While Victorian law imposes strict formal requirements for making a valid Will, including rules around signing and witnessing, section 9 of the Wills Act 1997 (Vic) provides the Court with discretion to dispense with these formalities in certain circumstances. This flexibility is designed to ensure that genuine testamentary intentions are not defeated simply because a document fails to meet technical requirements, whether due to the surrounding circumstances or a lack of understanding of the legal process.

However, this discretion is not automatic: the Court must be satisfied, based on the available evidence, that the document reflects the deceased’s final intentions and meets specific criteria.

To admit an informal will to probate, it must be able to be established that:

• The deceased intended the document to be their will. This may be supported by evidence such as how and where the document was kept, why it was not formally executed, and any statements made by the deceased indicating they had made or intended to make a will.
• The deceased had testamentary capacity at the relevant time. This means they understood the nature and effect of making a will, had a general awareness of their assets, and could identify and weigh the claims of those with a natural claim on their estate.
• The document was authored or adopted by the deceased. This may include evidence that the deceased prepared or signed the document, or otherwise accepted it as their will through their conduct.

Recent Cases

• Re Norris; Lindsay v Howie [2025] VSC 85: An unsigned will prepared by the deceased’s solicitor on her instructions was accepted as valid. Following a separation from her husband, to whom she remained legally married, the deceased provided instructions to her solicitor for a new Will. Although the deceased arranged to meet with her solicitor to sign the Will, she passed away before she could do so. The deceased’s estranged husband argued that the deceased had died intestate, and therefore that he was entitled to her entire estate under the intestacy provisions. 
  
  In finding that the deceased intended the unsigned document (which she had not actually seen) to be her final Will, the Court relied on the evidence of the deceased’s lawyer that she had read the Will aloud to the deceased over the phone, the deceased had stated she was happy with the Will, and the lawyer had printed and bound the Will in anticipation of it being signed by the deceased. 
  
  
• Re Wallace [2024] VSC 22 concerned a ‘joint’ Will made by the deceased and her husband, shortly before embarking on an overseas trip. On the way to the airport, the deceased called one of the named executors and told him they had made a will, that he was an executor, and where the Will was kept; the other executors were also notified before or after the couple returned from their trip. Neither testator turned their mind to obtaining witnesses when making the Will. The Court accepted the document as an informal Will and admitted it to probate.
  
  
• Re Estate of Hirschfeld [2023] VSC 562 involved an unsigned Will and an Estate that would have otherwise followed rules of intestacy law, had the court not accepted that there was an informal will. In this case, the intentions of the deceased were apparent and non-contentious, as she had advised her executor and daughter of her intentions. The court accepted that the Will would have been signed, had the deceased not passed way prior to her signing appointment due to her deteriorating health.
  
  
• Re Kalenyouk [2024] VSC 390 involved a handwritten document titled ‘Will’ prepared by the deceased four days before his death. Although the deceased had signed the Will before only one witness, the Court accepted it to be an informal Will as there was compelling evidence to confirm the deceased’s intentions despite his critical health condition. This included that he titled the document ‘Will’, it revoked previous wills, he expressed his intentions to write a Will to his son-in law, and he had requested legal advice on requirements for submitting an informal Will.
  
  
• In contrast, in Re Larcombe [2022] VSC 741 the Court dismissed an application for probate of one-page handwritten document that misspelt the deceased’s first and last names, and which was signed before only one witness. The document in question was prepared by a family member of the deceased on the same day the deceased was admitted into hospital.
  
  In making its decision, the Court was not satisfied the deceased understood the general nature and value of his estate or the effect of the document. Critically, there were significant concerns about the deceased’s testamentary capacity, and a lack of evidence that the informal Will reflected the deceased’s wishes.   

Key takeaways

Whilst never a substitute for proper estate planning, the Court’s power under section 9 of the Wills Act 1997 (Vic) can be a valuable mechanism to ensure technical non-compliance with formalities for a Will does not inadvertently frustrate a person’s testamentary intentions.

How we can help

If you are dealing with a potential informal Will or considering your own estate planning, it’s important to seek legal advice as soon as possible. Our experienced wills and estates team would be happy to assist you.

Contact us

Please contact us if you would like further information on how we can assist.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.}

The recent Full Bench decision in Naden v Catholic Schools Broken Bay [2025] FWCFB 82 delivers a timely reminder: employers must strictly comply with the procedural and substantive requirements in the Fair Work Act 2009 (Cth) (FW Act) when responding to flexible work requests by employees.

The case reinforces that it’s not enough for employers to believe they have reasonable business grounds—they must also follow the proper process under s 65A of the FW Act to lawfully refuse a request.

Background

Ms Elizabeth Naden, a long-serving teacher and Religious Education Coordinator (REC) at Sacred Heart Primary School in Pymble (School), submitted a flexible work request to return part-time after parental leave under the Catholic Schools Broken Bay Enterprise Agreement 2023, which mirrors the provisions of the FW Act. The employee proposed to job-share the REC role and work three days per week in Terms 1 and 2 of 2025, before resuming full-time duties in Term 3.

The School expressed concern about approving Ms Naden’s request, noting that it could not provide flexible work arrangement for executive roles, and instead offered her a classroom teacher position during that period. On 12 December 2024—82 days after the request—the School formally declined her proposal, citing adverse impacts on student outcomes, leadership continuity, the workload of other staff, and staffing costs.

Ms Naden disagreed and referred the matter to the Fair Work Commission under s 739 of the FW Act.

Legal requirements for responding to flexible work requests

Employees have a right to request flexible work under the National Employment Standards (NES) in the FW Act if they meet specified criteria, such as being pregnant, a parent or carer, having a disability, being 55 or older, experiencing family/domestic violence, or providing care to someone experiencing family/domestic violence.

For an employer’s refusal to be valid, all elements of s 65A(3) must be met. It is only lawful to refuse a request if:

• The employer has discussed the request with the employee, and genuinely tried to reach agreement with the employee about changes to accommodate their circumstances.
• No agreement has been reached.
• The employer has had regard to the consequences of the refusal for the employee.
• The refusal is on reasonable business grounds
• The employer provides the employee with a written response within 21 days of receiving the request.

‘Reasonable business grounds’ for refusing a request

Section 65A(5) of the FW Act outlines a non-exhaustive list of what may constitute “reasonable business grounds” to refuse a flexible work request.

