News & Events

  • Estates Team at BAL

    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.

    Estates Team at BAL

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

     

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  • Annual General Meeting

    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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  • Residential tenancies declaration

    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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  • phoenix companies

    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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  • e-Conveyancing in the ACT

    Moving forward with e-Conveyancing in the ACT

    e-Conveyancing in the ACT looks to be a step closer following recent Legislative changes.  Amendments introduced by the ACT Government pursuant to the Electronic Conveyancing National Law (ACT) Act 2020 (ACT) and the Land Titles (Electronic Conveyancing) Legislation Amendment Act 2020 (ACT) are set to commence on 1 June 2020. But what do these changes mean? And will the ACT (finally) join NSW and the other States in conveying real estate electronically?

    There are two fundamental changes:

    1. The first is the introduction of a method or framework to facilitate the possible introduction of e-conveyancing in the ACT.
    2. The second, whilst preserving the central features of the ACT land titling and registration within the Territory, is the introduction of new processes to reduce paper-based registration and provide a greater scope for use of electronic registrations.

    Together the legislative provisions provide a choice within the territory to allow fore-conveyancing.

    More specifically, the changes:

    1. Allow for the introduction of an electronic lodgement network operator as part of the electronic conveyance process. Lawyers and financial institutions will need to become a subscriber to undertake an e-conveyance or electronic lodgement;
    2. Introduce restrictions on the creation or alteration of interests on the land titles register without proper verification of relevant party’s identity and authority. In practice both paper and electronic lodgements are required to adhere to tougher compliance requirements; and
    3. Shift the onus of certification on solicitors, conveyancers, and financial institutions (if applicable). These certifications are detailed precisely in the new legislative framework, but in a nutshell they include:
      1. Verification of identity;
      2. Completion of client authorisation forms; and
      3. Retaining supporting evidence for the authority to deal with the property the subject of the transaction.

    As the land titles register is already kept electronically it follows that lodgements should also occur electronically. Stakeholders suggest that moving to an electronic registration and titling system will help protect against fraudulent activities.

    It is clear the Territory is endeavouring to keep pace with modern property practices but is yet to fully transition to a platform allowing for electronic conveyancing to occur. The Territory has the legal framework in place and the introduction of an electronic lodgement network is what is now needed.

    For assistance with your conveyancing and real estate matters, contact the Real Estate team at BAL Lawyers.

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  • Council reject development application

    Do not pass go: Court finds Council rejection of Development Application cannot be appealed

    In a case handed down on 30 April 2020, the NSW Land and Environment Court has decided that the rejection of a development application by a council is not a decision that can be appealed. The judgment, Johnson Property Group Pty Limited v Lake Macquarie City Council (No 2) [2020] NSWLEC 42,  has implications for the rejection of DAs by NSW councils and highlights the ability of a Council to effectively veto a DA that involves the carrying out of works within a road reserve without the risk of review by the Court.

    Facts

    Johnson Property Group lodged a DA with the Lake Macquarie City Council for the construction of a cycleway and intersection improvement work in October 2019. Six days later the Council rejected the DA on the sole basis that the DA was not accompanied by the written consent of the (same) Council as the roads authority and owner of the public roads where the intersection work was proposed. Johnson appealed against that decision and sought an order that the Council assess and determine the DA. The Council’s sole contention in the appeal was there was no appeal right. It did not raise any concerns with the merits of the proposal.[1]

    Argument

    Johnson pointed to s.8.7(1) of the Environmental Planning and Assessment Act 1979 which provides that an applicant who is dissatisfied with the ‘determination’ of an application by a consent authority may appeal to the Court, arguing that such a determination must include a decision to reject a DA. Johnson also relied on an earlier decision of the Court in Parkes v Byron Shire Council (2003) 129 LGERA 156 (Parkes) where it was held that, upon a proper construction of the provisions of the Act and the Regulations as they were then in force, the decision to reject a DA was a decision from which a right of appeal to the Court was available.

