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Potential Issues for Trustees and Directors of Trustee Companies with Sole Directors

Peter Nevile

We have recently noticed that quite a few trust deeds and Trustee company constitutions, where there is an individual trustee or a sole director, do not address the issue of incapacity or death of the trustee and/or the sole director. It can have a significant adverse effect. If you fall into this category, we suggest you contact us to review your trust deed and, perhaps, your constitution. There are relatively new provisions regarding successor directors. Alternate directors have no further capacity or function when the original director loses capacity or passes away.

Peter Nevile
January 26

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.

Moving To a Mandatory Administrative Merger Control Regime Natalie Tran

A Shift to Mandatory Merger Approvals

Commencing from 1 January 2026, Australia will be implementing a new and significant overhaul of its merger control regime. The ACCC will be moving from a largely voluntary review system to a more suspensory and mandatory approval framework for acquisitions and mergers that are capable of meeting such prescribed financial thresholds.

Under this new regime, qualifying transactions shall now be notified to the ACCC and without further ado, cannot be completed until clearance is granted or a waiver is permitted. Such change marks a clear departure from the current approach we hold, where parties can choose whether or not to notify the ACCC and may proceed whilst a review is still ongoing. These reforms are aimed to prevent anti-competitive mergers before they occur, rather than the act of addressing competition harm after completion.

The Faster Path for Low-Risk Deals

In order to ensure that the new system does not unnecessarily slow down any deal activities, the reforms have introduced a new streamlined assessment pathway. These include statutory timeframes for ACCC decision making and notification waivers for clear low risk transactions.

Furthermore, the ACCC expects that the majority of notified deals are to be resolved quickly and efficiently, allowing proceedings to carry along with greater certainty where competition concerns are deemed unlikely.

What Does This Mean for Your Business

The changes will impact all the Australian businesses involved in mergers and acquisitions, including those of private equity firms, foreign investors and serial acquirers. Regulatory engagement and competition analysis will need to occur much earlier in the transaction planning process.

Whilst compliance obligations are going to increase for larger scale transactions, the reforms are aimed to deliver a higher level of transparency, predictability and an internationally aligned merger control system, essentially, strengthening competition whilst enabling timely and efficient deal making.

