English Archives | Nevile & Co. Lawyers

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!

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:

Have a motor operating under 200 watts; and
Have a maximum speed of 10 km/hr on level ground

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.

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 Contract of Sale must be for the sale of land and the building yet to be built on the land.
You must be eligible for either the first home buyer concession or the principal place of residence concession except for the “dutiable value” aspect of those concessions.

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:

Determine the percentage of construction completed as at the date of the contract of sale.
Select a method of calculating the concession and identify the relevant figures.
Provide all these details to the SRO when they complete the Digital Duties Form.

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.

The Owners Corporations Act 2006 (Vic) (“Act”) regulates the management, functions and powers of owners corporations (OCs) in Victoria. It also provides for mechanisms of dispute resolution in relation to the OCs and its members. Developers, as initial owners, need to comply with their obligations under the Act. This article will explain in general terms the obligations which developers have, what are the new obligations under the Amendment to the current Act (“Amendment”), and the restrictions that apply to developers.

General Obligations

In the case that a developer controls the majority of the owners corporations (OCs), the developer must act honestly, in good faith, and in the best interests of the OCs (s 68). For example, if the developer commandeers common property for its own benefit and excludes other lot owners’ use of it will be contrary to acting in good faith.

The developer must also act with due care and diligence, fairness, and take all reasonable steps to enforce domestic building contracts that affect the OCs (s 68). In the event of the developer’s failure to do so, the OCs may pass a special resolution to authorise legal proceedings against the developer under the implied warranties of those building contracts. In the alternative, lot owners, as individuals, can apply to the Victorian Civil and Administrative Tribunal (VCAT) to “enforce” obligations of the developer.

New Disclosure Obligations under the Amendment to the Act

There are some key changes that imposes increased obligations on developers as initial owners of the OCs under the amendment to the Act.

At the first meeting of the OCs, the developer must provide the following documents (s 34 Amendment; s 67 Act):

the building maintenance manual,
the asset register,
copies of any warranties, or details of any warranties if copies are not available, and
copies of any specifications, certificates, permits, reports, notices or orders in relation to the plan of subdivision.

The developer must also disclose, at the first meeting of the OCs, the following information (s 35 Amendment; new s 67A Act):

any relationship with the OC manager,
any immediate or future financial transactions that will or will foreseeably arise out of the relationship, and
any possible or specific benefits which the developer will receive from it.

Other New Obligations

Maintenance fund

An OC with more than 50 lots (tier one or tier two OC) is required to prepare and approve a maintenance plan for the property for which it is responsible (s 19 Amendment; s 36 Act). The maintenance plan must be provided at the first meeting of the OC (s 67), and adequate fees to the funding of the maintenance plan must be paid into a maintenance fund in the name of the OC (s 42).

Plan of subdivision

In the course of preparing a plan of subdivision, a developer is now required to specify how lot liability and lot entitlement be allocated, and to engage a licensed surveyor to set out the initial allocation of lot liability and lot entitlement in the plan (unless the owners corporation is a two-lot subdivision, or services only owners corporation) (s 87 Amendment; new s 27 EA Subdivision Act 1988 (Vic)).

Insurance

If the plan of subdivision has separate buildings, and one or more buildings is or are multi-level development and has its own OC which is or are multi-level development, the OC must obtain reinstatement and replacement insurance and public liability (s 30 Amendment; s 61(3) Act) and separate valuations of its buildings (s 33 Amendment; s 65 Act).

Restrictions

The developer cannot:

appoint themselves as an OC manager unless the OCs relate to retirement village land,

appoint an associate (s 68(5)), such as a spouse or employee who is ‘close’ to them, as an OC manager,
vote on resolutions of the OC that relate to defect of the building on the plan of subdivision,
propose an unreasonable or unsustainable annual budget of the OC,
designate what would normally be common properties or services as a private lot, and
receive any payment from the OC manager in relation to contract of appointment of the OC manager.

Further, the appointment of the OC manager prior to the first meeting of the OC expires at that first meeting (s 67B(1)), and the OC manager must not be appointed for a period of more than three years (s 119(1D)).

Do you own a shop, an apartment, flat, unit or townhouse? Chances are you are already a member of an Owners Corporation.

On 1 December 2021, major changes were introduced to the law governing Owners Corporation. This may have a direct impact on you, both financially and legally.