These include:

• excessive cost;
• lack of capacity or impracticality in rearranging or recruiting staff;
• significant loss in efficiency or productivity; or
• a serious negative impact on service delivery.

Importantly, these grounds must be assessed in the context of the employer’s specific circumstances—such as the size and nature of the organisation—which may influence whether such grounds are objectively reasonable under s 65A(3)(d) and (4). For example, a smaller school with limited staff may have less capacity to accommodate a job-share arrangement.

FWC Full Bench Decision

The School’s decision to refuse the request was upheld at first instance. However, on appeal, the Full Bench overturned that decision. The key failure? The School did not demonstrate that it considered the personal impact of the refusal on Ms Naden—a specific and mandatory requirement under s 65A(3) of the FW Act.

As the Full Bench explained (at [47]):

“The respondent… was not entitled to refuse the request unless [it] had regard to those consequences… The evidence did not establish that the respondent had regard to those consequences when it refused the request.”

Ultimately, the Commission found that the refusal was not lawful. The practical effect: Ms Naden should have been permitted to return part-time in accordance with her flexible work request.

Key lessons for employers

This case highlights three critical lessons for employers and school leaders considering flexible work requests:

1. Strict compliance is non-negotiable: Even if business reasons exist, a refusal will be invalid if any procedural step is skipped—particularly failing to consider the employee’s personal circumstances. Here, the employee had secured childcare for three days per week until term 3, and declining her request would have had the effect of depriving her of her leadership role.
   
2. Timing matters: The School took 82 days to respond—well beyond the 21-day statutory deadline. While not the main basis for the decision, this delay undermined its case and shows that lateness can damage credibility.
   
3. Dispute pathways are now broader: Since June 2023, employees can escalate flexible work disputes to the FWC, even outside of enterprise agreements. This expanded access increases exposure for employers that don’t manage requests lawfully and transparently.

How We Can Help

Our Workplace Relations team supports employers with:

• Assessing and responding to flexible work requests.
• Drafting compliant correspondence and documentation that properly addresses all relevant factors in an objective manner.
• Training leadership teams on their legal obligations and best practice when responding to flexible work requests.

We can help you make decisions that are both legally sound and practically workable—reducing risk while supporting staff wellbeing.

Contact us

Please contact us if you would like further information on how we can assist.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.}

Two recent Fair Work Commission (FWC) decisions offer contrasting outcomes for schools navigating the complex terrain of staff misconduct towards children. These cases highlight the legal and ethical boundaries of acceptable behaviour in student discipline and underscore the importance of proportionality, policy alignment, and procedural fairness when considering termination. They also raise key safeguarding considerations for educational institutions.

Case 1: A Physical Act with Lasting Consequences

Jillian McLoghlin v St Columba’s College Ltd [2025] FWC 1554

Background

Ms Jillian McLoghlin, a science laboratory technician at the College, was dismissed for misconduct following an incident where she forcefully slapped a student’s hand during a biology lesson.

While Ms McLoghlin claimed it was a reflexive act to prevent harm involving a scalpel, she acknowledged being frustrated with the students. The College reported the allegations to the Commission for Children and Young People (CCYP), conducted an investigation, and subsequently terminated her employment.

FWC Decision

Ms McLoghlin’s application for an unfair dismissal remedy under s 394 of the Fair Work Act 2009 (Cth) was dismissed. The FWC found that the College had a valid reason for dismissal based to her conduct, and the dismissal was not harsh, unjust, or unreasonable.

In reaching this conclusion, the FWC found:

• Undisputed conduct: Video footage showed the slap was forceful and inappropriate in the school environment and caused the student to recoil. Her safety justification lacked credibility and conflicted with her own admissions.
• Clear breach of policy: The College’s Child Safe Code of Conduct explicitly prohibits physical discipline.
• Fair process: Despite minor procedural delays, Ms McLoghlin was given a fair chance to respond. Her failure to acknowledge the seriousness of her actions weakened her case.
• Lack of remorse and insight: The FWC noted Ms McLoghlin’s long service and good record but found that she minimised and failed to take full responsibility for her conduct, referring to it as “one little incident” and “trivial”. Her attempt to attribute blame to a lack of training was dismissed, as knowing that slapping a student is impermissible does not require specific training.

Case 2: The Limits of Vocal Authority

Paramjit Brownson v Australian International Islamic College Ltd [2025] FWC 1551

Background

Ms Paramjit Brownson, a high school teacher and Pastoral Coordinator, was summarily dismissed for allegedly yelling at misbehaving students. She argued her actions were consistent with school norms and necessary to manage escalating misbehaviour. She also alleged her dismissal followed criticisms she raised about school leadership.

This was a rehearing of an unfair dismissal application after an earlier reinstatement order was quashed on appeal.

Decision

The FWC found that Ms Brownson was unfairly dismissed and ordered the College to pay Ms Brownson $55,786.90 (plus superannuation). Reinstatement was ruled out due to ongoing fair treatment and a breakdown in trust when Ms Brownson saved confidential information to her personal device.

In reaching its decision, the FWC’s conclusion considered each of the factors under s387 of the Fair Work Act 2009 (Cth) including:

• Reasonable disciplinary conduct: yelling at misbehaving students was found appropriate within her pastoral role. The FWC noted that other staff had used similar strategies when managing student behaviour.
• Unreliable complaints: Student complaints lacked credibility and were either previously dismissed or not rigorously assessed.
• Policy breaches unsubstantiated: Alleged violations of conduct and child protection policies were not proven, and the College exaggerated the seriousness of the allegations.
• Procedural shortcomings: Although due process was followed, the absence of a valid reason, coupled with findings of personal animosity from leadership, rendered the dismissal unfair.
• Contrived dismissal: The FWC concluded that the decision to terminate was driven by personal conflict, not genuine performance or conduct issues.

The FWC found the lack of a valid reason for dismissal and the contrived nature of Ms Brownson’s termination outweighed the procedural aspects where the College had met its obligations (e.g., notification and opportunity to respond). The FWC also noted that less severe options, such as training, counselling, or role changes, would have been fairer if genuine concerns about her interactions with students had existed.

What Sets These Cases Apart?

The central distinction lies in the nature of the conduct and the integrity of the investigation.