Natalie Tran
December 25

By Peter Nevile

Arriving in Samarinda, on the mighty Mahakam River, which in turn flows for some one thousand kilometres into the hinterland of Borneo, we came to our river boat, which was to be home for the next 5 days. It was freshly painted wooden boat of local design with a very large diesel engine. There was a captain, a deckhand a cook, and a guide.
Accommodation was the cabin you can see in the photo above, with the small outdoor porch in front. The cabin was about one point four metres high so it necessitated bending on entry. Accommodation was a mattress on the floor. There was nothing else in the room apart from an air-conditioner, which, despite its rather dilapidated appearance, worked quite effectively. Outside on the porch, for want of a better word, there were several chairs, and it was quite pleasant sitting there with a breeze created by the movement of the boat. Borneo is very hot and humid. On the lower deck, there was a wheelhouse for the skipper with a steering wheel and some very basic controls, but a complete lack of instrumentation. To my surprise, it had navigation lights and a small hand-operated search light. On the lower deck the boat effectively had open sides with blinds that could be pulled down when it rained. There was a long table and an engine room with no door. OHS and safety briefings are normally absent and this trip was no exception. Behind the engine room was the Galley and conveniently located but raised slightly and jutting out or suspended from the back of the boat, there was a toilet and shower. There was no hot water, not that the water was particularly cold, and the toilet like much of the sanitation along the river, conveniently emptied directly into the river. There was actually a ceramic toilet, not that it flushed, but with a big bucket and dipper nearby, it operated much like a squat toilet.
We were the only passengers, so it was effectively our boat. The first night we had dinner, washed down with several cold beers. The boat had no refrigeration, but there were several iceboxes. While the boat, in fairness, was not uncomfortable, it was certainly not a luxury tour. Nevertheless, the guide and crew were absolutely charming and helpful to a fault. Every meal contained rice, there were eggs, chicken, fish, bread and a variety of vegetables and fruit. I passed on the fish for reasons which will become apparent shortly.
In Borneo, the rivers are a principal means of transportation; as a result, the villages and houses are built along the riverside. Sometimes they jut out over the water, sometimes they sit on the bank with planks going down to the water. In almost every case, at the water’s edge, there are two logs in the water attached to the bank by ropes with small outhouses built on top of them. Inside several missing planks in the floor create convenient access into the river. providing immediate and effective waste disposal. In many cases, conveniently located adjacent to the small outhouse, there is often a fish farm so that the cycle of life continues endlessly. That is followed by the outhouse for the next property, the fish farm, children washing in the river, women doing their daily washing, collecting water for the house, and so on. Having said that, the Mahakam River is extremely wide and obviously has a high volume of water, as there is no obvious smell one could well expect, nor evidence of the waste products… perhaps the fish are extremely hungry.
We stopped at a number of villages along the river. it became very much like Joseph Conrad’s Heart of Darkness as we continued to travel into the interior. As one of our stops, we embarked on a motorised canoe, headed up to a branch of the river, and then emerged onto an enormous lake. In the middle, it was not possible to see the shores, although it did not appear to be particularly deep. We passed through several fishing villages, all situated on stilts, sitting in the water.
In almost every village, there was a very well-built Mosque maintained in excellent condition. In contrast to the rather rickety houses in general nearby. Having crossed the lake, we journeyed up a small creek and saw a snake up a tree, macaque monkeys, proboscis monkeys, water buffalo, and a variety of birds. The creeks are full of submerged and half-submerged trees and other objects, so the skill of our boatman navigating through the maze was quite extraordinary. We stopped when we heard that another boat preceding us had come to grief on one of the submerged logs. Returning to our boat, and doubtless, a cold beer, we proceeded further up the Mahakam to another adventure which I will relate in the next episode.
Back to the office. Van Ngo, our very experienced property paralegal has been out of the office recuperating from a knee replacement. She has just started to take on some work at home to assist our property team who are under some pressure. We look forward to welcoming her back in January. Having had a similar operation some years ago I would not recommend backing her at the Stawell gift!! It pains me to say we have not been taking on some property work from new clients as we have not had adequate resources to provide the service levels. Happily, with Van’s return, and Alice He starting that will shortly be rectified.
PPSR Personal Property Security Register. Despite this legislation having been in place since early in 2012 it appears that many businesses are still not aware of its application. It turns the old concept of title to goods not passing until payment on its head. Now it is possible in some circumstances to lose ownership of your goods to a third party if your interest in those goods is not properly registered. For example, if you lease goods to another entity or individual, do not register your interest and a third party takes a charge over all the assets of a business then in the event of bankruptcy or insolvency the trustee or liquidator can claim ownership of those goods. The legislation has a wide coverage but does not apply to real estate. We are happy to discuss its application and effect with you.

Peter Nevile
December 25

By Natalie Tran

Major Rental Law Reforms Roll Out Across Victoria: What Landlords and Tenants Need to Know

A significant suite of rental law reforms has now come into effect in Victoria, reshaping the rights and responsibilities of both landlords and tenants. These changes—phased in from November 2025 through March 2026—aim to strengthen housing security, improve safety standards, and streamline the tenancy application and dispute-resolution process.

No-Fault Evictions Are Now Banned

From 25 November 2025, Victorian landlords are no longer permitted to end a tenancy without a valid, lawful reason. Even when a fixed-term lease expires, tenants will automatically transition to a month-to-month arrangement unless the landlord can establish legitimate grounds for ending the tenancy. This marks a major shift toward enhanced security of tenure for renters.

Rental Bidding Prohibited

The same reforms bring an end to rental bidding practices. Landlords and agents must now accept only the advertised rent, and cannot encourage or accept offers above the listed amount. This measure is designed to create a more transparent and equitable rental market.

Longer Notice Periods

Notice periods for rent increases and most notices to vacate have been extended from 60 days to 90 days. This gives tenants more time to adjust, plan, and seek advice when facing significant changes to their housing situation.

Minimum Standards Before Advertising

Properties must now comply with prescribed minimum standards before being listed for rent. These include:

Functional heating
Secure locks
Basic kitchen and bathroom facilities
Safe electrical fittings

This requirement ensures that all rental homes meet a baseline level of safety and liveability from the outset, not after a tenant moves in.

