Canberra Law Firm – BAL Lawyers

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  • Estates Team at BAL

    Doyle’s Guide recognises BAL Lawyers

    BAL Lawyers is delighted to announce that our Estates & Estate Planning Team has again been recognised as a first tier law firm.  The 2020 rankings feature the Team in both categories being a Leading Wills & Estates Litigation Law Firm, and a Leading Wills, Estates & Succession Planning Law Firm.

    Doyle’s Guide is an independent body that publishes rankings predominantly based on peer review and client feedback.

    “Our focus is always the individual needs of our clients and their families, but it is a collegiate practice area and it is good to know our ACT colleagues think we do it well,” Ellen Bradley, a Director in the Team said today.

    A number of our solicitors have also been named individually in the 2020 listings.

    • Keith Bradley AM is recognised in the preeminent category across both Wills & Estates Litigation, and Wills, Estates & Succession Planning;
    • Christine Harvey is recognised in the recommended category across both Wills & Estates Litigation, and Wills, Estates & Succession Planning;
    • Jill McSpedden is recognised in the recommended category for Leading Wills, Estates & Succession Planning Lawyers; and
    • Ellen Bradley is recognised in the recommended category for Leading Wills & Estates Litigation Lawyers.

    Our solicitors assist clients at what is often the most difficult period in their lives.  While a knowledge of the law and its processes are necessary, equally important is empathy and an understanding of family dynamics.

    Estates Team at BAL

    (L-R) Ellen Bradley, Christine Harvey, Keith Bradley AM and Jill McSpedden.

     

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  • Annual General Meeting

    Annual General Meetings in the time of COVID-19

    Annual General Meeting season is here and so it is time to reflect on the achievements of your organisation.  Your AGM is an opportunity for input from members on the organisation’s future and (more practically) appointing/removing directors and approving financial reports.

    Annual General Meetings (AGMs) are a fundamental aspect of running companies, co-operatives, associations and mutuals. For organisations with a financial year ending on 30 June, an AGM must be held by 30 November, and there is every chance your 2020 AGM will not be “business as usual”.  As Australia faces down a second wave of COVID-19 cases, social distancing measures are likely to stay in place for some time. Now is the time to develop a contingency plan to ensure you can achieve quorum and transact business.

    Some organisations will have the ability to manage the notification and holding of an AGM via the use of technology – this is determined largely by their constituting documents (Rules or Constitution). Those organisations that have this ability should start considering now how they will manage this process – investigating available technologies that allow members to really engage in the AGM and ensure notices contain sufficient details on how members can access and use the technology.

    For those organisations whose constituting documents do not provide for the use of technology you will need to start preparations now, although there may be some relief.

    On 6 May 2020, temporary modifications to the Corporations Act 2001 (Cth) took effect providing practical mechanisms for companies and mutuals incorporated under the Corporations Act 2001 (Cth)[1]. The key modifications made by the Determination include:

    • A meeting may be held using one or more technologies to allow people to participate without being physically present. “Participate” includes a requirement that those attending must be able to speak in real time;
    • Persons attending the meeting via technology are taken to be present at the meeting for the purposes of reaching and achieving quorum;
    • Votes at such a meeting must be taken on a poll that allows people to participate in real time or, where practicable, records their vote in advance;
    • A proxy may be appointed using technology specified in the notice to members; and
    • The notice of meeting (and any related information) may be provided to those entitled to receive the notice using one or more technologies. The notice must explain how members are able to vote and ask questions and include any other information they need to know to participate in the meeting.

    These modifications will expire at 11.59pm on 5 November 2020[2].

    For associations, the Associations Incorporation Act 1991 (ACT) has also recently been amended to include a new section 70AA, which:

    • allows a committee to authorise a general meeting to be held using a method of communication, or a combination of methods of communication; and
    • allows members who take part to hear or otherwise know what other members taking part say without being in each other’s presence.[3]

    Members will be taken, for all purposes to be present at the meeting and may vote by proxy. This provision overrides any inconsistency in an association’s rules. Examples of “method of communication” include a phone, satellite or internet link, or in writing.

    For co-operatives, the Co-operatives National Law doesn’t specifically allow for AGMs (or even special general meetings) to be called or held using technology, however the Model Rules (which are often used) do allow for the use of technology when giving notice to members. If your Rules do not contain the right to use technology to give notice or hold a meeting then we recommend you investigate potential venues with the capacity to hold at least a quorum of your members (along with the directors and auditor), detail the social distancing measures you expect from all those attending to protect members, so that you can proceed with your AGM without difficulty. You might also consider proposing amendments to your Rules to allow for the use of technology in the future.

    Despite the temporary modifications to the Corporations Act and the Associations Incorporation Act, an AGM held virtually may still breach members’ rights if the meeting is held in such a way that members are not provided a reasonable opportunity to effectively participate; those rights will still be enforceable at common law.

    If you have any questions about how best to prepare for your upcoming AGM under these new measures, please contact Katie Innes or the Business Team at BAL Lawyers.

