View Legal

Avoid being on your own** (A safe Harbour in the Mariner, Part II) Last week’s post summarised the leading Corporations Act case of ASIC v Mariner Corporation Ltd [2015] FCA 589. This post further considers the business judgment rule in more detail. While the key principles in relation to the business judgment rule have remained largely constant for many years, ASIC v Mariner was the first case where the rule would have been successfully relied upon if the directors had been found to have breached their directors’ duties. Full post this week linked here: https://lnkd.in/gCwrMpfc #bethechange #MatthewBurgess #Blur #businessjudgmentrule #viewlegal #Corporationsact

Happy** to be a safe Harbour in the Mariner? Today's post considers the decision in ASIC v Mariner Corporation Ltd [2015] FCA 589. The case is particularly important because it highlights the interaction between directors’ duty and liability where a company breaches a Corporations Act 2001 (Cth). ASIC brought the case against Mariner and three of its directors alleging the directors had breached their directors’ duties of care and diligence by failing to comply with the takeover provisions under the Corporations Act. ASIC also argued the directors breached their duties regardless of whether the company itself had breached the Corporations Act. Full post this week linked here: https://lnkd.in/gHDPn9yx #DirectorsDuties #Company #bethechange #Ned’sAtomicDustbin #MatthewBurgess #businessjudgmentrule #viewlegal #Corporationsact

Refinancing rules: ensure you & your client feel good** One issue that arises regularly in relation to the taxation of trusts is the incurring of interest expenses by a trustee for external borrowings used to discharge an obligation to pay a monetary distribution to a beneficiary such as a credit loan or unpaid present entitlement (UPE). The Tax Office has confirmed that the interest expense incurred in this style of situation will not be automatically deductible, even if the borrowed funds allows the trust to retain income producing assets. Instead, in order for the interest to be deductible, the borrowings must be shown to be ‘sufficiently connected’ with the assessable income earning activity. Full post this week linked here: https://lnkd.in/gZrgSCmX #bethechange #MatthewBurgess #assetprotection #viewlegal #Taxplanning

You got the power** to make superannuation an estate asset? The decision in Stock (as Executor of the Will of Mandie, Deceased) v N.M. Superannuation Proprietary Limited [2015] FCA 612 is another reminder of the fact that superannuation death benefits are not an estate asset. Broadly the background was as follows: 1. The member died without making any binding nomination for his superannuation benefits, although binding nominations were permissible. Full post this week linked here: https://lnkd.in/g6vQ7z9f #Gorillaz #bethechange #Superannuation #MatthewBurgess #Estateplanning #viewlegal

This is the one** important case on language you need to know this week (the 'income and profits' decision) Following on from last week’s post, another case that applied some aspects of the reasoning in the decision profiled last week is Wilson & Anor v Chapman & Anor [2012] QSC 395. Broadly the background was as follows: a. Under the terms of a will, a beneficiary who was essentially a life tenant of a trust under the will was entitled to the ‘income and profits’ of the assets of the trust; Full post this week linked here: https://lnkd.in/gbYU-VAd #bethechange #MatthewBurgess #Estateplanning #viewlegal #StoneRoses

Estate Planning and Beneficiary Loan Accounts: Fools gold** The decision in Clark v Inglis [2010] NSWCA 144 remains a key case in relation to the interplay between beneficiary loan accounts and estate planning. Broadly the background was as follows: (a) Dr Inglis established a trust in 1982 (Trust) with himself, his four children from his first marriage, his one child from his second marriage and his second wife Helen Margaret Inglis (Helen) as potential beneficiaries; Full post this week linked here: https://lnkd.in/gKfhfS9b   #estateplanning #beneficiaryloanaccounts #StoneRoses #bethechange #viewlegal #matthewburgess

The powers of an attorney: being under the thumb**   An issue that often arises is the exact extent of the powers an attorney may exercise on behalf of a donor.   One of the leading cases in this area is Taheri v Vitek [2014] NSWCA 209.  In summary the key aspects of the case were as follows: 1. The wife appointed her husband under a power of attorney and granted the husband the standard ability ‘to do on my behalf anything I may lawfully authorise an attorney to do’. Full post this week linked here: https://lnkd.in/gD8cWn7V #estateplanning #powerofattorney #RollingStones #bethechange #viewlegal #matthewburgess

Letting little fury things ** like the tax tail wag the dog Given the theme of ‘famous tax cases’ in recent posts, it seemed appropriate to revisit the tax aspects of the case involving the family of famous retailer Solomon Lew (Lew), in Solomon Lew & Ors v Adam Priester & Ors [2012] VSC 57. Broadly the situation was as follows: a. Based on tax advice about an impending tax change (which was ultimately never implemented), certain distributions were made by a trust ultimately controlled by Lew to each of his children Full post this week linked here: https://lnkd.in/gsyNPvT7 #taxplanning #DinosaurJnr #bethechange #viewlegal #matthewburgess

Yeah right** - because before Rinehart, there was Murdoch   While the Rinehart decision received significant attention in relation to many issues, including the tax consequences of ending a trust, the tax principles of another famous case are worth remembering, namely the decision in Murdoch v Commissioner of Taxation [2008] FCAFC 86. Broadly the situation was as follows – Full post this week linked here: https://lnkd.in/gQ2BgTsv #taxplanning #capitalgainstax #DinosaurJnr #bethechange #viewlegal #matthewburgess

Fiduciary duties: they are out there** Fiduciary duties are generally seen as the most onerous of all legal duties and where they apply they require a person to act solely in another party's interests. One case often referred to that highlights the extent of fiduciary duties is Loughnan v McConnell [2006] QSC 359. Full post this week linked here: https://buff.ly/3Nj3FYS #Fiduciaryduties #DinosaurJnr #bethechange #viewlegal #matthewburgess