Some key changes

Five Tier System

Depending on the size and nature of the Owners Corporation (OC), the new 5-tier system prescribes different requirements for committees, financial reporting and maintenance plans.

Tier Definition

1 More than 100 occupiable lots (and not a services only OC)

2 51 to 100 occupiable lots (and not a services only OC)

3 10 to 50 occupiable lots (and not a services only OC)

4 3 to 9 occupiable lots (and not a services only OC)

5 2 lot subdivision or a services only OC

If your OC falls within Tier 1, 2 or 3, they must elect a committee at the annual general meeting. You should inquire as to who those committee members are as they are representing your interests. If you have intention to be a committee member, please do not hesitate to call us to discuss as there are now expanded duties expected of a committee member.

If you are a potential member or existing member of a Tier 1 and 2 OC, we recommend you obtain a copy of the OC financial statements and maintenance plan (if already available). The financial statement will reflect the current financial health of the OC while the maintenance plan provides an insight in relation to the anticipated capital expenses for the 10 next years which you may ultimately be partially liable for. This may influence your decision to buy or sell your property in the near future.

If you are a member of a Tier 5 OC, then we have good news for you. Your OC is exempted from complying with a broad range of obligations including, but not limited to, appointment of OC manager, establishment of committee, issuance of Fee Notices, obtaining insurances and accounts auditing.

Expanded powers of OC

Your OC now has additional power to levy an additional annual fee on you if

Your OC has incurred additional costs arising from your use of your lot; and
An annual fee set based on your lot liability is insufficient to account for those additional costs

Furthermore, your OC can also levy an additional fee on you for

An excess amount, or increased premium, resulting from or attributable to an insurance claim (if the claim was caused by a culpable or wilful act or negligence caused by you, your lessee or your guest); and
Damage caused to the common property by you or your lessee, if
The damage is not covered by insurance; or
The cost of the damage is less than the excess amount; or
The claim solely relates to your lot

While OC has always possessed the power to make rules for the purpose of the control, management, administration, use or enjoyment of the common property or of a lot, you and your guest* will now be jointly and severally liable for satisfying any penalty or compensation payable as a consequence of your guest’s breach if a copy of the rules was not provided to your guest prior to the breach.

As such, it is more important than ever that you screen your lessee or guest before permitting access to your lot, as any misadventure on their part may be attributed to you, resulting in financial implication.

On the bright side, your OC now has additional power to look after your interests including disposal of goods abandoned on the common property and retaining of funds from the sale of disposed items to cover its costs, provided certain procedural steps are followed.

How Nevile & Co can assist you as a client:

The amendments to the OC Act and Regulation are to assist OC to operate more efficiently and ethically to prevent exploitation of lot owners while at the same time, imposing additional obligations on lot owners for the protection of OC. If you are experiencing difficulties with your OC or just want to know more about OC, please email our Lawyer, Mr Alvin Lim at alvin.lim@nevile.com.au.

*Guests include anyone that you invite on the property but does not include a contractor or a tradesperson engaged by the occupier of a lot

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:

Changing the Appointor/Guardian of a Family Trust;
Changing the Trustee of a Family Trust;
Streaming & Bamford Updates for Family Trusts;
Change of Name of Family Trust;
Vesting of a Family Trust;
Excluding Foreign Persons from a Family Trust ; and
Updating the Rules of an SMSF.

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:

Adding and excluding beneficiaries

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.

Amending trustees’ powers.

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).

Bamford amendments (for older or more complex deeds);

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.

Extending vesting date.

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.

Contingent vesting deeds.

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.

Unitholder agreements.

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.

Lost Trust Deeds.

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:

Opening a bank account
Gaining finance
Land title registration

Testamentary Trusts.

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.

Trust acknowledgements; and

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.

Legal opinions on trust problems

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.

In the previous article (located in the February 2022 edition of CBD News), I discussed Sexually Transmitted Debt (STD), and the consequences of joint borrowings.

Now it is time to talk about the difference between guarantees and indemnities!

Be very careful! A guarantee means a demand must be made by the borrower to the lender, and generally the borrower must default over it or be sued by the lender. If the lender does not recover the loan, then your guarantee is liable. However, an indemnity effectively means the lender can pursue the person’s indemnities that occur without the borrower first defaulting.

The best you can hope for is to not have to make any payments, while at the same time, deriving no direct benefit. Quite often, you have no control over the events which may make you liable under the guarantee and the indemnities. In short, there is really no upside to the huge risk.

