June Newsletter 2018

DISCLAIMER This advice is 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.

Update from Peter

Peter Nevile Principal Lawyer

I have just arrived back from China where I spent a week working in Beijing. There were blue skies, sunny days and no pollution. I have no doubt that there will be days once more of the polluted air, however, there is no doubt that serious efforts are being made to address the situation, and like most things in China, it will happen much more quickly than we think. There are other signs such as the electric buses on the roads. They look like trolley buses but run independently and every so often put up their twin poles to get a fast charge to keep them going. In the carparks under major hotels and shopping malls, there are electric vehicle charging points. Nearly all the motorbikes in the city are electric. The canals and rivers are clean, the streets are clean. The people have a sense of purpose. There is a lot to like, and equally, a lot we can learn. The inexorable rise of China as the world’s major power will impact on us all. Rather than turn back or hold up the tide, as seems to be apparent in some American policy decisions, I think it might be more useful for us all to gain a better understanding of what the world will look like and how we can best adapt to our advantage. China is different. It is not a democracy, and it is unlikely to be one in the foreseeable future. Its system is certainly not without its faults, but then neither is ours, and perhaps, we should look at some of the attributes that have contributed to China’s meteoric rise. I am not aware of any senseless massacres in schools anywhere in China.  

On an entirely different note as we come to the end of the financial year, it is always a good time to review what are effectively risk management issues. They include looking at whether your Wills, Enduring Powers of Attorney, and particularly, if you are involved in traditional family Trust, whether that Trust has been updated. So now you need to take advantage of various legislative changes that have occurred and the ever changing obligations. If any of your legal documentation, please do not hesitate to contact us.  

Finally, there are certainly indicators on the horizon that we may be in for a significant change. After so many years of almost unprecedented continuous economic growth, one would think that something would have to give. The question of course is, when, and how much will property prices tumble? As we hear again and again in the press, will the share market collapse? Will the wildly fluctuating cryptocurrencies finally settle down and offer an alternative? I do not think I am in a position to offer any solution, other than to remind you that, in almost all situations of change, safety lies in having as little debt as possible.

 

Are you familiar with Blockchain, Bitcoin and ICO?

Blockchain is a form of distributed digital ledgers technology on a peer to peer network. It represents a new paradigm for the way information is stored and shared. Blockchain, by itself, is just a data structure but, by design it is inherently immutable. It has the potential for a wide range of applications that can increase accountability.

Blockchain is the underpinning framework that underpins Bitcoin and numerous other cryptocurrency. Cryptocurrency is to the Blockchain what email is to the Internet. Bitcoin was the first application of blockchain that was first created by Satoshi Nakamoto in 2008.

There are a few funding options to raise start-up capital for your business, including but not limited to seeking venture capitalists, angel investors, bank loan, and initial public offering (IPO). One funding option that has sprung to life from the rise of blockchain technology and cryptocurrency revolution is the Initial Coin Offering or the ICO.

What is Initial Coin Offering (ICO)?

An ICO is a funding strategy for start-ups developing blockchain-related products and services. It involves the creation and sale of digital tokens on a blockchain to fund the project development. It can have different structures because the way the coins are released, the manner in which funds are accepted, and what the coin represents vary from ICO to ICO.

Many start-ups are attracted to the benefits of using ICOs to fund their projects. Unlike other traditional funding channels that can be riddled with regulatory requirements and endless red tapes, ICOs are relatively inexpensive and fast to setup with low level of bureaucracy. It is possible to raise millions in hours using ICOs without ceding any control to private investors and without the paperwork burdens of an IPO.

What’s the legal point of view?

Investors like ICOs because it is the latest disruptive technology, the rockstar of the investment world. Tech investors love ICOs. During an ICO, they buy digital tokens or coins from the offering company, hoping to become a stakeholder in a start-up that could turn out to be as popular as Google or Facebook and thereby generate demand for the tokens which in turn increases their value on a secondary market.

However, as interesting as it may sound, ICOs currently occupy a regulatory grey area that could leave start-ups in legal trouble and investors vulnerable to fraud. Jurisdictions across the world have adopted different approaches to the treatment of tokens offered in an ICO. Australia’s new approach is markedly different than the path of regulators in other countries.

In Australia, the Australian Securities and Investment Commission (ASIC) has issued a guidance note for those considering launching an ICO. ASIC’s guidance note states that each ICO has to be assessed on a case-by-case basis as every ICO is unique and can diverge significantly in form and substance. For example, if an ICO is classified as a financial product, then it may fall under ASIC’S regulatory reach and may trigger licensing and disclosure requirements under the Corporations Act. For ICOs that are not financial products, these are subject to the general law and the Australian consumer laws.

