Risk management

eBikes – are you covered for claims?

eBikes are in the news a lot of late, usually because of near misses and claims that riders are not wearing helmets or driving dangerously. Electric bicycles have risen in popularity because they offer the ability for many, particularly children, to drive themselves around over longer distances than if they had to pedal.

They also save parents time in ferrying their kids around, and money otherwise spent on taxis and Ubers and the like, but without the financial costs associated with cars and motorbikes, each of which require:

  • licensing; and
  • insurance.

Whatever your view is on whether eBike riders should pay for a license to use the roads like other road users, some of the cost of which goes towards the costs of maintaining road infrastructure and the like, one things that is often forgotten is the risk of damage to property, injury or death.

Unlike with a car or motorcycle, that must at least have compulsory third party insurance coverage and regular inspections to maintain registration for use on the roads, there is no requirement for eBikes to be registered, have inspections for roadworthiness… or to have any insurance at all.

As children are the main users of bikes and eBikes, they don’t think about things like insurance, but what would happen for example if your son or daughter drove into the side of a prestige car, hit and seriously injured a person or worse… killed them? Are you covered for claims?

Given the significant risks of injury to persons and damage to property, it can be a good idea to consider whether you can get insurance cover in place. This can be standalone specific cover or perhaps an add on to an existing policy such as home and contents insurance.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

in Asset Protection / Criminal Law / General / Litigation / Risk management  by 01 Dec 2025 0 comments

Smart glasses and recording without consent

Smartphones are everywhere – they are light, portable and small and often used to record events – and now we have smart glasses, but how does their ease and regularity of use sit with an individual’s right to privacy? Hod do you really know if they are recording?

The Surveillance Devices Act 2007 (NSW) regulates the use of listening devices.  That Act also covers the use of data surveillance, optical surveillance devices and tracking devices. Breaches of the Act can lead to criminal charges.

What is a listening device?

The Act defines a listening device as:

“any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear”

so it clearly includes mobile phones, GoPros and video cameras… and yes, smart glasses!

It is an offence under s.7 to knowingly install, use or cause to be used or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party or to record a private conversation to which the person is a party.

There are some exceptions to this however, such as if:

  • all principal parties to the private conversation expressly or impliedly consent to its use, or
  • you are a principal party to the private conversation and:
    • it is reasonably necessary to protect your lawful interests; or
    • you do not intend to communicate or publish what was recorded or a report of it to anyone who was not party to the private conversation

The onus of proof for establishing an exception lies on the party seeking to establish the exception, and that onus is on the balance of probabilities.

Law enforcement officials can use listening devices in a range of circumstances including where they have a warrant from a Judge or Magistrate; if they don’t have a warrant but there is a serious or urgent matter requiring its use but not enough time to get a warrant; or where a police officer wearing a visible body worn video device etc.

Even if in Court proceedings, the exception to the rule is not found to apply, it might still (but in certain circumstances only) be possible to have the recording, or evidence based on it such as a transcript of what was said, admitted into evidence under the improperly obtained evidence rules in s.138 of the Evidence Act 1995 (NSW).

What is a private conversation?

A private conversation is conversation where it can be reasonably assumed that those involved in the conversation do not want the conversation to be overheard by others, that is, it is more informal or not public. A private conversation is not private if the people in the conversation can reasonably expect the conversation to be overheard by others…. so be careful when in public as you may be recorded.

Penalties

The best course is generally not to record a private conversation without consent unless it is absolutely necessary.

The penalty for individuals for a serious breach of the Act is an $11,000 fine or up to 5 years in prison.

A person who intentionally or recklessly communicates or publishes the contents of a private conversation which could endanger the health or safety of someone, or prejudice an investigation, faces a maximum penalty of 7 years in prison.

For corporations, offences under the Act attract a maximum fine of up to $55,000.

FURTHER INFORMATION

This information is general only and is not a substitute for proper legal advice.

For more information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au to discuss your needs.