To those who have unfortunately already been infected by an STD, and the condition was a contributing factor to your relationship’s demise, my sympathy goes out to you. I do suggest you immediately seek advice on the best course of action to limit your continuing exposure and, if possible, terminate it. There are situations where the terms of the loan have been varied without the consent or knowledge of the guarantor. In some situations , this can prevent the lender relying on your guarantee.

For those who find themselves in a position where they cannot escape the temptation of exposure, let me tell you this…the fact is that lenders are reluctant to let go of anyone when an outstanding debt exists. From their point of view, the more people they can look to in the event of non-payment, the merrier it is likely to be!

You will all have heard the stories about parents losing their house or farm as a result of providing a personal guarantee for one of their children who was setting up a sure-fire business, which then failed to fire surely. I alarm you that these events are not stories, but true events. They really do happen.

One of our most eminent Judges, now deceased, was made bankrupt as a result of a personal guarantee given to an oil company to support his parents’ business. They tend to be even less sympathetic than banks, if you can believe that!

If you must provide a guarantee, or sign for an indemnity, firstly go chant “a guarantor is a fool with a pen” again, and have a long hard think about it. If, for some overwhelming reason, living stress free has no appeal, or you choose not to tread a lotus strewn path, then please seek legal advice before signing.

You must try to find any possible ways to limit your exposure as best you can.

It’s an unpleasant question to have to consider, but do you have someone you can trust in the event of being placed on life support? In the next article, I will look at Powers of Attorney in their various forms.

Peter Nevile

Partner

Nevile & Co.

On 29 March 2021, Victoria made significant changes to Residential Tenancies Act 1997. Landlords will be renamed as rental providers and tenants are now called renters. Leases are now called rental agreements. The rental providers and estate agents must ensure they are compliant with the new laws.

We would like to capture some important summaries in this article. Rental agreements must be in the “prescribed form”. Additional conditions can be included if the renter or rental provider requests them, but there are some conditions that are not allowed.

If one of these prohibited conditions is included in the agreement, it is not valid. The rental provider may also have to pay penalties for including a prohibited term in the agreement.

For example, renters cannot be required to:

Take out any form of insurance
Pay additional rent or penalties if they break the rules in the agreement
Pay for the rental provider or agent to prepare the agreement.

The changes to the law clarify the rights and responsibilities of renters and rental providers – from before you sign a rental agreement until after the agreement ends – and apply to all types of tenancies, private rentals, caravan, and residential parks, and rooming houses.

The law changes include a ban on rental bidding, new rental minimum standards, no eviction without a reason, pets, allowable modifications by renters, and urgent repairs. Some of the new rental laws which came into effect on 29 March 2021 will not apply to renters who are already in a fixed-term or periodic rental agreement before that date. A list of the changes that will not apply to existing rental agreements.

Want to know more changes in the new agreements?

If you would like to check your rights, we can arrange a lawyer to assess you shortly.

Disclaimer: This publication contains comments of a general 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 advice.

The applicant in question is a Chinese citizen who applied for a protection visa. The Department refused to grant the application as the delegate for the Minister for Home Affairs was not satisfied the applicant was a genuine refugee. This is due to the belief that there is no real risk of suffering or significant harm to the applicant should they return to China.

The applicant claimed that they borrowed money from a loan shark, and is not able to repay the same. The unlicensed lender physically threatened the applicant upon learning they could not return the funds. As the lender is unlicensed, the applicant was unable to seek assistance or intervention from the appropriate governing body.

As a result, the applicant travelled to Australia claiming fears of harassment, bullying, torture, or death should they return to China.

Why Were They Refused?

Under s5J(1) of the Migration Act, a person has a well-founded fear of persecution if they fear persecution based on one or more of the following:

Race
Religion
Nationality, or
Membership of a particular social group or political opinion.

There must be a real chance a person may be persecuted for one or more of these reasons, and the reasons must be essential and significant.

As the applicant did not satisfy any of these four reasons, Australia has no obligation to provide protection to them under the Migration Act.

How Can We Help?

Many potential clients approach us by asking whether they can apply for a protection visa. If your story is similar to the above, your risk of refusal is very high.

However, each case is different, and should be assessed individually. If you want to know whether you have reasonable grounds to apply for a protection visa, you should contact our Nevile & Co. migration experts to request an initial free migration assessment.

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