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Attention Company Directors – DIN or discipline?

By Ewurama Appiah a Law Clerk of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

The Australian Securities and Investments Commission (ASIC) has sent company directors a clear message: if you don’t have a DIN, you will suffer discipline at the hands of the regulator.

ASIC has commenced its first prosecution against a company director for failing to have a director identification number (DIN). Section 1272C(1) of the Corporations Act 2001 (Cth) stipulates that

‘’an eligible officer must have a director identification number’’. [...]  READ MORE →

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Out of the Shadows…

By Jacob Reardon a solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group.

Over the years, decisions such as In the matter of Condor Blanco Mines Ltd [2016] NSWSC 1196 and ASIC v Planet Platinum and Anor [2016] VSC 120 have served as sober reminders for voluntary administrators of the need to be satisfied of the validity of their appointment.

Under section 436A of the Corporations Act 2001 (Cth) (“the Act”), a company may appoint an administrator if the board resolves to the effect that: [...]  READ MORE →

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Australia’s personal insolvency system expected to surge; those with small savings buffers to bear the brunt

By Keely Wunsch a Law Clerk of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

In October 2023 the Australian Financial Security Authority (AFSA) released a “State of the Personal Insolvency System Report” current to 31 August 2023. The report focused on two key areas, namely the current state of the personal insolvency system in Australia, and the regulatory focus of AFSA in managing the system under the Bankruptcy Act 1966 (Cth).

The report predicts that due to the cost of living crisis currently faced by Australian households and individuals, annual personal insolvency volumes are expected to rise in the next two years, by 23% in 2023-24 to around 12,250 and by a further 20% in 2024-2025 to around 14,750. It should be remembered that during COVID-19 personal insolvency numbers hit record lows, and were in decline even before that, so in part this increase is only partly increasing personal insolvency numbers towards historic (pre-COVID) averages. This figure anticipated in August 2023 also is belied somewhat by more current figures released in late January 2024 (for the December 2023 quarter) showing a decrease in personal insolvencies for that quarter, although the December quarter is traditionally quieter in personal insolvency. [...]  READ MORE →

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“Drafting a Will is simple, and cheap…isn’t it?”

When it comes to drafting a will, working out who is going to get what out from your estate is the hard bit.  After you’ve figured that out, the actual drafting of the will is just a straightforward process, and anyone can do it – no need to get a wills lawyer involved.  That’s right, isn’t it?

Well, yes and no.

Most well-written wills follow a simple structure and avoid the use of legal jargon as much as possible.  When it comes to reading a will that was not drafted by a will lawyer and interpreting what it means, a common sense approach is encouraged.  If such a will contains a few technical glitches or inconsistencies, that should not matter provided the intention of the deceased is clear enough. [...]  READ MORE →

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WHY GET A WILL LAWYER TO PREPARE YOUR WILL?

Wills – not exactly the best BBQ conversation material.  If you are like most people, you only tend to think of wills in the dead of night, worrying about what will happen to your loved ones if you die.  Or if you happen to see one of those TV commercials late at night promoting the benefit of the ‘do it yourself’ simple will kit.  At first glance that might seem like the perfect solution – quick and cheap.

So why on earth would I pay more to get my will drafted at a law firm?

A ‘simple’ will may be all that you require.  However, a will that best addresses your own unique circumstances may not come in a ‘one size fits all’ package.  For example, if [...]  READ MORE →

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Effect of Having a Dog Declared Dangerous by a Local Council

Summary: When a dangerous dog declaration is issued by a council, it is effective through the entire state of New South Wales. As a consequence if you have a dangerous dog that is registered, and you move council areas, you must notify your new local council of your dangerous dog.

Declaring a Dog as Dangerous

What is a Dangerous Dog?

In accordance with section 34 of the Companion Animals Act 1998 (NSW) (Act), if an authorised officer of a Council is satisfied that a dog is dangerous, or if the dog has been declared a dangerous dog under a corresponding legislation in another state or territory, such authorised officer may declare a dog to be a dangerous dog. Sections 5 and 6 of the Act define such authorised officer to be either an employee of a local authority (i.e. council) that is authorised for the purposes of the Act, or a police officer. The authorised officer must give notice to the owner of a dog of the intention to declare the dog to be dangerous, in accordance with section 35 of the Act. [...]  READ MORE →

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An Overhaul of the Taxation Scheme: Developments for Developers

In July 2023, the NSW parliament passed the Environmental Planning and Assessment Amendment (Housing and Productivity Contributions) Act 2023 (NSW)which introduces Housing and Productivity Contribution (HPC). HPC replaces the previous Special Infrastructure Contribution (SIC) scheme and applies a more consistent contribution framework over a much wider area, including the entire Local Government Areas located in:

  • the Greater Sydney region;
  • the Illawarra-Shoalhaven region;
  • the Lower Hunter region; and
  • the Central Coast region.

The HPC will apply from 1 October 2023, except in relation to land within the Western Sydney Growth Areas and Western Sydney Aerotropolis SIC areas (to transition to the HPC regime by 2026). [...]  READ MORE →

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How do I object to a Development Application?

Who can make an objection to a DA and what is in an objection?

