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Staying in the Game: Permissible Roles and Responsibilities following Bankruptcy

The decision to enter bankruptcy results in a trustee being appointed to manage the process on behalf of the individual. At the time, the bankrupt may also have various roles in business structures separate from their own personal assets and financial arrangements. This session looks at what type of roles a bankrupt may be engaged in and which of those roles they may need to stand down from, including:

• Can you continue as a company director, secretary or shareholder when bankrupt?
• What notifications does ASIC require?
• What if the bankrupt is a director of a corporate trustee for an SMSF?
• Can a bankrupt continue as:
  • an appointor of a trust?
  • a beneficiary of a trust?
  • an individual trustee?
• Who takes over the roles that a bankrupt is forced to retire from?
• What is the effect on the roles, if, as an alternative to bankruptcy, a personal insolvency agreement is entered into?
• What are the penalties for not resigning from roles where required?
• When can a bankrupt resume roles they have resigned from?

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Corporate Insolvency: Fixing a Broken System

In July 2023, the Parliamentary Joint Committee on Corporations and Financial Services released its report into corporate insolvency, ultimately concluding that Australia’s corporate insolvency system is overly complex, difficult to access, unnecessarily expensive and confusing for both debtors and creditors. While these conclusions may not be news for lawyers in the banking and finance sector, the inevitable question that follows is what happens next? This session shall help lawyers consider what may lie on the horizon for their clients by:

• Summarising the interim reforms (low hanging fruit) flagged for immediate reform;
• Discussing the current status of the proposed model credit guidelines and what this means in practice for banks and lending institutions; and
• Providing an update on the implementation plan for reforming the corporate insolvency regime focusing on those aspects of relevance to banks and financial institutions

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Off the Plan Contracts in Queensland: Sealing the Deal and Managing the Risks

The increase of buyers into the Queensland market has focused attention on off the plan contracts and associated risk. This session brings you up to date with recent developments and proposals for greater buyer protection, including:

• Off the plan consumer protections – Review of recent Queensland reforms
• Some key areas to watch:
• ability for vendor to make changes
  • sunset dates
  • Power of Attorney voting rights on body corporate
  • how adjustment to rates and outgoings may be skewed
  • apportionment of land tax on settlement
• Sellers rights of termination under a sunset clause
• The operation of reasonable endeavor clauses in commercial contracts
• Case update

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Split Payments and Deposits Post-Anwar: A Primer for NSW Construction Lawyers

Rising property prices in NSW means more consumers are seeking to effect payment of their deposit via split payments or EFT. While such requests are to be expected and may provide a practical solution, payments made this way can create a legal minefield when it comes to the sale and purchase of real estate – particularly when determining the status of money purporting to be a deposit. This session will look at:

• The legal and practical issues which arise when deposits are paid via EFT and/or split payments
• The enforceability of split payment clauses
• The legalities of what is a deposit and the distinction between deposits and penalties following the recent decision of Retirement Village Bargo Pty Ltd v Anwar [2023] NSWSC 209
• Practical tips to consider when it comes to drafting clauses dealing with the payment of monies for deposits

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For the Love of Money: What Property Lawyers Need to Know About the Windfall Gains Tax (Vic)

From 1 July 2023, a new windfall gains tax applies to land that is subject to a government rezoning resulting in a value uplift to the land of more than $100,000. It is anticipated to have an impact on a significant number of settlements but what exactly is required and what do property lawyers need to be alive to? This session will provide an overview of the new windfall gains tax (WGT) and walk through related issues including:

• How the value of the land will be assessed to determine the taxable value uplift (and the applicable tax rates)
• Rezonings which are excluded from the WGT
• Waivers and available exemptions
• Details for payment of WGT – who, when and how
• The impact WGT may have on CGT and stamp duty
• Steps lawyers can take to address concerns about how WGT may work in practice

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From Go to Woe: Intellectual Property Risks in Sales of Businesses

Purchasing and assigning intellectual property in sale of business transactions can be a fraught exercise and practitioners need to be on top of the issues from the commencement of due diligence to post-contract IP usage. This session will examine the key intellectual property issues in business sales and provide a guide to avoiding common problems, including:

