Canberra Law Firm – BAL Lawyers

News & Events

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  Doyle’s Guide recognises BAL Lawyers

  BAL Lawyers is delighted to announce that our Estates & Estate Planning Team has again been recognised as a first tier law firm.  The 2020 rankings feature the Team in both categories being a Leading Wills & Estates Litigation Law Firm, and a Leading Wills, Estates & Succession Planning Law Firm.

  Doyle’s Guide is an independent body that publishes rankings predominantly based on peer review and client feedback.

  “Our focus is always the individual needs of our clients and their families, but it is a collegiate practice area and it is good to know our ACT colleagues think we do it well,” Ellen Bradley, a Director in the Team said today.

  A number of our solicitors have also been named individually in the 2020 listings.

  • Keith Bradley AM is recognised in the preeminent category across both Wills & Estates Litigation, and Wills, Estates & Succession Planning;
  • Christine Harvey is recognised in the recommended category across both Wills & Estates Litigation, and Wills, Estates & Succession Planning;
  • Jill McSpedden is recognised in the recommended category for Leading Wills, Estates & Succession Planning Lawyers; and
  • Ellen Bradley is recognised in the recommended category for Leading Wills & Estates Litigation Lawyers.

  Our solicitors assist clients at what is often the most difficult period in their lives.  While a knowledge of the law and its processes are necessary, equally important is empathy and an understanding of family dynamics.

  

  (L-R) Ellen Bradley, Christine Harvey, Keith Bradley AM and Jill McSpedden.

   

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  Annual General Meetings in the time of COVID-19

  Annual General Meeting season is here and so it is time to reflect on the achievements of your organisation.  Your AGM is an opportunity for input from members on the organisation’s future and (more practically) appointing/removing directors and approving financial reports.

  Annual General Meetings (AGMs) are a fundamental aspect of running companies, co-operatives, associations and mutuals. For organisations with a financial year ending on 30 June, an AGM must be held by 30 November, and there is every chance your 2020 AGM will not be “business as usual”.  As Australia faces down a second wave of COVID-19 cases, social distancing measures are likely to stay in place for some time. Now is the time to develop a contingency plan to ensure you can achieve quorum and transact business.

  Some organisations will have the ability to manage the notification and holding of an AGM via the use of technology – this is determined largely by their constituting documents (Rules or Constitution). Those organisations that have this ability should start considering now how they will manage this process – investigating available technologies that allow members to really engage in the AGM and ensure notices contain sufficient details on how members can access and use the technology.

  For those organisations whose constituting documents do not provide for the use of technology you will need to start preparations now, although there may be some relief.

  On 6 May 2020, temporary modifications to the Corporations Act 2001 (Cth) took effect providing practical mechanisms for companies and mutuals incorporated under the Corporations Act 2001 (Cth)[1]. The key modifications made by the Determination include:

  • A meeting may be held using one or more technologies to allow people to participate without being physically present. “Participate” includes a requirement that those attending must be able to speak in real time;
  • Persons attending the meeting via technology are taken to be present at the meeting for the purposes of reaching and achieving quorum;
  • Votes at such a meeting must be taken on a poll that allows people to participate in real time or, where practicable, records their vote in advance;
  • A proxy may be appointed using technology specified in the notice to members; and
  • The notice of meeting (and any related information) may be provided to those entitled to receive the notice using one or more technologies. The notice must explain how members are able to vote and ask questions and include any other information they need to know to participate in the meeting.

  These modifications will expire at 11.59pm on 5 November 2020[2].

  For associations, the Associations Incorporation Act 1991 (ACT) has also recently been amended to include a new section 70AA, which:

  • allows a committee to authorise a general meeting to be held using a method of communication, or a combination of methods of communication; and
  • allows members who take part to hear or otherwise know what other members taking part say without being in each other’s presence.[3]

  Members will be taken, for all purposes to be present at the meeting and may vote by proxy. This provision overrides any inconsistency in an association’s rules. Examples of “method of communication” include a phone, satellite or internet link, or in writing.

  For co-operatives, the Co-operatives National Law doesn’t specifically allow for AGMs (or even special general meetings) to be called or held using technology, however the Model Rules (which are often used) do allow for the use of technology when giving notice to members. If your Rules do not contain the right to use technology to give notice or hold a meeting then we recommend you investigate potential venues with the capacity to hold at least a quorum of your members (along with the directors and auditor), detail the social distancing measures you expect from all those attending to protect members, so that you can proceed with your AGM without difficulty. You might also consider proposing amendments to your Rules to allow for the use of technology in the future.

