News & Updates

Explore the items below and contact us to discuss your individual circumstances.

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Restraint of Trade

All restraint of trade clauses are void because they are contrary to public policy unless the restraining party can establish that the restraint is reasonable (in the interests of the parties and the public) in all the circumstances and necessary to protect a legitimate interest of that party. Restraint of trade provisions often relate to […]

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Planning to Die without a Will – New Intestacy Laws

Unlike Egyptian Pharaohs, you’re probably not planning to take it all with you, so you probably don’t plan to die without a Will (intestate). However, you might be like many of us and haven’t got around to making one yet, or your Will may be out of date and it no longer disposes of the whole […]

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Think before you Tweet

Defamation is probably the last thing on your mind when you post a quick comment on Facebook or Twitter or post an online review – but be mindful ill-considered posts may well constitute defamatory publications. Re-tweeting a defamatory tweet or sharing a defamatory Facebook post may also constitute publication of the defamatory material so care […]

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Margin of Error & the Application of s272 of the Property Law Act

There is a common misconception that s272 of the Property Law Act acts to prevent a landowner’s right to sue for actual physical infringement or encroachment of their property boundary when the infringement or encroachment is less than 50mm (50mm where the boundary is less than 40.3m, or 1/500 of the boundary length where it […]

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Same Sex Marriage, Revisited

Same sex marriage, it’s the issue that simply won’t go away. Now that the High Court has ruled, allowing the postal ‘vote’ to go ahead, we’re inching that much closer to closure. One way or another. Though we haven’t yet reviewed the High Court’s decision (coincidentally, its site is down for maintenance), the Court’s decision […]

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Unfair Contract Terms – A recent VCAT case

In November 2016 the protections under the unfair term provisions of the Australian Consumer Law, previously only available to consumers, were extended to apply to small businesses. In a decision handed down on 9 August 2017, Deputy President I. Lulham of the Victorian Civil and Administrative Tribunal (VCAT) held that the contract term in question […]

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Bonnie Doone – A disruption to the serenity (Council’s discontinuance of a Public Road held invalid)

In the recent decision by His Honour Justice Garde in Pulitano Pastoral Pty Ltd v Mansfield Shire Council [2017] VSC 421 (27 July 2017) (Pulitano) His Honour held that the Council’s deregistration decision, insofar as it affected Fridays Lane in Bonnie Doone, and its subsequent discontinuance decision were invalid and of no effect, and should […]

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Stamp Duty & Land Tax Changes – 1 July 2017

STAMP DUTY Spouse/Domestic partner Transfers of Real Estate From 1 July 2017, the stamp duty exemption for transfers between spouses/domestic partners will no longer apply to transfers of investment or commercial properties between spouses/domestic partners. The exemption will still apply for the transfer between spouses/domestic partners of a principal place of residence. The exemption will […]

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Changes to Foreign Resident Capital Gains Withholding Payments

On 9 May 2017 the Federal Government announced proposed changes to the foreign resident capital gains withholding payments (FRCGW) threshold and withholding rate. These changes will apply to contracts entered into on or after 1 July 2017: for real property disposals where the contract price is $750,000 and above (previously $2 million) the FRCGW withholding tax rate will be 12.5% (previously […]

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Restrictive Covenants – Removal or Modification

A restrictive covenant is an agreement restricting the way the covenantor can use his or her land.  Restrictive covenants are usually used as a way to regulate land use and their purpose is aimed at preserving the value, character and amenity of the land. Examples of restrictive covenants include: limiting the number of dwellings, limiting […]

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Stepchild – Will Challenges

In the case of Bail v Scott-Mackenzie [2016] VSC 563 Associate Justice Derham confirmed that a “stepchild” is eligible to challenge a Will under the 2015 amendments to the Administration and Probate Act 1958 (“the Act”) where that stepchild is a child of a deceased’s former domestic partner.  His Honour also confirmed that a child […]

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The Gift of Life – Organ Donation

Although not necessary, you can include a clause in your Will expressing your wish to donate your organs, but to ensure that your wish can be ascertained by authorised medical staff at the time of your death you should record your donation decision on the National Organ Donor Register (AODR). You should also discuss your […]

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PPSR – Personal Property Securities Register

