Jackson McDonald publications


  • 13 May 2015

    ‘Deep pocket’ defendants still liable for the kitchen sink – The High Court limits which claims are ‘apportionable’

    A Ponzi scheme, moral culpability, statutory interpretation and disagreeing Federal Court judges. Those were the ingredients that lead the High Court in Selig v Wealthsure Pty Ltd [2015] HCA 18 (Selig) to consider the proportionate liability regime for just the second time since the legislation was introduced more than 10 years ago.

    The High Court, in an unanimous decision by French CJ, Kiefel, Bell, Gageler and Keane JJ, determined that the only cause of action that is apportionable under the Corporations Act is the civil liability arising from the misleading or deceptive conduct prohibited by s1041H (a general prohibition on misleading or deceptive conduct in relation to a financial product or a financial service, the contravention of which leads to civil liability only).  

    In doing so, the High Court settled a lingering inconsistency between two previous Federal Court decisions.

    Download PDF 38KB

    Author: JC van der Walt

  • 7 May 2015

    PPSA Frontline – Spotlight on PPSA section 44 - serial number registration

    Much is made about registering against the serial numbers of serial numbered property under the Personal Property Securities Act 2009 (Cth).  However, the actual effect of failing to register by serial number or registering against an incorrect serial number is often overlooked.  Serial number is defined to mean a serial number by which the regulations require, or permit, the collateral to be described in a registration. 

    LINK 50KB

    Author: Hilary Hunt

  • 22 April 2015

    Directors and ex-directors of companies held liable to compensate employee for Award underpayments

    The Federal Circuit Court has used the Fair Work Act 2009 (Act) to hold company directors personally liable to pay compensation for Award underpayments to an employee in Roberts v A1Scaffold Group Pty Ltd & Ors [2015] FCCA 422.

    LINK 39KB

    Authors: Renae Harding, Shannon Walker

  • 15 April 2015

    Pastoral Lease Renewal Process – Are you prepared for 1 July 2015?

    The Department of Lands’ lease renewal process is well advanced.  If you hold a pastoral lease (or intend to grant or hold an interest over a new pastoral lease effective from 1 July 2015) and you are not already liaising with the Department, then urgent action is required.

    Download PDF 37KB

    Authors: Ryan Chorley, Hilary Hunt

  • 7 April 2015

    Tax update - maintaining your income tax exempt status special conditions

    On 25 February 2015 the Commissioner of Taxation (Commissioner) released Taxation Ruling TR 2015/1 (TR 2015/1) which provides guidance on some of the special conditions which entities must satisfy in order for their ordinary and statutory income to be exempt from income tax.

    LINK 64KB

    Author: Adam Levin

  • 30 March 2015

    Spotlight on PPSA: liability concerns for receivers and liquidators

    The recent PPSA case of Citadel Financial Corporation Pty Limited v Elite Highrise Services Pty Limited (No 3) [2014] NSWSC 1926 (Citadel) brings to light a liability issue arising for receivers under the PPSA.  In that case, a secured creditor, CML Payroll Pty Limited, appointed receivers and managers (Receivers) over a company.  Two other creditors with prior registrations on the PPSR claimed priority over scaffolding in the possession of the company.   Nevertheless, the Receivers entered into an agreement with a purchaser to sell a substantial portion of that scaffolding.

    LINK 46KB

    Author: Hilary Hunt

  • 26 March 2015

    A new era for retirement villages

    On 24 March 2015 the WA Government gazetted the Retirement Villages Amendment Regulations 2015 (New Regulations) and the Fair Trading (Retirement Villages Code) Regulations 2015 (New Code), effective 1 April 2015.

    Retirement village residence contracts require a significant amount of redrafting to comply with the New Regulations. The provisions in the New Code affect the management and operations of retirement villages and require changes to current practices.

    LINK 39 KB

    Authors: Bianca McGoldrick, Simon Moen

  • 18 March 2015

    General Protections under the Fair Work Act

    The Fair Work Act prohibits employers taking adverse action against employees because they have made a complaint to their employer that relates to their employment.  But what is a complaint in relation to their employment? Will all workplace complaints made by an employee fall within this protection? In what circumstances could an employer be accused of taking unlawful action against their employee because the employee made a complaint?

    LINK 42 KB

    Authors: Renae Harding, Shannon Walker

  • 18 March 2015

    High Court confirms position regarding “Shelf Orders”

    In a recent decision, the High Court unanimously dismissed an appeal from the Court of Appeal of New South Wales concerning the circumstances in which a “shelf order” may be made.  A “shelf order”  allows a liquidator to seek an extension of time in which to apply to the court for an order that a transaction be declared voidable, in circumstances where the relevant transaction cannot be identified.  In Fortress Credit Corporation (Australia) II Pty Limited v Fletcher [2015] HCA 10, the High Court confirmed that a court can make such an order under s 588FF(3) of the Corporations Act 2001 (Cth) (Act)  notwithstanding the fact that the potentially voidable transactions cannot be identified.
    The High Court’s decision has clarified a number of significant issues relating to extensions of time for the commencement of voidable transaction proceedings under the Act, including the power of the court to make “shelf orders” and the policy considerations which a court will take into account when determining a section 588FF(3) application.

    LINK 41KB

    Author: Victoria Butler

  • 16 March 2015

    Tax update - establishing an ancillary fund

    There are now 1,240 private and public ancillary funds operating across Australia who collectively distribute well in excess of $251 million to charities each year. 

    If you are interested in joining the philanthropic community and setting up a public or private ancillary fund before 30 June 2015, now is the time to begin establishing the fund.

    LINK 40KB

    Authors: Adam Levin, David Murphy