  Despite the temporary modifications to the Corporations Act and the Associations Incorporation Act, an AGM held virtually may still breach members’ rights if the meeting is held in such a way that members are not provided a reasonable opportunity to effectively participate; those rights will still be enforceable at common law.

  If you have any questions about how best to prepare for your upcoming AGM under these new measures, please contact Katie Innes or the Business Team at BAL Lawyers.

  Written by Katie Innes who is grateful for the assistance of Nicole Harrowfield.

  [1] Pursuant to the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Determination).

  [2] Unless the Determination is withdrawn or reissued beforehand.

  [3] This section is only applicable when, due to COVID-19, a state of emergency has been declared under s 156 of the Emergencies Act 2004 or an emergency has been declared under s 119 of the Public Health Act 1997.

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  Real Estate Alert: Tenants given the right to terminate under new COVID-19 Emergency Response Declaration

  On 22 July 2020, the Residential Tenancies (COVID-19 Emergency Response) Declaration 2020 (No 2) became effective. Wasn’t there already a Declaration you may ask? Well yes, but that has been revoked and replaced (see “(No 2)”) … with little notice. Though in substance the new Declaration substantially reflects the old, the ACT Government has tactfully incorporated a new provision, which we expect landlords in the ACT will take issue with.

  The new Residential Tenancies Declaration extends the moratorium period to 22 October 2020 (and rightly so) and reserves the right for the Minister to extend the moratorium period for a further three (3) months.

  What is surprising is that the Declaration now allows a tenant living in an impacted household, pursuant to a fixed term residential tenancy agreement, to terminate the agreement upon giving the lessor written notice. That notice must:

  • Be for a period of at least three (3) weeks; and
  • Contain evidence that the tenant is a member of an impacted household.

  Where a tenant terminates a residential tenancy agreement in accordance with the new Declaration, the lessor is not entitled to any compensation or break fee payable under the agreement or the Residential Tenancies Act 1997 (ACT). This is the case even where the residential tenancy agreement was signed by the tenant after the commencement of the moratorium period (22 April 2020).

  So what should landlords and/or their managing agent do? Well, fortunately the Declaration does not limit the ‘evidence’ that must be provided by a tenant and it would be prudent for landlords and/or their managing agent to require more than one (1) of the following (also listed as examples in the new Declaration):

  • A statutory declaration attesting to the status of the premises being an ‘impacted household’;
  • Evidence of a household member’s eligibility for the JobKeeper or JobSeeper payment from the Commonwealth;
  • Letter from an employer attesting to a change in a tenant’s employment status; or
  • Evidence of a reduction in household income.

  For further information, please contact the Real Estate Team at BAL Lawyers.

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• 

  Whose Rights and What’s Left? Copyright and Moral Rights in an Employment Context

  As a general rule, the copyright in works created by an employee in the course of their employment rests with the employer. The Copyright Act 1968 requires two criteria to be met. First, that the individual who created the work is an employee working “under a contract of service” (and not, e.g., an independent contractor), and second, that the work is made “in pursuance of the terms of his or her employment.”

  For instance, a legal professional who writes articles about intellectual property law at the instruction of her employer, for the purpose of publishing on the firm’s website, does not own the copyright to the articles she has written. The copyright rests with the employer. By contrast, a legal professional who writes out the contents of an eventually best-selling science fiction novel during lunch breaks while employed at the same firm, likely has sole ownership of the copyright of that novel. The act of writing may have taken place at the firm, but it was not done in the course of employment or as part of the terms of employment.

  However, even when an employer owns the copyright in a work created by their employee, it is important to be aware that copyright is separate and distinct from moral rights, and moral rights in a work rest exclusively with its author.

  Copyright vs Moral Rights

  Copyright and moral rights are each one half of a whole set of rights vested in a piece of creative work. Both arise automatically from the creation of the work and do not have to be applied for in order to be in effect. Copyright is concerned with the economic rights and commercial use of a given work, and is grounded in the idea that the author of a work should be able to capitalize on it through its publication or reproduction. Moral rights are the non-economic “personal” rights of an author to have their authorship properly attributed in relation to the work.

