CPD Programs

Insolvent Trading Trusts: Dealing with Trust Assets and Creditors 

In the recent decision of Carter Holt Harvey v Commonwealth [2019] HCA 20 (Re Amerind), the High Court has clarified how an insolvent corporate trustee is to deal with the assets of a trading trust.  In doing so, the Court resolved the long-standing tension between the divergent decisions of the Full Court of the Supreme Court of Victoria in Re Enhill and the Full Court the Supreme Court of South Australian in Re Suco Gold.  

This session will discuss the High Court decision in Re Amerind, deal with the distinction between the use of company and trust assets when paying trust creditors, look at the obligation of an insolvent trustee when holding assets as a bare trustee only and consider the issue of liquidator remuneration.

Presented by: Christopher Brown, Barrister, Victorian Bar

Conflicts of Interest and Liquidators 

This session looks at Liquidators Duties particularly in regard to the following:

• Conflicts of interest and Liquidators acting as liquidator in multiple related company structures, including wholly owned subsidiaries; and
• Setting the criteria to adequately address the potential problem of acting with a conflict of interest - Go Energy Group Ltd (in liquidation) [2019] NSWSC.

Presented by: David Dickens, Special Counsel, Hall & Wilcox

Voluntary Administration 

This session covers:

• Deeds of Company Arrangement post Australia of Mighty River International Limited v Hughes, Mighty River International Limited v Mineral Resources Limited [2018] HCA;
• Validity of a Holding DOCA;
• Challenging and setting aside a DOCA;
• The Courts powers to set aside; and
• Voluntary Administrators, Costs and Equitable Liens Re GGA Lifestyle Pty Ltd (administrators appointed) ; ex parte Woodhouse [2019] WASC.

Presented by: 

David Newman, Partner, Maddocks, and

Melissa Jeremiah, Senior Associate, Maddocks

Directors including Successive Directors Duties Update  

This session covers recent cases dealing with directors obligations to provide records to a liquidator. The session will cover:

• Financial records, obligations and defences on liquidation;
• Successive directors defences; and
• In the matter of substance Technologies pty ltd [2019] NSWSC

Presented by: Raini Zambelli, Barrister and Mediator, Victorian Bar

Use of Privileged Material by the ATO and Others in Pursuing Enquiries of Restructured Companies - Is It Okay? 

This session will cover:

• Cases dealing with the question of whether privileged or unlawfully acquired material can be used in enquiries or proceedings brought by the ATO;
• Glencore International AG and Ors v Commissioner of Taxation of the Cth of Australia and Ors

Presented by: Nigel Watson, Consultant, Colin Biggers & Paisley

Case Update and Litigation Trends 

This session will cover significant recent cases covering issues including:

• TPD Claims;
• Income Protection Claims;
• Death Benefit Claims;
• Notional Estate Claims;
• Class actions.

Presented by: Hayriye Uluca, Senior Associate, Maurice Blackburn Lawyers

New Developments in Superannuation Law 

• This session will examine the impact of changes brought in by the Federal Government Protecting Your Super Package Act on 1 July 2019;
• Treasury Laws Amendment (2018 Superannuation Measure No 1) Bill 2018 - Proposed Superannuation Guarantee Amnesty;
• ASIC Update - Lifting Standards and Transparency of Complaints Handling;
• ATO Update - Superannuation and Leave Loading.

APRA Update 

• Prudential Standard 234 Information Security in force 1 July 2019 - Implementing the ‘New Standard’;
• Update on IOOF v APRA.

Advertising, Forecasting, Disclosure, Inducements 

This session will address the risks and consequences when funds cross the line into misleading and deceptive conduct and/ or misconduct.

Hot Topics - Hear from a Panel! 

• Elder and Family Financial Abuse - Use of Instruments including Powers of Attorney and unauthorised access to superannuation funds;
• Conflict of Duty - Acting in the best interests of members and stakeholders;
• Trustee Duties and Discretions / Reasons;
• Productivity Commission Inquiry Report -Superannuation: Assessing Efficiency and Competitiveness.