• In McLoghlin, physical discipline was clearly inconsistent with policy, unjustified by context, and followed by a fair and evidence-based process. The dismissal was upheld.
• In Brownson, the disciplinary conduct was more nuanced, within accepted norms, and investigated through a process compromised by bias and lacked substantive justification. The dismissal was overturned.

These cases underscore the importance of proportionality, policy clarity, process integrity, and credible investigation, especially in classroom discipline contexts.

Safeguarding and Reporting Implications

Where staff behaviour involves potential harm to children, employers must also meet external reporting obligations, including under the relevant reportable conduct scheme.

• Physical discipline, especially involving violence or risk of harm, is likely to be reportable.
• Verbal discipline, such as raising one’s voice, may not meet the threshold unless it causes significant emotional or psychological harm and is not reasonable or lawful.

Employers should carefully consider guideline published by regulators to determine whether allegations are reportable.

Key Takeaways for Employers

• Context and proportionality matter: Not all disciplinary actions warrant dismissal. Physical discipline is rarely defensible, while verbal discipline must be assessed in its full context.
• Policy alignment is critical: Misconduct must be assessed in line with clearly communicated and consistently enforced policies.
• Investigations must be fair and impartial: A flawed or biased process can invalidate even well-intentioned disciplinary action.
• Ensure valid grounds for dismissal: Procedural compliance is not enough if the underlying reasons for dismissal lack merit.

Report when required: Be clear on your safeguarding obligations and act promptly where reportable conduct may be involved.

How we can help

Our Workplace Relations team assists employers with managing disciplinary matters to minimise risk and ensure compliance with employment law. Additionally, our Safeguarding team advises on external reporting obligations and investigations arising from staff conduct involving children or young people.

Moores can help you navigate the complexities of staff conduct and ensure your organisation is protected—legally, ethically, and operationally.

Contact us

Please contact us if you would like further information on how we can assist.

Subscribe to our email updates and receive our articles directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.}

This is the third article in our recent series on the childcare crisis, following our advice for operational changes (Rebuilding Trust: Strengthening Child Safety in Childcare Centres During a Time of Crisis) and governance and board responsibilities (Child Safety and the Board: Boards must lead with care).

Increased capacity to investigate and de-fund

In response to the announcement on July 1 that childcare worker Joshua Brown has been charged with 70 child sex offences, both the Victorian and Commonwealth governments have taken swift and targeted action.

Notwithstanding, the Victorian government has announced a review of the sector and is expected to release its report and findings on 15 August 2025.

Meanwhile the Commonwealth government has announced that it is expediting the laws announced in March this year¹ which propose to remove funding from childcare providers who are chronically non-compliant, and Education Minister Jason Clare stating that additional legislation will be introduced in the next sitting period which would allow spot-checks of childcare centres without warrants or police involvement if passed.²

While lowering barriers for childcare centres to be investigated and de-funded is aimed to increase compliance and sector integrity, educators and school communities should be aware and prepared for temporary side-effects, such as limitations on the ability to expand to new campuses whilst ‘working towards compliance’ and the potential for parents to be left without childcare and on new waiting lists at short notice if their child’s centre is de-funded.

Moving forward on universal childcare

One of the criticisms and challenges of the childcare sector is that it is subject to different state and federal regulation and different types of funding, making a complex. One proposed solution is to shift the operation of childcare to state public schools. Where this leaves the (much less criticised) not-for-profit providers, and the for-profit operators, on the matter of funding is unclear.

Notwithstanding, the changes take place within the Albanese Government’s broader initiative to championing universal childcare as the predominant mode of funded childcare. The aims target a wide range of outcomes including decreasing developmental vulnerability of children from low-income families.³ In this context, the importance of resolving these issues to ensure the wellbeing and safety of the sector is especially critical.

The move towards universal childcare is underpinned by a huge investment in increasing the capacity of the sector as well as accessibility.⁴ Measures include Government investment wage increases for childcare workers and funding of new centres. Additionally, in February this year, Parliament passed the Early Childhood Education and Care (Three Day Guarantee) Act 2025, which commences January 2026 and will remove the requirement for families to spend a certain number of hours undertaking ‘recognised activities’ (including paid and unpaid work or leave, approved course of study, or looking for work) in order to access 72 hours per fortnight of subsidised care (with further hours being made available to those with over 48 hours in recognised activities per fortnight).

Currently, the subsidy for a firstborn is 90% for families with an income up to $85,279, after which it decreases 1% for every $5,000 earned up to $535,279. There are also rate caps, and a lower decreasing scale for second and younger children.⁵ Under the Three Day Guarantee, the subsidy percentage will continue to rely on the combined family income, hourly rate caps, number of children (and their age) in care.⁶

We can expect to see increased uptake of childcare services, which will sharpen the spotlight on the ability of regulators to hold workers accountable and prevent harm.

Other issues

More broadly, a sleeper issue could be the sunsetting of key cyber powers of the Australian Federal Police and the Australian Criminal Intelligence Commission at the end of next year. Driven by the need to disrupt and prosecute serious criminal online activity such as the distribution of child abuse material, the Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 (Cth) gave these federal agencies significant powers to collect intelligence and conduct investigations (including by taking over online accounts) into serious criminal online activity.⁷ These powers have been subject to strong safeguards and will sunset in September 2026 unless renewed by Parliament.

The special powers of the AFP and ACIC are currently under review by the Independent National Security Legislation Monitor⁸ and whether by this or by other means, the expansion and investment in the growth and reform of the childcare sector could leave it vulnerable, and should be governed with both appropriate regulatory and investigative powers.

Act now

What is clear is that centres should not wait for federal reforms such as a national or state register of workers. They need to act now.

How we can help

At Moores, our Safeguarding and Child Safety teams work alongside organisations to ensure their child safety frameworks are robust, compliant, and reflective of best practice. Our experienced team supports clients to:

• Review and update Child Safety Policies and Codes of Conduct;
• Respond effectively to allegations of child abuse;
• Navigate investigations and compliance obligations; and
• Develop practical, preventative strategies that promote a culture of child safety.

We also provide tailored training for staff, boards, and child safety officers to ensure all individuals understand their role in protecting children.

Contact us

If you would like to discuss how we can support your organisation, our education and safeguarding teams are here to help. Please contact Cecelia Irvine-So or Skye Rose if you would like further support. 