  The moral rights provisions of the Copyright Act were introduced in 2000 and, in addition to the right of attribution, include the right not to have authorship falsely attributed, and the right to integrity of authorship (meaning, the right not to have the work used in a way that is derogatory to the author’s reputation). These rights only ever vest in the author of a work and they cannot be assigned or otherwise transferred away.

  This means that it is possible for an employer to own the copyright to work created by an employee, but not the moral rights. The scope of ‘work’ in this context ranges from text written for a website or a technical manual, to legal advice, to any number of ordinary documents drafted in the course of day-to-day business. Broadly speaking, an employee is entitled to be named as the author of anything they write, regardless of how their employer uses that written material.

  Exceptions

  There are circumstances where moral rights can present problems for employers or limit the employer in exercising their entitlement to use and profit from a creative work. This can include situations where crediting the author creates difficulties; where the work is part of a larger set of works published under the employer’s name; where the work requires modification in order to be fit for purpose; or where the work is licensed by the employer for use by a third party. This begets the question: if moral rights cannot be assigned, what recourse is left to the employer?

  The answer comes in the form of contractual provisions and in the fact that moral rights can be waived. An author is able to consent to what would, without that consent, be a violation of their moral rights. In employment contexts, this is most straightforwardly accomplished through moral rights clauses in employment contracts. These clauses state that the author consents to have their work used without proper attribution, as well as to have the work published under the employer’s name, and modified as necessary or desirable. This is not an assignment of rights in the sense of the employee giving the employer the right to be named as the author – although that is a practical result of the process – it is a renouncement of the entitlement to take legal action for the violation of a moral right.

  So what is the moral of this story? It’s that owning copyright in a work is not the same as having carte-blanche to do with it whatever strikes the fancy. The author of a work has inherent moral rights in their work and is able to assert a certain level of control over the use of that work unless those rights are waived. Thoughtfully drafted contractual clauses are a legally enforceable way to address these rights, and should be included in any employment agreements that seek to deal with intellectual property.

  Oh, and keep in mind: when we talk about “employers” and “employment”, we mean it – we’re lawyers. We aren’t talking about “contractors”. If you have questions about copyright or moral rights, or if you would like a review of any contracts to ensure that your intellectual property rights are protected, please contact the Business Team at BAL Lawyers.

  Written by Anna Phillips.

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• 

  Phoenix companies to become a creature of mythology: Introduction of Director Identification Numbers

  “…And, like a phoenix, from the ashes I rise” – Usually this would be an uplifting mantra, unfortunately phoenix companies can leave creditors out of pocket and without a means of redress.  ‘Phoenixing’ is where a company transfers all (or substantially all) of its assets to a new and eerily similar company just before it becomes insolvent (usually as a means of avoiding repaying creditors). This process of company rebirth is, in many cases, illegal[1]. The impact of illicit phoenixing on the Australian economy is colossal, as it is estimated to cost taxpayers between 2.85 billion and 5.13 billion annually.[2]

  After months of preparation, it is no surprise that, on 12 June 2020, the government passed the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 (‘The Bill’), part of which was specifically targeted at combatting illicit phoenixing. Schedule Two of the Bill introduces the Director Identification Number (‘DIN’), which is a unique numerical identifier that will be permanently associated with individual directors. It is intended that directors will be more accountable for illicit phoenixing instead of being able to disappear into the ether, hiding behind aliases such as ‘Mickey Mouse’, ‘Homer Simpson’ or simply a different spelling of their true name.

  While it remains unclear when the Bill will come into effect (as the Government is busy tackling Novel Coronavirus-related challenges) – it is likely that this law will be in place sometime in 2021 – 2022. Once this new legislation is in force, existing directors will have a window of 18 months to obtain a DIN and new directors will have a period of 28 days from the day they become a director to apply for a DIN. This new system will be handled by a Registrar who will have the power to register, record, cancel and reissue DINs. Directors will not be able to have multiple DINs, indeed, attempts to procure more than one DIN will be punishable by law.

  Directors of Australian companies have welcomed these new measures; however, they have voiced concerns that this new online registration system may compromise their privacy, especially in light of recent mass data breaches in Australia. Although unauthorised disclosure of this information can result in a maximum penalty of two years imprisonment, there are fears that this will not be a deterrent for international actors.

