Snedden Hall & Gallop
Business e-newsletter
Legal News for Canberra Businesses
 
December 2011
Season's Greetings from all of us at Snedden Hall & Gallop and the best wishes for the coming year

  2011 International Day of People with Disability
 

It seems amazing that we are once again at the end of another year. 2011 has been characterised by what could only be called uncertain economic times, with the markets on a roller coaster, which has, no doubt, had at least some impact on all of our businesses.

In our view, we in the Canberra region have weathered the storm reasonably well and, at Snedden Hall & Gallop, we have used this time to seek consolidation, but we are also pleased to have achieved some growth, with the appointment of new lawyers strengthening our litigation teams in particular.

It is our view that, in uncertain times, business needs to do careful planning. It is important to prevent disputes and problems, which have the potential to snowball and end up in litigation. I encourage you to see our business team to seek advice on your business structures, on issues affecting employment, and to discuss any business issues that you may have.

Of course, if there are disputes that need to be addressed, we are ready to assist in advising about the most efficient methods of resolving such disputes, including a focus on alternative dispute resolution.

2011 has also seen some uncertainty in areas of law. The ACT Government has proposed new CTP and workers' compensation laws, and we have been at the forefront in scrutinizing the changes and looking at ways to improve and simplify the process rather than merely removing the rights of ACT residents. We will continue to perform that role, and our lawyers are involved in membership of Law Society and Australian Lawyers Alliance committees, which regularly consider law reform as part of their agendas.

This year has seen us continue to pursue claims for government and former government employees denied membership of the Commonwealth superannuation scheme merely because they were blue-collar or industrial workers. During the year, we made a submission to, and gave evidence at, a Senate inquiry investigating this matter and we suggested changes to assist our clients with claims in a more timely and efficient manner. We await further action from Senator Xenophon in the New Year in that regard.

In addition to that, Snedden Hall & Gallop made representations about the unfair impact of new occupational health and safety laws on the not-for-profit sector, with a very positive outcome. We were proud to be able to perform that role to assist our many friends in that sector and we believe that it shows that we can all help to bring about change if we put in the appropriate effort.

We have recently made a commitment to undertake a major upgrade of our IT and accounting systems in 2012 and beyond. We believe that this will not only assist us in the way that we do our work, but it will also lead to an improved delivery of services for our clients.

I take this opportunity to thank all of our team at Snedden Hall & Gallop. They really are a great bunch to work with and we continue to enjoy our premises at Deakin, which we hope provide easier access for our clients.

Finally, I thank all of you for your support with your work, your referrals of potential clients, and your feedback. We are always seeking to improve the legal services that we provide and I would encourage you to contact us with any suggestions that you might have about how we can do that.

I wish you all a safe, happy and peaceful Christmas and a mutually beneficial, ongoing relationship in 2012.

Richard Faulks

Managing Director

PROVISIONS IN WILL OVERTURNED

In a recent decision from the Victorian Supreme Court, a deceased man left all of his $1.2 million estate to his son and made no provision for his 3 daughters. Even though all the children of the deceased were adults, and all but one of the daughters were in comfortable financial positions in their own right, the Court overturned the will.

 

The Court found that the daughters contributed to the welfare of their father during his lifetime and that all the children had a close relationship with their father and, accordingly, he had a responsibility to make provision for all of his children on his death, not just his son. The Court ruled that the son receive 50% of the estate, while the daughter who had the most financial need was to receive 25% and the other two daughters to each receive 12.5% of the estate. This decision serves as a reminder that a testator may still have an obligation to make adequate provision for adult children, even if those adult children are in comfortable financial circumstances in their own right.

 

If you need assistance to review or update your will, or for all other estate planning requirements, contact Tanya Herbertson on 02 6285 8087 or therbertson@sneddenhall.com.au

COMMERCIAL BUILDING DISCLOSURE

The Commercial Building Disclosure (CBD) program has been introduced as part of the national focus on improving the energy efficiency of office buildings around Australia.  

 

As of 1 November 2011, landlords and building owners must obtain and register a current Building Energy Efficiency Certificate (BEEC) relevant to the sale, lease or sublease of commercial offices with a space of 2,000 square metres or more.
Once obtained, BEECs are valid for a period of twelve months and are comprised of:
* a NABERS energy star rating for the building;
* a tenancy lighting assessment; and
* general energy efficiency guidance.
 
To obtain a BEEC, a CBD assessor needs to assess your property, and will lodge the documentation on your behalf. Once you receive a BEEC for your premises, you must make the certificate publicly accessible via the online Building Energy Efficiency Register before you can legally advertise your commercial space.

 

To find out how this new procedure might impact your business, please contact one of the members of our Business Services Team on 02 6285 8000 or lawyers@sneddenhall.com.au   
 DEMOCRACY DOES WORK! LOBBYING LEADS TO AMENDMENTS TO WORK HEALTHY & SAFETY ACT 2011

It happens all too often. A piece of major legislation works its way through bureaucracy without a great deal of public scrutiny. Before you know it, a draft Bill is tabled in Parliament and the limited publicity then filters down to affected parties. Panic ensues when you realise the proposed new law will have devastating effect on your business.

 

This was the case with the Work Health & Safety Bill 2011, which was a piece of Commonwealth legislation intended to implement a codified work safety regime across the Commonwealth.

 

The draft Bill that was tabled in Parliament did not differentiate between penalties imposed on directors of organisations who conducted commercial businesses or undertakings, and organisers of volunteer organisations whose primary objectives were community service. Accordingly, significant potential pecuniary penalties of up to $3,000,000.00 were incorporated in that legislation to cover such incorporated associations as U3A (University of the Third Age) and others, all clients of Snedden Hall & Gallop. These organisations had no capacity whatsoever to meet the stringent workplace safety codes and the volunteer directors examined their personal positions and resolved that this legislation would force their closure.

