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Strata – Electric Vehicle Ready Buildings Grant

The NSW Office of Energy and Climate Change (as part of the Net Zero Plan Stage 1) has introduced a grant with a quota to assist over 125 residential strata apartment buildings in NSW to install electric vehicle (EV) charging infrastructure within their carparks. Applications are now opened.

What this means is that owners corporation apartment residents may be able to charge their electric vehicles at home (within their building) without seeking electric ports elsewhere!

Eligibility Criteria (briefly) [...]  READ MORE →

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Security for Costs: How to not get dragged down by the impecunious Plaintiff

By Eleanor Campbell-Rogers, a Law Clerk of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

‘A successful litigant is entitled to the fruits of their litigation’.

Whilst this might be true, a successful defendant can often be left with a significant legal bill despite a court ordering the plaintiff to pay their costs of the proceeding – winning the battle but losing the war.

Imagine you find yourself as a defendant in proceedings that you never saw coming and which should ultimately never have happened. The plaintiff’s claims may lack merit and have very low prospects of success, but they commenced proceedings against you anyway in a desperate attempt to recover money that they lost as a consequence of their own actions. After all of the hours of stress, sleepless nights, phone calls, meetings, and thousands of dollars of legal fees, you and your legal team emerge from litigation victorious, with the plaintiff to pay your costs of the proceeding – only to find out, the plaintiff has no money, no assets and is unable to pay your legal fees. [...]  READ MORE →

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The Judgment: Is it the end of the Debt Recovery Process?

In DW Fox Tucker Pty Ltd v Morgan [2023] SASCA 11, the Supreme Court of South Australia Court of Appeal allowed an appeal by DW Fox Tucker Pty Ltd (‘the Creditor’) regarding the decision that there was no costs agreement between the Creditor and the director (‘Mr Morgan’) of TS Morgan Developments Pty Ltd (‘the Company’).

Background

The Creditor obtained judgment against Mr Morgan in relation to unpaid legal fees incurred whilst the Creditor was acting for the Company. The Company had gone into voluntary administration in March 2017. However, the judgment was set aside in February 2020. Mr Morgan then sought a declaration that there was no costs agreement between him and the Creditor, and the Court ruled in his favour. However, the Creditor challenged this decision to the Court of Appeal. [...]  READ MORE →

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Australian Institute of Credit Management – Risk Report 2023

By Dylann Brew, Solicitor at Matthews Folbigg Lawyers in our Insolvency, Restructuring and Debt Recovery Group

Credit professionals play a crucial role in any business, ensuring that both the risks of defaulting on contractual obligations are managed, and that payment of goods or services are received in a timely manner. To achieve this, they need to consider the following relevant factors:

  • consumer behaviour and monitoring any changes;
  • changes to relevant legislation and regulations;
  • economic trends and monitoring any changes;
  • anticipated and forecasting future performance of the business.

These factors should be considered by every business to allow informed decisions to be made to mitigate risks. [...]  READ MORE →

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WHS Obligations – Improvement and Prohibition Notices

Improvement Notices

Under the Work Health and Safety Act 2011 (NSW), safety inspectors have a number of powerful tools at their disposal to ensure that employers, workers, and other persons comply with their work health and safety obligations.

A commonly used tool is an “improvement notice”, which is issued to an employer if a safety inspector has a reasonable belief that the employer is contravening or has contravened work health and safety legislation and is likely to do so again.

An improvement notice requires the employer to remedy the contravention or prevent a likely contravention from occurring again, and must include: [...]  READ MORE →

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UPDATE – The New Duty to Act on Psychosocial Risks for NSW Employers

Although employers have always had a duty to eliminate or mitigate health and safety risks in the workplace under work health and safety laws, there was a tendency to treat bullying and other  psychological risks differently to physical risks.

To combat this tendency, in September 2022 the NSW Parliament passed the Work Health and Safety Amendment Regulation 2022 NSW (the Regulation). The Regulation amends and reforms the Work Health and Safety Act 2011 NSW and makes explicit that ‘persons conducting a business or undertaking’ (PCBUs) and employers have a duty to eliminate or minimise psychosocial risks and physical risks in the workplace in the same way. [...]  READ MORE →

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New employment zones are now in effect!