  Ultimately, the introduction of the DIN is a much-needed reform that will streamline many of ASIC’s nefarious application procedures and will help to prevent illicit phoenixing. If you have any questions or queries about how best to prepare your company for these new measures please contact Riley Berry or the Business Team at BAL Lawyers.

  Written by Riley Berry with the assistance of Claudia Weatherall.

  [1] A legal avenue for saving a business in distress is through the appointment of a Voluntary Administrator.

  [2]https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr6267_ems_add8f0cf-2a89-4082-b432-eb2bc3b2e097%22

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• 

  Essential Guide to Local Government Law: Lapsing of a Development Consent

  Updated June 2020: A development consent can add significant value to land and can be costly to obtain. It is therefore important to understand when it will lapse. This guide will assist you in determining when this will occur.

  The statutory lapsing period

  The lapsing of a development consent is dealt with in the statutory provisions in s.4.53 (formerly s.95) of the Environmental Planning and Assessment Act 1979 (the Act). These provisions fix a period of time at the expiry of which the consent will lapse unless certain action has been undertaken.

  The starting point is s.4.53(1) of the Act. That subsection provides that a development consent will lapse 5 years after the date from which it operates.  However, the 5 year period can be reduced or extended under the subsequent subsections, as explained below.

  When can the 5 year lapsing period be reduced?

  Any reduction in the ‘default’ 5-year lapsing period is imposed at the discretion of the consent authority when it determines a development application.  However, there are 3 constraints on a consent authority’s ability to do so.  These are:

  • If a proposed development involves the erection or demolition of a building or the subdivision of land, the consent authority cannot reduce the lapsing period to less than 2 years from the date that the consent becomes operative;[1]
  • If the consent authority issues a development consent for a concept development application which requires the making of a subsequent development application and consent, the lapsing period cannot be reduced at all[2]; and
  • For development consents granted between 25 March 2020 – 25 March 2022, the lapsing period also cannot be reduced to a period of less than 5 years.

  When can the lapsing period be extended?

   If the 5 year lapsing period is reduced by the consent authority, the consent authority may extend the lapsing period by 1 year if the applicant for the consent (or any person otherwise entitled to act on it) applies, under s.4.54 of the Act, to the consent authority for a 1 year extension. Such an application must be made prior to the consent lapsing.[3] The lapsing period cannot be extended by a modification application.[4]

  UPDATE: Extension of lapsing dates – COVID 19

  The Act and Regulations were amended on 14 May 2020 to include special arrangements for development consents which have lapsing dates that may be affected by COVID-19.  The special arrangements apply to development consents which are issued in the period 25 March 2020 – 25 March 2022 (the ‘prescribed period‘).  The amendments mean that:

  • Existing development consents which lapsed between 25 March 2020 and 14 May 2020 (when the amendment took effect) are taken not to have lapsed and benefit from a 2 year extension to the lapsing date;
  • Existing development consents which have lapsing dates which fall within the prescribed period are extended by 2 years; and
  • A consent authority cannot reduce the lapsing period for a development consent which is granted during the prescribed period – so all consents granted in this period will not lapse for a period of 5 years.

  Corresponding changes have been made to the Act to extend the time period for compliance with deferred commencement conditions.

  What must be done to prevent a consent from lapsing?

  The action that must occur to prevent a development consent from lapsing depends upon what type of development has been approved and when it was approved.

  Development involving the erection of a building, subdivision or the carrying out of a work

  A development consent for the erection of a building, the subdivision of land or the carrying out of a work will lapse on the lapsing date unless the following three things occur:

  • “building, engineering or construction work” is undertaken on the land which is the subject of the consent;
  • the work was “physically commenced” before the date on which the consent would otherwise lapse; and
  • the work “relates to” the approved development.[5]

  A significant body of case law has developed in relation to these three elements and will be summarised below.

  “Building, engineering or construction work”

  Under the Act, ‘building work’ is broadly defined as ‘any physical activity involved in the erection of a building’.[6] Neither ‘engineering’ nor ‘construction’ work is specifically defined in the Act but the meaning of these terms has been considered by the Courts.