A failure to register your security interests on the Personal Property Securities Register (PPSR) could prove to be a costly mistake.  What is the PPSR? The Personal Property Securities Act 2009 (Cth) (PPSA) introduced a single national personal properties security register (PPSR) in 2012 for all debtors, all security interests, all types of personal property. […]

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Partnership, Shareholder & Unitholder Agreements

Should you have a Shareholder or Partnership Agreement?   The answer is probably yes.  A partnership is an association of persons carrying on a business in common with a view of profit.  A shareholder is a person who owns shares in a company, and a unit holder is a person holding units in a unit trust.  […]

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Intellectual Property issues arising when buying or selling a business

When buying or selling a business it is important not to overlook the intellectual property aspects of the transaction.  For the vendor, proper analysis of intellectual property rights can ensure that the business is properly valued.  For the purchaser, it is crucial to ensure that all intellectual property assets that the purchaser wishes to acquire […]

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New Small Business Unfair Contract Term Regime

Are you ready for the new regime?  If you are a small business, or deal with small business you need to be on top of the changes being introduced by the Unfair Contract Terms laws commencing on 12 November 2016.  The changes will extend protections now only afforded to consumer contracts to small business contracts. […]

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Challenges to Wills – First Case Decided Since Extensive Changes to the Administration and Probate Act

Brimelow v Alampi [2016] VSC 135 (8 April 2016) was a claim by an adult daughter against her mother’s estate for whom the deceased made no provision.  Whilst the defendant had conceded that the deceased did in fact owe her daughter a moral duty and was therefore entitled to receive provision from the deceased’s estate […]

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Road to Nowhere

The question before the Court in Anderson v City of Stonnington [2016] VSC 374 (“Anderson v Stonnington”) was whether the laneway in question was a road within the meaning of the Local Government Act 1989 (“LG Act”), the Road Management Act 2004 (“RM Act”) or a highway pursuant to the common law.  The Court determined […]

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Foreign Resident Capital Gains Withholding Payments

The new withholding regime applies to contracts entered into on or after 1 July 2016. The regime imposes an obligation on a purchaser who purchases certain types of Australian assets with a market value of at least $2 million from foreign residents to collect and remit 10% of the purchase price to the Australian Taxation […]

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Challenges to Wills

The Administration and Probate Act 1958 allows an eligible person to apply for additional provision to be made for them from the estate of the deceased where the deceased’s Will does not adequately provide for them. The Act uses a list-based approach, listing those who are eligible to apply. From 1 January 2015, the list […]

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Fencing Disputes

New fencing laws came into operation in September 2014; the Fences Amendment Act 2014 (Vic) (“FAA”) updated and amended the Fences Act 1968.  The main changes made by the FAA are: One simplified process for all fencing and subsidiary work involving the construction of a new dividing fence or the repair of an existing dividing […]

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General Law Land

General Law Land  In Victoria, General Law Land (also known as Old Law Land or “NUA” Land (Not under the Act)) is land that has not been brought under the operation of the Transfer of Land Act (TLA). Since 1999 it has been compulsory to bring land under the TLA on transaction (e.g. on the […]

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Superannuation – Binding Nominations

Superannuation Death Benefits – you can’t just nominate anyone Your ‘death benefit’ includes the money in the your superannuation account at the time of death plus any life insurance cover you have through your super fund. Death benefits are not estate assets and therefore you generally cannot deal with your death benefits in your Will.  […]

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Data Retention Laws

What is Metadata? Metadata is data that describes other data. So, for example, the Metadata relating to a telephone call would include information related to that call – date and time of the call, duration, telephone numbers of both parties, approximate locations of the parties, and then like – but not the actual voices themselves. […]

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Power of Attorney Law Change

The Powers of Attorney Act 2014 (“the New Act”) will commence on 1 September 2015, after which powers of attorney appointments must be made under the New Act. A Power of Attorney is a legal document pursuant to which a person (“the Principal”), who has capacity to make decisions and take action, may appoint another […]

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Same Sex Marriage

What’s the issue?  As the law presently stands in Australia, persons of the same gender are not able to marry.  That is, the definition of marriage explicitly excludes persons of the same gender. What does the law say? “Marriage” is defined in the Marriage Act 1961 (Cth) (“the Act”), a Commonwealth act of parliament, last […]

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