The holiday season is over, everyone's back at their desks and we've already completed the first month of 2019. It can be scary how time flies.
As with all years in recent times 2018 was a busy year for charities and other not-for-profits and with the start of the new year we thought this was a good opportunity for us to look at what may be in store for charities and not-for-profits during 2019.
We have summarised some of the changes and issues that will confront the sector this year.
Two notable developments in the NSW retirement villages sector have recently taken place – the first being the passage of new retirement village amendment legislation in November 2018 and the second being the appointment of a retirement village ambassador in December 2018.
There’s a huge variety of conduct that can found an oppression suit pursuant to Section 232 of the Corporations Act 2001 (Cth). The “commercial unfairness” test for proving oppression can be described as a little vague.
This vagueness makes life difficult for corporations and those that control them, as the consequences of an oppression suit can be brutal, including the existential threat of the company being wound up.
But what happens if a party claims it is being oppressed, commences legal proceedings, and then claims that the defendants’ conduct within the legal proceedings is itself oppressive?
How does the court deal with oppression within oppression?
Case Note - The recent United Kingdom Supreme Court decision in the matter of Darnley v Croydon Health Services NHS Trust [2018] UKSC 50 deals with the duty of a hospital to take care not to provide misinformation to patients in an Emergency Department (ED) setting.
The case serves as a reminder that the duty of care owed by hospitals and medical facilities extends to both medical and non-medical staff, and includes a duty to take reasonable care not to provide misleading information.
Trustees don’t have the benefit of codified duties, exhaustive guidelines or regulatory oversight (aside from in the superannuation sphere). Here are our suggestions for making your time as a Trustee a success.
Commercial lawyers, and their clients, are familiar with ipso facto clauses. The power of an ipso facto clause is that even though there has been no breach of the contract, the mere happening of an event (over which the parties may have no control and which may be irrelevant to the parties’ ability to otherwise perform their obligations) allows one party to terminate the contract. For this reason, ipso facto clauses have attracted controversy. There is potential for them to have a chilling effect on entrepreneurship and business more generally. From 1 July 2018, the Corporations Act 2001 was amended to, among other things, manage this risk.
Oppression in the corporate sphere concerns behaviour that is commercially unfair to one, some, or all of the relevant corporation’s members.
If the Court finds that oppression is made out, then it has the power to make a broad range of orders. The purpose of any such order is to cure the oppression; to balance out the unfairness.
Oppression is a complicated area and sometimes the outcome of oppression suits are counterintuitive. The matter of Dr Leo Shanahan v Jatese Pty Ltd [2018] NSWSC 1088 is an example of this. In this matter, the NSW Supreme Court considered various instances of corporate oppression, pursuant to section 232 of the Corporations Act 2001 and there was a curious outcome.
In the recent Federal Court decision of Carlisle Homes Pty Ltd v Tick Homes Pty Ltd [2018] FCA 973 (26 June 2018) the Court was presented with a difficult situation that highlights the role copyright has to play in the world of building and construction. Enterprises who understand this are better equipped to make their way in the market than those who are not.
The New South Wales Office of State Revenue (OSR) has delivered a ruling which significantly undermines the tax benefits of many discretionary trusts, the Revenue Ruling No. G010.
Following G010, any discretionary trust in which a potential beneficiary is a foreign person, will be subject to land tax and stamp duty surcharges.
The ACNC have recently released an information paper 'Remunerating Charity Board Members' for charities considering paying board members for their services as a board member.
