Publications | 23 March 2021

Stop! Electronic execution pursuant to the Corporations Act 2001 (Cth) no longer permitted

On 21 March 2021, the temporary measures arising from the Corporations (Coronavirus Economic Response) Determination (No. 3) 2020 (“Determination”) expired, which Determination had enabled the electronic execution of documents under section 127 of the Corporations Act 2001 (Cth) (“Act”).

Extension of the temporary measures

The Treasury Laws Amendment (2021 Measures No. 1) Bill 2021 (“Bill”) sought to extend and expand the measures of the Determination until 16 September 2021, but the Bill could not be passed, meaning that the statutory assumptions afforded under the Act are not available for documents that have been executed by companies electronically.

However, the validity of any documents that had been executed in reliance on the Determination up to and including 21 March 2021 will not be affected by the expiration of the temporary measures.

Whilst States and Territories had enacted their own temporary measures for electronic execution of documents, those measures are not uniform, only relate to certain documents, and do not attract the protection of statutory assumption under the Act.

Reforms

From 26 April 2021 in Victoria, permanent reforms provided by the Justice Legislation Amendment (System Enhancements and Other Matters) Bill 2021 will be available to permit witnessing by audio-visual link, executing deeds electronically, and executing mortgages in Victoria electronically.

For now, we suggest that, if you intend to execute any documents pursuant to section 127 of the Act, you ensure that they are to be signed by wet ink signature only.

Should you wish to discuss any aspect of these changes, please do not hesitate to contact us on 1300 653 189 or visit us at madisonbranson.com.

Publications | 23 June 2020

National minimum wage set to increase on 1 July 2020

On 19 June 2020, the Fair Work Commission (“Commission”) decided to increase the national minimum wage (“NMW”) from 1 July 2020 by 1.75%, which sees the NMW raised to $753.80 per week ($19.84 per hour). A copy of the Commission’s decision (“Decision”) can be found here.

The increase will be applicable to modern awards, but the Commission has determined to apply a staggered approach to implement the increase across each of the awards. In order for this to happen, the Commission has organised the awards into three groups according to the severity by which industries have been affected by COVID-19. With Group 1 being less impacted and Group 3 being the most impacted on a scale.

The changes to each Group will occur as follows:

• Group 1 – 1 July 2020;

• Group 2 – 1 November 2020; and

• Group 3 – 1 February 2021.

A list of each of the Modern Awards for each group can be found between pages 115 & 122 of the Decision.

Employers and employees should be mindful of the changes, given the imminent effects.

For more information on how the Decision affects you, or to arrange an employment compliance health check, do not hesitate to contact Madison Branson Lawyers on 1300 653 189 or info@madisonbranson.com.

Publications | 18 MaY 2020

Update your Wills and Powers of Attorney now – New Victorian regulations allow electronic signatures and witnessing of documents by audio-visual link

On 12 May 2020, the Victorian Government enacted the COVID–19 Omnibus (Emergency Measures) (Electronic Signing and Witnessing) Regulations 2020 (“Regulations”) to facilitate the execution of certain documents electronically, and to allow the witnessing of the signing of documents to occur by audio-visual link, such as deeds, mortgages, statutory declarations, powers of attorney and wills.

The Regulations, which are temporary[1]:

1. modify the Electronic Transactions (Victoria) Act 2000 (“Act”) to permit deeds and mortgages to be executed electronically;
2. permit splitting executions of transactions under the Act, by allowing signatures to appear on separate copies of the same document;
3. make valid the use of an audio-visual link to enable:
   • witnessing transactions under the Act[2];
   • making statutory declarations, including the witnessing of and assisting with the making of a statutory declaration under the Oaths and Affirmations Act 2018 (Vic);
   • executing and witnessing the execution of powers of attorney under the Powers of Attorney Act 2014 (Vic); and
   • executing and witnessing a will the Wills Act 1997 (Vic).

To assist you, we’ve updated our price guide by discounting the prices for wills and powers of attorney:

Take advantage of these offers today and contact Madison Branson Lawyers on 1300 653 189 or info@madisonbranson.com.