  In Hunter Development Brokerage v Cessnock City Council[7]the definition of ‘engineering work’ in the context of a subdivision consent was found to include all activities associated with and forming a necessary part of, the discipline of engineering, survey work and geotechnical investigation applicable to the subdivision. These principles have also been applied to ‘works’ generally (i.e. not just subdivision).[8]

  Examples of works which have been held by the Court to constitute ’building, engineering or construction work’ include:

  1. extracting samples of water from the site for offsite quality testing;[9]
  2. obtaining an acoustical engineering report relating to the noise made by trucks entering and exiting the site;[10]
  3. the removal and testing of soil for the purposes of obtaining a remediation and validation report;[11]
  4. digging boreholes for testing soil conditions;[12]
  5. survey work.[13]

  Care needs to be taken in relying on these examples, however, as the circumstances of each development will need to be considered to determine whether the work relied on in fact ‘relates to’ the development the subject of the development consent. A more stringent standard will also apply to development consents granted after 15 May 2020.

  On 15 May 2020 the Regulation was amended to specifically preclude a number of these activities from satisfying the requirement for ‘physical commencement’[14]. For consents granted after 15 May 2020 the carrying out of minor activities such as the creation of a bore hole for soil testing, the removal of water or soil for testing, the carrying out of survey work, acoustic testing, removing vegetation and marking the ground to indicate how land is to be developed will be insufficient to amount to ‘physical commencement’. It will therefore be necessary for developers to undertake additional physical works in order to prevent these consents from lapsing.  Going forward when considering whether a development consent has lapsed it will be necessary to first determine whether the consent was granted before or after 15 May 2020 as different rules will apply to each.

  “Physically commenced”

  The statutory requirement that work is “physically commenced” necessitates that work is commenced upon the land in a physical sense, as opposed to off-site work such as design and planning work.

  There does not need to be a material change to the physical nature of the land as a result of the physical work.

  “Relating to” the development

  The use of the term ‘relating to’ means that there must be some real relationship or connection between the work and the development in respect of which the consent has been granted.[15] The requisite link between the work and the consent will be satisfied if the work is a necessary step in, or part of, the process required for the carrying out of the development. If the work serves more than one purpose, it is sufficient that one of those purposes bears a real relationship to the development.[16]

  Importantly, for any work to constitute commencement so as to prevent the consent from lapsing, that work must be undertaken lawfully. Any work which is not lawful, for example, if it is not undertaken in accordance with the conditions of consent or is in breach of the Act, will not ‘relate to’ the development.[17]

  Development other than development involving the erection of a building, subdivision or the carrying out of a work

  A development consent for any other type of development will not lapse if the use of the land, building or work, the subject of the consent, actually commences before the date on which the consent would otherwise lapse.

  For further information or assistance with orders, please contact Andrew Brickhill and the Planning, Environment and Local Government team on (02) 6274 0999.

  The content contained in this guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.

  Our series of NSW Local Government Guides are comprehensive yet simple to understand guides on how to deal with certain legislation and problems that NSW Local Government and Councils often face.

  [1] Ibid, s.4.54.

  [2] Kinder Investments Pty Ltd v Sydney City Council (2005) 143 LGERA 237; [2005] NSWLEC 737.

  [3] Environmental Planning and Assessment Act 1979 (NSW), s.4.53(2).

  [4] Ibid, s.4.53(2).

  [5] Above n 1, s.4.53(4). These three questions are referred to in Hunter Development Brokerage v Cessnock City Council (2005) 140 LGERA 201.

  [6] Above n 1,  s.1.4 and s.6.1

  [7] (2005) 140 LGERA 201.

  [8] Benedict Industries Pty Ltd v Minister for Planning; Liverpool City Council v Moorebank Recyclers Pty Ltd [2016] NSWLEC 122 at 61.

  [9] Norlex Holdings Pty Ltd v Wingecarribee Shire Council (2010) 177 LGERA 261.

  [10] Ibid.

  [11] Zaymill Pty Ltd v Ryde City Council [2009] NSWLEC 86.

  [12] Rowlane Investments Pty Ltd v Leichhardt Council (2013) 195 LGERA 9.

  [13] JMS Capital Pty Ltd v Tweed Shire Council [2006] NSWLEC 535.

  [14] See new clause 124AA

  [15] Hunter Development Brokerage v Cessnock City Council (2005) 140 LGERA 201; Tovedale Pty Ltd v Shoalhaven City Council (2005) 140 LGERA 201 at 104.

  [16] Ibid.

  [17] K & M Prodanovski Pty Ltd v Wollongong City Council (2013) 195 LGERA 23.

   

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