News

Traps for so called ‘Sophisticated Investors’

The Australian Securities and Investments Commission (ASIC) takes a firm stance against those who manipulate ‘sophisticated investor’ exemptions for retail investors interested in acquiring securities in a corporate body. Generally, when companies raise funds by offering shares to the public, they must make available to prospective investors certain disclosure documentation prescribed by the Corporations Act 2001 (Cth) (the ‘Act’). The type and extent of disclosure depends on the circumstances and may include a full or short-form prospectus, profile statements and...

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De facto relationships and Will contests

All jurisdictions in Australia provide statutory rights for eligible persons to contest a Will if they can show that they have been left without adequate provision by the testator. In Western Australia, an eligible person includes: a spouse or de facto partner; a person receiving or entitled to receive maintenance from the deceased as a former spouse or de facto partner; a child of the deceased; a grandchild of the deceased, in specified circumstances; a stepchild of the deceased, in...

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The role of an expert witness in a commercial dispute

Engaging an expert witness for your commercial dispute can be critical to ensure the success of your legal case. It is important to understand the role of an expert witness in a commercial dispute in Western Australia so you can get the best value out of their services. An expert witness is a person who is engaged on your behalf to prepare a report which sets out their expert opinion on a subject matter of their speciality. An expert witness...

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Removing a nominee director

When forming a company, certain documents are prepared which will be pivotal to its existence. The replaceable rules contained in the Corporations Act 2001 (Cth) may be adopted or a constitution specially prepared to govern the operations of the company A shareholders agreement may also be used which creates a private contract between the shareholders of the company and sets out their respective rights and responsibilities. The importance of consistency between these documents, and understanding the interplay of the Corporations...

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Why you should have a corporate trustee for your Self-Managed Superannuation Fund

A Self-Managed Superannuation Fund (SMSF) is a type of superannuation structure that allows members to control and manage their own funds. Unlike other superannuation funds, members have autonomy over the choice of investments they can make, subject to the relevant superannuation laws A SMSF must comply with the requirements of the Superannuation Industry (Supervision) Act 1993 (Cth) and relevant tax laws. Compliance is necessary to take advantage of available income and capital gains tax concessions which have been implemented by...

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What to do if you can’t find your trust deeds

Losing a trust deed is not something anyone plans to do. Not only is a lost trust deed inconvenient it can also have serious consequences. Even though it may be possible for the trust to continue operating, without having the trust deed, it may be very difficult, if not impossible, for trustees to be certain that they are administering the trust in accordance with the terms of the trust deed. When a trust deed goes missing there is always a...

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Leave to proceed against company in liquidation

The insolvency of a company often leads to its liquidation whether instigated voluntarily or by court order. A liquidator is appointed to ascertain and bring in company assets (if any) and convert those assets into cash for distribution amongst the company’s creditors in accordance with the Corporations Act 2001 (Cth) (the Act). The liquidator has broad powers to take over the company’s affairs. The liquidator will ascertain debts, pay creditors, enter arrangements, bring or defend proceedings on the company’s behalf,...

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What happens to employee entitlements when a business is sold

There is much to consider when buying or selling a business. Of significant importance is, what happens to the employees of the enterprise once it is sold? The sale of a business can be a curious time for existing employees and the incoming business owner – it is likely that neither parties have previously worked together and are unfamiliar with each other’s leadership and expertise. Personalities and attributes aside, it is important for the parties to a business transaction to...

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The scope of fiduciary duties as a director once you resign

A director is a fiduciary of the company and must act in good faith and in the company’s best interests. The personal interests of a director must not conflict with those of the company. These duties arise in equity, at common law and under statute and do not cease upon a director’s termination. However, the scope and duration of an ongoing duty is not always apparent, posing the question of when it will be permissible for an outgoing director to...

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The process of obtaining Probate

Probate is a grant made by a Court that ‘proves’ the Will of a deceased person and vests title to estate assets in the executor/s. This is the official process that allows the executor to deal with the deceased’s estate. As the legal personal representative of the estate, the executor must determine the assets and liabilities, liaise with debtors, creditors and beneficiaries, sell, transfer and distribute assets and finalise the estate in accordance with the Will. The executor is often...

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