SMSF, Family law and new ATO penalties
Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law
When a relationship breaks down and the parties have a SMSF together it is often in both parties’ interests for their SMSF to be wound up, or for one party to roll out of the fund into some other complying Fund. A clean break in such circumstances is generally a good thing.
In negotiating property settlements for clients it occasionally came to light that there were breaches of superannuation legislation which placed the parties at risk of penalty. A SMSF that was declared to be non complying caused great loss of wealth to the parties. Such issues with the ATO therefore needed to be remedied as part of any settlement. Read the rest of this entry »
Powers of Attorney – Be careful who you can trust
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in dispute resolution, litigation and employment law.
The Queensland Court of Appeal recently decided a case (Neilson v Capital Finance Australia Limited & Ors [2014] QCA 139) revolving around the execution of a document under a Power of Attorney. The case demonstrates why it is important to carefully consider who to grant a Power of Attorney to; and to consider whether the Power should be subject to any conditions.
The basic facts of the case were straight forward: Mr Neilson granted a Power of Attorney to Mr Heal. It was unconditional. In 2007 a loan was made to a company that operated, apparently, a café business. The loan was secured by, amongst other things, a guarantee. There were 5 individual guarantors including Mr Heal in his personal capacity and also as the director of another company, Shyfox Pty Limited. Mr Heal also purported to sign a guarantee on behalf of Mr Neilson. Read the rest of this entry »
Making a Will – Don’t forget capital gains tax
by Lana Black
Lana Black is a Solicitor at Mullane & Lindsay and is part of our Commercial & Property Law team.
Often when parents make a will they aim to treat their children equally, however many people often forget to consider the implications of Capital Gains Tax (CGT) when making their will.
Consider the situation where the person making the will (the testator) owns two properties. One property is the testator’s principal place of residence. The other is an investment property acquired after September 1985. The properties are of similar value and the testator decides to leave a property to each of her two children.
The investment property when sold is subject to CGT. If the beneficiary decides to sell that property then he or she is liable for CGT, which is calculated on the increase in the property’s value between the time of purchase and the time of sale. Read the rest of this entry »
‘Double jeopardy’ and extensions of time in employment dispute
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in dispute resolution, litigation and employment law.
The Fair Work Commission (‘FWC’) recently dealt with an interesting jurisdictional question as to whether a worker was permitted to bring an application under Section 365 of the Fair Work Act (‘the Act’) – a section which deals with the dismissal of a worker in contravention of a general protection right (as distinct from an ‘unfair dismissal’ as generally understood, under part 3.2 of the Act).
Fundamentally, the issue being considered was whether a separate application that had already been made by the worker to the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) prevented the general protection dismissal complaint (GPDC) being dealt with by the Commission. Section 725 of the Act provides that a person who has been dismissed must not make an application or a complaint of a kind referred to in ss726 – 732. Without dealing with each of those sections individually, the apparent intent of s725 is that a person who has been dismissed can bring only one action as a result of the dismissal. Read the rest of this entry »
The anti-bullying provisions – Investigations Part 4
Tony Cavanagh is a Director at Mullane & Lindsay in Newcastle and specialises in dispute resolution, litigation and employment law.
I have previously looked at thresholds, exclusions, the FWC’s powers and workplace policies in connection with the anti-bullying legislation that was introduced into the Fair Work Act (‘FWA’) on 1 January 2014. This article looks at aspects of the investigation of complaints.
For the reasons given in Part 3 of this series of articles, complaints really should be investigated. There is too much ‘downside risk’ for employers not to do so. Two issues that can arise with investigations are ensuring they are carried out thoroughly, and being aware that there may be a relationship between a bullying allegation and some other form of workplace claim.
- What are some risks in investigating claims? If an employer has a policy but doesn’t follow it, either the complainant or the alleged perpetrator (or both) might be aggrieved for that reason alone. In a recent Queensland case, a worker who suffered a severe psychological injury due to a workplace bully, in circumstances where the employer did not follow its own policy and there was clear evidence of bullying, was awarded damages of nearly $240,000.00.