Therefore, it is crucial that anyone considering to undertake an ICO should take legal advice. The legal status of an ICO will depend on the circumstances and features of the tokens being offered for sale, the ICO’s structure and operation, and more importantly the rights attached to the tokens.

The lawyers at Nevile & Co can provide you with advice on ICOs, whether you are a start-up or an investor. We can assist you by identifying the legal risks associated with ICOs and draw your attention to the legal obligations that may be attached to certain ICOs. For more information, contact Mr Meng Cheong for a free initial consultation.

 

Employment needs / issues

At Nevile and Co., we understand that when it comes to running and operating a successful business you need all round support. You may have employment law issues as well as employment requirements …where do you turn? We are affiliated with the following recruitment service who can advise and provide a personalized and cost-effective solution to your recruitment needs. Providing support within the administrative area. Jane Devereux will look after you with the utmost professionalism, whether you are looking for a new staff member, or wanting support in other HR areas.

Jane offers over 25 years expertise in each step of the recruitment and human resources process. She knows and understands that there is nothing more vital for your business than to have only the best people surrounding you and working for your brand or business. Jane has spent her many years in the recruitment business focusing on quality delivery of service and tapping into candidates of the highest caliber, and is passionate about taking time to match only the best candidate to you.

There is nothing more frustrating than trying to source a quality candidate, and in addition, when you advertise you can be overwhelmed with responses as well, and trying to identify the best candidates for the position.

Jane will save you time and resources with all the screening done for you. It’s simple! Just place an advertisement on Seek or any other job board, and place the YSS email address on it for all responses. These are thoroughly screened and the best candidates given a phone interview prior to referral to you. You will be sent a regular update on the progress of the applications, and within 1 week a short list of the most suitable candidates for you to interview.

  • Please note that a set fee is charged for this service, due and payable once candidates are set up for interview with the client.

Jane also offers companies the total solution to recruiting. She will take the process of recruiting staff in hand by receiving a comprehensive understanding of the role to be filled, then undertaking the necessary search and advertising process to find the best candidate. Interviewing, reference checking and supporting every step of the recruitment process is all part of our service.

  • Please note a fee of 10% is charged for this service and comes with a 3 month guarantee.

She can also offer these services at an hourly rate:

  • Creating Position Descriptions
  • Writing job ads
  • Screening CV’s and candidates
  • Interviewing
  • Checking references
  • Performance reviews during probationary period
  • Recommendations on training staff
  • Exit interviews

Training support service

Her services can also be used to support with training of staff internally in the following areas:

  • Reception
  • Customer service
  • Administrative staff
  • Sales and marketing
  • Support with general professionalism and presentation

David Dudderidge can assist you with legal advice on employment issues.

BLENDED FAMILIES – DO YOU HAVE A PLAN?

Families can be complicated. Blended families even more so, particularly on the death of one of the parties to the first, or subsequent marriages, or relationships. With the prevalence of divorce in Australia and resulting re-partnering, it is important to have up-to-date Will in place to ensure that your estate is dealt with in a way that is intended by you.

Without an up-to-date Will in place, problems can arise from an estate planning perspective, which can lead to conflict within families. Such possibilities include, when one person dies passing their entire estate to their spouse (partner from a second or third relationship), with the assumption that the spouse’s estate would be split equally between the children of both spouses, and the surviving spouse instead favours their own biological children over their step-children. This may result in the deceased spouse’s children being left out completely.

Estate planning for blended families requires careful consideration and planning. We can guide you through the estate planning process and ensure that your unique personal circumstance are taken into account throughout the process.

Sarah Slattery can assist you with legal advice on Wills.

 

What many of our clients want to know.

Want to drive barefoot or in thongs…the footwear kind…is it legal?

Although thongs may be comfortable to wear on hot days (If you are in Darwin black thongs are considered formal) or perhaps on a holiday to Queensland, we have often been asked the question whether driving barefoot or with thongs is against the law.

We understand, courtesy of an article from GoGet the car sharing App, it is not against the law to drive barefoot or with thongs in Victoria New South Wales or Queensland, however you are strongly encouraged not to do so.

Why may you ask? Think of the hazardous risks you can put potentially yourself and others in. The soles of your feet are more sensitive so standing hard on the brakes is not easy. Thongs are not exactly a secure type of shoe, let alone underwear, they can easily to get caught under your pedals, leading to unnecessary and dangerous accidents….so can your footwear!!

Although it is not illegal to drive in thongs in Victoria, you can be liable if Victoria Police find you responsible for an accident due to inappropriate footwear.

