs | $270 | $285 |
204 | Filing of a document seeking interlocutory, interim or procedural orders (other than a proceeding mentioned in item 202) or an application under the Trans-Tasman Proceedings Act 2010 other than an application mentioned in item 214A | Corporation $1010
Any other case $410 |
Corporation $1060
Any other case $430 |
205 | Filing of an application to review an exercise of power by the Registrar of the Federal Circuit Court, under subsection 104 (2) of the Federal Circuit Court Act | Corporation $1010
Any other case $410 |
Corporation $1060
Any other case $430 |
206 | Filing of a document by which a proceeding in the Federal Circuit Court under the Bankruptcy Act 1966 is commenced | Publicly listed company $5,895
Corporation $3,935 Public authority $3,890 Any other case $1,640 |
Publicly listed company $6,195
Corporation $4,135 Public authority $4,135 Any other case $1,725 |
207 | Filing, by a person other than the applicant, of a document seeking the making of final orders different from those sought by the applicant (other than in a proceeding mentioned in item 202) | Corporation $1,680
Any other case $690 |
Corporation $1,765
Any other case $725 |
208 | Filing of an application for an order for substituted service of a bankruptcy notice | Publicly listed company $660
Corporation $440 Public authority $440 Any other case No change $170 |
Publicly listed company $695
Corporation $460 Public authority $460 Any other case No change $180 |
209 | Filing of an application under section 539 of the Fair Work Act 2009 in either of the following circumstances:
(a) the applicant has been dismissed from employment in alleged contravention of Part 3-1 of that Act; (b) the applicant alleges a breach of section 351 of that Act |
$74.90 | $77.80 |
210 | Filing of an application under section 539 of the Fair Work Act 2009 if the applicant has been dismissed from employment in alleged contravention of section 772 of that Act | $74.90 | $77.80 |
211 & 212 & 212A | Filing an application under section 548 of the Fair Work Act 2009 if the applicant indicates that the applicant wants the small claims procedure under that Act to apply:
If the claim is less than $10,000 If the claim is between $10,000 and $20,000 and the proceedings relate to one or more of the matters mentioned in paragraph 548(1B)(a) of that Act (other than a proceeding mentioned in item 212) |
$250 $405 $250 (New fee) |
$265 $425 $265 |
213 & 214 | Filing of an application under Consumer Credit Protection Act 2009 if the applicant indicates the applicant wants the small claims procedure under that Act to apply:
If the claim is less than $10,000 If the claim is between $10,000 and $20,000 |
$250 $405 |
$265 $425 |
214A | Filing of an application to register a New Zealand judgment under the Trans-Tasman Proceedings Act 2010 | $130 | $135 |
215 | Setting down for hearing for final orders of a proceeding or an issue in question in a proceeding (other than a proceeding under the Bankruptcy Act 1966 or proceeding mentioned in item 202 | Corporation $2,010
Any other case $835 |
Corporation $2,110
Any other case $875 |
216 | For hearing for final orders of a proceeding or an issue in question in a proceeding (other than a proceeding under the Bankruptcy Act 1966 or proceeding mentioned in item 202)-for each hearing day or part of a hearing day (other than the first hearing day) | Corporation $2,010
Any other case $835 |
Corporation $2,110
Any other case $875 |
217 | For the hearing for an examination by a Registrar of the Federal Circuit Court under section 50 or 81 of the Bankruptcy Act 1966-for each day or part of a day | Publicly listed company $3,035
Corporation $2,010 Public authority $2,010 Any other case $835 |
Publicly listed company $3,190
Corporation $2,110 Public authority $2,110 Any other case $875 |
218 | For the hearing of an application (including a cross-claim) under subsection 104(3) of the Federal Circuit Court of Australia Act-for each day or part of a day | Corporation $2,010
Any other case $835 |
Corporation $2,110
Any other case $875 |
219 | On request, production of file of the Federal Circuit Court and the making of a copy or copies of a document or documents in the file (regardless of the number of documents to which the request relates:
For the production of the file For each page included in a copy made in accordance with the request |
$50 $1 |
$55 No annual increase |
220 | Each service or execution, or attempted service or execution, of the process of the Federal Circuit Court by an officer of the court (other than in a proceeding mentioned in item 202 | No annual increase | No annual increase |