    The Council argued that on a proper construction of ss 8.6(1) and 8.7(1) of the Act an appeal was limited to a “determination” rather than a “decision”. It was argued that a determination is made pursuant to s.4.16 of the Act to either refuse or approve a DA, whereas the rejection of a DA is a “decision” to reject the DA and operates to treat the DA has never been made (as per cl.51(3) of the Regulation). The Council also argued that Parkes could be distinguished and, in any event, the decision was wrong and should not be followed.

    The Outcome

    The Court carefully analysed the language used in each of the relevant provisions in Division 8.3 of the EP&A Act, the Division of the Act that provides an appeal right relating to the determination of an application for development consent.  The Court held that:

    • the concept of the ‘determination’ of a DA is one that is used throughout the Act as being a decision made pursuant to s.4.16 and notified in accordance with the requirements of s.4.18;
    • the rejection of a DA is not referred to in any part of the Act, either expressly or by implication, as being a determination of an application for development consent;
    • the reference to the rejection of a DA ‘determination’ in cl.51(3) of the Regulations is not a ‘determination’ in the same sense that it has been used in the Act;
    • due to amendments to the statutory scheme, the case was sufficiently different to the provisions considered in Parkes and could be distinguished. In any event, the Court decided that the decision in Parkes was not correct and should not be followed.

    As a consequence, the Court concluded that there was no ability for Johnston to appeal against the rejection of its DA by the Council.

    Implications

    Johnson’s case is significant because it highlights the ability of a council to unilaterally veto a development proposal where the development involves works within a council road reserve. A council’s ability to reject a DA under the Regulations is limited to the first 14 days after the DA is being received.[2] This case shows, however, that if a DA is rejected on proper grounds within that period, the rejection cannot be made the subject of an appeal. This would avoid the possibility of the Court itself furnishing the landowner’s consent on behalf of the Council pursuant to s.39(2) of the Land and Environment Court Act 1979.[3]

    For more information or to discuss a development application, call BAL Lawyers Planning, Environment and Local Government Team on 02 6274 0999.

    [1] Johnson Property Group Pty Limited v Lake Macquarie City Council [2020] NSWLEC 4 [at 20].

    [2] Environmental Planning and Assessment Regulation 2000, cl. 51.

    [3] Cf. Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300 in which the Court held that s.39(2) empowered the Land and Environment Court, on the hearing of an appeal, to give the consent of the owner of land to the making of a development application where the owner is the authority whose refusal of consent is the subject of the appeal.

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  • Six BAL Lawyers recognised among Australia’s best in 2021

    BAL Lawyers is delighted to announce that six of our Canberra lawyers have been recognised among The Best Lawyers™ in Australia (2021 Edition). Additionally, John Bradley was named the Best Lawyers 2021 Real Property Law “Lawyer of the Year” in Canberra.

    Our six recognised lawyers and their practice areas are:

    • Alan Bradbury – Government Practice, Planning and Environment Law;
    • John Bradley – Commercial Law, Leasing Law, Real Property Law;
    • Mark Love – Commercial Law, Insolvency and Reorganisation Law, and Corporate Law;
    • John Wilson – Labour and Employment Law, Occupational Health and Safety Law;
    • Ian Meagher – Insurance Law, Litigation; and
    • Bill McCarthy – Insurance Law.

    Alan Bradbury has been recognised 12 years running in the practice area of Planning and Environmental Law, whilst John Wilson made his ninth appearance.  Mark Love and John Bradley are in their eighth years and both Ian Meagher and Bill McCarthy are in their second year of recognition.

    John Bradley was previously named “Lawyer of the Year” in 2016, and Alan Bradbury in 2014 and 2015. This accolade recognises individual lawyers with the highest overall peer-feedback in their practice area in a given geographic area.

    Above (L-R): John Bradley, Alan Bradbury, John Wilson, Mark Love, Ian Meagher, Bill McCarthy.

    About Best Lawyers

    Best Lawyers is the oldest and most respected attorney ranking service in the world. Since it was first published in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. 83,000 industry leading attorneys are eligible to vote from around the world, and Best Lawyers received almost 10 million evaluations on the legal abilities of other lawyers based on their specific practice areas. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honour.

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