Connect with Us

Agile. Innovative.
Empowered Choices

Resources

Insights

Filter by:

Protect your Business and Register a Trade Mark

Your clients or customers regularly identify or associate your business with its branding, including its business name, logo or slogan. Therefore, whether you are starting a new business or running an established business, it is important that you protect your...

Courts to continue with permanent COVID measures

In a previous update on the Victorian Courts and Tribunals, we considered how disputes will continue to be managed and determined this year as State Government restrictions begin to ease in response to the COVID-19 pandemic. Generally, the Victorian Courts...

New Director Identification Number (DIN)

The objective of a new Director Identification Number (“DIN”) for company directors is to assist with identifying company conduct that involves dummy directors and phoenix transactions.  Recently, the Treasury Laws Amendment Act 2020 (“the Act”) was passed with the aim...

Key issues Tenants should consider in relation to a Commercial Lease

Leases can have significant implications on your business from both an operational and financial perspective. Accordingly, we have considered key issues that tenant’s should contemplate before they sign their lease agreement. 1. Applicability of the retail leasing legislation Commercial leases...

Don’t Miss Out! Protect Your Company! – Temporary Restructuring Relief Until 31 March 2021

The Australian Government implemented temporary restructuring relief in March 2020 as part of its national economic assistance efforts following the global COVID-19 pandemic. The aim was to aid companies so that they could get through the pandemic, keep their operations...

Capacity Considerations – Making those important financial, personal and medical decisions

As we get older, issues that may affect our capacity to make our own financial and personal decisions, such as a diagnosis of an intellectual disability like dementia, become increasingly common. It is safest to plan for such possibilities and...

Managing Assets without an Enduring Power of Attorney

Without an Enduring Power of Attorney, there can be a number of financial and legal implications as a result of the loss of capacity of a partner. Whether suffering personally or watching on as a family member or friend suffers,...

The financial implications of a loss of capacity

Although there are many ways people may lose decision making capacity, dementia is the most common – being the second leading cause of death of Australians.  In 2021, there are an estimated 472,000 Australians living with dementia – around 1...

Heads of Agreement: What you need to know!

What is a Heads of Agreement? A ‘Heads of Agreement’ is a document that is commonly used in pre-contractual negotiations that provides a framework of the proposed terms of an agreement between the parties. It may be used, for example,...

Application of Retail Leases Act 2003 (Vic)

Case Summary – Verraty Pty Ltd v Richmond Football Club Ltd [2020] VSCA 267 The case concerns an appeal from a decision made by Justice Croft in the Victorian Supreme Court The proceeding was heard before 3 Judicial Associates of...

Major Medical Centre Operator’s Failure to Comply with Award Requirements

Idameneo Pty Ltd (Idameneo) (otherwise known as Primary Health Care), a major medical centre operator has been found to have underpaid its employees in the amount of more than $15 million. Further, in late 2018, Idameneo’s parent company, Healius Limited,...

Changes to Director Resignations

In February 2020, the Treasury Laws Amendment (Combating Illegal Phoenixing) Act 2020 (Cth) (Phoenixing Act) was passed by Parliament which introduces amendments to the Corporations Act 2001 (Cth). The Phoenixing Act is aimed at assisting regulators and liquidators to combat...

Extension Announced To Covid-19 Rent Relief Provisions

The State Government has elected to extend COVID-19 rent relief provisions for eligible commercial tenants to 28 March 2021. This sparks welcome relief for tenants that continue to suffer adverse effects of the COVID-19 pandemic on their business but has...

Foreign Investment Reform

The Australian Federal Government has now enacted the Foreign Investment Reform (Protecting Australia’s National Security) Act 2020 (Act), Foreign Investment Reform (Protecting Australia’s National Security) Regulations 2020 and the Foreign Acquisitions and Takeovers Fees Imposition Regulations 2020 (together, the Regulations)...

Covid-19 State Revenue Office Stamp Duty Waiver

In an effort to counteract the negative effect on the economy caused by the Coronavirus pandemic, the Victorian Government has announced a number of new measures to encourage prospective purchasers to buy property, stimulate the market and drive the economy....

Nominations, Land Development and Double Duty

If you are considering purchasing property for the purposes of development and you intend to nominate a purchaser after execution of the Contract of Sale, it is crucial that you make the nomination prior to conducting any ‘land development’. Regularly,...

New Year, New You, New Will?

With the new year now upon us it is common to take stock of the year that has been and look towards the year ahead. This past year has been something no one could have predicted, and while the word...

2020 – The Year Of The Adult Child

As we approach a new year of new estate disputes emerging from the Court, it is interesting to observe the tendency for ‘trends’ in case law.  Looking back on estate challenges in 2020, it could be described as ‘The Year...

