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  • COVID relief for businesses

    COVID relief for businesses extended

    Businesses experiencing financial distress as a result of COVID-19 will continue to receive financial relief until 31 December 2020.

    What does this mean for businesses?

    The extension predominantly impacts companies in relation to statutory demands and insolvent trading.

    Statutory Demands

    When creditors issue a statutory demand against a company before 31 December 2020, the demand must be in the amount of $20,000 or more and the company has six months to respond to this demand. This is a marked increase from the pre-COVID statutory framework, where creditors could issue a demand for any amount above $2,000 and companies would only have 21 days to respond.

    Insolvent Trading

    In addition, companies’ insolvent trading relief will be extended to 31 December 2020. This measure insulates directors from any personal liability for debts incurred in the ordinary course of the business if they trade on behalf of the company whilst it is insolvent. It should be noted that this relief does not extend to directors if they have breached their statutory or common law directors’ duties.

    What does this mean for individuals?

    For natural persons the legislation provides more support in relation to bankruptcy notices and the extension of the moratorium on declarations of intention for debtors’ petitions.

    Bankruptcy Notices

    Individuals who receive a bankruptcy notice before 31 December 2020 will have six months to respond and the notice must be in the amount of $20,000.00 or more. As with companies, this is a significant increase from the pre-Covid statutory framework where the debt only needed to be $5,000.00 or more and individuals only had 21 days to respond.

    Debtors’ Petitions

    The moratorium period for a declaration of intention to issue a debtor’s petition with the Australian Financial Security Authority will continue to be six months rather than the usual 21 days. This enables individuals to make their own provisions with creditors and if those arrangements are ineffective, they can then declare themselves bankrupt. If an individual fails to declare themselves bankrupt at the end of that six-month period, a creditor can apply to a court to make the person bankrupt.

    Don’t be complacent

    While the extension of these measures is good news for business currently in financial distress, it is not the time to be complacent in managing your debts. If you are at all concerned about where your financial position might leave you in a legal context, contact Nicole Harrowfield or the  Business & Corporate team at BAL Lawyers.

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  • trust deeds foreign surcharge

    Discretionary trust deeds and foreign surcharge liability – act before 31 December 2020

    On 24 June 2020, in New South Wales, the State Revenue Legislation Further Amendment Act 2020 (‘the Act’) received royal assent and is now in force.  If you are a trustee or beneficiary of a trust that owns property in NSW this new amendment could have far reaching implications for you.

    The Act has amended the Land Tax Act 1956 (NSW) and the Land Tax Management Act 1956 (NSW) so that if there is or there may be a “foreign” beneficiary of a discretionary trust, that trust will incur a foreign land tax surcharge. The only way to avoid this surcharge is for the trust deed to contain an irrevocable provision that specifically prevents foreign persons from benefiting from the discretionary trust. If your trust deed is silent on current or future foreign beneficiaries, then the land tax surcharge will apply.

    Two of the main purposes of Act[1] are:

    1. To avoid discretionary trusts becoming subject to surcharge purchaser duty or surcharge land tax where there is no intention that income or assets in the trust will be distributed to foreign persons; and
    2. To enhance landholder duty provisions to address inequities and anomalies their application and to bring New South Wales closer in alignment with other jurisdictions and to fortify them against avoidance through the use of foreign acquisitions vehicles.

    So, who is a “foreign person”?

    For the purposes of determining whether there will be a surcharge on purchaser duty or land tax, a ‘foreign person’ is, essentially, someone who:

    1. is not an Australian Citizen; and
    2. does not reside in Australia for at least 200 days per annum.

    It follows that foreign corporate entities are not permitted to be beneficiaries of discretionary trusts. A foreign entity is as an entity in which a foreign person shareholder holds at least a 20% interest in the entity. For more information on who is a “foreign person” NSW Revenue have this helpful page: https://www.revenue.nsw.gov.au/help-centre/resources-library/g009.

    What is the amount of foreign land tax surcharge?