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in Criminal Law / General / Risk management  by 02 Sep 2025 0 comments

All employers now subject to employee “right to disconnect”

Whilst it isn’t news that, under amendments to the Fair Work Act 2009 (Cth) (FW Act) and consequent amendments to Modern Awards, from 26 August 2024 employees of larger employers have the new ‘right to disconnect’ outside of work hours… what many small businesses employers don’t realise is that this law will also apply to them from 26 August 2025.

What is a “small business employer”?

A small business employer is an employer with fewer than 15 employees at a particular time.

When counting the number of employees, employees of associated entities of the employer are also included. Casual employees are not included in this headcount unless they are engaged on a regular and systematic basis (but they also have the right to disconnect).

So what is the “right to disconnect”?

Employees have the right to refuse contact outside their working hours unless that refusal is unreasonable. This right means an employee can refuse to monitor, read or respond to contact from an employer or a third party (such as customers, clients, suppliers and related businesses) outside of an employee’s working hours.

Contact is broad and can include in person contact, calls, emails, texts, WhatsApp chats or through other Apps etc.

The right to disconnect is a protected right all employees have under the FW Act. An employee can’t be punished or adversely treated for enforcing a workplace right. Employees are protected from any disciplinary action for reasonably ignoring such emails.

What is “unreasonable”?

When working out whether an employee’s refusal is “unreasonable” other matters may also be considered but the following factors must be considered:

  • the reason for the contact
  • how the contact is made and how disruptive it is to the employee
  • how much the employee is compensated or paid extra for:
    • being available to perform work during the period they’re contacted, or
    • working additional hours outside their ordinary hours of work
  • the employee’s role in the business and level of responsibility
  • the employee’s personal circumstances, including family or caring responsibilities.

It will be unreasonable for an employee to refuse to read, monitor or respond if the contact or attempted contact is required by law.

Importantly, employers are not prohibited from initiating contact with employees, but the employee is not obliged to respond unless it is deemed ‘reasonable’ for them to do so.

Senior employees on large salaries will have limited access to this right as their role or remuneration already will likely include ‘reasonable additional hours’. These laws are mainly for the benefit of Award and lower level employees and those who are expected to be available on call without additional compensation.

Disputes

Disputes about an employee’s right to disconnect should first be discussed and resolved at the workplace level (s.333N).

If that isn’t possible, employees or employers can go to the Fair Work Commission (FWC) to deal with a dispute (s.333P).

The FWC can:

  • make a stop order
  • deal with the dispute in other ways (for example, by holding a conference to try to resolve the dispute), or
  • both.

FURTHER INFORMATION

For further information in relation to business succession, estate planning, litigation and dispute resolution or any commercial law matter, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your commercial law needs.

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in Business / Commercial Law / Dispute Resolution / Employment / General / Litigation / Risk management  by 02 Aug 2025 0 comments

Why updating ASIC records is critical

Under the Corporations Act 2001 (Cth), among other methods, any document may be served on a company by:

(a) leaving it at, or posting it to, the company’s registered office; or

(b) delivering a copy of the document personally to a director.

This means that ASIC, the ATO, other government authorities or any other creditor can serve important papers on a company at its former place of business (where that address has not been updated at ASIC) even if they have since moved.

Documents that could be served on a company can include:

  • Court proceedings such as an Originating Process / Statement of Claim / Summons

As these important documents can be served on a company even though they may not actually come to the attention of the company or its directors, demonstrates why updating ASIC records is critical.

Similarly, if the ATO was to serve a Director Penalty Notice (DPN) on a director, note that:

  • DPNs are sent via ordinary mail to the Director’s last recorded residential address on ASIC’s database
  • notice is given on the day the DPN is issued, not when it is or is likely to have been received
  • actual non-receipt of a DPN is not a defence.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

in Business / Commercial Law / Dispute Resolution / General / Insolvency & Bankruptcy / Litigation / Risk management  by 01 May 2025 0 comments

Order for Security for Costs

An Order for security for costs is to help ensure that unsuccessful proceedings commenced by a Plaintiff do not disadvantage the Defendant. Such applications are more usually made in relation to an appeal rather than an original matter.

A security for costs order generally requires a Plaintiff to pay a certain amount of money into Court (or a solicitor’s trust account) before their proceedings can continue – that is the proceedings are in effect stayed pending the security being provided.