On 26 April 2023, five new employment zones and four supporting zones were introduced into 135 local environment plans (LEPs) across NSW.

The new zones were formally introduced via an amendment to the Standard Instrument (Local Environmental Plans) Order 2006 (SI LEP Order) on 1 December 2021 to repeal the Business () or Industrial (IN) zones. These changes were made in response to the NSW Productivity Commission’s White Paper on Rebooting the Economy, which recommended consolidating employment zones. [...]  READ MORE →

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The Public Spaces (Unattended Property) Act 2021 (NSW) repeals the Impounding Act 1993 (NSW)

The Public Spaces (Unattended Property) Act 2021 (NSW) (PSUP Act) came into force on 1 November 2022 and will repeal the Impounding Act 1993 (NSW) (Impounding Act).

The PSUP Act came about after extensive consultation with key stakeholders such as councils, members of the public, industry groups and government agencies.

The PSUP Act is now the source of regulatory powers for councils to take possession of unattended items found in public spaces. Under the PSUP Act, where property is left unattended in public, those responsible must attend to it within reasonable timeframes, or face enforcement action, including strong penalties. [...]  READ MORE →

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Transferring Proceedings to Another Court

There are a number of reasons why it might be considered desirable to move court proceedings to a different Court.  The subject matter of proceedings may make it more suitable for being heard in a specialized Court, or the location of a party to the proceedings may give rise to questions of convenience.

In the recent case of Perugini v Perugini, Mrs Perugini, who was the plaintiff in the proceedings, by way of summons sought to have the proceedings in the District Court of New South Wales removed to the Supreme Court of New South Wales. Once the proceedings were transferred to the Supreme Court of New South Wales, they were then to be transferred to the Federal Circuit and Family Court of Australia. The plaintiff and the defendant agreed to do anything reasonably necessary to bring about the transfer of proceedings. The Court subsequently granted the request and referenced an array of relevant principles regarding how the courts should assess an application for a transfer of proceedings. [...]  READ MORE →

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Fighting the Rearguard Action – s 459S and Winding Up Applications

By Jacob Reardon a Solicitor of Matthews Folbigg, in our Insolvency, Restructuring and Debt Recovery Group

In an application to wind up a company for failure to comply with a statutory demand, section 459S of the Corporations Act 2001 (Cth) (“the Act”) operates to exclude grounds that a defendant either did rely on, or could have relied on, in an earlier application to set aside a statutory demand.

In the Explanatory Memorandum to the Corporate Law Reform Bill 1992, the stated policy goal of section 459S is to: [...]  READ MORE →

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The House that Estoppel Built?

The full version of this article was originally published in the Lexis Nexis Insolvency Law Bulletin

By Jacob Reardon, solicitor, and Stephen Mullette, Principal, Matthews Folbigg Lawyers

How long does a bankruptcy trustee have to sell a bankrupt’s home? What if the Trustee allows the bankrupt to live in the property, and pay the mortgage, council, and water rates, and repair the property for almost 5 years? Or for 8 years? More? Will the Trustee eventually become estopped from selling the property after such a long period? The answer may surprise. [...]  READ MORE →

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The Importance of Due Diligence in the Acquisition of a Business

By Zeeshaan Nordien, Principal at Matthews Folbigg Lawyers in our Commercial Law Group

Due diligence is an integral step in the acquisition of any business, whether the transaction is an asset purchase or a share purchase.  If done correctly, due diligence helps mitigate the various commercial, financial and legal risks that a purchaser may otherwise be exposed to when acquiring a business.  Due diligence is the process undertaken by the purchaser of a business to perform an assessment of risks and compliance to ensure that the target business is, amongst other things, profitable, compliant with its legal, including contractual, tax and other obligations and operating with appropriate licenses and approvals. [...]  READ MORE →