The Importance of Being Current – Superannuation Death Benefit Nominations

As the New Year commences, it is a great opportunity to take stock of your affairs and make sure important tasks are complete.  If not already on your list – add “Check Death Benefit Nomination” for your superannuation. For many...

REMINDER – Don’t let your PPSR Registrations Expire!

What is the PPSR? The Personal Property Securities Register (“PPSR“) is the official government database of registered security interests over personal property in Australia. The PPSR is most commonly used by a party to: 1. Register a security interest to...

Litigation & Dispute Resolution Practices & Procedures – COVID-19 Update

As the end of 2020 brought with it an easing of the State Government’s restrictions in response to the COVID-19 pandemic, Victorian Courts and Tribunals started to plan for their 2021 year. So, what will this look like and how...

Henclo Investments Pty Ltd v. MSB Capital Holdings Pty Ltd [2020] VSC 775

In the recent case of Henclo Investments Pty Ltd v. MSB Capital Holdings Pty Ltd [2020] VSC 775, a wind up application was refused by the Supreme Court of Victoria on 25 November 2020 on the basis that an outstanding...

Key Considerations in moving to a Retirement Village

Retirement village contracts are notoriously complex and are governed by different legislation and regulations, depending on the structure. We have put together our top six factors you should consider when looking to reside in a retirement village. 1. Review the...

New Pool and Spa Safety Laws and the Consequences of Non-Compliance

In December 2019, the Victorian government introduced new laws that require private swimming pools and spas to be registered with local councils. Why have the regulations changed? Since the year 2000, the coroner has found that in over 74% of...

Case Study: Mistrina Pty Ltd v Australian Consulting Engineers Pty Ltd [2020] NSWCA 223 – Liability of third party professionals in property development projects

No longer is the liability for a third party professional confined to losses flowing directly from their contractual relationship or dealings with a head contractor. So long as the developer can prove that the misrepresentation was causative of the loss...

Converting Existing Premises or Acquiring and Developing Land into a Medical or Healthcare Practice

Acquiring and developing land into a medical or healthcare practice Are you considering acquiring a new property with the intention to build or substantially renovate a medical or healthcare practice? Or, do you already own a property that you intend...

The Rise of Telehealth During the COVID-19 Pandemic

Due to the threat of COVID-19, in 2020, Australia has seen a rapid growth in the provision of telehealth services in the health care industry. What is telehealth? The Royal Australian College of General Practitioners defines telehealth as “a method...

Changes to the Australian Consumer Law set to expand Consumer Protection

The Federal Government has recently announced changes to how the Australian Consumer Law defines a ‘consumers’ in the legislation. Critically, this means that far more goods sold in Australia must now comply with this consumer protection legislation. The Australian Consumer...

Success at the AAT – VCAT Administration

In our role as VCAT appointed Administrators, we often deal with complex legal issues affecting a Represented Person. This can include complex estate matters, issues of severance of property or Family Law matters. However, earlier in the year our role...

Special Disability Trusts and other Trusts for Vulnerable Beneficiaries

Special Disability Trusts were established in 2006, primarily for the purpose of privately funding a person’s care and accommodation without impacting their eligibility for a Disability Support Pension.  Various changes were made to these trusts between 2008 and 2011, but...

Estate Planning for Vulnerable Beneficiaries

Thinking about your Will may seem hard enough for most of us, but for people who have a child with a disability or other vulnerability, it can be completely overwhelming.  Who will make sure they are not taken advantage of? ...

Amendments to the Retail Leases Act 2003 (Vic) – What does this mean for Landlords?

On 22 September 2020, The Retail Leases Amendment Act 2019 (Vic) (“Amendment Act”) received Royal Assent. The Amendment Act introduces amendments to the Retail Leases Act 2003 (Vic) and the Building Act 1993 (Vic) (“Building Act”) and, as a result,...

The Squeaky Wheel Child

It is not uncommon for people to make Wills providing unequal distributions between adult children. There are many different reasons for doing so, but in most cases there is concern about whether an adult child who has been excluded from...

Adult children’s entitlement to estate for maintenance and support

In the course of estate planning, it is not uncommon for people to have family circumstances giving rise to a desire to gift assets unequally between adult children.  This may be due to an estrangement, or because one child has...

Voting Open for 2020 LIV Council Elections: Vote 1 for Meghan Warren!

We are delighted to share that Meghan Warren has been nominated for a position on the Law Institute of Victoria’s (LIV) Council. Vote 1 here for Meghan Warren for LIV Council Vote Here Voting closes Wednesday 11 November, 5pm Continuing...

