Miriam Klein Ovink

Motor vehicle duty – An invalid State tax: Last week’s Victorian State Budget showed taxation revenue of $36.9bn was raised in the 2023-24 year – of this $1.36bn was raised by Victoria through “duty on vehicle registrations and transfers”. Motor vehicle duty, which is imposed by Chapter 9 of the Duties Act 2000 (and is also imposed by other States and Territories in relevantly similar legislation) is, in my view, clearly unconstitutional in light of the majority High Court judgment in Vanderstock. It is therefore very surprising to see the States and Territories continue to impose this tax. This State/Territory tax could only be(come) valid if the High Court were to overturn the majority judgment in Vanderstock (which is unlikely in the near future).

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A comprehensive reform within the legal sector is urgently needed, not only in the restoration of fees for criminal defence lawyers but an entire system which is burdened by outdated practices and structures that hinder progress and efficiency.  The continuous opposition from the Bar Council and the Law Society, both of which dominate training, education, and certification while also regulating the profession, hinders progress and efficiency within the legal sector as discussed in a recent @businessposthq article below. They provide support and advocacy to their members, only at their convenience further obstructing the much-needed reforms. By modernising the profession and opening competition we can ensure that it meets the demands of contemporary society and provides fair opportunities and compensation for all members. https://lnkd.in/e-Mwiy8V #ReformLegalSector #LegalAid #CriminalLaw #Barristers #Solicitor #law #reform

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The ACT Government is supporting more Canberrans to buy a home by extending a range of stamp duty concessions and exemptions in the 2024/25 Territory Budget. This includes expanding the Home Buyer Concession Scheme from this month, so more people are eligible for a full stamp duty concession on the first $1 million of property value. The Government has also temporarily expanded the stamp duty concession for off-the-plan unit-titled apartments and townhouses to include properties valued up to $1 million in 2024-25. This is an increase from the previous value of $800,000. These are among a range of new and expanded measures to further support Canberrans to find a home that suits their needs. Find out more: https://bit.ly/3XwBdYI

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Did you know the Fair Work Commission is considering inserting a working from home provision in the Clerks Award? 👨‍🎓 On 13 September, the Commission has invited any interested party to make submissions on what the Commission should consider when figuring out whether a working from home provision is a good idea, and if so, what matters the provision should deal with (e.g. how the interaction between such a provision and existing provisions dealing with the spread of ordinary hours, maximum hours per day, breaks, overtime, and the new right to disconnect). This process is important because a term that is developed for the Clerks Award may be used as a model term for incorporation in other awards. A working from home term in modern awards may seem scary for some, but could also present an opportunity to dismantle some of the obstacles that awards pose to flexible work (e.g. rigid start and finish times and overtime requirements). What do you think? 😎 #employment #law #HR

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Family Law Property Settlement FAQ. Read more here: https://bit.ly/3XspFWa #familylaw #separation #divorce #propertysettlement

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Can an external administrator be remunerated out of funds held in a project trust account (PTA)/Retention Trust Account (RTA) established under the Building Industry Fairness (Security of Payment) Act 2017 (Qld) (BIF Act)? On Tuesday this week, the Queensland Supreme Court delivered a judgment on this point that is of considerable significance to insolvency practitioners who accept appointments to building companies in Queensland. In short, the Court determined that the options/pathway for external administrators to be remunerated out of funds held in a PTA/RTA are/is very limited. Specifically, the Court found: 1. on its proper construction, the BIF Act excludes a trustee from exercising any right of indemnity under equitable principles or the application of the Court’s inherent jurisdiction in equity to provide for remuneration of a trustee; 2. the reference to “trustee” in ss 51C and 51E of the BIF Act (which prohibits a trustee of a PTA/RTA from recovering costs incurred for administering the account) is not confined to the head building contractor and extends to the administrators and liquidators administering the trust; and 3. regardless, the liquidator or administrator would be a creditor of the trustee, and therefore precluded from claiming its remuneration, costs and expenses by s 51A(1) of the BIF Act (which says that funds in a PTA/RTA can’t be used to recover a debt owed to a creditor of the trustee). Separately and otherwise, the Court noted it may be open for an administrator or liquidator to seek remuneration out of funds held in a PTA/RTA on a Universal Distributing/Berkeley Applegate basis, or at least that the BIF Act did not extinguish or prohibit remuneration from being sought in that way. It also held it may be possible to appoint a receiver and manager to administer the PTA/RTA. A timely and important decision following on from the excellent coverage of this issue at the Queensland ARITA Young Professionals Committee panel discussion a few weeks ago, with Chris Cook, Scott Guthrie and Matthew Hudson. Matt has put up a post about this too, which you should read if this topic is of interest to you. There’s a copy of the judgment below, and a link in the comments.