The Court has several sources of power to make an order for security for costs, including:

  • the Court’s inherent power to stay proceedings to ensure the proper and effective administration of justice
  • the relevant Court rules (eg, Rule 42.21 of the Uniform Civil Procedure Rules 2005);
  • s.1335 of the Corporations Act 2001 (Cth).

Due to the weight an order for security for costs may carry, Courts must weigh the rights and interests of all parties to the proceedings. The Court has a broad discretion as to whether to grant such an order and will usually look to factors including (in no specific order):

  • the inherent legal right of a Plaintiff to bring legal proceedings;
  • the strengths and bona fides of the Plaintiff’s case
  • where the Plaintiff ordinarily is resident;
  • the financial standing and asset position of the Plaintiff in the jurisdiction in which the claim has been commenced (including where the Plaintiff may have divested itself of assets);
  • whether there is reason to believe that the Plaintiff can satisfy an order for costs not only from its own resources, but from other resources including those who will benefit from the litigation; the public importance of the case;
  • delay of bringing the application for the order;
  • if the Plaintiff hasn’t disclosed an address or has moved and not updated it, particularly if there is reason to believe that it was done to to avoid the consequences of the proceedings;
  • whether such an order will frustrate the litigation;
  • the justice of the case.

It is uncommon for such an order to be made against an individual Plaintiff (as opposed to a company, partnership or trustee) but not impossible, depending in the circumstances of the particular case and Plaintiff.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

in Asset Protection / Business / Commercial Law / Debt Recovery / Dispute Resolution / General / Insolvency & Bankruptcy / Litigation / Risk management  by 01 Apr 2025 0 comments

New statutory tort – Serious Invasion of Privacy

Following the passage of the Privacy and Other Legislation Amendment Bill 2024 by the Commonwealth Parliament on 29 November 2024, which amended the Privacy Act 1988 (Cth) and other Acts, a new statutory tort for a serious invasion of privacy will soon enter Australian law.

This new tort will commence on 10 June 2025 and confers on an individual a cause of action for serious invasions of privacy.

Elements to be proven

The tort allows individuals to take action against those:

  • who invade their privacy, either by:
    • intruding upon their seclusion; or
    • misusing their information;
  • in circumstances where the individual had a reasonable expectation of privacy;
  • where the invasion is serious and either:
    • intentional; or
    • reckless; and
  • where the public interest in the plaintiff’s privacy outweighs any countervailing public interest.

The public interest considerations include the freedom of expression, freedom of the media, the proper administration of government, open justice, public health and safety, national security and the prevention of crime.

Remedies

The tort is actionable without proof of damage however, where the elements are established, a Court will be able to award damages to the plaintiff, as well as other remedies (such as injunctions, apologies, destruction or delivery of materials, accounting for profits etc) if appropriate.

Damages are capped at the greater of:

  • $478,550; or
  • the maximum award for general damages in defamation,

but there are no aggravated damages available.

Exemptions

There are exemptions for invasions of privacy by a State Authority or its staff if the invasion of privacy occurs in good faith, in the performance or purported performance of a function or exercise of power of the Authority, or in the exercise or purported exercise of a power of the authority and for law enforcement bodies and intelligence agencies. Persons under 18 are also exempt.

Limitation periods

The cause of action must be actioned within 1 year of the person first becoming aware of the invasion of privacy however if the plaintiff is unaware of the invasion, 3 years from the day the invasion occurred or if the plaintiff was under 18 when it occurred, before the plaintiff turns 21.

The introduction of this new tort marks a significant change in Australian law because until now, there has been no generally recognized right to privacy.

New crimes

Note that the Criminal Code was also amended to create new crimes for “doxxing” in sections 474.17C (criminalizing the release of personal data using a carriage service (ie, internet or telecommunications services) in a manner that a ‘reasonable person’ would regard as menacing or harassing) and section 474.17D (which focuses on such dissemination targeting individuals or groups based on their protected attributes, such as race, religion, sex, sexual orientation, gender identity, intersex status, disability, nationality, or ethnic origin).

