December Newsletter 2017

On the second Tuesday of this month, we had the Melbourne Cup – the race that stops the nation. Well, it certainly stops productivity. We live in a lucky country where we can afford to have a day off for the races, let alone, a ridiculous day off in Melbourne prior to the AFL football grand final. Having said that, it’s interesting to note that the ASX has broken the 6,000 barrier and continues to rise. House prices in Melbourne, while they may have slowed down a little in contrast to Sydney, have also continued to rise. However, those rises are not right across the board. There are pockets where we have seen slowing down and even a slight flattening, and in some specific cases, a negative trend. Is it time to be concerned about both the share market and the housing market? Well, I guess no one can really predict with certainty where they are going. The only thing one can say is, looking back, both the share market and the housing market do go in cycles, and we have been experiencing a particularly long cycle. So certainly, one would think it is time to be a little more cautious. Having said that, in my last newsletter I did point out that in general, you need to decide whether you are an investor or a speculator and timing in the share market and the property market is everything. Although of course, we do not hold ourselves out to be financial advisors.

We have just been involved in the sale and settlement of Large Abbatoire in Gippsland and the team involved is headed by Andrea Lucas and assisted by Meng Cheong and Laura Millar. Congratulations to them on an excellent job. As a result, we are now involved in the preliminary stages of a sale of a much larger Abbatoire in excess of $60 million. On the final day of settlement we were very happy to be able to use our 80 inch touch screen in the Boardroom to set out all settlement requirements and be able to mark them off as they are completed. We are still coming to grips on how to get the best advantage of our touch screen, but we are impressed and thankfully so are our clients who have seen it.

We welcomed Andrea back from a short break in Egypt, celebrating a milestone birthday, as well as the completion of her MBA. Later this month, nearly all of our staff are participating in the LIV annual fun run & walk, and undoubtedly you will see photographs on our Facebook page following that event.

We are implementing further changes in our internal processes, with a view to further improving the quality control of our work. If you as our clients have any suggestions as to how we might improve our service to you in order to meet your expectations, we would be delighted to hear from you.

As this will be the last newsletter of the year, we take this opportunity to wish you and your family, your colleagues and friends all the best for the festive season and a happy, safe and prosperous New Year!

 

 

 

 

 

PROPERTY

Non-Resident Foreign Buyers Beware! 

Non-resident foreign persons generally need to apply for and receive foreign investment approval before purchasing residential property in Australia.

Foreign non-residents are individuals not ordinarily resident in Australia (except Australian citizens), including holders of temporary residence visas, as well as corporations, trustees of a trust and/or a general partner of a limited partnership that meet the definition of a foreign person under Australia’s foreign investment rules.

The Foreign Investment Review Board (“FIRB”) has recently confirmed that the relevant action requiring approval is entering into an unconditional contract/agreement to acquire the property rather than the action of actually acquiring the property at settlement. Therefore, FIRB approval and payment of the applicable fee is required for a foreign person to enter into a contract/agreement to acquire a residential property even if they ultimately do not end up purchasing the property and/or intend to nominate another buyer prior to settlement.

The same applies when a non-resident foreign person purchases from a Vendor who has been granted approval of an exemption certificate to sell new residential dwellings. The exemption certificate exempts foreign non-residents from needing to apply for FIRB approval before entering into an unconditional contract/agreement with the Vendor but the action must still be reported by the Vendor to the FIRB and the applicable fee paid.

Refunds are not granted if a foreign purchaser, who enters into an unconditional contract/agreement, does not proceed to settlement for any reason and/or nominates another party prior to settlement.

Strict penalties (including civil and criminal penalties and disposal orders) apply for breaches of Australia’s foreign investment rules.

What does all of this mean for you?

Before entering into an unconditional contract/agreement to purchase residential property in Australia do your due diligence:

  1. Confirm whether you need FIRB approval to purchase the property;
  2. Apply for FIRB approval (if required);
  3. Carefully review the contract/agreement; and
  4. Check your ability to finance the purchase.

If you are uncertain as to whether you require FIRB approval to purchase a property in Australia and/or need help with checking the contract/agreement and confirming your ability to finance the purchase, please do not hesitate to contact us at Nevile & Co. With over 40 years’ experience in property law, Nevile & Co. is able to advise and assist both local and international clients on a diverse range of property transactions, including Foreign Investment Review Board regulations, residential and commercial developments, subdivisions, strata titles, industrial estates, hotels, farms and wineries. If required, we are also able to refer potential purchasers to a range of prospective lenders to provide appropriate finance solutions.

If you require further information, please contact andrea.lucas@nevile.com.au


CORPORATE – ARE YOU A COMPANY DIRECTOR?