Annual Smoke-Alarm Checks

All rental properties are now required to have smoke alarms checked every 12 months, regardless of when the tenancy commenced. This obligation aligns with broader safety reforms aimed at reducing preventable risks within the home.

By Peter Nevile

If you have not reviewed your family trust for some time, then we recommend that you do so as a matter of some urgency. Among other issues, it is very important to ensure the trust deed excludes foreign beneficiaries; otherwise, there are significant unintended adverse tax consequences.

The second issue relates to family trust distribution Tax (FTDT). The ATO has put out a warning that if applicable, you have until the end of 2026 to report, pay that FTDT liability, and potentially remit up to 80% of the general interest charge applied to historic tax debts. These family trust election errors, which should result in money being distributed outside family groups, trigger an FTDT liability.

The ATO is also showing renewed interest in service trusts. These are quite widely used by professionals.

We recommend that you consult with your accountant, and if you would like a review of your trustee, then please don’t hesitate to contact us; we would be delighted to assist.

Wills – Are they current?

We are being approached by a number of our clients who have not reviewed their Wills for a number of years. It is also surprising how many have not had enduring powers of attorney, financial and medical. As we often say, if you’re not going to die, then you don’t need a Will,….. but you will.

These days, particularly with so many blended families, it is important to ensure that your Will makes adequate provision to give effect to your wishes. We have seen an increase in claims from parties who believe that they have an entitlement resulting from a moral obligation by the Willmaker/Testator The courts appear to be increasingly sympathetic to some of those claims. Accordingly, it is important that if you intend excluding people ,often with very good reasons as a result of blended families, that you provide very specific reasons.in your Will.

If you have any questions and you would like to arrange a consultation with Tracey Collins, who is our accredited specialist in Wills and Estate planning, then please don’t hesitate to contact us.

By Natalie Tran

In today’s modern and fast paced digital world, artificial intelligence is increasingly becoming a part of almost every conversation, and legal services are no exception. Tools like ChatGPT and other various AI platforms offer easy and quick access to legal terminology, templates for legal documents and general information in an attempt to support your case. In fact, it’s so tempting to just ask yourself, “Why not just use AI to self-represent in court right?”

Well, here’s the answer in two simple words… think twice!

Outdated & Incorrect Information

ChatGPT is not aware of the current state of law in your jurisdiction. Whilst it does carry access to a broad base of general terminology, it is not always programmed on the latest legislation, rulings or the court rules. It could potentially provide you with information that was accurate at one point in time, however, is now irrelevant, outdated and maybe even simply incorrect.

More critically, ChatGPT is not able to distinguish between binding authority and persuasive non-binding resources. They may draw legal rules from another country or from higher courts in different jurisdictions, none in which may apply to your case specifically. Without any form of legal training, it is nearly beyond impossible to know if the information you’re relying on is even reliable to begin with.

No Responsibility

In the case where you hire a lawyer, you’re not just getting legal advice, you’re engaging someone who is ethically and legally obligated to act in your best interests. Further, if your lawyer makes a mistake, there are certain systems in place in order to hold them accountable, for instance professional discipline practice.

On the other hand, however, ChatGPT is a tool. One will never owe you a duty of care because it can’t appear in court to explain why it gave you bad advice. And if you lose your case because of something it told you, the reality is, there will be no one to blame but yourself. The judgements, consequences and fines will all be yours to bear alone.

Damaging Optical Illusions

One of the most salient problems of ChatGPT with legal content is the risks of hallucinations. The platform often invents their own legal cases, arguments or statutes that sound plausible however undercover are completely fabricated.

There are now a wide range of high-profile cases where individuals have submitted briefs that cite fake court decisions and cases, all generated by ChatGPT. And the result? Embarrassment, sanctions and in some serious circumstances, permanent harm to your case. Such errors are not taken lightly by the courts.

No Legal Strategy

Practicing law isn’t all about knowing what the law says, in fact it’s knowing how to use it effectively. A skilled lawyer can analyse the facts of your case, weigh out risks and outcomes and build legal strategies tailored to your desired goal.

Contrary to this, ChatGPT cannot evaluate the strength of your evidence, foresee possible opposing arguments and adjust certain tactics midway in a trial. It also can’t cross examine a witness, make persuasive oral arguments nor challenge improper evidence. All of these small human touches, developed through training, experience and judgement, make all the difference in court.