These new offences maximum sentences of 6 and 7 years imprisonment respectively.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

in Criminal Law / General / Litigation / Risk management  by 04 Mar 2025 0 comments

Why you should have a Shareholders Agreement

CONSIDER THESE COMMON ISSUES

What would happen to your company if you or your business partner became so ill that one of you could no longer work – or worse still, died?

Would you still be paying dividends or making distributions of profit to that person even through he or she is not around, or to their spouse or family?

If they died and left their spouse everything in their Will (including their shares in your company), would you want to be in business with his or her spouse?

What if your business partner sold his or her shares in your company to a complete stranger or a competitor following an argument?

How are your shares to be valued and over what period will the purchase payments be made to your family? Or is there an insurance policy to fund the payment in a lump sum?

HOW CAN A SHAREHOLDERS AGREEMENT HELP?

A Shareholders Agreement can cover these not uncommon scenarios and tailor the rights and obligations of the shareholders of a company to fit your personal circumstances and your particular business to help avoid some of these potential problems for everyone’s ultimate benefit.

You may have a Will, but you may not have certainty in relation to what will happen to your family or your business in the event of your death or serious illness unless these matters are clearly dealt with in a Shareholders Agreement.

FURTHER INFORMATION

For further information in relation to business succession, estate planning, litigation and dispute resolution or any commercial law matter, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your commercial law needs.

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in Business / Commercial Law / Dispute Resolution / General / Risk management  by 10 Feb 2025 0 comments

Advantages of Testamentary Trusts

WHAT IS A TESTAMENTARY TRUST?

A Testamentary Trust in simple terms is a trust that is established by a person’s Will (and Testament), as opposed to a trust created during someone’s lifetime, like a family trust, discretionary trust, units etc.

Unlike with a “basic” Will – pursuant to which where beneficiaries receive the benefit of any gift personally – with a Testamentary Trust, the beneficiaries receive the benefit of the gift, but rather than having it legally owned by them personally, a trustee holds the relevant asset in trust for them.

Wills with Testamentary Trusts are recommended by many lawyers, accountants and financial advisers for various reasons but the advantages of Testamentary Trusts include asset protection and taxation advantages.

ASSET PROTECTION POSSIBILITY

Because of the legal ownership differs from the beneficial interest, Testamentary Trusts can offer beneficiaries significant and important advantages such as asset protection. As the trustee of the Testamentary Trust owns the asset (not the primary beneficiary personally), creditors and trustees in bankruptcy of the relevant beneficiary cannot gain access to the asset, so it can remain for the benefit of the intended beneficiary and their family etc.

Often, beneficiaries that are in business for themselves have implemented asset protection measures so as to keep their assets safe from claims by third parties. The last thing that such a beneficiary may want is to receive an inheritance in their personal name, effectively undoing all of their efforts to safeguard their assets!

Testamentary trusts can offer beneficiaries significant taxation advantages and a level of asset protection.

Testamentary Trusts can be drafted so as to have the beneficiary effectively control the trust and for that control to be relinquished on the occurrence of certain events, such as bankruptcy or divorce/marital separation, with a nominated person or persons to act in the role of trustee whilst such incapacity remains.

POTENTIAL TAXATION BENEFITS

Rather than taking a gift in a personal capacity as would usually be the case with a more “simple” Will, with a Will incorporating Testamentary Trusts, beneficiaries may have the ability to split income earned amongst other people in their family such as spouses, children, grandchildren or any other company or trust in which they have an interest.

Where a deceased estate has income producing assets (such as an investment property or a share portfolio), under a more simplistic will, the beneficiary personally receiving that gift would have the income earned from such asset/s added on top of the income they receive from their employment or their own investments. This could mean that they go into the next marginal tax bracket and pay significantly more tax.

A Testamentary Trust allows the income earned in the trust to be split amongst the various family members, many of whom are likely to either not be working (so the tax-free thresholds become available) or earn lower incomes (and are therefore in lower taxation brackets).

Children under 18 years of age that receive income from a Testamentary Trust are taxed at marginal rates as if they are adults (as opposed to the how income from standard discretionary / family trusts, where can be taxed at unearned income penalty tax rates) so for a family with a non-working spouse and several children, significant income can be received by the family whilst very little or no tax may be payable on the testamentary trust income.