[1] The Regulations will expire on 24 October 2020

[2] For example, a witness can now observe a person sign a document or confirm a person’s identity over audio-visual link

[3] All prices are inclusive of GST

Publications | 15 OCTOBER 2019

Revocation orders made under the Proceeds of Crime Act 2002 (Cth)

A restraining order1, which has been made under the Proceeds of Crime Act 2002 (Cth) (“POCA”), prohibits the disposal of, or dealing with, property that is the subject of that order.

There are some ways to overcome a restraining order, such as by applying to revoke a restraining order and/or by applying to exclude property from a restraining order (the most common).

Section 42(1) of the POCA provides that a person who was not notified of the application for a restraining order may apply to the court to revoke the order.

Proceedings brought under s 42 of the Act are effectively “strike-out” proceedings heard after the restraining orders are first made and before the matter proceeds any further.

The time within which to apply to revoke a restraining order is limited to 28 days from receiving notice of the restraining order.

It is possible to extend the time within which to apply for a revocation order (to a period not exceeding 3 months) provided that the application to extend time is also made within 28 days after the person is notified of the restraining order.

Pursuant to section 42(5) of the POCA, the Court may revoke the restraining order if satisfied that:

1. There are no grounds on which to make the order at the time of considering the application to revoke the order; or
2. It is otherwise in the interests of justice to do so.

Revocation orders are notoriously difficult to obtain. As such, applications of this kind are rarely made.

In DPP (Cth) v Tan [2003] NSWSC 717, Shaw J stated that (at [14]):

This is a tough test for the applicant to meet. It seems to me to mean there must be literally no grounds for the foundation of the order for it to be revoked.

The difficulty arising from a revocation application is enlivened by the statutory basis for a Court to make a restraining order, which is low.

Applications for restraining orders, in almost all circumstances, rely on a suspicion as to a certain set of circumstances as the basis for seeking a restraining order. If those suspicions are made on reasonable grounds, there is no discretion, the Court must make a restraining order.

In The Commissioner of Australian Federal Police v Tjongosutiono [2018] NSWSC 48, dealing with an application for a revocation order (which was dismissed), N Adams J stated that (between [107] and [108]):

The meaning of “suspicion” in this context is well established. In George v Rockett (1990) 170 CLR 104; [1990] HCA 26, the High Court approved the definition of “suspicion” given by Lord Devine in Hussien v Chong Fook Kam [1970] AC 942 at 948-949 as follows:

“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: “I suspect but I cannot prove.” Suspicion arises at or near the starting point of an investigation of which the obtaining of prima facie proof is the end. When such proof has been obtained, the police case is complete; it is ready for trial and passes on to its next stage. It is indeed desirable as a general rule that an arrest should not be made until the case is complete.

But if arrest before that were forbidden, it would seriously hamper the police….

Their Lordships have not found any English authority in which reasonable suspicion has been equated with prima facie proof.
Suspicion can take into account matters that could not be put in evidence at all… Suspicion can take into account also matters which, though admissible, could not form part of a prima facie case.”

Therefore, to establish that there were no grounds for a restraining order, an applicant for a revocation application must establish that there are no grounds at all for the relevant suspicion.

Up until recently, there were no reported judgments in which an application to revoke a restraining order was made on the basis that it was in the interests of justice to do so.

The POCA was amended by the Crimes Legislation (Serious and Organised Crime) Act 2010 (Cth), which included amendments to section 42(5) to provide an additional ground upon which a Court might revoke a restraining order by providing that a Court may do so if satisfied that it is in the interests of justice.

As Martin CJ observed in Director of Public Prosecutions (Cth) v Kamal (2011) 248 FLR 64; [2011] WASCA 55 at [44]:

Given that these amendments were made following the decision in International Finance, it is reasonable to infer that the amendment to s 42 was made in response to that decision and, in particular, to address concerns expressed by some of the majority justices in that case relating to the lack of any facility to enforce the obligation to make full disclosure when proceeding ex parte in the CAR Act. The breadth of the power of revocation provided by the amendment would be sufficient to empower a court to revoke a restraining order because of the DPP’s failure to comply with the obligation of full disclosure.