View our dedicated page on the Childcare and Early Education Reforms and subscribe to receive updates directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.}

1. Strengthening safety and quality in early childhood education and care | Ministers’ Media Centre ↩︎
2. Transcript – Sky News AM Agenda | Ministers’ Media Centre; and Joint Statement – Minister Clare and Minister Walsh – Jason Clare MP | Minister for Education ↩︎
3. https://www.pc.gov.au/media-speeches/articles/universal-childcare ↩︎
4. https://www.education.gov.au/early-childhood/announcements/building-universal-early-education-and-care-system ↩︎
5. Child Care Subsidy – Department of Education, Australian Government ↩︎
6. 3-day guarantee – legislation passed – Department of Education, Australian Government ↩︎
7. Surveillance Legislation Amendment (Identify and Disrupt) Act 2021 ↩︎
8. Identify, takeover and disrupt – special powers of the AFP and ACIC | INSLM ↩︎

Recent distressing events in the childcare sector have drawn renewed attention to the importance of robust child safety practices. It is appropriate in this context for board members of all organisations that care for and educate children to reflect on their role in creating and maintaining safe environments.

At the end of this article, we have provided a checklist for boards to consider as they review their child safe practices.

Regulatory changes have been proposed at the state and federal level (including bringing forward existing proposed reforms in relation to creating a Victorian register of childcare workers and banning personal devices in childcare centres by Friday 26 September 2025). Additionally, the Victorian government has announced a review of childcare safety. Prudent boards will ensure that their organisations do not wait until regulatory changes are imposed and reviews are finalised (although they must monitor and respond to developments in this space). Instead, organisations must act now to anticipate foreseeable risks, mitigate those risks and promote a culture of safety and continuous improvement. In this, the board has a vital role to play.

Media reporting has been critical of the childcare centres which operate for profit. This might be false comfort for not-for-profit operators. Child safety risks exist across all types of early years providers and not just in long day care. Boards of occasional care, sessional kindergartens and school-based ELCs also need to act. It is worth emphasising that the law is not more lenient towards boards of not-for-profits – the duties and penalties are substantially the same. Board members of not-for-profit centres will not be treated with kid gloves just because they are unpaid volunteers.

Board duties and child safety

Child safety isn’t just an operational concern: it is a governance issue that directly impacts an organisation’s ability to deliver on its purpose. Board members have a duty to act with care and diligence and in the best interests of the organisation¹. Complying with these duties necessarily extends to ensuring child safety. Acting in the best interests of the organisation means prioritising the wellbeing of the people it serves, especially children and protecting the organisation itself from legal and reputational harm. Exercising care and diligence requires ongoing attention to whether systems, practices and culture are effective in keeping children safe.

Shifting legal expectations: a need to demonstrate reasonable steps

In the years following the Royal Commission into Institutional Responses to Child Sexual Abuse, child safety laws have evolved to emphasise accountability. One important development has been the introduction of a reverse onus of proof (including in Victoria) in certain circumstances. This means that, if harm occurs, an organisation will be presumed to have breached its duty to prevent the abuse of a child unless it can show that it took reasonable precautions to prevent it.

In Moores’ view, it is a clear breach of board members’ duties to fail to ensure that an organisation takes these reasonable precautions. In the extreme case, this failure will not only be a breach of board members’ duties, but will expose directors to criminal prosecution – under ‘failure to protect’ laws across Australia it is a criminal offence for a board member in certain child facing organisations (including childcare centres) to negligently fail to act if they know that a person associated with the organisation poses a substantial risk to a child.

For boards, this reinforces the importance of having systems in place to comply with the National Child Safe Standards and to satisfy themselves that those systems are active, effective and regularly reviewed. The role of the board is to oversee these elements and satisfy itself that they are working as intended. Board members on school boards have additional specific obligations under Ministerial Order 1359 to ensure a range of child safety measures, and must have “line of sight” over all of operational measures. Boards in all organisations caring for and educating children cannot simply adopt policies without confirming they are implemented. Nor can they rely on assumptions, verbal reports or no known history of incidents. Further, boards must ensure that there are open and accessible reporting pathways as well as a culture that promotes accountability and supports speaking up.

Practical steps boards can take

In light of recent developments, boards should review their organisation’s current child safety arrangements. The following checklist provides questions that board members can use to guide discussion and decision-making:

1. Reaffirm the board’s commitment

• Does the board lead by example in promoting a culture of safety and accountability?
• When did the board last make a formal statement of its commitment to child safety? A clear message from the board that child safety is a priority and is supported at the highest levels can help reinforce a strong culture and guide expectations.
• How is the board’s commitment communicated to staff, volunteers, families and children?

2. Check capability and knowledge

• Has the board undertaken recent training or received updates on legal obligations and child safety standards?
• Does the board’s skills matrix include child safety expertise or experience?
• When was the skills matrix last reviewed, and are any gaps being addressed?

3. Request evidence of implementation

• When were the organisation’s child safety policy and processes last reviewed?
• How does the board know that the child safety policy and processes have been effectively implemented?
• What evidence has been provided to the board showing compliance with child safety policies and the Child Safe Standards?
• Are regular reports provided on matters such as training completion, incident reporting, and risk assessments?

4. Ensure integration with broader governance

• Is child safety a standing item on board agendas?
• Is it adequately reflected in the organisation’s risk register and strategic planning documents?
• Does the board receive regular updates on progress against child safety objectives?

5. Ensure risk management frameworks are robust

• Does the organisation’s risk management framework clearly identify child safety risks and mitigation strategies?
• Has the board considered its risk appetite in relation to child safety including scenario planning and stress testing? All organisations should have a very low appetite for child safety risks and zero tolerance for harm.
• Is there regular review of how child safety risks are assessed and managed, including scenario planning and stress testing?

6. Support transparency and responsiveness

• Are there accessible and well-communicated reporting channels for concerns or complaints?
• Does the board receive reports on how concerns are handled and what actions have been taken?
• Does the organisation encourage a “speak up” culture, and is there evidence that it is working in practice?

A considered governance response

Boards do not need to have all the answers. But they do need to ask the right questions, set clear expectations, and be prepared to adapt where needed.

At a time when public confidence in safeguarding practices is under renewed scrutiny, organisations that show thoughtful leadership and a genuine commitment to improvement will be better placed to maintain trust and deliver their mission with integrity.