    The trusts that fail to comply with these new regulations will be required to pay a foreign land tax surcharge of 2% on residential land on top of ordinary land tax rates. Additionally, non-compliant trusts will be subject to a foreign surcharge rate of duty of 8% that will apply to dutiable transactions pertaining to residential property.

    It is important to note, that even if you do not pay land tax, you could be required to pay the land tax surcharge if your trust contravenes these new provisions.

    What do you need to do?

    Trustees will have until 31 December 2020 to update their trust deeds to include a provision that irrevocably and specifically prevents foreign persons from benefiting from discretionary trusts. As of 1 January 2021, trustees will be required to pay the foreign surcharge if they have failed to include such a provision in their trust deed.

    If you need assistance varying the terms of your trust deed to avoid the foreign surcharge, get in contact with Katie Innes or Ben Grady at BAL lawyers.

    [1] As outlined in the Second Reading Speech

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  • Planning & Environment Law Webinar

    Register

    The webinar took place at 12:00pm – 1:00pm on Wednesday 23 October  & Tuesday 3 November 2020.

    Input on the topic was followed by the opportunity for discussion and Q & A.

    For information about recent Planning & Environment cases and Part 6 Certificates email the presenter.

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  • Weed control post bushfires

    Essential Guide to Local Government Law | Weed Control under the Biosecurity Act Post Bushfires

    Key Instruments

    Biosecurity Act 2015 (NSW)
    Biosecurity Regulation 2017 (NSW)

    Relevant NSW Department of Primary Industry (DPI) policies and procedures:

    Biosecurity – Weed Management
    Biosecurity Directions
    Biosecurity Undertaking
    Biosecurity Formal Weed Inspections 

    Following the bushfires across much of NSW that had a catastrophic impact on many local government areas, councils and communities are deep into recovery efforts.  As Spring rainfall adds up, one area that may be overlooked is the risks and opportunities that unplanned fire and subsequent favourable conditions can present in relation to weeds.

    The interactions between fire and weeds are complex, varied and often difficult to predict.[1] Depending on the area, unplanned fires can create an opportunity for competitive weed species to colonise and dominate burnt sites.[2]  The movement of equipment, machinery, stock and people associated with fire response and recovery efforts can also facilitate the inadvertent spread of weeds.[3]  However, wildfires can also present local councils and landholders with the chance to undertake opportunistic weed control actions, as the destructive effect of fires can sometimes reduce target weeds and may also facilitate improved access for weed treatment.[4]   Weed management, now regulated under the Biosecurity Act 2015 (NSW) (the Act), is therefore part of the process of restoring fire affected communities.

    The Biosecurity Act 2015 (the Act)

    The Act establishes a comprehensive framework for the management of pests, diseases and contaminants. It includes the noxious weed control functions carried out by local councils that were previously included in the, now repealed, Noxious Weeds Act 1993 (NW Act).

    Although the Act has now been in force for a couple of years, there has only been one Court decision that has considered its scope and then only in a limited way. In Goode v Gwydir Shire Council [2020] NSWLEC 33, the Court held that the Act did not confer any right of private action on members of the public and that only the Secretary can bring proceedings in the Land and Environment Court to remedy or restrain a breach of the Act.[5]

    Where is the reference to weeds?

    Under the Act priority weeds are no longer defined as ‘noxious’ and the noxious class listings under the repealed NW Act no longer apply. This provides greater flexibly to manage and control all weeds.[6]

    The Act is also ‘outcomes focused’ in that its scope is defined with reference to things which may have a ‘biosecurity impact’. A biosecurity impact is an adverse effect on the economy, the environment or the community that arises, or has the potential to arise, from a ‘biosecurity matter’.[7] Importantly, for the regulation of weeds, a biosecurity matter includes the introduction, presence, spread or increase of a pest into or within NSW.