    Written by Katie Innes who is grateful for the assistance of Nicole Harrowfield.

    [1] Pursuant to the Corporations (Coronavirus Economic Response) Determination (No. 1) 2020 (Determination).

    [2] Unless the Determination is withdrawn or reissued beforehand.

    [3] This section is only applicable when, due to COVID-19, a state of emergency has been declared under s 156 of the Emergencies Act 2004 or an emergency has been declared under s 119 of the Public Health Act 1997.

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  • Residential tenancies declaration

    Real Estate Alert: Tenants given the right to terminate under new COVID-19 Emergency Response Declaration

    On 22 July 2020, the Residential Tenancies (COVID-19 Emergency Response) Declaration 2020 (No 2) became effective. Wasn’t there already a Declaration you may ask? Well yes, but that has been revoked and replaced (see “(No 2)”) … with little notice. Though in substance the new Declaration substantially reflects the old, the ACT Government has tactfully incorporated a new provision, which we expect landlords in the ACT will take issue with.

    The new Residential Tenancies Declaration extends the moratorium period to 22 October 2020 (and rightly so) and reserves the right for the Minister to extend the moratorium period for a further three (3) months.

    What is surprising is that the Declaration now allows a tenant living in an impacted household, pursuant to a fixed term residential tenancy agreement, to terminate the agreement upon giving the lessor written notice. That notice must:

    • Be for a period of at least three (3) weeks; and
    • Contain evidence that the tenant is a member of an impacted household.

    Where a tenant terminates a residential tenancy agreement in accordance with the new Declaration, the lessor is not entitled to any compensation or break fee payable under the agreement or the Residential Tenancies Act 1997 (ACT). This is the case even where the residential tenancy agreement was signed by the tenant after the commencement of the moratorium period (22 April 2020).

    So what should landlords and/or their managing agent do? Well, fortunately the Declaration does not limit the ‘evidence’ that must be provided by a tenant and it would be prudent for landlords and/or their managing agent to require more than one (1) of the following (also listed as examples in the new Declaration):

    • A statutory declaration attesting to the status of the premises being an ‘impacted household’;
    • Evidence of a household member’s eligibility for the JobKeeper or JobSeeper payment from the Commonwealth;
    • Letter from an employer attesting to a change in a tenant’s employment status; or
    • Evidence of a reduction in household income.

    For further information, please contact the Real Estate Team at BAL Lawyers.

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  • phoenix companies

    Phoenix companies to become a creature of mythology: Introduction of Director Identification Numbers

    “…And, like a phoenix, from the ashes I rise” – Usually this would be an uplifting mantra, unfortunately phoenix companies can leave creditors out of pocket and without a means of redress.  ‘Phoenixing’ is where a company transfers all (or substantially all) of its assets to a new and eerily similar company just before it becomes insolvent (usually as a means of avoiding repaying creditors). This process of company rebirth is, in many cases, illegal[1]. The impact of illicit phoenixing on the Australian economy is colossal, as it is estimated to cost taxpayers between 2.85 billion and 5.13 billion annually.[2]

    After months of preparation, it is no surprise that, on 12 June 2020, the government passed the Treasury Laws Amendment (Registries Modernisation and Other Measures) Bill 2019 (‘The Bill’), part of which was specifically targeted at combatting illicit phoenixing. Schedule Two of the Bill introduces the Director Identification Number (‘DIN’), which is a unique numerical identifier that will be permanently associated with individual directors. It is intended that directors will be more accountable for illicit phoenixing instead of being able to disappear into the ether, hiding behind aliases such as ‘Mickey Mouse’, ‘Homer Simpson’ or simply a different spelling of their true name.

    While it remains unclear when the Bill will come into effect (as the Government is busy tackling Novel Coronavirus-related challenges) – it is likely that this law will be in place sometime in 2021 – 2022. Once this new legislation is in force, existing directors will have a window of 18 months to obtain a DIN and new directors will have a period of 28 days from the day they become a director to apply for a DIN. This new system will be handled by a Registrar who will have the power to register, record, cancel and reissue DINs. Directors will not be able to have multiple DINs, indeed, attempts to procure more than one DIN will be punishable by law.

    Directors of Australian companies have welcomed these new measures; however, they have voiced concerns that this new online registration system may compromise their privacy, especially in light of recent mass data breaches in Australia. Although unauthorised disclosure of this information can result in a maximum penalty of two years imprisonment, there are fears that this will not be a deterrent for international actors.

    Ultimately, the introduction of the DIN is a much-needed reform that will streamline many of ASIC’s nefarious application procedures and will help to prevent illicit phoenixing. If you have any questions or queries about how best to prepare your company for these new measures please contact Riley Berry or the Business Team at BAL Lawyers.

    Written by Riley Berry with the assistance of Claudia Weatherall.

    [1] A legal avenue for saving a business in distress is through the appointment of a Voluntary Administrator.

    [2]https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr6267_ems_add8f0cf-2a89-4082-b432-eb2bc3b2e097%22

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