 

We were given the task of persuading the legislators to change the law.

 

Our approach was thorough and measured. A retired partner of Snedden Hall & Gallop and retired Senior Member of the AAT, Alan Hall, took a keen interest in the draft Bill and his detailed critique was published in The Canberra Times. It drew immediate reaction from volunteer organisations but surprisingly no response from the bureaucrats. We then prepared a detailed submission, highlighting the inadequacies and inequities of the draft Bill. Meetings were arranged with the cross bench Members of the House of Representatives, and the local Legislative Assembly. The meetings with senior government bureaucrats were unhelpful.

 

Approaches were made on the Federal level to Senators and cross bench Members of marginal seats where the volunteers from our client organisation had a high profile and were respected. The Federal representatives listened to our concerns and our letter and submissions were referred to in the debates in the Senate on 24 November 2011 (Hansard page 73).

 

A breakthrough occurred when Alan Hall was invited to talk to the lawyers in SafeWork Australia about our concerns. They agreed to review the legislation and continue discussions.

 

Over the course of a few weeks, those discussions led to a modification of the model Regulations that followed our submissions to specifically exclude volunteer organisations whose primary object is community service. The new regulation 7(3) was incorporated into the legislation and published on SafeWork Australia's website at the end of November.

 

The lesson to be learned is that carefully prepared submissions, distributed to the most effective and electorally sensitive legislators and a willingness to confront defensive and at times obstructive bureaucrats can lead to a proper review of legislation and achieve a result in the best interests of clients. This was a case where tenacity, common sense, clear legal analysis and frank discussions with politicians and bureaucrats led to a just outcome.

 

Bill Andrews, Director, Snedden Hall & Gallop

NEGOTIATED EXIT FOR SUFFERING FRANCHISEE

We recently successfully negotiated an exit strategy for a regional franchisee of an international coffee franchisor.

 

Most national and international franchisors fight hard against franchisee claims using their resources to quell claims and maintain the status quo.

 

A range of factors led to us manoeuvring our client to avoid ongoing liability to the franchisor.

1. A thorough examination of the

- franchisor's contractual obligations;

- the communications between franchisor and franchisee;

- actual performance (namely omissions) of the franchisor.

2. Examination of a range of breaches of the Trade Practices Act (now Competition and Consumer Act 2010).

3. Testing the franchisor's performance against contractual and statutory obligations.

4. Examining the detailed records of the franchisee: a most important element which facilitated the settlement.

5. Engaging a retired trade practices commissioner to assist in formulating a strategy for a claim.

6. Formulating a comprehensive chronological claim - including detailed references to emails with quotes then conducting settlement negotiations.

Only when confronted with overwhelming evidence of wrongdoing did the franchisor agree to negotiate.

If you need advice on negotiating an exit strategy, contact a member of our Business Services Team on 02 6285 8000 or lawyers@sneddenhall.com.au

2011 'BE THE BEST YOU CAN BE' ATHLETICS CARNIVAL 

 

November 2011 saw the 11th annual 'Be the Best You Can Be' Athletics Carnival for ACT school students with a disability. The carnival is a joint initiative between Snedden Hall & Gallop and ACTSport, and this year reached record numbers with over 400 participating students, from a number of Canberra primary schools, high schools and colleges.


The students who have either intellectual or physical disabilities competed in specially modified sporting activities including sprints, vortex throw, long jump and shot put.


During the lunch break the athletes were entertained with a 'Celebrity Race' that involved ACT Legislative Assembly members Shane Rattenbury and Steve Doszpot, Australian Paralympians Sam Harding and Jodi Elkington, Mix 106.3 breakfast announcer Pete, and Canberra Mascots Raiders' Victor Viking, the Heart Foundation's Happy the Heart, SES' Paddy the Platypus, Canberra Capitals' Ace the Dog, and Canberra Milk's Splotch.

 

Celebrity Race
Participants in the Celebrity Race


'Be the Best You Can Be' is supported by many local businesses including Supabarn, ActewAGL and mecu banking.


Richard Faulks said: "The 'Be the Best You Can Be' is one of the largest and most popular community events on Snedden Hall & Gallop's calendar, and is made possible by the continuous support of its sponsors and volunteers".
 

The founding partners of Snedden Hall & Gallop fostered a care for, and interest in, the community that has been sustained over the years and which is wholeheartedly supported by the current directors.
 

Richard Faulks continues: "We see our commitment to this event as being an important way in which we give back to the community each year".

Snedden Hall & Gallop logo

 

 

We will close for the Christmas/New Year holidays on 23 December 2011
and reopen on 9 January 2012.

We wish you and your loved ones a very Merry Christmas and a safe and happy New Year.

In an emergency during the shutdown period, please call 0414 936 461 and one of our lawyers will happily assist you.

 

(02) 6285 8000
lawyers@sneddenhall.com.au
www.sneddenhall.com.au
 

 In this edition

Season's Greetings

 

Provisions in Will overturned

 

Commercial Building Disclosure

 

Negotiated exit for suffering franchisee

 

2011 'Be the Best You Can Be' Athletics Carnival

 

PPS Reminder

 

2011 International Day of People with Disability

 

Social Networking Links

 
PPS Reminder

The Personal Property Securities Act (PPS) will commence on 30 January 2012. The PPS Act is one of the most notable reforms to Australian commercial law as it brings security interests on a Commonwealth, State and Territory level under one national system.

2011 International Day of People with Disability

Snedden Hall & Gallop proudly supported the 2011 International Day of People with Disabilty.

 

2011 International Day of People with Disability

 

For more information on how you or your business can contibute to a great cause, click on the above photo.

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