Issue 25 - February 2006

• Freezing and search orders
• Cash handling by employees
• 31 March 2006 deadline under the new retail lease bond scheme
• Maintaining a stable home for children during divorce
• Prohibited child related employment
• Land tax update

The law's nuclear weapons Freezing and search orders

Recently, we were successful in obtaining orders restraining the disposition and removal of assets outside Australia and the jurisdiction of the Federal Court. Our client had brought an action for damages against a franchisor company and its director for misleading and deceptive conduct pursuant to the Trade Practices Act 1974. The conduct of the director had resulted in our clients losing their substantial investment in the franchised business and being forced to sell their home to pay the bank debt.

When obtaining the injunction, the director had fled overseas and appointed attorneys in Australia to dispose of the director's assets. Had the orders not been obtained, the judgment ultimately obtained by our clients would have been of no effect, leaving our client with a very large legal bill with no way of enforcement. Although by the time we obtained the injunction, significant assets of the director had been sold or removed from the jurisdiction of the court by disposal outside of Australia, we were nevertheless able to restrain the sale and removal of further assets. These assets were ultimately sold pursuant to court orders and satisfied the whole of the judgment debt and a substantial part of our clients’ legal costs.

The type of order referred to above is commonly known as a “Mareva Injunction”.

The search order referred to in the heading of this article is commonly known as an “Anton Pillar Order”. This type of order enables a litigant to enter premises without notice, search, inspect and seize documents or other property which may be vital to proving a case against the defendant. Such an order is made in the absence of the defendant and will only be made in extreme cases where there is grave danger of the property or evidence being destroyed, lost, hidden or taken out of the jurisdiction of the court.

If you think that the success of your matter may hinge on obtaining the sorts of orders referred to in this article, you should retain a commercial litigation lawyer, preferably one who is experienced in obtaining the type of orders referred to above. Often, there is not time for an inexperienced practitioner to familiarise himself with the law in this area, as action may need to be taken immediately.

If you want to know more about how these types of freezing and search orders, please telephone Denis Bowles or Craig Pryor or email denis@wmdlaw.com.au or craig@wmdlaw.com.au,

The handling of cash presents a significant area of exposure for employers Cash handling by employees

Cash handling is a fundamental part of many retail businesses and presents a significant occupational health and safety risk for employers. Work environments where employees feel exposed to risk as a result of robbery also contribute to poor morale and increased stress and absence from work.

Employers who require employees to regularly handle cash must take steps to minimise the occupational health and safety exposure in connection with cash handling including:
conducting a thorough risk assessment;

consulting with employees regarding their experiences and concerns and ideas to improve safety;

ensuring there is adequate safety equipment in the workplace such as alarms or video surveillance;

implementing safe work practices and limiting the cash kept on site at any time;

providing training in relation to robberies; and

monitoring and reviewing policies and steps being taken to improve safety and reduce risk.
If you want more information about occupational health and safety or employment law issues, please telephone Dean Groundwater or Craig Pryor or email dean@wmdlaw.com.au or email craig@wmdlaw.com.au

New obligations for retail landlords 31 March 2006 deadline under the new retail lease bond scheme

As examined in the last issue of this newsletter, substantial changes have recently been made to the Retail Leases Act 1994. One of those changes, the introduction of the Retail Lease Bond Scheme, has a serious impact on all existing and future retail landlords.

Similar to the scheme for residential lease bonds, recent legislative amendments mean that as of 1 January 2006, retail landlords were required to lodge any cash bonds agreed as security for a new lease with the Retail Tenancy Unit within 20 business days of the bond being paid.

The important issue for existing landlords is that by the end of March 2006, all existing cash bonds held as security for retail leases must also be lodged in accordance with the new scheme.

All cash bonds lodged with the new scheme will be invested by a funds manager appointed by the NSW Government and will be available for return at the end of the lease as agreed between the landlord and tenant. If a dispute arises regarding the allocation of funds, the parties must be referred to the Retail Tenancy Unit for mediation.

The penalties for non-compliance with these changes are severe - failure to lodge a tenant's bond with the new scheme will mean that retail landlords are guilty of an offence and may face a fine of up to $2,200.00 for each failure to comply.

Retail landlords and tenants remain at liberty to chose not to have a cash bond as security and may still agree on another form of security, such a bank guarantee. Landlords cannot unreasonably refuse a tenant's request to use another form of lease security.

If you want more information on retail leases, please telephone Rebecca Flynn or Lauren Austin or email rebecca@wmdlaw.com.au or lauren@wmdlaw.com.au

Continuity is key for children during relationship breakdown Maintaining a stable home for children during divorce

Children typically function best when there is routine and stability in their lives. Obviously, most, if not all divorces, are going to lead to instability and major change for the parties and their children. Many key decisions that affect children will be made by the parties during a divorce. Examples of these decisions include the decision to divorce, which party the children will live with, where the children will be living and the introduction of a new partner if a parent remarries.

Many of these changes cannot be avoided, however the effect upon children can be minimised if their day to day routine is undisturbed as far as possible. This can include such seemingly insignificant things as maintaining regular meal times and participation in those meals by at least one parent, continuing the regime of supervising homework and maintaining the same hours for bedtime.

Paying attention to these small matters of routine helps to reassure children that, although changes are occurring in their family, they need not feel uncertain about the support and assistance they will get from their parents on a day to day basis.

If you want more information conerning divorce or breakdown in relationships, please telephone Greg Dickson or email greg@wmdlaw.com.au.

Employers are required to ask employees to declare if they are a prohibited person Prohibited child related employment

It is an offence pursuant to the Child Protection (Prohibited Employment) Act 1988 for a person convicted of a serious sex offence (known as a Prohibited Person) to apply for, undertake or remain in child-related employment. There is a similar offence pursuant to the Child Protection (Offenders Registration) Act 2000.

Serious sex offences include offences involving sexual activity or acts of indecency committed in New South Wales that are punishable by imprisonment for 12 months or more, even if the sentence was not served and includes similar offences committed out of New South Wales where, if the offence had been committed in New South Wales, a similar punishment would have been available. Also included are offences of attempting to or conspiring or inciting a person to commit such offences.

Child-related employment means employment where at least one of the essential duties of the position involves direct contact with children where that contact is not directly supervised and includes involvement in kindergartens and childcare centres, schools, private tuition, hospitals, religious organisations and clubs or associations having a significant child membership.

Employers are required under the Child Protection (Prohibited Employment) Act 1988 to ask existing employees both paid and unpaid and preferred applicants for employment to declare if they are a prohibited person (as defined in that Act) and all child-related employees must inform their employers if they are a prohibited person or remove themselves from child-related employment.

If you want more information on complying with the above legislation or in relation to employment law issues generally, please telephone Craig Pryor or email craig@wmdlaw.com.au, or please telephone Dean Groundwater or email dean@wmdlaw.com.au

Land tax threshold has been raised and landowners must register by 31 March 2006 Land tax update

The NSW Premier has recently announced an increase to the land tax threshold for the 2006 tax year, increasing it from $330,000.00 to $352,000.00. This means that landowners whose total land holding (other than their principal place of residence) is valued at less than $352,000.00, will not be liable for land tax for the 2006 land tax year.

Landowners who are now liable to pay land tax for the first time this year but have not yet lodged a land tax return must register before 31 March 2006. Landowners that register after this date may be liable for interest payments and penalty tax.

If you want more information on your land tax obligations, please telephone Rebecca Flynn or email rebecca@wmdlaw.com.au.

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