Presented by:

Paul Faure, Partner, Holding Redlich

Heather Gray, Partner, Hall & Wilcox

and

Scott Charaneka, Head of Superannuation & Wealth Management, Thomson Geer Lawyers

Trustee Responsibilities and Overpayments 

This session will discuss:

• Recovery of overpayments on claims;
• Can professional indemnity insurance apply;
• Settlement of claims;
• Defences to claims.

Will Rectification Applications – Complex Probate Proceedings

A court may make an order to rectify a will to carry out the intentions of a will maker, if the court is satisfied that the will does not carry out the will maker’s intentions where:

• a clerical error was made, or

• the Will does not give effect to the will maker’s instructions.

This session will discuss the process and implications of rectification applications and will include:

• Application for rectification of the will pursuant to Section 31 of the Wills Act (1997);

• Seeking clarification of the will pursuant to Supreme Court (General Civil Procedure) Rules 2015;

• Evidence of the will-makers intentions – the application process, preparing/ what is to be included in the Summons;

• Time limitations in Victoria and other states and territories;

• Outline of the deficiencies the court found in RE Hely; Application by Arbuthnot & Donohue (2018) VSC 614;

• Recent case update.

Presented by: Ines Kallweit, Principal Solicitor and Accredited Wills & Estates Specialist, KHQ Lawyers - Preeminent Wills & Estates Litigation Lawyer, Doyle’s Guide 2018.

Crisp Orders and Portable Life Interests

This session will cover:

• What is a Crisp Order?

• Pro’s and Con’s of Crisp Orders

• When alternative accommodation is required for the surviving spouse – eg. Retirement village/aged care facility bond etc

• Beneficiaries disputing Crisp Orders;

• Issues arising in blended families;

• Case studies.

Presented by: Mercia Chapman, Senior Legal Counsel, Equity Trustees

Challenging Superannuation Death Benefits – Remedies Available for Aggrieved Beneficiaries and Dependants

Superannuation death benefits may make up a substantial pool of a deceased assets, and whether you are acting for the Executor or the beneficiaries, understanding the rules and dealing with the trustee of a superannuation fund is not straightforward. This session will discuss the rules surrounding a fund trustee’s decision and the remedies available to an aggrieved beneficiary or dependant. This session will cover:

• The Superannuation Trustee’s discretion;

• Preparing a death benefit claim;

• Contesting a Superannuation Trustee’s decision;

• Taxation of death benefits;

• The Complaints and Appeals Process in the Courts;

• The AFCA Approach to Superannuation Death Benefit Complaints;

• Notable and recent cases.

Presented by: Michael Clohesy, Principal Lawyer, Aitken Partners

and

Jack Conway, Associate, Aitken Partners

Testamentary Trusts - Tax Benefits and Asset Protection

A Testamentary Trust is created by a will and will come into effect when a person dies. Whether you have been instructed to draft a testamentary trust or act for a client who has received inheritance via testamentary trust, it is vital that the trust is implemented correctly and based on sound legal advice.

This session will cover:

• The tax benefits of testamentary trusts;

• Tax planning and asset protection;

• Dealing with vulnerable beneficiaries – minors, warring siblings, divorce, health issues including addiction, and/or disability;

• Managing bankruptcy and litigation risk;

• Income streaming;

• The advantages and disadvantages of testamentary trusts;

• Case updates and examples.

Presented by: Jennifer Dixon, Practice Leader, Accredited Wills & Estates Specialist, Moores

A Matter of Trust – Family Trust Disputes

This session will cover the following:

• The use of Discretionary Trusts in estate planning;

• Vesting and CGT concerns;

• Trustee duties;

• Dispute resolution clauses;

• “Unsatisfactory” allocations of income;

• An overview of recent cases including Trani v Trani (2018) VSC 274.

Presented by: Sandra Karabidian, Barrister, Victorian Bar

Trust Deed Variation Clauses 

This session will cover:

• Interpreting Variation Clauses;

• Tips when Drafting Variation Clauses and Powers;

• Problematic Trust clauses;

• Preparing Deeds of Declarations of New Powers;

• Alternative options such as court powers, winding up the trust, new trust etc