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7 insolvency/corporations/PPSA cases from the past 7(ish) days, and the reasons they’re worth checking out, in 7 or fewer words.    1. In the matter of Qenos Pty Ltd (administrators appointed) [2024] NSWSC 483: Old PPS Lease provisions might be relevant. 2. Woodhouse, in the matter of Panoramic Resources Limited [2024] FCA 449: proper construction of a specific security deed. 3. In the Matter of Riverina Solar Pty Ltd [2024] NSWSC 480: service of 459G documents electronically under SEPA. 4. Cycliq Group Limited v Cycliq Research & Development (HK) Limited [2024] WASC 150: Contractual construction questions in statutory demand cases. 5. Australian Securities and Investments Commission v BPS Financial Pty Ltd [2024] FCA 45: partial success for ASIC in cryptocurrency proceedings. 6. In the matter of Pacific Plumbing Group Pty Limited (in liquidation) [2024] NSWSC 525: further consideration of third party unfair preferences. 7. Kirkalocka Gold SPV Pty Ltd (Receivers and Managers Appointed) v Zenith Pacific (KLK) Pty Ltd, in the matter of Kirkalocka Gold SPV Pty Ltd [2024] FCA 428: analysis of the meaning of “security interest”.    If anyone else felt like their week blew up in the last week, that’s something you would have in common with the commercial Courts, and with me too!    If you are interested in any of the judgments, you can access them using the links in the comments.

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Family Law General FAQ. Read more here: https://bit.ly/4dMCbFL #familylaw #separation #divorce

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Superb insights from our public law expert Mothla Majeed and the meticulous Jori Whitfield-Topp about the key points to keep in mind for local authorities when exercising decision-making powers. Thorndon Quay lessons: do not park your consideration of reasonable alternatives! (Ha, ha)

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Clubs across Victoria are rorting a scheme, which aims to offset the financial harm of pokies, by giving an average of 77% of all the ‘community’ grants’ they make to themselves. The rorting means they are not only robbing the community of critical funding but also receiving a tax deduction by doing so. New analysis released by the Alliance for Gambling Reform shows that of all the grants provided by Victorian clubs with poker machines last financial year more than 77% (or $241.7m out of $311.6m) were spent on funding their own operations including staff wages, staff meals, beer gas, venue decorations, security, pay TV subscriptions, accounting, legal fees, council rates, pest control, trophies and prizes for members. “The results show that of the 230 clubs participating in the scheme in 2022/23 - including many RSLs, golf clubs, country clubs and bowls clubs - they granted themselves and their members more than 77% of these benefits and are getting a tax subsidy to boot,” The Alliance for Gambling Reform’s Interim CEO, Martin Thomas, said. TheAge: https://lnkd.in/d4RNQ_rr Media Release: https://lnkd.in/dWWWCadY Melissa Horne #VictoriaPokiesRort #GamblingReform #CommunityFunding

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Before you lodge your tax return, wait for your income statement to be marked as ‘tax ready’. You can find this in ATO online services through myGov or in the ATO app. Tip: if your income statement information is incorrect, make sure to contact your employer first.

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How should claims of privilege over documents produced in a public examination be resolved? A recent Supreme Court of Victoria case gave useful guidance, and summarised the key principles: * the critical question is if the dominant purpose of a communication is for a lawyer to provide legal advice to a client; * the intended use of the document said to be privileged is relevant; * the party claiming privilege bears the onus of establishing it (including the facts needed to demonstrate the required dominant purpose); * the dominant purpose of a communication is the one existing when the document is created; * purpose must be assessed objectively at the time a document is created; * privilege protects communications rather than documents, with the test anchored to the purpose for which the document was created; * the concept of legal advice in the context of advice privilege is broad, and extends to what a party should prudently/sensibly do; * a document can contain multiple communications, parts of which may be privileged - each communication (such as individual emails with a single string/chain) must be assessed; * where non-lawyers are involved in a communication, the key issue remains whether the communication was made for the dominant purpose of a lawyer providing legal advice to a client; and * the Court can inspect the documents over which privilege is claimed to assist it to properly determine if they contain privileged communications. The judgment is lengthy but aside from the good summary of the principles provided numerous examples of how the Court assesses whether particular types of documents are privileged. I’ve included a link to the reasons below.

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In Lehrmann v Network Ten Pty Limited (Expert Evidence) [2023] FCA 1577, the court allowed the late evidence of a forensic lipreader, Mr R, to be filed based on the overarching purpose of the just resolution of disputes according to law, and as quickly, inexpensively, and efficiently as possible. In Lehrmann v Network Ten Pty Limited (Expert Evidence) (No 2) [2023] FCA 1647, Lee J, together with counsel for all parties, entered the witness box to stand behind Mr R so that they could see the evidence in the same manner he had viewed it when preparing the transcript contained in his report. The court held that the evidence is admissible and met the gateway of admissibility under s 79 of the Evidence Act 1995 (Cth). Recently, in Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369, the court eventually did not place weight upon Mr R’s evidence. While Lee J acknowledged that Mr R was “an impressive and accomplished man who did his best to assist the Court”, it was held that there was no need for the court to form definitive views about his evidence. Read our update here: https://lnkd.in/gmDxujpJ #ExpertWitness #LegalEvidence #ExpertsDirect

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