Source:GoGet

 

 Is how well you drive written in the stars? GoGet used data to find out.

Does your star sign make you a better driver? Instead of asking astrology, GoGet asked the data to find out! The GoGet team crunched the numbers on 1,000,000 trips made by almost 100,000 members in 2017, to figure out which star signs were the least, and most likely to get busted breaking the law.

So which star sign was the best behaved? Find out GoGet

 Source:GoGet

 

Payments to and from our Trust Account

We now want to draw your attention to emails supposedly from our office requesting payment to a particular account. The only account to be used is the Nevile & Co Law Practice Trust –  SBS 183 334 , Account no. 3018 74764, Swift Code MACQAU2S.

For your protection, we will not transfer any monies following an email from you directing where payment should be made until we have spoken with you on the telephone, WhatsApp or Wechat.

 

So your building has non-conforming aluminium composite panels (“ACP”) – who is liable for their removal and replacement?

 In the aftermath of the Grenfell Tower fire in London on 14 June 2017 and the Lacrosse building fire on 25 November 2014 in Melbourne, the Australian Federal and State Governments began inquiries into the potential exposure of buildings to non-conforming and non-compliant building products, including the use of certain types of combustible ACPs.

 On 6 September 2017, the Australian Senate Economics References Committee released its interim report on the use of ACP in Australia recommending that the Federal Government implement a number of measures including a total ban (importation, sale and use) of ACPs with polyethylene core and a national approach to increase accountability across the supply chain, with a penalties regime for non-compliant work. The report noted that there had been extensive delays by State governments in implementing measures to address non-compliance and non-conformity of building products.

 So who then is liable for the cost of removal and replacement of non-compliant ACP? 

 

 To date in Victoria there have not been any successful challenges against the Government (State or Local) or other cases whereby owners have been directly compensated for the installation and/or removal of non-compliant ACP. What is clear is that each case will turn upon its own facts and that there remains legal uncertainty in this area, particularly in relation to who will be liable to cover the costs of replacing the non-compliant ACP and practically, who will actually end up paying for it.

 Despite the availability of statutory warranties for defects that can be enforced by purchasers, these warranties apply for limited periods and many owners of residential buildings have found themselves outside of this time period, leaving them essentially with no statutory recourse against those responsible for the installation of non-compliant materials. Further, the Australian courts have to date demonstrated a reluctance to recognise the duty of care of a builder to owners corporations seeking compensation for pure economic loss to replace non-compliant ACP on common property, finding that a builder will not owe a duty of care to an owners corporation as agent of the owners of residential lots in a building. In addition, the notion of ACP as being a latent defect remains untested in the courts and it is not presently known whether a case involving ACP would be determined strictly along the same lines.

 In early April 2018, following a Victorian Supreme Court ruling that the Victorian Building Authority, a Government agency, does not have authority to order builders to rectify cladding defects after a certificate of final inspection or occupancy permit has been issued, a class action was being considered in Victoria as the first stage in a national campaign against construction companies to compensate for the costs of replacing ACP. It is far too early to predict whether this class action will proceed and/or be successful in ending the legal uncertainty and providing compensation for building owners/owners corporations.

 Will your insurer cover the cost of removal and replacement of non-compliant ACP? 

 It should be noted that insurance implications flow from non-compliant ACP for both building owners and owners corporations. Should a building owner/owners corporation become aware that its building is cladded with non-compliant ACP, it is obliged to disclose this heightened risk factor to its insurer in accordance with the Insurance Contracts Act 1984 (Cth) as insurers may otherwise decline indemnity for a claim due to non-disclosure. This can become relevant in the event of property damage and a consequential loss claim or a public liability claim.

 However, notification of non-compliant ACP can result in the insurer being:

  • unwilling to renew cover;
  • only willing to insure at a higher cost; and/or
  • only willing to insure for limited circumstances, which exclude the adverse outcome from the ACP remaining in situ.

 If a building owner/owners corporation is refused cover by one insurer, that information and the reason for the denial of cover, is required to be disclosed on applications to another insurer resulting in difficulty securing appropriate cover. Yet for owners corporations, failure to obtain insurance cover for the common property is a breach of the Owners Corporation Act 2006 (Vic).

 Therefore, building owners/owners corporations should consider working closely with their insurer to ensure that the identification and evaluation process adopted for the building, including those engaged to undertake the process, will be considered sufficient for ongoing underwriting of the building.

Form more information, contact Andrea Lucas

 

Agribusiness Opportunities

If you are interested in farming properties, please contact Ken Matheson or call on 03 96644700.