The Australian Federal Budget in Health

The 2020-21 Federal Budget was recently announced by the Morrison Government which predicted a $213.7 billion deficit. Treasurer, Josh Frydenberg, described the deficit to be a “monumental task” for Australia. Importantly, the medical and health sector related budget items announced...

Payroll Tax Obligations: Spotlight on Medical & Healthcare Businesses & Providers

Recent High Court Decision The High Court recently supported the judgment delivered in Commissioner of State Revenue v The Optical Superstore Pty Ltd [2019] VSCA 197 under which payroll tax was applied by the Victorian State Revenue Office (“SRO”) on...

Update – Relief from Bankruptcy and Insolvent Trading

In response to the COVID-19 crisis, the Australian Government (“the Government“) introduced the Coronavirus Economic Support Package Omnibus Act 2020 (Cth) back on 24 March 2020 which provides, amongst other things, for the temporary relief to both individuals and businesses...

Flattening the Curve: Why the Law Should Allow for Compulsory Testing in a Pandemic

Burke Feature Article in LIJ! We are pleased to announce that the Law Institute of Victoria’s October feature article, Flattening the Curve: Why the Law Should Allow for Compulsory Testing in a Pandemic, is co-written by Bill O’Shea AM, Stephen...

Taking Action during Lockdown – Check your Will off the ‘to do’ List

In times of uncertainty, a well-known habit to promote wellbeing is to focus our attention on the things we can control, rather than what is happening around us that we cannot. To quote from Steve Maraboli (behavioural scientist and public...

Victorian Government’s Lockdown Recovery Aid: New Business Support Package

Following issues raised by the business in Victoria, Premier Daniel Andrews recently announced a relief package with an aim to improve the State’s economy during the prolonged COVID-19 “lockdown”. Under the package, Victorian businesses will be able to access a...

Farewell Annabel

  It is with immense sadness that we inform you of the unexpected and tragic death of Annabel Viner, special counsel at Burke & Associates Lawyers.   Annabel practised as an environment and planning lawyer for over 25 years.  ...

HomeBuilder Grant Application

The State Government has recently announced a once-off grant known as the ‘Homebuilder Grant’. The Grant is for 25K and is available for owner-occupiers of new homes and substantial renovations to existing homes. We have set out the eligibility requirements...

Sale of Land Act changes – What is a ‘material fact’?

The Sale of Land Amendment Act 2019 (the Act) is in effect from 1 March 2020. Vendors and agents cannot knowingly conceal from a prospective buyer any ‘material facts’ about a property when selling land. The Sale of Land Act...

Risks for Loved Ones with Disabilities – Putting appropriate back-ups in place

So many families of people with disabilities live with the ongoing and overwhelming worry of what will happen to their loved ones when they are no longer able to provide care and advocacy. “What will happen to them when I...

A guide to acquiring land

What is yours is mine – What are the applicable legal principles relating to adverse possession and boundary disputes What is Adverse Possession? Adverse possession is a legal principle that enables the occupier of a piece of land to obtain...

Elder Abuse: What is it and how to prevent it from happening?

What is elder abuse? The World Health Organization defines elder abuse as “a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an...

Signing Wills and Powers of Attorney During Stage 4 Covid-19 Restrictions

Victorians are currently facing significant restrictions which can make the traditional method of signing Wills and Powers of Attorney extremely difficult.  Usually, a will needs to be signed by the testator in the presence of two independent adults (who are...

What is the Business Support Fund and who can access it?

The Business Support Fund has been established to provide grants to small businesses in Victoria that have been impacted by the restrictions imposed by the Victorian Government as a result of the coronavirus (COVID-19). How much is the grant? On...

What Is VCAT Administration?

Emma Dickens from our VCAT Administration Team is joined by Burke and Associates Principal, Rosy Roberts and Consultant, Tony Burke to discuss what VCAT Administration is, and the role lawyers play in the process.

10 things Purchasers need to know about Off-the-plan Contracts of Sale

1. What is an off-the-plan Contract? Where you sign an ‘off-the-plan Contract’, you are purchasing a property that does not yet exist. You may be entering into a contract to acquire vacant land or, to purchase an apartment, townhouse or...

Announcement – Rosy Roberts

We are pleased and excited to announce that Rosy Roberts has been appointed as a director of Burke & Associates Lawyers, joining current directors Meghan Warren and Kristy Muhlhan. Rosy first started at the firm back in 2014 and was...

Advance Care Directives Requirements

An Advanced Care Directive (“ACD”) is a legally binding document that helps an individual express his or her wishes about future medical treatments under the Medical Treatment Planning and Decisions Act 2016. It is important to note that an ACD...