Ultimately, ensuring a safe environment for children is not just a matter of compliance, it is central to good governance, and to the values that many charities hold at their core.

How we can help

At Moores, our Safeguarding and Child Safety teams work alongside organisations to ensure their child safety frameworks are robust, compliant, and reflective of best practice. Our experienced team supports clients to:

• Review and update Child Safety Policies and Codes of Conduct;
• Respond effectively to allegations of child abuse;
• Navigate investigations and compliance obligations; and
• Develop practical, preventative strategies that promote a culture of child safety.

We also provide tailored training for staff, boards, and child safety officers to ensure all individuals understand their role in protecting children.

Contact us

Please contact us if you would like further information on how we can assist.

View our dedicated page on the Childcare and Early Education Reforms and subscribe to receive updates directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.}

1. These duties are imposed by statute, common law and (in the case of charities) ACNC Governance Standard 5. ↩︎

When a member of a superannuation fund passes away, a member’s benefit (referred to as a “death benefit”) must be cashed out “as soon as practicable after the member dies”. So how long is too long to wait before paying out a member’s death benefit post death?

This question is particularly important for self managed superannuation fund (“SMSF”) trustees who are tasked with paying out the “death benefit” of the deceased member (being the deceased’s executors, usually individuals related to the deceased, rather than unrelated trustees as is the case in retail or industry funds).

ATO’s changing view

What does “as soon as practicable” mean? This wording is not defined in superannuation or taxation legislation which can make it difficult for trustees to fully understand their obligations.

Despite this, the Australian Taxation Office (ATO) had previously provided guidance to trustees about the recommended timeframe. It had been of the view that “as soon as practicable” meant that the trustee had six months from the date of the member’s death, to pay out the death benefit out of the fund.

Particularly for SMSFs, the trustees are usually grieving family members. During the initial six months post death, they are already dealing with other mentally and emotionally taxing tasks arising from the death of their loved one, so the expectation that they are to also organise cashing out the member’s death benefit and paying it out to beneficiaries, in practice can be a somewhat unrealistic expectation.

The ATO has recently removed reference to their six month timeframe definition via their website, providing some relieve to the grieving trustees.  But this does not mean that a trustee can take as long as they wish. The trustee still has the obligation to pay out the death benefit “as soon as practicable” under the Superannuation Industry (Supervision) Regulation 6.21(1).  It is also yet to be determined whether the removal of this reference was intentional, or an omission by error by the ATO.

Why is the timeframe so important?

SMSF auditors review trustee actions in respect to administering the SMSF. Distribution of death benefits must occur, but during the administration period (post death of the member and before the distribution of death benefit), where the deceased member was in pension phase, the fund can continue to claim “exempt current pension income” (ECPI) where essentially, any income generated from the fund attributed to the pension-phase account, would not be taxed.

While this could be an incentive to trustees to take their time paying out the death benefit, an auditor will likely expect an explanation for delay in order to comply with their own obligations, even though the six-month guideline no longer appears on the ATO website.

Superannuation fund trustees are under an obligation to act honestly in all matters concerning the fund. For example, delaying payment of a death benefit to claim ECPI or waiting for the market to pick up before selling fund assets (e.g. property or shares), may be considered taking advantage of an extended time frame, and in turn possibly contravening the trustee’s obligations.

What should you do?

If you foresee an extended period of time (over 6-12 months) before the death benefit would be paid out of the fund, it is a good practice to document in writing the reason for delay which can assist the auditor with understanding the circumstances preventing the trustee from meeting their obligations.

How we can help

Our experienced lawyers in the Moores Deceased Estates team can provide guidance to SMSF trustees by assisting with navigating pay out of death benefits, and meeting their obligations upon the death of an SMSF member.

Contact us

Please contact us if you would like further information on how we can assist.

Subscribe to our email updates and receive our articles directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.}

As Australia’s workplace laws grow in complexity, so too do the compliance obligations of corporate boards in Australia. Once viewed as a function of human resources or middle management, employment compliance now sits squarely within the remit of directors. Modern regulators expect active governance, and courts are increasingly willing to impose personal liability on directors who have failed to implement or oversee adequate systems to protect employees. The consequence is that, in the event of an employment compliance failure, directors may face not only reputational and organisational consequences but also personal liability.

Against this backdrop, Boards must ask themselves a critical question: Are we discharging our duties in a manner that sufficiently mitigates employment-related risks, both for the organisation and for individual directors?

Behind the Corporate Veil: When Directors Can Be Personally Liable

Ordinarily directors are not personally liable for actions they take on behalf of the company they serve. This is often referred to as the ‘corporate veil’. However, the corporate veil may be lifted and personal liability can arise in specific circumstances, including breaches of employment law. Under instruments such as the Fair Work Act 2009 (Cth), Sex Discrimination Act 1984 (Cth) (SD Act), state anti-discrimination laws and various WHS regulations, directors may be held personally accountable where they are deemed to have been involved in or failed to prevent contraventions.

This exposure is not theoretical. Regulators are increasingly pursuing individuals where governance failures are apparent—particularly where issues have become systemic or have resulted in harm. The threshold for liability is not limited to intentional misconduct; it can also encompass acts of recklessness, omission, or wilful blindness.

Health, safety and wellbeing risks

Emerging areas such as psychosocial hazards—encompassing stress, harassment, burnout, and toxic workplace culture—are now part of the legal landscape. SafeWork Australia’s national model WHS laws now explicitly incorporate these risks, and boards are expected to demonstrate these risks are being actively identified, assessed, and controlled. Failing to do so can expose both the organisation and its directors to liability. Individual directors can be exposed to significant penalties (fines of up to $600,000 per breach), and up to five years imprisonment for indictable offences.

While some duties can be assigned or delegated, directors should be receiving regular reports and information on psychosocial hazards and steps being taken to eliminate or control them.

Underpayments and the “involvement” principle

Wage and superannuation underpayments remain an area of intense regulatory focus. The reputational and financial damage associated with non-compliance is significant, and the Fair Work Ombudsman has shown a readiness to investigate directors personally under the involvement provisions of the Fair Work Act 2009 (Cth) (FW Act).

Under section 550 of the FW Act, a director may be liable if they are found to have:

• aided, abetted, counselled, or procured a contravention;
• induced or attempted to induce a contravention;
• been knowingly concerned in or a party to a contravention (including through inaction); or
• conspired with others to effect a contravention.