• Context: Business transactions involving IP
• Some fundamentals all commercial lawyers need to understand
• Important considerations in ensuring a proper assignment
• Vendor and purchaser perspectives of an IP due diligence in a sale of business
• Warranties and indemnities: Vendor and purchaser perspectives
• Documents on completion and post completion actions

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Brick by Brick: Lessons from Recent Cases in Building and Construction Law (Vic)

With so much to do, and so little time, it can be difficult to stay on top of relevant case law and legislative developments in your area of practice. To help building and construction lawyers in Victoria keep abreast of legal developments, this session shall focus on the key takeaways that lawyers in this area need to know. In particular, this session shall summarise recent cases of significance including:

• Thurin v Krongold Constructions [2022] VSCA 226 and Vaughan Constructions Pty Ltd v Melb. Water Corp. [2023] VCAT 233 (contribution claim/claim for loss of water)
• Steedman v Greater Western Water Corp. [2023] VCAT 128 (breach of statute, application of limitation period on tribunal decisions and reconciling Lanigan and Osborne J in Ajaimi)
• The Court of Appeal decision in Bensons (proper construction of the prevention principle) and SA decision in Tesseract (apportionment arguments in arbitration)
• The High Court decision in Allianz Insurance v Delor dealing with irrevocable waiver of contractual rights
• May21 Pty Ltd & Building Appeals Board [2023] VSC 203 (calculation of building Permit fees, levies by reference to value of works and what’s ‘in or out’ when determining value for this purpose)
• John Nominees Pty Ltd & Daniel Investments [2022] (when variations must be in writing)

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Design and Building Practitioners Act 2020 (NSW) – Getting To The Next Level Of Detail

Most practitioners by now have a basic understanding of the extension of duty of care introduced by the Design and Building Practitioners Act (DBP Act). However, while many may be across the DBP Act in a general sense, the practical application of the DBP Act is easier said than done and has been fraught with challenges. This session will examine:

• The issues which have arisen in practice from attempts to apply the DBP Act particularly in light of increasing builder insolvencies, including release of liability for breach, and dealing with apportionment
• The intersection of the Act with insolvencies and guidance in relation to who exactly is liable, what is required to discharge that duty, and how far does the duty extend
• Lesser-known sections of the Act and regulations to provide practitioners with a more comprehensive understanding of the issues as a whole including understanding when it does (and does not) apply;
• Solutions (legal and practical) to issues faced in practice and practical application of the Act to particular situations; and
• Relevant case law and legislative development for the Act

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Unfair Contract Terms Regime Reforms: What They Mean For The Finance Sector

The revised unfair contract terms regime commenced operation on 9 November 2023. What the new laws mean for the finance sector and what steps should immediately be taken to ensure compliance are questions that are, or should be, at the forefront of everyone’s mind – particularly considering the potential severity of the penalties that have been introduced and the breadth of capture for the expanded regime. This session will:

• Provide a summary of the new unfair contract terms laws, including which businesses and types of contracts may be caught under the expanded scope of the regime;
• Discuss the anticipated impact on, and flag areas of concern for, participants in the finance sector; and
• Explore practical steps that should be taken to promote compliance with the new laws, including tips for contract and precedent review.

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Planning and Environment Court (QPEC) Case Law and Practice Update

This session examines recent decisions and practice updates impacting Queensland planning and environment practitioners, including:

• Highgate Partners Qld Pty Ltd v Sunshine Coast Regional Council [2021] QPEC 15 – excluded premises
• Vanriet Development P/L V Brisbane City Council [2021] QPEC 17 – challenging infrastructure charges
• Barro Group P/L v Sunshine Coast Regional Council [2021] QPEC 18
• Serratore & Anor v Noosa Shire Council [2021] QPEC 21
• Tricare (Bayview) P/L v Council of the City of old Coast [2021] QPEC 31
• Sevmere P/L v Cairns Regional Council [2021] QPEC 32
• Case study - Are judges more demanding in minor change applications at QPEC?