VCAT Administration: Running the Financial Affairs of those in need

Our firm has a long history of being appointed by VCAT as Administrators to assist with the financial and / or personal affairs of persons suffering a disability or incapacity. Consultant to the firm, Anthony Burke and Principal, Rosy Roberts...

Commercial tenancy relief scheme – why you should enter into a deed of variation of lease during COVID-19 to document the terms of your rent relief agreement

Benefits of entering into a Deed of Variation of Lease Certainty: Creates more certainty for the parties, for example making it clear that mandatory obligations contained in the Regulations form part of the Lease and the Lease is so varied...

Mediation During COVID-19

Tony Burke is joined by Burke and Associates Director, Meghan Warren to discuss the impacts COVID-19 is having on Mediation, and the methods Mediators are using to adapt during this period.

Planning, Environment and Development Update – Recent Industry Insights and Changes at VCAT

In our earlier update, we reported on the collaborative work of industry representative bodies, the establishment by the Victorian government of the Building Victoria’s Recovery Taskforce (Taskforce) and the introduction of temporary legislative measures to allow the continuation of planning...

Building & Construction Industry – How the Security of Payment Act can help you during COVID-19

What is the Security of Payment Act 2002 (VIC) (“SOPA”)? Cash flow is an important consideration for any business but particularly so, for businesses in an industry heavily reliant on one another down the contracting chain. SOPA is a legislative...

Subject to Finance Clauses – What’s it all about?

Our clients often assume that a ‘subject to finance’ clause is a standard matter whereby if the purchaser’s finance falls through, the purchaser can end the Contract of Sale. Unfortunately, it is not always as clear cut as this and...

What is a verification of identity?

The ACCC has revealed that Australians lose millions of dollars yearly to identity fraud. As a preventative measure, the Victorian State Government introduced the requirement that legal practitioners take reasonable steps to verify the identity of their clients in certain...

Section 1782: Discovery in the US for Foreign Proceedings

Scope of Section 1782 In the case of Intel Corp. v. Advanced Micro Devices, Inc. (“Intel”) the US Supreme Court clarified the scope of the US’ § 1782 such that there are no implied limitations regarding the Court’s power under...

COVID-19 Commercial tenancy relief scheme – regulations governing the variation of eligible leases in Victoria

The Victorian government was quick to pass new regulations following the introduction of the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) on 24 April 2020 (Act). The detail of the new leasing requirements is contained in the COVID-19 Omnibus (Emergency...

Commercial Leasing Issues and the Mandatory Code During COVID-19

Changes for Landlords and Tenants Tony Burke is joined by Burke and Associates Director, Meghan Warren and Special Counsel, Annabel Viner to discuss some issues facing both landlords and tenants during the Covid-19 Pandemic. Topics covered in this discussion include:...

Expected Trends in International Disputes

The international dispute landscape has undergone significant change in the past year.  Being an integral part of the global economy, it is important for Australian business to consider these changes carefully in moving forward. In this article, we take a...

Amendment of Wills

A Will is more than a simple document recording your last wishes. It is important that the Will is amended from time to time and kept up to date. Consideration of a new Will We suggest that you consider making...

COVID-19 Planning and Development Update – the Building Recovery Taskforce, Courts and Tribunals go Online, Funding for VCAT

Measures to address the implications of the COVID-19 pandemic (COVID-19) have been constantly evolving with government initiatives and legislative changes designed to assist the areas of planning and development and associated industries. In our earlier blog “COVID-19 Planning Law and...

COVID-19 – Commercial Tenancies – legislative implementation of the Mandatory Code of Conduct

The Victorian government passed the COVID-19 Omnibus (Emergency Measures) Bill 2020 (Act), on Thursday 23 April 2020, which includes measures addressing a number of industries and legislative schemes, including commercial tenancies. As noted in our earlier blog ‘COVID-19 Moratorium on...

Planning permit considerations when converting existing premises into a medical or healthcare practice

Planning and Property Development Have you considered acquiring a property with a view to operating a medical or healthcare practice? If you are acquiring a property or intend leasing a premises with a view to operating a medical practice, there...

Residential Zone Guidance: Applying Residential Planning Controls in the Context of Population Growth

Planning practice notes were released in December 2019 by the Department of Environment Land Water and Planning (DELWP) to guide Councils on how to plan for population growth and use the residential zones to implement strategic work. These practice notes...

COVID-19: Relief for Directors

International and domestic governments are currently implementing a range of economic measures in an effort to mitigate the effects of COVID-19. There is no doubt that this virus has had, and will continue to have, an adverse impact on global...

COVID-19 Moratorium on Evictions of Residential and Commercial Tenants and Mandatory Code of Conduct

The effects of the pandemic COVID – 19 are being felt across all sectors and residential as well as commercial tenancies are no exception to that. In a media statement yesterday, the Prime Minister announced that the National Cabinet agreed...