    In most cases plants previously categorised as ‘weeds’ are now a ‘pest’ for the purposes of the Act. ‘Pest’ includes a plant, (whether dead or alive) that has, or is suspected of having, an adverse effect on the environment, the economy or the community because it has the potential to, amongst other things:

    1. out-compete other organisms for resources, including food, water, nutrients, habitat and sunlight;
    2. reduce the productivity of agricultural systems or the value of agricultural products;
    3. reduce the amenity or aesthetic value of premises; or
    4. harm or reduce biodiversity.[8] 

    There is also list of prohibited matters, including weeds, in Schedule 2 to the Act. However, this is not an exhaustive list of the weeds to which the Act applies and any plant which has or is likely to have a biosecurity impact is subject to the Act.

    How does the Act regulate weeds?

    The Act regulates weeds in three key ways:

    1. by imposing biosecurity duties on persons and occupiers of land to do various things to avoid and manage biosecurity impacts;
    2. regulating specific weeds; and
    3. regulating specific regions or zones.

    This Guide focuses on the biosecurity duties imposed by the Act which apply to weeds, for which local councils have a key regulatory role.

    Biosecurity duties

    The biosecurity duties imposed by the Act include:

    1. a general biosecurity duty;[9]
    2. a duty to notify the presence of a prohibited matter;[10]
    3. a duty to prevent, eliminate or minimise risk posed by a prohibited matter;[11] and
    4. a duty to notify a biosecurity event.[12]

    A person who fails to discharge any of their ‘biosecurity duties’ is guilty of an offence under the Act.

    In relation to weeds, the general biosecurity duty requires that any person who deals with a weed and knows or ought reasonably to know of the biosecurity risk posed by it has a duty to ensure that the risk is prevented, eliminated or minimised.[13]  The Act contains a very wide definition of ‘dealing’.[14]

    An occupier of land is responsible for any weed on that land unless they can establish otherwise. The Act extends this duty to include a requirement that occupiers take steps to prevent, eliminate or minimise any biosecurity risk posed by weeds on public roads, watercourses and other public land in close proximity to the occupier’s land.[15]  Where there is more than one ‘occupier’ of land then each occupier is subject to the same biosecurity duty.[16]  ‘Occupier’ is defined in the Act to include any person having the care, custody or control of the land. The Act does not distinguish between private occupiers of land and land occupied by the Crown or a local council. It is therefore important that councils are aware of their obligations and duties as a land occupier, as well as their duties when acting as the Local Control Authority (LCA) under the Act.

    Council functions

    In most cases, councils are the LCA for their Local Government Area. As the LCA, a council is responsible for addressing issues relating to weeds in their area, including exercising weed control functions, implementing weed control programs, reporting, and keeping records.[17]  This includes inspecting private and public lands to ensure owners/occupiers of land carry out their obligations under the Act.[18]

    Council’s weed control functions are primarily exercised through authorised officers.[19]  Any person appointed as an inspector under the NW Act immediately before its repeal is taken to have been appointed as an authorised officer for the purposes of the Act.[20]

    Authorised Officer Functions

    Council’s authorised officers may exercise the powers conferred under Part 8 of the Act. These powers are similar to the functions given to investigation officers under the Environmental Planning and Assessment Act 1979 (the EPA Act) and to authorised officers under the Protection of the Environment Operations Act 1997 (the PEO Act). The powers include:

    1. information gathering – officers can require information and records to be furnished, require answers to questions, and demand a person’s name and address;
    2. entering premises – enter onto any premises (note that the consent of the occupier or a search warrant is required for residential premises[21]); and
    3. investigation and risk management functions – these include a range of actions which can be undertaken by the authorised officer, such as conducting examinations, taking samples or erecting signs; however, these must be done in accordance with the purposes and processes specified in the Act.

    As the LCA, council’s responsibilities under the Act are limited to weed management and council’s authorised officers can only exercise these powers in relation to weeds located on land (or waterways) for which the Council is the LCA.[22]  Authorised officers cannot exercise these functions in relation to the other matters covered by the Act. DPI has published an Authorised Officers FAQs guide which may assist councils and their staff who are responsible for weed control.