What qualifies as “in the interests of justice” is wide, but not clear. What stands out from the decision in Kamal is that misstatements made, or the failure to make full disclosure, in an ex parte application for a restraining order could give rise to a revocation order under section 42(5)(b) of the POCA.

It is to be accepted that the statutory language of s 42(5)(b) of the Act does not limit the scope of the subsection to circumstances in which there has been non-disclosure, but the lack of any case in which it has ever been applied means there is little guidance as to in what other circumstances it could be applied beyond the terms of the provision in its statutory context, having regard to the Act’s objects5.

If you are affected by a restraining order, it is imperative that you seek legal advice urgently. As specialists in this area, Madison Branson Lawyers can assist you. For further information, do not hesitate to contact Mr Simon Tsapepas T: 03 8862 6329, E: s@madisonbranson.com, W: www.madisonbranson.com.

Publications | 14 OCTOBER 2019

National minimum wage set to increase on 1 July 2020

In an important update for estate agents, on 19 April 2018, in Advisory Services Pty Ltd (t/a Ray White St Albans) v Augustin & Anor [2018] VSCA 95, the Supreme Court of Victoria (Court of Appeal) found that an estate agent was not entitled to claim commission on the basis that the agent’s authority did not follow the wording pursuant to the Estate Agents Act 1980 (Vic) (“Act”).

Background

Augustin was the owner of the property situated at 382 Greens Road, Keysborough (“Property”), who had an exclusive sale authority signed on her behalf to engage Advisory Services Pty Ltd (trading as Ray White St Albans) (“Advisory”) for the sale of the Property.

The Property sold, but the purchaser defaulted under the contract of sale. Subsequently, a new estate agent was engaged and, when the Property was sold once more, Advisory asserted that it was during the period of its exclusive sale authority. Accordingly, it sued for commission arising from both sales in the sum of $385,000.00.

The trial judge found that the authority was unenforceable. It followed that Advisory was not entitled to the commission.

On appeal, the decision was upheld. The Court of Appeal decided that a statement that an agent will not retain any rebate was different to a statement that an agent is not entitled to retain any rebate. 

What does this mean for estate agents and commission? Pursuant to section 49A of the Act, an estate agent’s engagement or appointment (usually referred to as an authority) must contain a “rebate statement”, which is:

·        in a form approved by the Director of Consumer Affairs (“Director”); and
·        states that an agent is not entitled to retain any rebate and must not charge the client an amount of for any expenses more than the cost of those expenses.

If estate agents have been using an REIV authority, or an authority containing a rebate statement in the form provided by the Director, then those authorities do not comply with the Act.

The consequences are severe because, if the authority does not contain a rebate statement that complies with the Act, the client is not liable to pay the commission, fees, or outgoings to the agent, and any commissions, fees, or outgoings paid to the agent over the last six years (when a defective rebate statement was included in the authority) may be recoverable by the agent’s client(s).

Other impacts?

Agents may be entitled to indemnification from REIV and/or the Director if their authorities contain defective statements. If so, liability could be extremely costly. Ultimately, it is up to the Victorian Parliament to provide a legislative change to fix this problem. It will be particularly interesting to see what happens in the coming months.

What should agents do?

Estate agents must review their engagements and authorities and to ensure that they comply with the Act. In other words, estate agents should remove any rebate statement provided by the REIV or the Director. If they are not sure, they should seek legal advice urgently.

Madison Branson Lawyers can assist.

Obviously, agents should think twice before taking legal action to recover commission, fees or outgoings pursuant to an authority that contains a defective statement, so long as the issue has not been corrected by legislation.

An agent who wishes to enforce a claim for commission, fees or outgoings when he has an authority with a defective rebate statement may be best served by deferring the action in respect of its claim to a later date.