221 | Seizure and sale of goods by an officer of the Federal Circuit Court in the execution of the process of the court (other than in relation to a proceeding under the Admiralty Act 1988 or a proceeding mentioned in item 202) | $640 | $675 |
222 | For issuing a subpoena | Corporation $160
Any other case $80 |
Corporation $170
Any other case $85 |
223 | For issuing a summons to a person, under section 50 or 81 of the Bankruptcy Act 1966 to attend examination about a debtor’s examinable affairs | Publicly listed company $815
Corporation $530 Public authority $530 Any other case $270 |
Publicly listed company $855
Corporation $555 Public authority $555 Any other case $285 |
224 | Mediation by an officer of the Federal Circuit Court (other than in a proceeding mentioned in item 202) – for each attendance at the mediation | $555 | $585 |
Family Law Fees:
FILING FEES | Current Fees | New Fees from 1 July |
Application for divorce | $940 | $990 |
Application for divorce — reduced fee^ | $310 | $330 |
Application for consent orders | $170 | $180 |
Application for decree as to nullity | $1,335 | $1,405 |
Application for decree as to nullity – reduced fee^ | $445 | $465 |
Application as to validity of Marriage, Divorce Annulment | $1,335 | $1,405 |
Initiating Application (Parenting OR Financial, Final only) | $365 | $385 |
Initiating Application (Parenting OR Financial, Final AND Interim) | $490 | $515* |
Initiating application (Parenting AND Financial, Final only) | $595 | $625 |
Initiating Application (Parenting AND Financial, Final AND Interim) | $720* | $755* |
Response to initiating application (Final) | $365 | $385 |
Notice of appeal to the full court including an appeal from the Federal Circuit Court | $1,425 | $1,500 |
Interim order application/Application in a case (Parenting AND/OR Financial) | $125 | $130 |
Issue subpoena | $55 | $60 |
Application under the Trans Tasman Proceedings Act 2010 | $125 | $130 |
Filing an application to register a New Zealand judgment | $110 | $115 |
COURT EVENT FEES | ||
Setting down for hearing fee (defended matter) (This fee is not refundable) | $660 $900 |
$695 (Div 2) $945 (Div 1) |
Daily hearing fee (for each hearing day, excluding the first hearing day) | $660 $900 |
$695 (Div 2) $945 (Div 1) |
Conciliation conference | $415 | $435 (Both) |
The information contained on this page is general in nature and does not take into account your personal situation. It is not intended to be relied upon as, nor is it a substitute for specific legal advice. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice.
In recent months, we have been approached by several accountants to either rectify mistakes in Trust Deeds, update Trust Deeds, or reconstruct lost Trust Deeds. Apparently, this is at the behest of banks which are starting to become a great deal more stringent in their review of their customers’ Trust Deeds.
In some cases, this can be an easy fix as certain trust updates are fairly common, such as:
For other circumstances that are more complex, such as adding or removing beneficiaries, reconstructing lost trust deeds or rectifying errors in the trust deed, it is best to have a lawyer review your client’s trust deed and draft a customised document.
To help you know here to help you stay on top of your Trust Deed knowledge. We have taken some of the Top 10 frequently asked areas of Trust:
We find that many people are intimidated by this process. However, this is not necessary. Removing and adding beneficiaries does not have to be a complicated process. When it comes to adding, this will depend on the wording of the personal Trust deed (something a lawyer knows best), we recommend preparing a deed variation as this gives the trustee permission to amend and change trusts at the trustee’ discretion. For excluding trusts, look to the trust deed first to assess how the trust can be changed in relation to beneficiaries. Then consider if the beneficiary is renouncing his or her interest as a beneficiary (can be mandatory if the change is made in conjunction with a Centrelink Declaration). Otherwise, consider if removal can be acquired when a Trustee makes a declaration that a particular Beneficiary will no longer be a beneficiary.
There may be times in your life when you amend powers in your trust – planning for succession, changing an appointor or removing a beneficiary. When we change or administer a trust, think about whether they are an individual or a corporation that has the power to amend. Typically, an appointor can amend powers in a trust, but sometimes there may be ambiguity in the trust deed and the trustee may be unsure as to the correct interpretation to be placed on a particular provision of the deed (if this is you, we recommend getting directions from the Court about the interpretation of a trust deed).