Red Dot Decision Axicom v Melton City Council VCAT planning decision commercial competitor planning merit and maintaining commercial advantage

The recent decision of the Victorian Civil and Administrative Tribunal (VCAT) in Axicom Pty Ltd v Melton City Council (Red Dot) [2020] VCAT 190 (Axicom) provides helpful statements regarding factors to be considered in deciding whether proceedings lack planning merit...

COVID 19 Planning Law and Property Development Implications dated 27 March 2020

Burke & Associates Lawyers remain open providing legal services in planning and property development law.  We are keeping up to date with the implications of COVID-19 for our clients affected by legal planning and property issues. We have adapted our...

Business Succession & Asset Protection

The business structure of any small or medium enterprise (“SMEs”) plays a critical role in successful succession planning.  To the extent possible, the correct business structure should be chosen at the outset, taking into consideration factors such as: implementation and...

Estate Planning and Coronavirus

The World Health Organisation has declared Coronavirus (COVID-19) to be a pandemic with more than 334,981 confirmed cases and over 14,652 deaths around the world as at today. Victoria has reposted 355 cases of COVID-19. The world is facing an unusual medical crisis and...

Providing You With Continued Excellence in Advice and Service: COVID-19

As measures to contain Coronavirus (COVID-19) increase, it is important to us that we provide you with some further information about what we are doing, here at Burke & Associates Lawyers, to ensure our services are maintained effectively, consistently and...

Coronavirus & Your Business: Valuable Tips for Business Owners

What is Coronavirus? It is alleged that Coronavirus was first reported in the Chinese city of Wuhan in December 2019 and was declared as a public health emergency of international concern by the World Health Organisation on 30 January 2020....

Purchaser forfeits deposit due to poor drafting of Contract of Sale

Facts In the recent decision in Namrood v Ebedeh-Ahvazi [2017] NSWCA 310, Mr Ebedeh-Ahvazi (Vendor) undertook earth works on a vacant lot he owned in Sydney. Council took issue and issued various notices requiring the Vendor to cease work and...

Medical Technology in the US

Medical technology (medical devices) consists mainly of instruments, articles, apparatus and machines to be used in medical treatment. Medical devices are used particularly in the prevention, diagnosis and treatment of illness and disease as well as for identifying, assessing, restoring,...

International Arbitration: A Way Forward For Patent Contract Dispute Resolution

With rapidly increasing contract disputes, international arbitration is an effective resolution strategy in the life sciences sector.  Identifying and carefully navigating the legal minefields early is key for professionals and businesses in life sciences when faced with such complex commercial...

5 Things you need to know about the New Foreign Purchaser Stamp Duty Provisions

The Victorian State Revenue Office (SRO) has introduced new provisions broadening the scope of which trusts are considered foreign. This could have serious implications if you are considering acquiring property in Victoria after 1 March 2020 through a discretionary trust. What is...

Melbourne Pathology’s use of ‘My Health Record’ to store patient test results

Melbourne Pathology has commenced uploading pathology results to the ‘My Health Record’ system. The process was recently established by Sullivan Nicolaides Pathology, a subsidiary of Sonic Healthcare. By using this new method of patient record collection, general practitioners can electronically...

Acquiring and developing land into a medical or healthcare practice

Are you considering acquiring a new property with the intention to build a medical or healthcare practice? Taking the first step to develop a medical or allied health practice can be a daunting process. Where do you start? The first...

Australian Contract Termination

In Australia, termination of a contract can be carried out in the following ways: by performance of the parties’ obligations under the contract; by an agreement between the parties that they no longer wish to continue with the contract and...

Tax relief for property owners affected by Victorian bushfires

The Victorian Government recently announced that property owners affected by the bushfires may be entitled to tax reliefs. Land tax If your property was destroyed or substantially damaged, no land tax will be payable for the 2020 assessment year. If...

Melbourne based start-up to personalise health information for patients

HealthAide, a new Melbourne-based health technology firm, is developing a free online resource and tailored email newsletters to provide patients with reliable information on healthcare and health technology. Physiotherapist Barry Nguyen and GP Dr Khurram Akhter (who set up HealthAide...

Australian Association of Practice Management (AAPM) is providing assistance to bushfire affected healthcare practices

The start of the bushfire season has devastated our country and pushed our resources, volunteers, communities and emergency services to the limit. Many hospitals and healthcare practices have been relocated and Australian Medical Assistance Team (AUSMAT) specialists have been deployed...