    Directions

    An important function given to an authorised officer is the power to give a ‘biosecurity direction’. Authorised officers can give two different forms of directions:

    1. a general biosecurity direction, which will apply to the public generally or to a specified class of persons; or
    2. an individual biosecurity direction, which applies to a particular person.[23]

    A general direction can prohibit, regulate or control (absolutely or conditionally) the carrying out of any activity in connection with weeds, a carrier (meaning anything capable of having a weed on it, attached to it or contained in it) or a potential carrier. A general direction may be given by an authorised officer if the officer reasonably believes the direction is necessary for a purpose identified in section 126 of the Act (e.g to prevent, eliminate or minimise a biosecurity risk or prevent, manage or control a biosecurity impact) and the direction does not exceed the limitations set out in sections 134 to 137.

    A biosecurity direction can also be given to a particular person – an ‘individual biosecurity direction’.[24] Examples of what may be included in an individual biosecurity direction are in section 130 of the Act. These include directions requiring the treatment or destruction of a biosecurity matter, such as a weed. Directions should be supported by evidence, such as records of observations or conversations, photographs and reports. 

    The Act does not expressly require an authorised officer to give advance notice of their intention to issue a biosecurity direction. This is similar to the situation under the PEO Act in respect of notices given under that Act. In that context, the Court has found that, except in urgent or emergency situations, notice is still generally required in order to afford procedural fairness to the intended recipient.[25]  In contrast, the Act expressly states that an authorised officer is not required to notify any person who may be affected by a biosecurity direction before giving the direction.[26]  However, where possible, we recommend that authorised officers’ give notice of their intention to issue a biosecurity direction and provide an opportunity for occupiers to undertake voluntary weed control before a final direction is issued under the Act, to ensure procedural fairness.

    DPI has prepared a Biosecurity Directions Procedure, which officers should consult if they are considering giving a biosecurity direction.  This procedure applies to all biosecurity risks and not just weeds. The advice provided within the Procedure is focused on suggesting practices and procedures for risk mitigation.

    General Biosecurity Directions

    Authorised officers can give a general biosecurity direction by publishing notice of the direction on the DPI website or in the Gazette (or both) or, in an emergency, displaying a copy of the direction in a prominent place in or adjacent to the relevant premises.[27]  While there is an express provision in s.141 providing that notice is not required, DPI guidance states that officers should be proactive in advising persons affected by the general direction.

    DPI’s procedure also specifies that a general biosecurity direction can only be given by an authorised officer with the appropriate departmental approval. The following approval is required:

    • NSW DPI, Director level or higher
    • LLS, General Manager level, and
    • LCA, General Manager level.

    This appears to be a risk mitigation measure proposed by DPI, as it is not required under the Act.

    Individual Biosecurity Direction

    Authorised officers may give an individual biosecurity direction by serving the direction in writing to the individual.[28]  Section 392 of the Act sets out how documents are to be served.

    A direction may also be given orally (in person), however the oral direction must be confirmed in writing within 7 days after it is given, unless the direction has been complied with by that time.

    Similar to provisions under the EPA Act and the PEO Act, an authorised officer may charge an individual a fee for the administrative costs involved in preparing and giving them a biosecurity direction.[29]   Whilst the fee is payable to the Secretary, s.373 of the Act allows a council to exercise any function of the Secretary in relation to the recovery of fees charged in the exercise of functions by a council-appointed authorised officer.

    Emergency Functions

    The Act also makes provision for authorised officers to exercise particular functions in an emergency. The circumstances in which this power is enlivened is set out in s.122 of the Act. These include where an authorised officer reasonably believes it is necessary to exercise the function because a biosecurity emergency has occurred, is occurring or is imminent, or where they reasonably suspect a biosecurity emergency has occurred, is occurring or is imminent.  In relying on the emergency provisions it would be prudent for officers to document the reasons why they considered the circumstances to be an ‘emergency’.

    Weed control notices under the Noxious Weeds Act

    Under the repealed NW Act, a council was able to give a ‘weed control notice’ to an owner or occupier of land, requiring the owner or occupier to carry out any of the occupier’s obligations to control noxious weeds. The new Act contains a savings provision which allows any person to continue to apply to the LCA for a certificate as to weed control notices affecting particular land and as to any outstanding expenses payable to the authority or any resulting charge on the land under the repealed Act. If a Council receives such a request, they must issue a certificate addressing these matters.