Why Lawyers Are So Essential

Whilst ChatGPT can be found helpful at times. From a starting point of legal research to understanding general concepts, it must be made clear, one is not a substitute for professional legal advice. Lawyers remain indispensable because they spend years studying law, analysing cases and gaining real life experience of attending court. They know how to separate relevant facts from mere noise, and thus, apply these precisely according to your circumstances.

Additionally, a lawyer is ethically and legally bound to advocate for you. Whether negotiating a settlement, fighting for you in court, or managing a risk, lawyers use human judgement to protect your interests, and that’s something AI can never offer.

Conclusion

Conclusively, ChatGPT can be a resourceful tool for legal learning. However, when it comes to making legal decisions, or going to court, the stakes are far too high to rely on ChatGPT or any form of AI. Why trust one with your freedom, your rights, and most importantly… your future.

By Peter Nevile

The Bank of Mum and Dad has become a significant source of lending. Ever-increasing property prices have made it more difficult for young people to buy a property. They often lack a sufficient deposit or income for banks to approve a loan. Alternatively, the loan repayments may place them in a precarious financial position.
This is an increasingly common situation where the Bank of Mum and Dad comes into play. They seek to assist by contributing to the deposit, enabling their children to qualify for a loan or simply to provide an amount on which little or no interest is payable, so that repayments of the prime loan to the lending institution are manageable. A noble and worthy act. However, it does not come without significant risks.
Two songs spring to mind, the first by Cindy Lauper, “Money Changes Everything”, and the second by Tina Turner, “What’s Love Got to Do”.
We have seen rising tensions, arguments, court actions, and, worst of all, estrangement between parents and children.

Here are some of the issues:

1. Given the present divorce rate, parents are concerned that the money they provide for their children remains in the family and does not become a subject of a divorce settlement to a third person. Binding financial agreements (‘prenups’,) can assist. However, many young people in the throes of love find this topic awkward to raise. They are not inexpensive, as each party requires independent legal advice. To avoid those situations, it is important that frank and open discussions are held, the potential issues discussed, and formal agreements are entered into to avoid misunderstandings or disputes in the future.

2. The loan should be treated in the same way as a commercial transaction. That requires documenting the loan and registering it preferably as a second mortgage behind the prime lender, such as a bank.

3. We have seen situations where parents do apply an interest clause but defer the payment of interest until some later date. That can create issues with the parents being liable for tax on the interest to which they are entitled that year.

4. There are also potential issues where parents reduce their capital to the point where they may not have enough to provide for future unexpected expenses.
The Bank of Mum and Dad plays a very useful role. However, to avoid potential heartbreak, we strongly recommend that it be treated on a strictly commercial basis. All parties should be advised to seek independent legal advice.

Please do not hesitate to contact us for a confidential discussion. Family disputes and even estrangement create great sadness. They can generally be avoided with proper processes before a loan.

By Jack Nevile

Victorian Property Update – September 2025

Should you use a conveyancer or a lawyer for your property sale? Often consumers don’t recognise there are different business models in conveyancing – one which charges you a full price up front, and another with a ‘’headline’’ low price and sneaky costs along the way. Let me tell you a recent story.

A Vendor verbally asked my Purchaser client if we could bring settlement forward by two weeks. As a favour, my client agreed. The Conveyancer’s contract said that a $220 fee would apply.

We asked the Vendor’s conveyancer and said that we don’t want to pay $220 but that agreeing would save their own client about $1,000 in mortgage repayments, rates, and foregone interest. Surely a win-win!

Not quite. They said:

‘’Hi Jack, we note you are comparing [our client] saving money to our office doing work for free’’

One may ask if the 30 seconds it takes to change a settlement date is worth $220 (it isn’t), then the Vendor would surely be happy to pay, given we were doing them a favour. Alas, they didn’t feel the need to charge their own client. My client did not end up paying this.

Such behaviour is more comparable to a highway robber than trusted advisor. If your conveyancer doesn’t want you to save money without paying them a cut, you should be wondering who they actually work for.

Our contracts don’t include revenue-raising nasties, which only serve to lower the sale price, cause unnecessary friction, and often, cost Vendors a lot of money.