The Turnbull Government has recently announced that is taking action to crack down on illegal ‘phoenix’ activity while ensuring legitimate company restructures are not unduly limited.

Illegal phoenix activity occurs where there is the deliberate liquidation of a company to avoid paying debts but the business continues through another company, and in corporate groups through the liquidation of undercapitalised subsidiaries and transfer of business to other companies within the group.

The Government’s proposed reform package includes introduction of a Director Identification Number (DIN) which will allow regulators to map the relationships between individuals and entities and individuals and other people by interfacing with other government agencies and databases. It will also will enable prospective creditors or employees to search the prior corporate history of a Director to see whether or not the Director has been involved in past insolvencies, and thereby assist in the identification of rogue directors who, through recurring company failures, shift themselves and assets to a new company but leave behind the debts.

It is proposed that Directors will be prevented from backdating their resignations to avoid personal liability or from resigning and leaving a company with no directors and Directors will become personally liable for company GST liabilities.

Facilitators and advisers of phoenix operators are also to be targeted with the extension of the penalties that apply to those who promote tax avoidance schemes.

To ensure that legitimate company restructures are not limited by these initiatives, the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Bill 2017 was recently passed with the view to allowing Directors to take reasonable steps to restructure their company in certain circumstances rather than rushing to go into administration. These reforms are intended to provide directors with a safe harbour from personal civil liability during the restructure phase.

If you are a Director or owner of a company considering restructuring and are concerned about illegal phoenix activity contact us at Nevile & Co. to discuss steps that you can take to protect yourself and/or your business.

At Nevile & Co. our senior commercial lawyers have operated successful businesses and have a real understanding of the risks involved, ensuring they are able to provide cost effective, plain language, practical and focused legal advice and services.

 


POTENTIAL INVESTMENT SUITABLE FOR MIGRATION

This business may provide prospect for immigration.

Project Whistle
Manufacturer and distributor of premium gelato, ice cream, yogurt, frozen fruits,  jam, sauces, chutneys and marmalades which also cans and vacuum packs high quality abalone. The opportunity exists to purchase a majority stake or up to 100% ownership.

• Industry: Premium Foods
• Deal size: $12M – $18M

Overview

  • The Company is a privately owned family business. The family has been involved in the manufacturing, packaging, and distribution of a premium range of Italian gelato, ice cream, yogurt for several decades.
  • The Company is based in Melbourne, Australia.
  • Originally from Northern Italy, this family business has been involved in the ice cream and gelati industry since 1980s. The family opened Melbourne’s first traditional Italian gelataria located on Melbourne’s iconic Chapel Street strip. The gelataria enjoyed a reputation for producing and serving the latest European flavours.
  • There are the following key businesses:
o Gelato
o Ice cream & Frozen fruits
o Jams & Marmalades
o Chutneys, Relishes & Sauces
o Abalone
  • The Company has agreements with interstate distributors and international parties. These relationships enable the Company to maintain a consistent supply of produce which may otherwise be affected by seasonality.
  • The jams, sauces, chutneys, relishes have been in Victoria for the past 40 years.

Financial Information

 

 

 

 

 

Key Company Highlights

• The Company has long standing relationships with key customers and suppliers
• The Company has a large range of dairy and sorbet products within the premium market segment, including vegan and other sugar free options
• The Company complies with all Australian food manufacturing standards and operates under an approved food safety management system
• An on-premises state-of-the-art manufacturing plant is updated and maintained by its international alliance partner, a specialist in gelato machine equipment
• The Business employs its own in-house R&D team, including complete with food technicians and qualified chefs
• It sources the ingredients for its products from both Australia and Overseas
• The Company is poised to grow strongly with further interstate and international growth

Growth Opportunities

• Multiple opportunities exist, including;

o New Distribution in Australia and Internationally
o New Product lines for existing brands
o Co-Manufacturing with international parties

• Victoria accounts for the largest production volume of ice cream in Australia
• The quality of ice cream in general, has seen a marked increase over the last 10 years. Consumers desire a higher quality product
• Premium take-home ice cream in a tub now accounts for 19.7%of the total market in Australia
• Substantial growth available in China / Asia

The Group’s Core Businesses

Gelato Abalone
The Gelato business is close to the family’s heart, having been established, operated, and improved upon, generation after generation. It is a hallmark of the Group.

Ice cream
The addition of an Ice cream & Frozen fruits production and supply facility was a logical value add to core operations.

Jam/Sauces/Chutney
The Jam business makes delicious Jams, Sauces, Chutneys Marmalades and Relishes. These products are targeted at the premium end of the market. This business delivers  on the Group’s reputation for quality, providing wholesale distribution of Australia’s first grade wild caught abalone.

