Issue 56 - September 2008

• Borrowing by self-managed superannuation funds
• Get out of My Space
• Business succession planning
• * Conditions apply
• Government crack down on travel abroad by those owing child support
• The Verdict

The banks are getting on board with an exciting new opportunity for SMSFs  Borrowing by self-managed superannuation funds

If you have a self managed superannuation fund (SMSF), then you should consider obtaining some advice about whether the new opportunity for your superannuation fund to borrow money to acquire an investment would be of benefit to you.

Historically, a SMSF was not permitted to borrow and so the investment potential of a SMSF was limited to the cash available in the fund. Now, however, a SMSF is able to borrow to purchase an investment (commercial property, residential property or shares) and the contributions to be paid into the fund by its members can be used to repay that loan with considerable tax savings.

As you can appreciate, there are strict requirements which must be complied with and it is important for all members of SMSFs to make sure that they are obtaining appropriate advice in relation to the requirements and the benefits which are available.

For more information about the new opporunities, please contact Dean Groundwater or email dean@wmdlaw.com.au.

Social networking sites in the workplace  Get out of My Space

Along with the growth of social networking sites such as My Space and Facebook into mainstream society comes a need for employers to consider the ramifications of permitting access to these sites in the workplace.

Leaving aside the privacy issues which arise when employers access information about employees without consent, there is a need to have clear boundaries in the workplace about what is and what is not acceptable internet usage.

Obviously completely unfettered internet access to employees is fraught with problems.  By now you may have heard of employees accessing pornography at work which resulted not only in their loss of employment but in employer liability for failing to provide a safe workplace free from harassment.

Fortunately, mainstream social networking sites have restraints and surveillance in place to monitor and remove such content.  However, other discriminatory or defamatory material is not so easily detected or avoided. 

Liability will fall on employers who even unintentionally permit employees to access, distribute or even inadvertently cause to be displayed inappropriate content in the workplace unless those employers have policies in place governing the acceptable use of internet services and can prove a regime of ongoing enforcement.

To have policies prepared for your workplace or for advice on any aspect of employment law, please contact Kevin Dwyer or email kevin@wmdlaw.com.au.

 What will happen if you "die at your desk"? Business succession planning

While most people want to retire from their business on their own terms, their exit may be forced on them through death or disability.  Business owners should take the time to assess the effect of such an event on their business to avoid a significant amount of anxiety if such misfortune were to strike.

While a person may have a Will dealing with their personal estate, a business should also have a “Will” dealing with its succession. 

Prudent business owners will have life insurance, superannuation and other risk insurance in place to ensure their families are well cared for in the event of their death or permanent disability.  Insurance can also be a useful mechanism to fund the transfer of a share in a business from a deceased or disabled business owner to succeeding business owners.

A business succession agreement may take the form of a simple “buy-sell” agreement between business owners, which will set out provisions for the distribution of insurance proceeds on the occurrence of a trigger event and the consequent transfer of business interests in the enterprise.

Alternatively, a business ownership agreement can deal with issues that may affect the operation of the enterprise before, during and after the occurrence of a trigger event.

Business ownership agreements can:

include provisions regulating entry and exit of parties in any circumstances;
regulate financial contributions from co-owners;
impose reasonable restraints of trade and confidentiality provisions;
agree policies and procedures for budgeting, accounting and reporting; and
outline dispute resolution procedures in the event of disagreement between business owners. 
Business succession planning should take place at the earliest opportunity.  We can advise you in relation to appropriate business structures for your enterprise and mechanisms that can be put in place to deal with the vagaries of life.

Please contact Dean Groundwater or Craig Pryor or email dean@wmdlaw.com.au or craig@wmdlaw.com.au to discuss your business planning in more detail.

...and when they may not apply * Conditions apply

We have all seen the phrase "*conditions apply" in advertising on television and in the print media. Some suppliers wrongly believe that by using those special words that a multitude of disclaimers, limitations and exclusions apply in their favour however, the phrase "*conditions apply" is of limited application and effect.

The phrase "*conditions apply" in an advertisement generally indicates only that the offer featured is subject to conditions that a reasonable consumer would anticipate. For instance, an advertisement at a cafe promoting free coffees could use that phrase to indicate that consumers are limited to a maximum number of cups, that the offer does not apply to those that don’t have a loyalty card and/or that the offer is open for a limited time only. Better notice is required if particularly unusual conditions are to apply, such as the free coffee actually being a skim decaf latte only and not a flat white or cappuccino.

Suppliers must stand behind not only the express statements in their advertisements, but also any other meaning consumers reasonably take from that advertisement. The advertisement will be misleading and deceptive if any of those representations, whether express or implied, are not true.

The disclaimer "*conditions apply" can never perform the function of protecting suppliers for claims for misleading and deceptive conduct or advertising. The phrase can only indicate to potential consumers that there are conditions that reasonably qualified the supplier’s offer.

Suppliers should use the phrase "*conditions apply " with caution. If the advertised offer is subject to important exclusions, it may be necessary to make those exclusions or limitations more prominent in the advertisement.

If you would like further information regarding the provisions of the Trade Practices Act or the Fair Trading Act or in relation to advertising or business matters generally, please contact Craig Pryor or email craig@wmdlaw.com.au.

Pay now fly later Government crack down on travel abroad for those owing child support

On 29 August 2008, the Child Support Agency (CSA) and the Immigration Department agreed to strengthen the Departure Prohibition Order Program to identify parents who are deemed to be risky so far as paying child support is concerned. The program allows the CSA to issue travel bans against a parent who continually fails to meet their payments.

The new arrangements will give the CSA access to the immigration movement database. If you are owed child support and are concerned that your former partner is travelling to avoid obligations, please contact us to discuss seeking a Prohibition Order to prevent travel overseas.

For any information about prohibition orders or any family law matter, please contact Greg Dickson at greg@wmdlaw.com.au or telephone 9525 8688 for advice.

 Your questions answered The Verdict

In this section, we answer your general questions in relation to any area of law. Obviously, we are not able to provide specific legal advice or advice in relation to a current legal matter. If you have a question you would like us to answer, please submit it by email to rebecca@wmdlaw.com.au.

How can I avoid the sale price of my property being made available to the public?

Unfortunately there is no way to protect information regarding the sale price of a property from being made available to the public.

When a property is sold or otherwise transferred a Transfer is lodged with Land and Property Information (LPI). Among other things, this document details the price paid for the land. Once LPI has lodged the Transfer, a scanned version of the document becomes publicly available.

While it may be possible for the Transfer to refer to the “consideration paid as the price set out in the Contract for the Sale of Land” rather than to include the actual amount, all Transfers must be stamped by the Office of State Revenue at the time duty is paid. The duty impression shows the amount on which the duty was calculated being the purchase price or market value of the property.

Failure to accurately record the purchase price may itself be an offence.

Some real estate agents also make information regarding the purchase price of a property publicly available. There are no privacy regulations restricting real estate agents from providing this information as it is contained in other public records unless it is a term of your agreement with your agent.

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