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Protecting Assets and Preserving Wealth through Discretionary Trusts

What is a Trust?

A Trust is formed when a person or entity (the Trustee) holds assets for the benefit of another person or class of persons or entities (the Beneficiaries). Strict legal and fiduciary obligations are imposed upon the Trustee in order to protect the Beneficiaries’ interest in the trust assets. Under these obligations, a Trustee must act:

  1. in good faith, honestly and not profit from the Trust (as Trustee);
  2. with due care, skill and diligence and avoid conflicts of interest;
  3. in the best interests of the Beneficiaries;
  4. to preserve the Trust property;
  5. in person and not delegate their duty to another person; and
  6. transparently and account and provide information to the Beneficiaries, upon request.

The Trustee’s failure to comply with its fiduciary obligations can result in the Beneficiaries commencing legal proceedings against the Trustee in respect of such breach. [...]  READ MORE →

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The Importance of Due Diligence in the Acquisition of a Business

By Zeeshaan Nordien, Principal at Matthews Folbigg Lawyers in our Commercial Law Group

Due diligence is an integral step in the acquisition of any business, whether the transaction is an asset purchase or a share purchase.  If done correctly, due diligence helps mitigate the various commercial, financial and legal risks that a purchaser may otherwise be exposed to when acquiring a business.  Due diligence is the process undertaken by the purchaser of a business to perform an assessment of risks and compliance to ensure that the target business is, amongst other things, profitable, compliant with its legal, including contractual, tax and other obligations and operating with appropriate licenses and approvals. [...]  READ MORE →

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What is the best business structure for you?

No matter what stage your business is in or the type of business you operate, it is critical to have the right business structure in place for many reasons, including to safeguard your personal and business assets, minimise risk and tax implications and optimise returns.  Each business structure has its own benefits and risks as well as criteria and regulatory requirements, which should be considered before adopting a business structure that is ideal for your business and personal needs.

Sole traders and partnerships [...]  READ MORE →

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PREVENTING DATA BREACHES AND ESTABLISHING RESPONSE PLANS | PRIVACY LAWS

By Geeti Chawla, Principal at Matthews Folbigg in the Commercial Law Group

In recent years, the Privacy Laws in Australia have undergone various amendments in an effort to make them more stringent and responsive to ensure that businesses are taking all necessary steps to protect personal information and to respond adequately in the event of a data breach.  The more recent high-profile data breaches have proved to be a turning point for the latest reform to the Privacy Act 1988 (Cth) (Act) in the form of the Privacy Legislation Amendment (Enforcement and Other Measures) Act 2022 (Amended Act), which came into effect on 13 December 2022. [...]  READ MORE →

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New Changes and Penalties to Unfair Contract Terms under the Australian Consumer Law

By Geeti Chawla, Principal at Matthews Folbigg in the Commercial Law Group

Effective 10 November 2023, certain changes to the unfair contract terms (“UCT”) regime pursuant to Schedule 2 of the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth) (“Amendments”) will come into effect. Following these Amendments, a small business or a consumer entering into or renewing a contract, which falls within the meaning of a ‘standard form contract’ under the Australian Consumer Law (“ACL”), are expected to be afforded better protection against unfair contract terms. The Explanatory Memorandum clarifies that the Amendments have been introduced to reduce the prevalence of unfair contract terms and to prohibit the use of and reliance on unfair contract terms in standard form contracts. [...]  READ MORE →

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Will Disputes

Joint Property and your Will

Most Will Disputes occur from contention over how the Estate was supposed to be divided among the beneficiaries, rather than how the law entitles those to the assets in the Estate.

The primary example being a property purchased in a couple’s names as Joint Tenants. Upon the death of one owner, the law of succession states that the property is automatically passed to the joint owner on title. If the deceased’s Will states that their share of the property is to be passed to their beneficiaries rather than what the law of succession demands, this is how Will Disputes occur. [...]  READ MORE →

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Display or Pay! Franchisors must register by 14 November 2022

Effective July 2021, a number of important changes were introduced to the Franchising Code of Conduct (the Code). These changes were introduced in response to the ‘Fairness in Franchising’ report released in March 2019 by the Parliamentary Joint Committee on Corporations and Financial Services following an inquiry into the operation and effectiveness of the Code. In essence, the changes were brought in to deal with the long scrutinised power imbalance between the franchisor and the franchisee and to establish a greater level of transparency in that relationship pertinent to the franchise business. [...]  READ MORE →

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Mandatory Code of Conduct for Commercial Leasing

NSW Government re-introduces the National Cabinet’s Mandatory Code of Conduct for Commercial Leasing

On 13 August 2021, the NSW Gov­ern­ment announced it will rein­tro­duce the Nation­al Cabinet’s Manda­to­ry Code of Con­duct for Com­mer­cial Leas­ing man­dat­ing rent relief for eligible ten­ants impact­ed by Covid-19.