 

For further enquiry, please contact nevileco@nevile.com.au


MIGRATION

457 Visa and 186 Visa – Changes you should know about

Migration agents are under pressure much of the time and this is likely to increase in March 2018 with the introduction of the TSS visa.

The Skilling Australia Fund levy (SAF) will replace the current training benchmarks for employers sponsoring applicants for Subclass 457 and Subclass 186 visas.

Below is information from the Department* –

How much will the TSS visa cost?

The TSS sponsorship fee will be $420, the same as current 457 sponsorship fee.

The TSS nomination fee will be $330, the same as the current 457 nomination fee.

Visa application Charges (VACs) for the TSS visa are outlined below.

Visa Application Charges   Primary Application Adult Dependent  Child Dependent

TSS visa (Short-Term stream)  $1,150   $1,150   $290

TSS visa (Medium-Term stream)  $2,400   $2,400   $600

The SAF

Business Size     TSS visa     ENS / RSMS

Small (annual turnover less than $10 million) $1,200 per year or part thereof  $3,000 one-off

Other businesses      $1,800 per year or part thereof  $5,000 one-off

The levy has to be paid “up front” and will only be refunded in limited circumstances.

Below is an extract from the Department’s July 2017 newsletter with underlining added:

The sponsor will need to indicate the proposed employment period for the nominee and this future period will be used to calculate the required fee.

And later:

Note: It is intended that the SAF levy will only be refundable where a refund of the nomination fee is also available.

For example, if the sponsorship application was refused and the nomination application is otherwise finalised, both the nomination application fee and the SAF levy would be refunded.

That is, it is not intended that there will be any refunds (or part-refunds) just for the SAF levy by itself.

Imagine an application for sponsorship approval, nomination approval and a 4 year TSS visa (medium stream) where the sponsor has a turnover of more than $10 million and the visa applicants comprise the primary applicant, a partner and a child.

The fees are as follows:

Sponsorship        $420

Nomination        $330

Visa application     $2400+ 2400+ $600    $5400

SAF levy 4x $1800       $ 5400

Total         $11550

And don’t forget the migration agent’s fees.

If the nomination is refused and no refund of any of the payments is made there are going to be some very unhappy sponsors and visa applicants.

Of course an appeal can be made to the Administrative Appeals Tribunal but some appeals succeed and some do not.

Migration agents are going to have to be extremely careful about the advice that they give on the prospects of the success of such applications.

I am already on a 457 visa in Australia and want to apply for a PR. Should I hire the services of an agent based here or in my home country?

The 457 visa program is constantly being updated and requires immediate response if and when there is any policy change. The policy may change anytime without the need for the government to take it through the parliament and can be changed or amended at a very short notice.

These constant policy changes are sometimes a challenge even for local Registered Migration Agents (RMAs) and it is therefore advisable that you choose a local RMA for your visa.

Communication is very important in the process and being in the same time zone or country is extremely helpful. More importantly, all RMAs carry Professional Indemnity Insurance in Australia, which is unavailable overseas and there is no consumer protection overseas the likes of which is provided under Australian law.

Last but not the least, OMARA, the body that regulates RMAs, has no jurisdiction overseas and will not be able to take action in case of any issue with the agent.

 

For further enquiry about visa, please contact jstone@nevile.com.au

*Source: Department of Immigration and Border Protection

WILLS

November 2017 has brought about a change in the way that intestacy operates in Victoria. With the Administration and Probate and Other Acts Amendment (Succession and Related Matters) Act 2017 coming into operation on 1 November 2017, there has been a significant overhaul in the way that intestate estates are dealt with, particularly in relation to the surviving spouse or partner of the deceased.

The intestate provisions operate in circumstances where a person has died without a valid Will in place, and are used to determine how the intestate’s estate ought to be dealt with.

With the change in legislation now in operation, an intestate’s estate is distributed as follows:

1. Where the intestate leaves a surviving partner (either by marriage or de facto relationship), and no children, then the partner takes the whole of the estate;

2. Where there is a surviving partner and a child or children of that relationship then, again, the partner takes the whole of the estate (this is a significant departure from the earlier intestacy provisions which allowed for the partner to take the first $100,000 of the deceased’s estate and then one third of the balance, with the children taking the remaining two thirds);

3. In circumstances where there is a partner and a child or children from a previous relationship, then the partner will receive the deceased’s personal chattels (as defined by the Act), the first $451,909 (the statutory legacy amount) and 50% of the balance, with the remainder to be divided equally between the children of the deceased;

4. Where there are multiple partners of the deceased, collectively, the partners will be entitled to 100% of the estate, which is then to be distributed:

(a) by agreement;
(b) upon application, in accordance with a Distribution Order from the Court;
(c) equally.