FURTHER INFORMATION

For further information in relation to estate planning, business succession or any other commercial law matter, contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au.

in Asset Protection / Business / Estate Planning / General / Insolvency & Bankruptcy / Probate / Risk management / Tax Planning / Trusts  by 05 Jan 2025 0 comments

Statement of Testamentary Intention

Section 100(2) of the Succession Act 2006 (NSW) provides that a written statement made by a deceased person during their lifetime which may explain or justify the provisions of a will is admissible in evidence.

This means that a Court can have regard to the Deceased’s wishes and intentions as expressed in such statements, often called a “Statement of Testamentary Intention“, in making a decision regarding the distribution of their estates such as where a Family Provision Order has been sought (an order which effectively alters the division and distribution of a deceased person’s estate, deviating from that stated in their Will to which Probate has been granted).

Where a person makes a Will that they think may ultimately be contested (such as where an estranged child is left out of the Will), then a Statement of Testamentary Intention can be executed at the same time, whereby the person making the Will sets out their reasons for excluding that person as a beneficiary.  A Statement of Testamentary Intention is often made in the form of an Affidavit or Statutory Declaration, but it can even include an audio-visual recording of the person making the Will made with their consent, statements made orally to another person or even a contemporaneous email, but a written and sworn statement is usually the best if time permits.

The risk in making a Statement of Testamentary Intention is that if for example:

  • it is not documented properly;
  • was not made contemporaneously with the Will; or
  • where a significant period had elapsed between the making of the s.100 Statement and the time of the Deceased’s passing (that is, it is not up to date – as the reasons may have been eroded by later interactions and events etc, such as where a relationship has been repaired)

then it can lack evidentiary weight and can even act to benefit the excluded person, such as:

  • if it notes matters that would ordinarily be considered ‘hearsay’ (such that it can be objected to being admitted into evidence);
  • where unsubstantiated opinions or slurs are used; or
  • where there are factual statements or reasons given that can be shown to be incorrect

as they can undermine the basis of the will-maker’s decision to exclude a person and bolster the plaintiff’s case against the estate.

Usually the reasons for excluding a beneficiary from a Will should not be stated in the Will itself, but if they are to be documented, should be set out separately in the s.100 Statement so that the Executor can decide whether or not to use it in evidence.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

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in Dispute Resolution / Estate Planning / General / Litigation / Probate / Risk management  by 01 Nov 2024 0 comments

Partnership Agreements

A partnership is defined in the Partnership Act 1892 (NSW) as “the relation which exists between persons carrying on a business in common with a view of profit”.

Advantages of having a partnership, in addition to having additional business owner/s to bounce ideas off and share the workload, can include the fact that there is virtually no cost to establish it, little external regulation and very little paperwork involved.

Disadvantages include unlimited joint and several liability, a maximum of 20 business owners, liability for the acts and omissions of partners and risk of disagreement between partners.

Although the Act does govern some aspects of the partnership relationship, a Partnership Agreement can be invaluable when there is a difference of opinion or the relationship between partners breaks down as often happens.

Similar to a Shareholder Agreement, a Partnership Agreement can cover:

  • the business name the partners will trade under
  • the agreed business activities of the partnership
  • how the partnership will be managed (regular meetings, duties and responsibilities)
  • contributions to the partnership  and the agreed partnership percentage/split (and hence how profits and losses are shared)
  • how the respective interests in the partnership are valued
  • retirement, death and expulsion of partners (and if and how new partners can be introduced)
  • whether any post-partnership restraints apply
  • agreed dispute resolution mechanisms

Partnership Agreements can be simply drafted to cover common situations or be specifically tailored to your specific your business.

FURTHER INFORMATION

For further information, please contact McKillop Legal on (02) 9521 2455 or email help@mckilloplegal.com.au 

This information is general only and is not a substitute for proper legal advice. Please contact McKillop Legal to discuss your needs.

Stay up to date – LinkedIn | Facebook | Instagram

in Business / Commercial Law / Dispute Resolution / General / Risk management  by 01 Oct 2024 0 comments