The Retail and Oth­er Commer­cial Leas­es (Covid-19) Reg­u­la­tion 2021:

  • will be extended until 13 January 2022 (previously due to expire on 20 August 2021)
  • requires the lessor to renegotiate the impacted lease with the lessee in accordance to the principles set out in the National Code of Conduct. The Code of Conduct requires landlords to provide rent relief in proportion with their tenant’s decline in turnover. At least 50 per cent of the rent relief must be in the form a waiver, and the balance a deferral.
  • prevents a land­lord from evict­ing or lock­ing out a ten­ant for cer­tain breach­es unless they have first rene­go­ti­at­ed rent and attempt­ed mediation.

The Reg­u­la­tion will apply to com­mer­cial and retail ten­ants with a turnover of up to $50 million who are impacted lessees, that is, they qualify for the COVID-19 Microbusiness grant, COVID-19 Business Grant or JobSaver Payment. [...]  READ MORE →

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COVID-19 Contracts and Frustration

Contracts and Frustration by COVID-19- Important decision  

Recently, the New South Wales Supreme Court (NSWSC) in Dyco Hotels Pty Ltd v Laundy Hotels (Quarry) Pty Ltddecided that a contract for sale was not frustrated by pandemic trading restrictions.

Lockdown and trading restrictions imposed by the government in response to COVID-19 has inevitably given rise to parties in sale contracts to claim frustration when a business or commercial venture is impacted. In order for a contract to be frustrated, the frustrating event must give rise to a “fundamental commercial difference” between contemplated and actual performance or to a “fundamentally different situation” arising for which the parties made no provision “so much so that it would not be just in the new situation to hold them bound to its terms” (Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 at [64]). [...]  READ MORE →

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Frustrated Leases

Frustrated leases – Important recent case for Landlords and Tenants

Recently, the New South Wales Supreme Court (NSWSC) in Gazcorp Pty Ltd v Woolworths Ltd [2021] NSWSC 308 demonstrated that whether a lease is frustrated by changes in planning laws or approvals should be carefully considered in each case.

Until Gazcorp v Woolworths, the courts had generally only declared in dictum that the doctrine of frustration applies to leases as it does contracts (Tim Barr Pty Ltd v Narui Gold Coast Pty Ltd; Willmott Forests Ltd (rec and mgrs. Apptd) (2012) 91 ASCR 182 at [41]). [...]  READ MORE →

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NSW: Land Tax Relief and new COVID-19 Leasing Regulations

The NSW Government has reintroduced COVID-19 leasing regulations and announced new land tax concessions for landlords who provide rent relief to eligible tenants.

Land Tax Relief

Landlords who provide rent relief (ie, a waiver not a deferral of rent) to eligible tenants between 1 July 2021 – 31 December 2021 will be entitled to a reduction in their land tax payable for the 2021 land tax year.

The amount of the land tax reduction will be the lesser of:

  • the amount of rent reduction provided to an eligible tenant for any period between 1 July 2021 and 31 December 2021; or
  • 100% of the land tax attributable to the parcel of land leased to that tenant.

To be “eligible” the tenant must

  • occupy land in NSW under a retail or commercial lease;
  • have an annual turnover for the 2020–2021 financial year of less than $50 million (including the turnover of any corporate group which the tenant is a member of); and
  • qualify for at least one of the Micro-business COVID-19 Support Grant, 2021 COVID-19 NSW Business Grant or the JobSaver scheme.

Landlords can apply for the land tax relief program online via the Service NSW website. [...]  READ MORE →

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GREATER SYDNEY’S 2021 LOCKDOWN: WILL BUSINESSES SINK OR SWIM?

By Anica Cunanan, Solicitor at Matthews Folbigg in the Insolvency, Restructuring and Debt Recovery Group

Greater Sydney is currently in a lockdown and has remained in the dark with respect to whether, and when businesses would receive some relief.

Last year, the Federal Government introduced the JobKeeper scheme to assist with keeping businesses afloat (including employees within those businesses) through of the payment of wage subsidies subject to certain criteria.

The Morrison and Berejiklian Governments have announced that NSW businesses will finally receive some relief as we enter the fourth week of lockdown in NSW. It is evident that regardless of whether lockdown is in fact extended past 30 July 2021, businesses have already experienced a substantial hit. Should lockdown continue to be extended, we may see plenty of businesses struggling to make it through this lockdown. [...]  READ MORE →