Asia Pacific

ASIC Enforcement Review – Part 4

“Co-regulation” encouraged for industry Codes – greater telecommunications surveillance a possibility

The major take-out from the ASIC Enforcement Review Taskforce on industry codes is whether co-regulation in appropriate parts of the financial sector would improve the self-regulatory model.

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Talking Tax – Issue 95


A win for the farmers!

In Brown Cavallo Pty Ltd v Chief Commissioner of State Revenue [2017] NSWCATAD 18 , Brown Cavallo Pty Ltd as trustee for the Cavallo Family Trust (Taxpayer) applied to the Civil and Administrative Tribunal of New South Wales (Tribunal) for a review of the Commissioner of State Revenue’s (Commissioner) assessment of land tax on its land at Woolgoolga (Woolgoolga) for the 2012 to 2015 land tax years (Relevant Years).

The Tribunal determined that the Taxpayer was entitled to a primary production land tax exemption relating to the Woolgoolga, in respect of the assessments of land tax for the Relevant Years and the assessments were set aside.

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ACCC taking measures to protect small business against unfair contract terms

The Australian Competition and Consumer Commission (ACCC) has taken action against two companies in a bid to protect small Australian businesses from unfair contracts.

One of Australia’s largest, privately owned waste management companies is the first to be taken to task by the ACCC over alleged unfair contract terms with small businesses since changes to the Australian Consumer Law (ACL) came into effect in November 2016.

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Anchors dropped! Safe harbour now open for directors

On 11 September 2017, the Commonweath Parliament passed the Treasury Law Amendments (2017 Enterprise Incentives No.2 Bill). The new legislation:

  • introduces a ‘safe harbour’ exclusion from civil liability for directors faced with insolvent trading claims and
  • makes unenforceable ipso facto clauses in certain contracts which allow a party to terminate the contract for the sole reason of an insolvency event.
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Dispute resolution clauses: When the road to a binding determination is paved with non-binding options

The recent case of Contract Control Services v Department of Education and Training [2017] VSC 507 provides further clarification on what constitutes a ‘method of resolving disputes’ for the purpose of satisfying the requirement in section 10A of the Building and Construction Industry Security of Payment Act 2002 (Act). The case makes it clear that it is possible to mandate a process of dispute resolution that includes non-binding steps, so long as it culminates in a binding determination.

Contract Control Services (CCS) entered into a construction contract with the Department of Education and Training (DET) in 2013 for construction works and related goods and services for the construction of the Bendigo Senior Secondary College Theatre Project.

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Hall & Wilcox advising purchasers of Newcastle’s cancelled Icon Central development

Leading national business law firm, Hall & Wilcox, is advising purchasers of Newcastle’s Icon Central on their rights.

The Icon Central development was a proposed $100 million apartment complex in Newcastle West, which has been scrapped by developer, Jemalong Property Group.

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Hall & Wilcox advises Generation Healthcare REIT on $320m Epping medical centre development

Leading independent business law firm Hall & Wilcox has advised Generation Healthcare REIT on a $320m medical centre development at Epping in Melbourne’s north. Generation have partnered with large private hospital operator, Healthe Care Australia for the development.

The development will occur in two stages with the refurbishment of the Epping Medical Centre and building a new $250m 360 bed private hospital.

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To heave, or not to heave – a dirty business

On 25 December 2011, a storm resulted in an inundation of hail and rain which led to pooling under the concrete slab of Ms Guastalegname’s home. As a result of the pooling, there was a heave of the clay soil causing it to expand and raise the concrete slab, subsequently lifting the walls and roof frame of the building, leading to cracking and other damage to the home.

Ms Guastalegname claimed indemnity under her ‘Home Building Insurance’ policy with AAMI for the cost of repairing the damage to her home. AAMI admitted that the storm was an insured event and had caused the inundation which resulted in the heave and the damage of the home. However, indemnity was denied on the grounds that a general exclusion clause in respect of loss or damage “arising from or involving soil movement or settlement” applied. Therefore, the sole issue for the Court to determine was whether the term ‘heave’ fell within the ordinary meaning of ‘soil movement’, and thus, whether the general exclusion clause had application.

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Western Australia finally joins the work health and safety bandwagon

Western Australia was the last colony to join the Federation. It is also the only Australian state or territory where secession is still regularly discussed. Does that explain why WA has taken longer than any other jurisdiction to decide on its approach to the harmonised work health and safety (WHS) laws that have been adopted across the nation (other than in Victoria)? Probably not.

The Commonwealth, Queensland, NSW, ACT and NT adopted the harmonised WHS regime on 1 January 2012. South Australia and Tasmania followed suit a year later. Victoria opted out in mid-2012, but WA has been busily prevaricating these past five years.

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Can a four year restraint compute?

The Supreme Court of Victoria has restrained an IT specialist from being employed by a competitor for a period of four years.1

In June 2016, Mr Palmer sold his 40% stake in the first plaintiff, Southern Cross Computing Pty Ltd, to the second plaintiff, Ingenio Group Pty Ltd.

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