This Christmas might be the last one before new short-term letting rules apply. 

The NSW Government has announced its policy on short-term lettings and has asked for feedback from the public and industry participants by 16 November 2018. 

Section 12 of the Succession Act 2006 (NSW) provides that a will is revoked by marriage unless that will was made in contemplation of marriage.  Practically, a will made in contemplation of marriage usually contains an express statement to that effect.  This was not the case in the recent Supreme Court case, Re Estate Grant, deceased [2018] NSWSC 1031 and the Court needed to determine whether the testator had made his will in contemplation of marriage.

As advised in our December 2016 Newsletter the Competition and Consumer Act 2010 (Cth) (“the Act”) has been amended to prohibit businesses from imposing excessive credit charge surcharges on consumers.  These amendments came into effect for all businesses on 1 September 2017. 

If you have a customer who is tardy with paying your invoices then you’ll need to be careful you don’t SHOUT when demanding that they pay.  The recent decision of Trenfield v HAG Import Corporation (Australia) Pty Limited (No. 2) in the Queensland District Court involved the question of whether a creditor reasonably suspected that a debtor was insolvent.  The creditor wrote in an email to the debtor that they were unable to pay their debts and in a follow up email the creditor demanded payment “in a much larger font, which I suspect is the email equivalent of shouting”, so said Justice McGill in his judgment.  In this case the shouting email worked against the creditor.

The recent increase in young buyers using funds from mum and dad was sharply in focus in recent NSW Court of Appeal decision which highlighted the importance of parents having a properly written agreement with their children, particularly in the case of marriage breakdowns.  In Chaudhary v Chaudhary [2017] NSWCA 222, a father signed a statutory declaration as part of a bank loan obtained by his son and daughter-in-law stating that the funds he advanced towards the purchase were a gift that would not be recalled.  The father later paid the stamp duty and advanced a further amount, meaning that he advanced over $1.2 million in total as part of the transaction.

Every director of an Australian company will be identified by a number in a Federal Government crack down on “illegal phoenix activity” – the name given to the practice of stripping and transfering assets from one company to another to avoid paying liabilities to creditors.

The purpose of the Director Identification Number (“DIN”), along with other measures, is to enable the Federal Government to identify directors and their relationships between various individuals and entities in order to deter and penalise phoenix activity.

The NSW Government recently released a public paper as a way to provide better regulation of the use of accommodation services like Airbnb and Stayz, which can be viewed here.

Esplins Law Report in July 2016 contained an article by Stephen Rush regarding the new non-resident withholding tax regime.  The regime, in short, provided that whenever a purchaser buys property in Australia for a price of $2 million or more the purchaser must withhold 10% of the purchase price on settlement and immediately pay it to the Australian Taxation Office unless the vendor produces a clearance certificate.  The amount of $2 million was set in place by the Australian Government so that the majority of transactions would be excluded from the regime (i.e. everyday Australians buying property in Australia).  However, from 1 July 2017 the amount of $2 million will reduce to $750,000 which means that the majority transactions, especially in New South Wales, will be subject to the regime.  Additionally, the percentage to be withheld by a purchaser has increased from 10% to 12.5%.

The Corporations Act 2001 (Cth) (“the Act”) imposes strict statutory and fiduciary duties on directors and officers of companies.  The majority of the director’s duties create civil obligations and when breached a civil penalty is imposed.  It is often overlooked that section 184 of the Act creates a criminal offence id a director recklessly or intentionally fails to exercise their directorial powers in good faith or for a proper purpose.  The maximum penalty for contravening section 184 of the Act is 5 years imprisonment or a fine of $360,000 or both.  Criminal proceedings against directors are not as uncommon as people believe, the ASIC’s six-monthly report covering July to December 2016 discloses that as at 1 January 2017 there are 9 criminal actions (and 22 civil actions) against directors and officers which are pending before the court.