Liability is not confined to deliberate non-compliance. A director who is aware of underpayment risks and fails to take reasonable steps to  mitigate the risk and rectify them, and may be deemed to be “knowingly concerned” in the underpayment. In more egregious circumstances, their conduct may qualify as a serious contravention, which attracts even harsher penalties.

Sexual Harassment and the Positive Duty to Prevent Harm

The legal framework governing workplace conduct has shifted decisively with the introduction of the positive duty under the Sex Discrimination Act 1984 (Cth). This duty requires organisations to take proactive and reasonable measures to eliminate, as far as possible, unlawful conduct such as sexual harassment, sex-based discrimination, and hostile work environments.

This is not a matter of form over substance. Regulators expect genuine cultural leadership from the top. It is insufficient for boards to rely on policies or post-incident remediation. Instead, they must ensure that the organisation fosters a culture in which inappropriate conduct is both clearly prohibited and actively deterred.

For boards, this involves oversight of:

• preventative frameworks (policies, training, codes of conduct);
• internal reporting mechanisms and whistleblower protections;
• data on incidents, investigations, and culture audits; and
• management’s accountability for delivering safe, respectful workplaces.

A workplace free from harassment isn’t just a legal requirement; it’s a driver of performance, morale, and reputation. A failure to fulfil this duty not only undermines organisational integrity but may also constitute a legal breach for which directors are ultimately accountable.

Proactive Oversight: From Passive Governance to Informed Inquiry

Directors are not expected to manage day-to-day operational matters. However, they are responsible for ensuring that systems exist to identify, assess, manage, and report on key risks—including those arising from employment law and workplace conduct. Effective governance is not passive; it demands oversight that is both deliberate and informed.

To discharge this duty, Boards must establish and monitor structured frameworks that provide clear, reliable, and timely information on compliance performance and organisational culture. Crucially, they must critically assess this information and consider whether it reflects reality on the ground.

Key areas of focus should include:

1. Workplace Grievances and Whistleblower Activity

The handling of complaints and disclosures is a litmus test for workplace integrity. Directors must ensure that grievance and whistleblower processes are accessible, trusted, and comply with applicable legislative frameworks—including whistleblower protections under the Corporations Act 2001 (Cth).

Key questions:

• Is our whistleblower framework legally compliant and actively promoted?
• Are potential recipients of grievances or protected disclosures familiar with our policies? Do they understand their obligations?
• Do staff have safe and confidential avenues to report concerns — including to senior leadership or the board when appropriate?
• Are any trends or themes emerging in grievances or protected disclosures? Are they being escalated appropriately?

2. Internal Audits and External Investigations

Employment-related audits—whether relating to wage compliance, discrimination, or WHS obligations—must be more than procedural. They are an opportunity for boards to test the robustness of internal controls and identify systemic weaknesses.

Key questions:

• Are independent audits conducted regularly on high-risk areas such as remuneration and workplace safety?
• Are audit findings reported to the board in a timely and comprehensible format?
• Has management acted on recommendations from past audits or investigations?

3. Psychosocial Safety and Employee Engagement

Psychosocial risks, including mental health, workload stress, and toxic workplace behaviour, are increasingly recognised as compliance obligations—not just cultural considerations. Boards need to evaluate how these risks are being addressed both operationally and strategically.

Key questions:

• Does the organisation regularly assess employee wellbeing and engagement?
• Are psychosocial risks identified, documented, and managed through WHS systems?
• Is the board receiving meaningful metrics on culture, morale, and retention? Who conducts exit interviews for the CEO’s direct reports?

4. Remuneration Practices and Payroll Compliance

Given the prevalence of underpayment issues in Australian workplaces, remuneration compliance must be treated as a core legal and reputational risk. Boards cannot rely solely on assurances from management or external advisors.

Key questions:

• Are remuneration systems subject to regular, independent review?
• Have any historical underpayments been identified, and what steps have been taken to address them?
• Are directors briefed on the risk of non-compliance and steps taken to mitigate it?

5. Leadership Accountability and Cultural Expectations

Culture begins at the top—and so does accountability. Boards must lead by example and ensure there are systems in place to set expectations for behaviour, monitor leadership performance, and enforce consequences where necessary.

Key questions:

• Has the board clearly articulated its expectations for respectful conduct, integrity, and ethical leadership? Are these expectations implemented through an appropriate behavioural framework?
• Is the board itself subject to behavioural expectations (e.g. through a code of conduct)?
• Are breaches of conduct by senior leaders investigated independently and transparently?
• Are culture and conduct metrics embedded in executive performance evaluations?

6. Resourcing and Risk Mitigation Capacity

Effective compliance is resource-dependent. Directors must satisfy themselves that the organisation has sufficient capability to meet its legal obligations and to detect and respond to breaches in a timely manner.

Key questions:

• Has the board determined the organisation’s risk appetite and established an appropriate risk management framework to keep risks within agreed tolerances?
• What internal capacity exists to manage employment compliance—including HR, legal, and audit functions?
• Has the board appropriately used external audit functions?
• Are systems and personnel adequately resourced to meet the organisation’s scale and complexity?
• What is the residual risk that non-compliance is occurring undetected?

Directors must not assume that delegating responsibility to management absolves them of liability. Courts and regulators are increasingly prepared to scrutinise not only the existence of systems, but also the extent to which directors have confirmed that they are properly implemented and effective.

This is not micromanagement—it is governance in action.

When does a board need to step in?

There are times when oversight must give way to direct involvement. Greater board oversight or direct engagement by the board may be necessary when:

• a whistleblower disclosure is made to a director or the board;
• the employment compliance matter involves the CEO;
• the CEO has a conflict that means they are unable to handle the matter;
• there appears to be a systemic issue (particularly if the board does not have confidence in the executive team’s response);
• the matter involves significant financial or reputational risk, such as widespread underpayments or employment disputes that are likely to attract media attention; or
• the matter could lead to a legal claim against the organisation.

How we can help

Our specialist Workplace Relations and For Purpose / Not for Profit legal teams are well placed to advise boards on governance strategies and obligations in respect of employment and occupational health and safety obligations. Our teams can provide valuable expertise to guide boards through complex employment matters and disputes.