This is not to say all conveyancers are like this – some lawyers are too – but given conveyancers are more likely to charge a lower ‘’headline’’ price, and sneak the remaining fees in through contractual clauses, consumers should be aware that comparing price alone does not give a clear indication of the cost you may actually end up paying. Sometimes trying to save a couple hundred dollars can cost thousands!

In other news:

The First Home Guarantee begins 1 October, allowing first home buyers into the market with only a 5% deposit and no income limit caps.

This will solve the housing crisis forever, and every struggling young couple looking for a home in which to start a family can breathe a huge sigh of relief.

Only joking, of course. Sellers will celebrate as the marginal buyer can take on bigger loans, and pay much more interest to the big banks.

You should expect to see a lot of property priced below $950,000 (the Melbourne price cap under the scheme) get a lot closer to $950,000 over the next year.

The RBA has held interest rates at 3.60% and mentioned that property prices are increasing again due to the recent rate cuts.

By Chelsea Mcloughlin

Paws for Thought: Pets Are Now Family in the Eyes of the Law🐾

Great news for animal lovers! From 10 June 2025, the Family Law Amendment Act 2024 (Cth) came into effect, bringing a huge shift in how the law sees our pets. No longer just “property,” companion animals are finally recognised as valued family members.

What’s New?

Pets aren’t property anymore – courts will now look at pets as part of the family, not objects to divide.
Day-to-day care matters – who feeds, walks, grooms, and cares for the pet will be considered.
Emotional bonds count – attachment and wellbeing are important factors when decisions are made.
Family violence protections – the law now recognises harm to pets as part of family violence, strengthening safety measures for both people and animals.

Why It Matters

Before these changes, the law treated pets the same way it treated furniture or cars. Courts could transfer or sell an animal, but that was about it—no shared arrangements, and little focus on their wellbeing. Now, when disputes arise, judges can consider who has been most involved in caring for the pet, the emotional connection between pet and family members, and the best future care plan. This update is a big step forward, reflecting what most of us already know: pets aren’t things, they’re family.

By Peter Nevile

Risk Management/Asset Protection

Holding your principal place of residence in your spouse’s name.

As part of risk management strategy, we often advise our clients to ensure that they separate their assets from their risk, generally known as quarantining. Where one party is the principal breadwinner and, particularly if they are a director of a company or run a business, there is always risk. It is therefore important to safeguard the family assets. Accordingly, we suggest they quarantine the principal place of residence in the spouse’s name. While this is best done on the initial purchase, a transfer from joint names to their spouse’s name can be done with a stamp duty exemption.

Often the property has been purchased with joint assets and the party exposed to risk may have made significant contributions to the deposit and the mortgage or other costs relating to the property over the years. In 2002 there was a case of Bosanac v Commissioner of Taxation. This is a pivotal case in Australian equity and trust law. It concerns the presumption of resulting trusts and the presumption of advancement. In this case the married couple purchased a property, paid the deposit from their joint account and financed the balance through two joint loans. However, the property was registered solely in Ms Bosanac’s name. Mr Bosanac had significant tax debts, and the commissioner of taxation sought to establish that Ms Bosanac held 50% of the property on trust for her husband so the ATO could satisfy the tax liability.

The High Court decided that she did not hold any part of the property on trust for her husband, the reasons were as follow:

The presumption of resulting trust implies that a person who contributes to the purchase price of a property but is not on title, retains a beneficial interest was not applicable. The evidence didn’t support any intention for Mr Bosanac to have a beneficial interest.
The presumption of advancement implies that in the case of a married couple, where one spouse contributes to the purchase of a property registered in the name of the other, there’s a presumption of advancement — i.e., that the contribution was a gift, not a trust.
The court noted that the property’s title was solely in Ms Bosanac name and there was no indication that the parties intended for Mr Bosanac to have a beneficial interest.

It is important in such circumstances to have extremely clear documentation and an understanding of property ownership arrangements between the spouses.

If you are considering quarantining that is separating your assets from your risk, then please do not hesitate to contact us to discuss this matter further. Please also note that in this case the property was purchased in the wife’s name at the outset not from a later transfer.
Peter Nevile.

Paws for Thought: Pets Are Now Family in the Eyes of the Law🐾

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