Patient-centred End-of-Life Care: Victoria Leads Legalisation of Voluntary Assisted Dying in Australia

As Victoria leads in its implementation of voluntary assisted dying (“VAD”) laws, there is considerable political activity and interest in other Australian jurisdictions following suit. With Western Australia currently debating VAD legislation in the Upper House, whether this translates into...

CCTV and Aged Care – Recording & Privacy Issues

Yesterday, our Wills & Estates Associate, Rosy Roberts attended the Aged Care and Elder Law Conference held by the Leo Cussen Institute and presented a paper on CCTV and Aged Care – Recording & Privacy Issues. Please find attached copy of our CCTV...

Enforcement of Foreign Arbitral Awards and the New York Convention: An International Commercial Dispute Resolution Method

International arbitration is an approach to cross-border transactions requiring the use of alternative dispute resolution in the interests of avoiding litigation in court. An arbitration is a legally effective adjudication of a dispute otherwise than by the ordinary procedure of...

Meghan Warren, Principal of Burke & Associates Lawyers and Director of the Law Institute of Victoria attending the American Bar Association’s 2019 Women in Litigation Conference in Chicago

Dually qualified and admitted to practice in Australia and the US, Meghan is pleased to be attending the ABA’s Women in Litigation Conference in Chicago this week. Supporting the Law Institute of Victoria in her Council capacity and Burke & Associates Lawyers’ international...

American Bar Association – A New Dawn for Worldwide International Mediation

The United Nations Convention on International Settlement Agreements Resulting from Mediation – also known as the Singapore Convention on Mediation (“the Singapore Convention”) was held in Singapore on 7 August 2019. To date, 46 countries are signatories to the Singapore Convention...

Production of Evidence in the State of New York, USA

In almost every legal proceeding, it is mandatory that the parties adhere to important rules regarding evidentiary standards. This principle applies to both Australian and United States jurisdictions. In this article, we discuss the types of evidence and rules relevant...

Purchasing or Acquiring a Medical or Healthcare Practice?

To be the best clinician you can be, it is critical that you have the business aspects of providing healthcare in order. In the ever-changing and competitive Australian medical and allied health market, how does your “practice fitness” fare? Take...

Proposed changes to the taxation of testamentary trusts

On 3 October 2019, Treasury released an exposure draft on proposed changes to the taxation of testamentary trusts.  This follows on from the 2018-19 Federal Government budget announcement concerning such changes and the taxation of income distributed to minors through...

Fair Contracts: Termination in Consumer Contracts

Have you ever found yourself in a contract and wondered how you got there? Felt like the agreement was unfair and you didn’t have any power in the situation? Australian Consumer Law regulates unfair contract terms. Recently, the ACCC enforced...

Uncertainty: US Discovery of Evidence in International Commercial Arbitrations

United States power in proceedings all over the world? Section 1782 of the United States Code allows an interested person in a non-US proceeding to request discovery of evidence from a US-based entity for use in a foreign legal proceeding....

Risk Checkers for Preventable Diseases

Risk Checkers for Preventable Diseases A large component of the Australian population falls prey to various common (preventable) diseases which mainly occur as a result of poor lifestyle, obesity and lack of physical exercise. In the interests of that prevention,...

What is PEXA?

In recent years the acronym PEXA has become synonymous with conveyancing and property dealings, but what is it and what does it mean for you? PEXA stands for Property Exchange Australia and was originally formed in 2010 by the Council...

Federal Court discretion in ordering the wind up of a company – relief for unfairly treated director

A recent decision in the Federal Court considers judicial discretion to order the winding up of a company in a situation where it is the only course of relief for an unfairly treated director. The case of Miao v I...

Congratulations Rosy Roberts

We are pleased to announce that Rosy Roberts has been appointed as the Young Lawyer Representative for the Southern Solicitors Law Association. Rosy takes over this appointment from Rebecca Pugh. Burke & Associates Lawyers have a long-standing relationship with the Southern Solicitors...

Health Engine : Security of Patient Data and Reliability of Patient Reviews

Digital platforms such as Health Engine are currently being strictly scrutinised for security breaches and other privacy violations by the Australian Competition and Consumer Commission (“ACCC”). The ACCC has instituted legal action against health IT firm Health Engine on two grounds...

Access to US Located Documents for Australian Legal Proceedings

A party to a legal proceeding outside the United States is now entitled to apply to a US court for the purpose of obtaining evidence to be used in that non-US proceeding. This encompasses both arbitration and court proceedings. Until...

Mould infested property… What are your rights?

There are various protections afforded to tenants when it comes to rentals. The Residential Tenancies Act provides, amongst other things, that a rented premise must be ‘maintained in good repair’. Mould can cause significant health issues and may even make...