Contact us

Please contact us if you would like further information on how we can assist.

Subscribe to our email updates and receive our articles directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to your organisation.}

Trigger warning: This article contains references to alleged child sexual abuse that may be distressing to some readers.

The Victorian childcare sector and broader community are reeling following deeply distressing allegations against childcare worker Joshua Brown, who has been charged with 70 offences related to the sexual abuse of young children. The alleged victims range in age from just five months to two years old. Equally confronting is the fact that Brown worked at approximately 20 childcare centres over an eight-year period—while holding a valid Working With Children Check (WWCC). For many parents, this represents their greatest fear realised.

In the aftermath of these revelations, families, educators, employers and policymakers alike are grappling with urgent questions: How could this happen? What safeguards failed? And most importantly—what must change to ensure children are truly safe?

The Policy Response: Immediate Actions Underway

In response, the Victorian Government has announced swift and significant reforms. Premier Jacinta Allan and Government Services Minister Natalie Hutchins outlined a series of actions aimed at bolstering child safety in early learning environments, including:

• A ban on personal electronic devices in childcare centres from September 2025; and
• An urgent safety review of the childcare sector, including consideration of mandatory CCTV installation.

Additionally, reforms to strengthen the WWCC system are underway. While these measures are welcomed, they also highlight the limitations of relying solely on screening mechanisms. As those working in child safety know too well, WWWC checks—while critical—cannot identify individuals who have not previously come into contact with the justice system or who may have hidden harmful behaviours.

Legal Implications: A Heightened Duty of Care

In jurisdictions such as Victoria and New South Wales, a ‘reverse onus’ legal standard applies to organisations working with children. If abuse occurs, the organisation must prove it took all reasonable steps to prevent it. This legal framework underlines the need for childcare providers to act proactively and comprehensively—not only to meet their legal obligations, but to uphold the trust families place in them every day.

With a national review of safety standards likely to take months, early years providers must ask themselves: What can we do right now to better protect children in our care?

Six Immediate Steps to Enhance Child Safety in Early Childhood Settings

These recommendations are designed not only for childcare providers, but for any organisation engaging with children, including schools, sport and recreation providers, disability service providers, religious institutions, and sporting organisations.

1. Review and Refresh Your Child Safety Policy, Procedure and Code of Conduct

Your organisation’s Child Safety Policy and Code of Conduct must be current, comprehensive, practical and easy to understand. The Code should clearly outline acceptable and unacceptable behaviours and explicitly address online conduct and the use of social media. Policies should define clear responsibilities across all levels—from board to frontline staff—and procedures should include actionable steps for reporting and responding to concerns.

2. Actively Communicate Your Commitment to Child Safety

Policies and procedures alone are not enough. A strong culture of child safety requires regular, visible communication from leadership. Reinforce your zero-tolerance approach to abuse through staff meetings, induction programs, and ongoing engagement. Make sure your messaging is inclusive and tailored to reflect the needs of children with disabilities and diverse backgrounds.

3. Deliver Targeted, Effective Child Safety Training

All staff, board members and volunteers must understand their obligations and how to respond to child safety concerns. While compliance-focused training may tick boxes, best practice involves scenario-based, contextualised learning that empowers staff to respond confidently and appropriately. Regular refresher training ensures that awareness remains high. Early Learning Centres (ELCs) in schools, Ministerial Order 1359 requires tailored annual training and information on specific child safety topics for staff, volunteers and board members.

4. Strengthen Recruitment and Screening Processes

Effective safeguarding begins at recruitment. While WWCCs are vital, they are not foolproof. Ensure all candidates undergo thorough interviews, reference checks, and screening that assesses their values and attitudes towards child safety. For Early Learning Centres (ELCs) in schools, Ministerial Order 1359 requires ongoing evaluation of staff suitability—a best practice all providers should adopt.

5. Conduct a Risk Assessment of Your Environment

Identify potential vulnerabilities in your physical and operational environment. Are there ignorance zones in your facility? Are staff properly onboarded? Do staffing levels support adequate supervision, particularly during break times? Proactively identifying and mitigating risks is a cornerstone of a strong safeguarding approach.

6. Engage Your Board in Child Safety Oversight

Boards have a non-delegable duty to ensure effective child safety systems are in place. This requires more than rubber-stamping policies—it demands active oversight, regular reporting, and a clear flow of information from operational leaders. Board members should receive specialised training and ensure that child safety remains a standing agenda item.

How We Support Organisations in Keeping Children Safe

At Moores, our Safeguarding and Child Safety teams work alongside organisations to ensure their child safety frameworks are robust, compliant, and reflective of best practice. Our experienced team supports clients to:

• Review and update Child Safety Policies and Codes of Conduct;
• Respond effectively to allegations of child abuse;
• Navigate investigations and compliance obligations; and
• Develop practical, preventative strategies that promote a culture of child safety.

We also provide tailored training for staff, boards, and child safety officers to ensure all individuals understand their role in protecting children.

The Need for Vigilance and Leadership

The events unfolding in Victoria are a tragic and urgent reminder of what is at stake. As leaders in the education and care sector, our responsibility is not only to comply with the law, but to continuously challenge and improve the systems that protect our most vulnerable. Real child safety requires more than policy—it demands vigilance, leadership, and a relentless commitment to doing better.

Contact us

If you would like to discuss how we can support your organisation, our team is here to help. Please contact Skye Rose or Tal Shmerling if you would like further support.

View our dedicated page on the Childcare and Early Education Reforms and subscribe to receive updates directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

Is your not-for-profit (NFP) contemplating a merger? This is part five of a five-part article series that will offer some practical guidance to your board or merger advisory committee. Subscribe to receive the remaining articles in the series.

In an NFP merger, due diligence assists boards to determine whether or not to proceed and to identify issues that may need to be prioritised and addressed as soon as practicable following any merger. More information on the due diligence process can be found in part four of our article series.

A key consideration in the due diligence process is the potential risk associated with historical liabilities.

It is important for the Board to ensure that:

• appropriate enquiries have been made to confirm that there are no known outstanding liabilities;
• the risk of potential liabilities and claims have been properly assessed;
• adequate consideration has been given to insurance cover (including run-off insurance); and
• there are sufficient assets to satisfy any future potential claims.