    Conclusion

    This guide has provided a brief overview of some of the responsibilities and functions given to local councils under the Act to manage weeds in their local government area.

    For further information, or for assistance or advice on enforcement and compliance, please contact the Planning, Environment and Local Government team at BAL Lawyers on (02) 6274 0999.

    The content contained in these guides are, of course, general commentary only. They do not constitute legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.

    Please note that the law detailed in this Essential Guide is correct as at 13 October 2020.

    [1] Mark Graham and Kevin Taylor, ‘Fire, Weeds and the Native Vegetation of New South Wales: A report prepared by the Hotspots Fire Project’, March 2018, 10.

    [2] Ibid, 14.

    [3] Tasmanian Government Department of Primary Industries, Parks, Water and Environment, ‘Managing Weed Spread After Fire’, Invasive Species (online, 28 November 2019) <https://dpipwe.tas.gov.au/invasive-species/weeds/weed-publications-and-resources/weed-spread-after-fire>

    [4] Graham and Taylor, above n 1, 28.

    [5] Goode v Gwydir Shire Council [2020] NSWLEC 33 at [74] per Pain J.

    [6] Department of Primary Industry, ‘Weed Management Legislation is Changing’.

    [7] Biosecurity Act 2015, s 13.

    [8] Ibid, s 15.

    [9] Ibid, s 22.

    [10] Ibid, s 30.

    [11] Ibid, s 36.

    [12] Ibid, s 38.

    [13] Ibid, s 22.

    [14] Ibid, s 12.

    [15] Ibid, Sch 1.

    [16] Ibid, s 20.

    [17] Ibid, s 371.

    [18] Ibid.

    [19] Ibid, s 372.

    [20] Ibid, Sch 7[9].

    [21] Ibid, s 99.

    [22] Ibid, s 372.

    [23] Ibid, s 124.

    [24] Ibid, s 128.

    [25] Liverpool City Council v Cauchi [2005] NSWLEC 675.

    [26] Biosecurity Act 2015, s 141.

    [27] Ibid, s 127.

    [28] Ibid, s 129.

    [29] Ibid, s 132.

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  • calculating damages for commercial loss

    Calculating Damages for Loss of a Commercial Opportunity

    The law recognises that the loss of a valuable commercial opportunity is a compensable loss. The principle was most famously recognised in the 1911 decision of Chaplin v Hicks [1911] 2 KB 786 (Chaplin), and has been recently reinforced in the High Court of Australia’s decision of Berry & Anor v CCL Secure Pty Ltd [2020] HCA 27 (Berry).

    In Chaplin, the plaintiff was promised the “chance” of being selected from a number of women to be given a theatre contract, however, was not provided with the letter intended to advise her of an audition and, as a result, lost her chance to be selected as the successful candidate. At trial, the trial judge instructed the jury that the loss of opportunity that the plaintiff had suffered was compensable and awarded the plaintiff substantial damages, which were upheld on appeal also. The principle in Chaplin has been followed and applied in several cases of the High Court of Australia, including, amongst others, Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 (Sellars) and Commonwealth of Australia v Amann Aviation Pty Ltd (1991) 174 CLR 64 (Amann Aviation).

    The important question is not whether the loss of a commercial opportunity is compensable, but how one goes about assessing the loss. In the 2020 decision of Berry, the High Court considered three issues concerning the assessment of damages surround loss of a commercial opportunity.

    In Berry, the appellants entered into an agency agreement with the respondent, who produced polymer banknotes. The agency agreement provided that the appellants would act as the respondent’s agent in the sale of opacified polymer to the Nigerian government and, in return, the appellants would receive a 15% commission on what was sold to the Nigerian government. The agency agreement was to be renewed every two years unless it was terminated in accordance with the relevant termination clauses in the agreement. After deciding it no longer wanted the appellants to act as its agent in dealing with the Nigerian government, the respondent induced the appellants to sign a termination letter by representing that the signing of the termination letter was a necessary routine procedure in order to put in place the partnership agreement.