Tenant terminates Commercial Lease due to faulty air conditioner

A recent VCAT decision demonstrates the importance of a Landlord complying with its obligations pursuant to a commercial lease and the Retail Leases Act 2003 (Vic). The Facts: Tenant rents retail premises in Melbourne for use as pilates and barre...

New Consumer Contracts Wording Mandated as of 9 June 2019

Are you a business supplying goods and / or services to consumers? Effective as of Sunday 9 June 2019, new mandatory wording to be included in consumer contracts will come into effect. These new requirements aim to: Protect the consumer...

What can I do if I have been left out of a Will?

Dealing with the loss of a loved one is a difficult and emotional experience. It can be so much worse if you then discover you have been left out of their Will or excluded from provision in their Estate.You may...

Do Health Practitioners Have an Obligation to Advise a Third Party if They Have Concerns About a Patient’s Capacity?

Often health practitioners are called upon to provide a formal assessment of a patient’s capacity. This might be to determine whether or not a person has the requisite decision-making capacity to enter into legal documents such as Wills and Powers...

How can Landlords and Tenants Avoid ‘Make Good’ Disputes?

How can Landlords and Tenants Avoid ‘Make Good’ Disputes? Most leases contain what is known as a ‘make good’ clause which will specify what a tenant is obligated to do to the premises at the expiration of the lease or...

Limitations of Pre-Purchase Inspection Reports

Limitations of Pre-Purchase Inspection Report A recent VCAT decision[1] highlights the significant limitations and implications of purchasing a property based on the findings of a pre-purchase inspection report. The Facts 1.      The property was a 100-year-old timber house; 2.      Prior...

Statutory Amendments to Regulate Short Term Letting

On 1 February 2019, the Victorian Government enacted changes to the Owners Corporations Act 2006 by regulating short-stay letting arrangements. The amendments are only concerned with regulating short-stay arrangements that are leases or licenses for up to seven days and six...

Entrepreneurs Programme: Australian Businesses Receive $9.7 million

The Australian Government’s flagship initiative, the Entrepreneurs’ Programme provides assistance to businesses to launch innovative products, processes and services into domestic and international markets through four elements: Commercialisation of novel products, services and processes; Business management by providing access to...

Acting as Attorney? What does that mean? Answers to your most frequently asked questions.

You have agreed to act as an Attorney pursuant to an Enduring Power of Attorney? What does this mean? Our response to some “frequently asked questions” gives some insight into your role: 1. How was I appointed? When does my...

AICD Essential Director Update at Melbourne Convention Centre

Meghan Warren of Burke & Associates Lawyers recently attended the AICD’s Essential Director Update at the Melbourne Convention Centre. The essential update, led by Graham Bradley and Angus Armour, focused on directors’ key duties and responsibilities, key developments in focus,...

Sunset Date Clawback under proposed reforms to Sale of Land Act

Reforms to the Sale of Land Act 1962 may result in sunset clauses in off-the-plan Contracts of Sale being unable to be invoked without a purchaser’s consent or Court order. What is a Sunset Date? The ‘Sunset Date’ is a...

Combustible Cladding: A Resolution in Sight?

Combustible cladding in apartment buildings has caused significant damage globally. In 2017, 72 people died in the Grenfell Tower tragedy in London sparking a global concern regarding the use of combustible cladding. The Building Amendment (Registration of Building Trades and...

Arbitration Related Work Likely to Increase for Australian Lawyers

The volume of work for Australian lawyers is likely to increase due to a recent memorandum of understanding (MoU) signed between the Australian Bar Association (ABA) and Chartered Institute of Arbitrators Australia (CIArb). The initiative looks to give shape to...

A win for Foreign Purchasers of Residential Properties in Victoria

Changes to the Duties Act 2000 – Exemption from the foreign purchaser additional 7% stamp duty effective 1 July 2018 In 2015, the State Revenue Office introduced additional stamp duty of 3% which increased to 7% on 1 July 2017...

New Regime: Can a Contract be Terminated if a Party is Insolvent?

In summary From 1 July 2018, a party to a contract will no longer have an automatic right to terminate that contract if the other party suffers an insolvency event (“Reforms”). An “insolvency event” may include voluntary administration (that is,...

How to Get the Best Deal! Negotiation Tips and Tricks

The classic Hollywood one-liner you will all be familiar with is, “we do not negotiate with terrorists!”. Unfortunately, the reality of that statement means that you have to negotiate with everyone else! In day to day business, negotiation is unavoidable...

Victorian Small Business Commissioner today discusses consequences of the CB Cold Storage decision

In an article published by the Law Institute of Victoria today, the Victorian Small Business Commissioner, Judy O’Connell discusses IMCC Group (Australia) Pty Ltd v CB Cold Storage Pty Ltd (in which we represented the successful tenant) and its consequences...