However, if an agent receives a claim from a client in relation to a refund of commission, as a consequence of a non-compliant rebate statement, the agent should contact their insurer immediately, and otherwise oppose the claim and seek legal advice.

What should landowners do?

If you are a landowner and you have signed an agent’s authority, you should check to see whether the rebate statement complies with the Act. If the authority contains a defective rebate statement, the agent may not be entitled to payment, or you may be entitled to a repayment by the agent.

If you are not sure, seek legal advice. Madison Branson Lawyers can assist you.

For more information, or if you would like us to review an agent’s authority, please contact:
Simon Tsapepas (Director) T: 1300 653 189, E: s@madisonbranson.com, W: madisonbranson.com

Publications | 1 JULY 2019

Restraining orders made under the Proceeds of Crime Act 2002 (Cth)

The Proceeds of Crime Act 2002 (Cth) (“POCA”) is complex legislation and is often described by judges as draconian. Its principal objects are designed to deprive persons of the proceeds of offences, the instruments of offences, and benefits derived from offences, against the laws of the Commonwealth or the non-governing Territories. Other principal objects include depriving persons of unexplained wealth amounts that the person cannot satisfy a Court were not derived from certain offences, and punishing and deterring persons from committing offences.

To achieve this, the POCA sets out a scheme to confiscate proceeds of crime and includes freezing orders, restraining orders, forfeiture orders and pecuniary penalty orders.

Restraining orders prohibit the disposal of, or dealing with, property and are often obtained ex parte, meaning that there will be no notice of the application for the restraining order until after the order is made. This is so to avoid dissipation of the property before any order could be made if notice of the application were to be given. Other than to prevent the dealings with the property, the function of a restraining order is to make the property available for forfeiture.

There are five types of restraining orders under the POCA. They can be obtained pursuant to:
1. section 17 on the basis that a person has been convicted of, or has been charged with, an indictable offence , or it is proposed that he or she be charged with an indictable offence;
2. section 18 on the basis that there are reasonable grounds to suspect that a person has committed a serious offence ;
3. section 19 on the basis that there are reasonable grounds to suspect that the property is:
(a) the proceeds of a terrorism offence or any other indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or
(b) an instrument of a serious offence.
4. section 20 on the basis that there are reasonable grounds to suspect that a person has committed an indictable offence or a foreign indicatable offence, and that the person has derived literary proceeds in relation to the offence ;
5. section 20A on the basis that there are reasonable grounds to suspect that a person’s total wealth exceeds the value of the person’s wealth that was lawfully acquired.

The most common restraining orders are granted pursuant to sections 17, 18 and 19 of the POCA. There are strict time limitations which, if not observed, can result in property being irretrievably forfeited to the Commonwealth.

Accordingly, if you are affected by a restraining order, it is imperative that you seek legal advice urgently. As specialists in this area, Madison Branson Lawyers can assist you. For further information, do not hesitate to contact Mr Simon Tsapepas T: 03 8862 6329, E: s@madisonbranson.com, W: www.madisonbranson.com

[1] Indictable offence means an offence against a law of the Commonwealth, or a non-governing Territory, that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances)
[1] Serious offence has an expansive definition. See section 338 of the POCA
[1] Property is an instrument of an offence if:
(a)    The property is used in, or in connection with, the commission of an offence; or
(b)    The property is intended to be used in, or in connection with, the commission of an offence, whether the property is situated within or outside Australia

[1] Literary proceeds means any benefit that a person derives from the commercial exploitation of:
(a)    the person’s notoriety resulting, directly or indirectly, from the person committing an indictable offence or a foreign indictable offence; or
(b)    the notoriety of another person, involved in the commission of that offence, resulting from the first-mentioned person committing that offence

[1] In DPP (Cth) v Corby [2007] QCA 58, a restraining order was granted in relation to any payments to be made by Pan Macmillan Australia Pty Ltd to a number of persons (including Schapelle Corby) arising from the publication of a book “My Story — SCHAPELLE CORBY with Kathryn Bonella”