In most cases, the chosen merger type will involve some sort of transfer of assets and liabilities to a recipient entity (the acquiring NFP or the new merged NFP). After the merger, the NFP that has transferred its assets and liabilities will then often be deregistered. Generally, the only liabilities transferred as part of this process will be those that the acquiring NFP or new merged NFP has expressly agreed to assume. This usually means that liabilities that are unknown or are not expressly transferred will stay with the deregistered entity.

Two potential exceptions to this general principle are clawback and historical child abuse liability.

Exception 1: Reinstatement of registration and clawback

Deregistration under the Corporation Act 2001 (Cth) is only appropriate if an entity has no outstanding liabilities.¹ If a deregistered entity is found to have outstanding liabilities, an aggrieved person (including a creditor²) may make an application to the court for re-instatement of registration of the entity, typically on the basis that it is “just” to do so from the time of deregistration.³ This is the case irrespective of whether the outstanding liability was known at the time of deregistration.

After reinstatement of registration, the formerly deregistered entity may be placed in liquidation. This means that insolvent or “uncommercial transactions” of the formerly deregistered entity (which may include a transfer of assets in a merger) could be voidable.⁴ Remedies can include an order for assets held by the acquiring NFP or a new merged NFP to be transferred back to the formerly deregistered entity. Depending on the circumstances, the period within which transactions can be voided (looking backwards from the winding up of the entity⁵) can be six months, two years or even longer.

The implication for the acquiring NFP or newly merged NFP is that assets received in a merger may be able to be “clawed back” by an aggrieved person if the transferring entity is liquidated and the asset transfer is characterised as an “uncommercial transaction”.

Exception 2: Historical child abuse liability

In relation to liabilities that relate to historical child abuse, an acquiring NFP or a new merged NFP may be held directly liable for a claim against a deregistered entity (if the transferring entity was previously incorporated) or a dissolved unincorporated entity in some circumstances as legislation has been passed in all jurisdictions to ensure that claims relating to child abuse are no longer statute barred. The position differs in each jurisdiction in Australia and is summarised below:

• in New South Wales and Tasmania – an organisation “and any successor of that organisation” are “taken to be the same organisation” for the purposes of civil liability for child abuse⁶;
• in Western Australia, Queensland and South Australia – a child abuse claim may be brought against an institution or its officeholders if the institution is “substantially the same”⁷ as a former unincorporated institution that exercised care, supervision or authority over children and a child abuse claim could have been brought against an office holder in that unincorporated institution. If there is no institution that is “substantially the same”, there are additional provisions that allow for “tracing” from the unincorporated institution through multiple mergers and restructures over time;
• in the Northern Territory, a “successor institution” assumes the liability of a former institution for a historical child abuse claim if it is “substantially the same” as the former institution⁸; and
• in Victoria and the Australian Capital Territory, there is no express provision for successor organisations. There is provision for an unincorporated institution to nominate an alternate defendant, but only with the nominee’s consent.⁹

If a potential historical child abuse liability is identified, it may be prudent to seek legal advice specific to the relevant jurisdiction, the merger parties and the merger type so that any risk to the acquiring NFP or any new merged NFP (and the directors) can be properly assessed. This will help inform the board’s decision making process including:

• whether it is appropriate to proceed with the merger;
• the appropriate merger type; and
• if the merger proceeds, identifying appropriate risk mitigation steps to limit exposure.

How we can help

Moores Charity and Not-for-profit team can help if your organisation is contemplating a merger. We can also provide advice tailored to your circumstances (including the relevant jurisdiction, the nature of the liability and your proposed merger process) if possible historical liabilities are identified during the due diligence phase.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}

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1. See, for example, section 601AA of the Corporations Act 2001 (Cth). The directors of the company (or the committee members of an incorporated association) must make a declaration confirming that the entity has no outstanding liabilities.  ↩︎
2. Deputy Commissioner of Taxation v Australian Securities and Investments Commission; in the matter of Civic Finance Pty Limited (Deregistered) [2010] FCA 1411. ↩︎
3. Section 601AH of the Corporations Act 2001 (Cth). ↩︎
4. Section 588FE of the Corporations Act 2001 (Cth). These provisions can also apply where the formerly deregistered entity is an incorporated association (pursuant to the applied Corporations legislation provisions in the Corporations Act 2001 (Cth) and the relevant state or territory associations legislation). ↩︎
5. Technically, the “relation back day”, which varies depending on the precise circumstances of the winding up (section 91 of the Corporations Act 2001 (Cth)). ↩︎
6. Section 6C of the Civil Liability Act 2002 (NSW) and section 49E of the Civil Liability Act 2002 (Tas). ↩︎
7. Section 15F of the Civil Liability Act 2002 (WA), s50R Civil Liability Act 1936 (SA) and section 33O of the Civil Liability Act 2003 Qld). ↩︎
8. Section 17P of the Personal Injuries (Liabilities and Damages) Act 2003 (NT). ↩︎
9. Section 92 of the Wrongs Act 1958 (Vic) and section 114D of the Civil Law (Wrongs) Act 2002 (ACT). ↩︎

You’ve sold your property. Can you access the deposit before settlement?
It’s a common question with important implications.

Section 27 of the Sale of Land Act governs the early release of deposits in Victorian real estate transactions. The provision allows vendors to provide specified information to purchasers, who then have 28 days to indicate whether they are satisfied with the particulars provided. If the purchaser is satisfied or if a valid objection is not raised within the 28 day period, the deposit may be released before settlement.

The expectation of many vendors is that they will have access to the deposit sooner rather than later after signing a contract to sell their property. However, the early release of the deposit is not guaranteed. In particular, the law does not explicitly address whether the purchaser’s objection must be objectively reasonable or merely subjective. Recent case law suggests that the purchaser’s objection need not be objectively reasonable and that it is sufficient if the purchaser objects. If that happens, a vendor may have limited options to overcome the objection.

If you are a vendor and you need the deposit to be released perhaps to fund the deposit on a purchase, do not assume that you will be successful in having the deposit released quickly or at all. You may have to wait until settlement occurs to have access to the deposit so it would be prudent to have a Plan B.

How we can help

Our Residential Property team are accredited specialists in property and leasing law, with the expertise and experience to handle even the most complex issues comprehensively and pragmatically.

Contact us

Please contact us for more detailed and tailored help.

Subscribe to our email updates and receive our articles directly in your inbox.

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_{Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.}