    The appellants commenced proceedings in the Federal Court, seeking damages under section 82 of the Trade Practices Act 1974 (Cth) to recover the amount of commission that would have been paid to him had he not relied upon the respondent’s misleading or deceptive conduct and signed the letter.

    There the court set out the relevant principles, namely, that the value of a lost opportunity was to be ‘ascertained by reference to hypotheses, possibilities, which though they were speculative and could not be proved on the balance of probabilities, could be evaluated as a matter of informed estimation’. The plurality applied this principle to the facts before them, and held that the plaintiffs were entitled to the loss of commission that would have been made had the valuable commercial opportunity, being the agency agreement, not been brought to an end. The remaining judges, Gageler and Edelman JJ, agreed with the judgment of the plurality.

    In upholding the Federal Court’s approach, the High Court in Berry has affirmed that the loss of opportunity is a compensable loss, such that is not a full defence to argue a lost possibility may have not materialized.  Instead, the formulation of damages is to be evaluated by informed estimation, taking into account the various possibilities of the lost chance having come to fruition.

    The principle that someone can be compensated for a loss of a valuable opportunity is not one that people ordinarily bring to mind because it is often considered that the obstacles in the path of the opportunity means that there is no loss suffered. Berry reaffirms not only that the loss of a valuable commercial opportunity is compensable, but also the correct way to approach the valuation of such loss.

    The Dispute Resolution team at BAL Lawyers can assist companies who believe that they may have lost a valuable opportunity as a result of someone’s action to recover more than mere nominal damages.

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  • Mutuals making money

    Mutuals Making Money: Introducing Mutual Capital Investments

    Mutual enterprises have, traditionally, been restricted in the ways they could raise capital to avoid triggering the demutualisation provisions. However, on 6 April 2019 the Federal government introduced the Treasury Laws Amendment (Mutual Reforms) Bill 2019 introducing a new way of capital raising for mutual entities.

    A mutual capital investment or an MCI, is a “security” or a “financial product” regulated under the Corporations Act 2001 (“Corps Act”). MCIs allow mutual entities to raise money without relying solely on debt or compromising its member owned or mutual status. As such, issuing MCIs are governed by the same provisions which apply to the issue of shares. These provisions include the fundraising and disclosure requirements of the Corporations Act.

    To be capable of issuing MCIs, the entity must be a ‘mutual entity’ within the definition of s.167AC of the Corps Act, and specifically it must be an ‘MCI mutual entity’. A mutual entity will be eligible if they:

    • are a public company;
    • do not have voting shares (other than MCIs) quoted on a prescribed financial market;
    • are not a registered entity within the meaning of the Australian Charities and Not-for-profits Commission Act 2012.

    For an instrument to be an MCI the security must have certain class rights attached to it and a number of constitutional amendments are required. These amendments include (but are not limited to):

    • a clause which states that the entity is intended to be an MCI mutual entity for the purposes of the Corps Act;
    • a clause which only allows MCIs to be issued only as a fully paid share;
    • a clause which outlines that dividends in respect of MCIs are non-cumulative;
    • a clause which sets out the rights attached to the MCI with respect to participation in surplus assets and profits; and
    • a clause which only allows dividends to be issued in respect of the MCIs in the event the payment of the dividend is fair and reasonable to its members as a whole.

    Further, for an entity which is not yet an MCI Mutual entity, there is a specific process which must be followed in order to make the necessary constitutional amendments to conform. It is important to note that there is a time limit placed on when these amendments can be made.[1]

    Once a company has passed the necessary constitutional amendments and it has registered those amendments with ASIC, it is able to issue MCIs. Depending on the nature of the offer of MCIs, a company may be required to follow certain disclosure requirements.

    If you have any questions about how best to implement MCIs in your company, rules of disclosure or governance regarding dividend decisions, please contact the Business Team at BAL Lawyers.

    By Katie Innes with the assistance of Nicole Harrowfield.

    [1] The necessary amendments need to be made before 5 April 2022.

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