The amendments stem from The High Court’s changes to the Tax Laws Amendment Act 2011. However, all you really need to know is that for a beneficiary to be presently entitled to a share of the income of the trust estate, that beneficiary must have a vested interest in the income and demand immediate payment from the trustee.
If the trust deed does not provide you with the superpowers to extend or bring forward the vesting date, you will need to approach the supreme court in your state or territory to make certain changes to the vesting date.
This is typically when a trust interest in a property is transferred to a person. Contingent interest is defeated by the death of transferee before he obtains possession.
A unit trust deals mostly with commercial projects or investments that features one unrelated interest or party. Beneficiaries of a unit trust have a fixed interest in all property that is the subject of the trust. A unitholder trust differs from a discretionary trust as beneficiaries’ rights to income and capital are not fixed and not at the trustee’s discretion.
A replacement deed can be entered into between the trustee and beneficiaries, there is no longer any evidence of its terms, the trustee will usually be unable to carry out activities such as:
These can be confusing, but ultimately, allow trustees of each trust to decide, from time to time, which of the nominated beneficiaries (if any) may receive the benefit of the distributions from that trust for any given period.
The Acknowledgement of Trust does nothing other than document what has happened in the past. It is not trying to rectify or change anything; it is merely recording what happened in the past.
Overall, we hope this list has enhanced your knowledge on Trust Deeds and all the caveats that follow.
If you are not sure where to start, contact Nevile & Co. today.
The information contained on this page is general in nature and does not take into account your personal situation. It is not intended to be relied upon as, nor is it a substitute for specific legal advice. You should consider whether the information is appropriate to your needs, and where appropriate, seek professional advice.
What is a Trademark?
A trademark is a sign used or intended to be used to distinguish goods or services dealt with or provided in the course of trade by a person or organisation, from goods or services dealt with or provided by any other person or organisation.
A sign includes any of the following, or any combination of the following (note this :
Accordingly, a logo and any word marks may properly operate separately as a trademark. Often, you will use them in close association with each other. However, you will most likely find it beneficial to register both of these as separate trademarks.
What are the Benefits of Registration?
In general terms, once your trademark has been registered, you will obtain an Australia-wide monopoly for use of that trademark in respect of the goods or services (aka classes) for which registration was granted.
You will not obtain this right if you use your mark as a business name, domain name, or company name without registering it as a trademark.
How do I Apply for Registration?
Applications for trademark registration must be filed with IP Australia.
The current timeframe for registration is 8-12 months, however, sometimes IP Australia may expedite the process.
Applying for registration of your trademark will involve the following stages:
Are you looking to register a trademark? Contact our Commercial Team today at nevileco@nevile.com.au
There are many reasons to lodge a caveat. If you are purchasing property you can lodge a caveat over the property to ensure that the vendor does not sell the property to anyone else.
There are many reasons to lodge a caveat if you have a caveatable interest.
A caveat is a notice registered on title that prevents the registered proprietor from transferring the title to someone else. It ensures that the caveator is informed of any dealings on title.
If you have a caveatable interest in the property you can lodge a caveat at the titles office. Most caveats are lodged electronically via PEXA. Nevile & Co can assist you registering your caveatable interest online.
The important question to ask is whether or not you have a caveatable interest. If you lodge a caveat on a title that you do not have a caveatable interest in then you can find yourself in hot water. It is important to get proper legal advise before lodging a caveat. At Nevile & Co we have the expertise to provide you with appropriate and timely advise with respect to registering caveats.
Caveatable interests can arise by way of loan agreements, contracts of sale of land, pursuant to a charge, or an equitable or constructive trust for example an agreement may give a charge to a party, or a purchaser of a contract of sale of land.
When a caveatable interest arises it is important to register the caveat on title in a timely fashion, that is, as soon as the caveatable interest comes into existence you should lodge a caveat immediately to avoid any issues regarding priority.
Once the caveat is lodged the registered proprietor can not deal with the land until the caveator provides consent to the relevant dealing or withdraws the caveat. You can withdraw the caveat at any time.
If you are the registered proprietor and someone lodges a caveat over your property you can object to the caveat being lodged in which case the caveator will be required to give evidence of the interest in the land.
If it is found that a caveat has been lodged on title where there is no caveatable interest the Court may award the aggrieved party with damages for any loss suffered as a result.
For more information regarding caveats and how to register them, please contact us at nevileco@nevile.com.au and mention this newsletter.