When a development application (DA) is lodged on the NSW Planning Panel, nearby property owners and any concurrent authorities are notified, so that they are aware of the DA and have opportunities to make submissions. Council’s own policy, council’s development control plan, and the local environmental plan provide guidance as to who is notified of such a DA. The property owners within the vicinity of the proposed DA, and/or anyone who has a submission to make, may provide one of the following responses: [...]  READ MORE →

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State-wide Standard Conditions of Consent and Notices of Determination Now in Use

On 30 June 2023, the Department of Planning’s requirement for planning authorities to adopt standardised conditions of consent and notices of determination came into effect. This requirement affects all councils and planning authorities when they are granting development consents via the Planning Portal.

The Department has published a manual containing about 40 conditions of consent and made standard notices of determination templates for 11 types of determination, including standard approval subject to conditions of consent, deferred commencement consent, and refusal of consent. [...]  READ MORE →

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McMillan v Taylor

The recent decision of the NSW Court of Appeal in c [2023] NSWCA 183 (McMillan) has built upon the role of the Commissioner in conciliation conferences of the Land and Environment Court (LEC), a judicial mechanism commonly used in development appeal proceedings.

The Court deliberated on the construction of section 34(3) of the Land and Environment Court Act 1979 (NSW) (LEC Act), which imposes a duty on the presiding Commissioner to dispose of the proceedings if an agreement is reached between the parties, so long as the decision is one “that the Court could have made in the proper exercise of its functions”[...]  READ MORE →

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Determining the “current market rent” in accordance with the Retail Leases Act 1994 (NSW): what criteria must a valuer satisfy?

DETERMINING CURRENT MARKET RENT

The Supreme Court has provided guidance on the standard of review expected of a valuer under the Retail Leases Act 1994 (NSW) (the Act), with specific emphasis put towards the factors a valuer must take into account when determining market rent. The decision in Hanave Pty Ltd v Nomad Sydney Pty Ltd (formerly Wine Nomad Pty Ltd) [2023] NSWSC 265 (Nomad) is significant for retail landlords and tenants in NSW that have market rent review provisions in their leases.

Current market rent

Pursuant to the Act, “current market rent” must be assessed on an “effective rent basis”, meaning the valuer must consider the factors that are set out in section 31(1)(a) of the Act which include the:

  • actual terms and conditions of the lease;
  • reasonably expected rent that would be payable if the premises were unoccupied and rented out for a substantially similar use;
  • gross rent less the landlord’s outgoings payable by the tenant; and
  • any incentives typically offered to prospective tenants of unoccupied rental shops.

The valuation, which is often conducted by an independent valuer, must exclude the value of any goodwill relating to the tenant’s occupation or any value of fixtures.

Standard of review

In Nomad, the Court determined that a valuer’s sole focus when determining the “current market rent” should only be on the factors set out in section 31(1)(a) of the Act, and that the valuation will be considered as a “legitimate methodology” provided the valuation adequately considers the section 31(1)(a) factors. The weight to be given to each of the factors is not a legal test and is a matter for the valuer to determine.

Providing reasons

In Nomad, the Court confirmed that for a valuation to be legally binding on the landlord and tenant under the Act, the valuer must provide legally adequate reasons for its determination. As per section 31(1)(e) of the Act, the valuation must be in writing and must explain how the relevant section 31(1)(a) factors influenced the valuer’s determination in detail.

Importantly, where a factor has not been included in a valuation itself, courts and tribunals will infer that it was not considered as part of the valuation, and valuers should now ensure that they expressly note and explain why a factor has been omitted to ensure the valuation meets the standard of compliance now required as a result of the decision in Nomad. Courts and tribunals are now empowered to scrutinise valuations that do not adequately justify the reasons for a valuer’s determination of “current market rent”, and landlords and tenants should be mindful of the now heightened scrutiny available to these judicial bodies in this regard to invalidate a valuation.

Comparable leases and rent incentives

It is ultimately up to a valuer to adopt whatever methodology of valuation provided such method adequately considers the section 31(1)(a) factors and the valuer provides reasons for its determination in detail. In Nomad, the Court confirmed that whether a valuer needs to consider the provisions of comparable leases ultimately depends upon the selected methodology (i.e., if a valuer adopts the direct comparison method, comparable leases will need to be considered pursuant to section 31(1)(a)(i) of the Act).

With respect to rent incentives, if a valuer chooses to consider some but omits referring to other incentives provided for comparable properties, the valuer must provide an explanation for those omissions to ensure compliance with the need to “have regard to” rent incentives as per section 31(1)(a)(iv) of the Act. However, where incentives are identified, the weight given to the same is ultimately up to the valuer to determine.

Matthews Folbigg Lawyers has an experienced team dedicated to property related matters.

If you would like more information or advice in relation to the determination of “current market rent” under your retail lease, or another property related matter, please contact our Property team on  (02) 02 9635 7966 or email info@matthewsfolbigg.com.au

DISCLAIMER: This article is provided to clients and readers for their general information and on a complimentary basis. It contains a brief summary only and should not be relied upon or used as definitive or complete statement of the relevant law.

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Debt Recovery by Garnishee Notice

When a Court makes a judgment in your favour for the recovery of a debt, there is a mechanism available to recover the judgment debt through a third party. This mechanism is a garnishee order.

What is a Garnishee Order?

A garnishee order is an order of the court which enforces a third party who either owes money to a debtor, or is holding money for a debtor, to make payment to the creditor of any funds held by that third party for the benefit of the debtor.

This order essentially permits a judgment creditor to ‘seize’ monies from the judgment debtor via a third party. [...]  READ MORE →