5. Where there is no partner, and the deceased has children from a previous relationship then the estate is divided equally between the children;

6. In circumstances where the deceased does not have a partner, or children then the estate is to be divided, at first instance equally between any surviving parent, then equally between siblings. Where there is no surviving parent or siblings, distribution will follow along the line of the deceased’s grandparents, aunts and uncles, and cousins.

While in some circumstances intestacy will not leave beneficiaries at a significant disadvantage, to ensure that your estate is distributed in a way that reflects your wishes please contact our office to discuss your estate planning needs.

For further information or enquiry, please contact sarah.slattery@nevile.com.au

 


IS YOUR DISCRETIONARY TRUST DEED CURRENT?

Nevile & Co has the expertise to help you establish or review a Trust structure. We have a wealth of experience dealing with Trust Deeds and can prepare custom documents to effect any amendment you wish to make to the Trust Deed, such as changes to the beneficiaries or trustees powers. Our lawyers can also draft unit holder agreements if you have a Unit Trust, or provide legal advice in the vesting of a Family Trust. Some of the documents that we are ready to prepare for you include:

  • Change Appointor And/Or Guardian of a Family Trust;
  • Change Trustee of a Family Trust;
  • Streaming & Bamford Update for a Family Trust;
  • Update To Allow Change Of Appointor And Guardian of a Family Trust;
  • Update To Allow Sole Trustee for a Family Trust;
  • Vesting of a Family Trust;
  • Update Rules of an SMSF; and
  • Trust Distribution Minutes.

Foreign Beneficiaries – Change of Law

Is your son living overseas? Is your daughter working in London?

Most family trusts have wide beneficiary classes that will catch family members that are residing overseas, including distant relatives that you barely know.

Recent changes in stamp/transfer duty and land tax legislation may bite the Trustee with higher foreign surcharge duties and land tax if you do not take steps to exclude foreign persons from being beneficiaries. Let our lawyers review your Trust Deed and determine if you should update your family trust to avoid adverse financial repercussions.

We Can Help

You will be pleased to know that we offer a fixed fee price with short turnaround times. We usually advise our clients not to sit on their hands and wait until it’s too late. So, if you would like to have an initial consultation with one of our lawyers or if you wish to obtain a quote, please contact us on 03 9664 4700 or at nevileco@nevile.com.au


MAKING CHILLI SAUCE FOR OUR CLIENTS

Quite often when our clients come to the office the first thing they ask us is if they can have another bottle of our chilli sauce. This has struck me as somewhat funny that the chilli sauce has become almost more memorable than our legal services although I sincerely think that’s not really the case.

Each year approximately half of the Nevile & Co staff come to my warehouse in Fitzroy and together we make a chilli sauce or Sambal. We use small birds eye chillies which are quite hot and cook them up to a receipt including garlic, ginger, lemon juice, vinegar, oil and some sugar. We bottle and then label. This year we made almost 700 bottles, which we hope will last us for the next 12 months. On completion of the chilli sauce making, the tradition has been that I cook lunch for my staff and this year the menu was hard boiled quail eggs, followed by caramelised figs topped with goat’s curd, duck a l’orange and affogato. A big thank you from me to my staff who participated. When you come to the office, don’t forget to ask for chilli sauce. It’s priceless because you can’t buy it, we make it, only for our clients. We have enclosed some pictures of the event.

    


2017 LIV LEGAL FUN RUN & WALK

This is also an annual event, in which most of the staff participate in a walk or run around the Botanical Gardens, known as the Tan. This year roughly 10 of our staff took part and while we did not win any prizes for being the fastest, they always look good decked out in Nevile & Co polo tops. On completion of the run, they all enjoy a BBQ as part of the event. Good to see the staff keeping fit.


FRIDAY NIGHT DRINKS

We normally have a Friday night office drinks and networking session for clients every quarter. However, we have delayed it this year for some time waiting on the completion of renovations of one of our toilets. So, as good as an occasion to celebrate the opening of our toilet as any, last Friday between 5:30pm – 8:30pm, we had a very successful gathering of some 40 clients plus staff in the office. Once again, my staff all pitched in and worked together to make the night a success. They not only prepared the food in our newly renovated kitchen, but also served it on almost a continuing basis, which gives them an opportunity to meet and mingle with our clients. We pride ourselves on the variety of our menus, which include tortillas and gazpacho prepared by Olga, my Spanish P.A., prawns, smoked salmon, rare roasted beef, chicken sandwiches, served together with a variety of alcoholic and non-alcoholic beverages. My thanks go to, Alex Taylor, the son of Peter Taylor, one of our extremely good clients, for assisting with the bar.

The night was enjoyed by all, and happily we already know that a number of our clients are already discussing ways they can work together with some of our other clients. This is the prime functions of that evening, to put out our clients together for their mutual benefit, as well as enjoy their company.