Business Evaluation – Government Support: Can you benefit?

Under the Federal Government’s Entrepreneurs’ Program, eligible businesses can gain access to a business evaluation action plan written by an independent and skilled business advisor. The action plans are tailored to a business’ specific needs and informs business leaders about...

Countering Illegal Phoenix Activity

Illegal phoenix activity is defined as a step to establish a brand new company to continue operations of an already existing organisation purposely dissolved in order to avoid payment of that organisation’s debts (including taxes, credits and employee benefits). This...

Are you aware of your new obligations under the Privacy Act?

Australian businesses are subject to stringent obligations of compliance under the Privacy Act 1988 (Cth) (‘the Act’). From 23 February of this year, all Australian businesses have a statutory obligation to report any data breach involving personal information to the...

Subdivisions – Know what you are buying!

When purchasing a property that forms part of a lot in either a proposed plan of subdivision (off-the-plan) or registered plan of subdivision, it is important to ask yourself ‘what am I actually buying? The boundaries of a property are...

Attention Owners of Vacant Residential Properties! – More Taxes payable! Vacant Residential Land Tax

The Vacant Residential Property Tax is the first of its kind in Australia and commences on 1 January 2018. It is intended to encourage owners to make their property available for rent or purchase. It is in addition to the...

High Court Says We Were Right All Along!

On 15 December 2017 the High Court of Australia dismissed a landlord’s appeal against a decision in favour of our tenant client in the Court of Appeal in a leading case about retail leasing. Essentially we encouraged our tenant of...

E-Contracts & PEXA

Burke & Associates Lawyers completes a paperless transaction – Electronic Contracts through to Electronic Settlements Burke & Associates Lawyers pride itself in being on the cutting edge with technology and have embraced the technology to digitally exchange Contracts of Sale...

Service Contracts and Application of Payroll Tax – Important Changes

In the very recent decision of JP Property Services Pty Limited v Commissioner of State Revenue, the Court found that contracts entered into for the performance of incidental services to a business do not attract the employee agency payroll rules,...

Foreign Company Online Activity : The Risks Of Litigation

Corporates are subject to increasing risk of being exposed to or otherwise dragged into unnecessary litigation in maintaining the same websites and sharing the same social media points with subsidiary companies based in foreign locations. Technically, these foreign located corporations...

Attention Property Developers – how to get your sales finalised quickly!

We are pleased to announce that the Burke & Associates Lawyers’ property team also has a keen interest in keeping up to date with new and innovative ways to assist in the sale process of off the plan properties, keep...

Handcuffs: Restraints of Trade

When buying a business, it is critical to consider how to protect the worth of your investment. If the previous owner establishes the same business next door then the price you paid for any goodwill in the business is likely...

Court of Appeal Clears Murky Waters on Retail Premises

Business Law Specialist Tony Burke and Lawyer Rosy Roberts of our office appeared today in the Court of Appeal in Melbourne where an appeal by a Landlord against a decision of Supreme Court Justice Croft regarding the meaning of the...

Are Restraint of Trade Clauses Enforceable in Employment Contracts?

The Supreme Court of Victoria again recently considered the issue of whether a post-employment contractual restraint of trade is enforceable. It was held that such restraint of trade provisions will only be justified if they are reasonably necessary to protect an employer’s legitimate...

Are Dispute Resolution Clauses Binding?

It is common practice to include dispute resolution terms in commercial agreements. Such terms provide parties with a road map to follow in the event a dispute arises under the agreement. In a decision of the Supreme Court of Queensland...

GST & Property Developers

The Federal Government has recently announced that it will be targeting property developers to strengthen compliance with the GST law in a radical move to see purchasers remitting GST to the Australian Taxation Office (ATO) as part of the settlement...

The Good Oil on Small Business

When you have been a small business lawyer for decades, when you have run your own small business for decades, when you have helped resolve literally hundreds of small business disputes and when you have helped hundreds of small businesses...

Tenant, Resident or Licensee?

Whilst a lease and a licence may appear to be very similar, there are several key and critical differences from a legal perspective. A lease allows for a proprietary interest in land and a tenant is accordingly entitled to exclusive...

Property Alert – State Government Announcement to spousal and de facto property transfers

The Victorian State Government has announced as part of the Victorian State Budget for 2017/2018 that various measures will be introduced that impact State taxes. One of the measures includes the removal of the stamp duty exemption for transfers of...

Significant Supreme Court Win in Commercial Lease Dispute

In recent days a commercial tenant client was successful in an appeal to the Supreme Court of Victoria against a decision made by a Senior Member in the Retail Leases List at VCAT. On behalf of our client, the tenant...