Melbourne City Council candidates have announced a ‘new’ policy plan of giving rate relief to developments that incorporate a minimum portion of affordable housing. On its own, that seems like a good idea. And the proposed rate relief will hopefully motivate the construction of new affordable housing.  But the concept of rate exemptions for affordable housing is not ‘new’. And existing laws are being ignored.

Many Councils are presently declining to give a rating exemption to affordable housing owned by registered housing providers – despite the fact that Victorian legislation appears to grant an exemption. There is no good reason for this position. 

Section 154 of the Local Government Act 1989 deals with rate exemptions.  It grants an exemption to land which is “used exclusively for charitable purposes”.

Clearly the provision of social and affordable housing is a charitable use of land. Every registered housing provider in Victoria is required to be a registered charity (most are tax-deductible Public Benevolent Institutions).

There is one category of housing that does not get the exemption under the Act – a house or flat on the land which is:

• used as a residence; and
• is exclusively occupied by persons including a person who must live there to carry out certain duties of employment.

Most ordinary people will read this as a ‘carve out’ for a dwelling where at least one of the occupants is required to live in the residence in order to carry out employment duties. Examples might include a house used for drug rehabilitation which includes a ‘lead tenant’ employee; a Specialist Disability Accommodation which includes a live-in carer. It seems anomalous to exclude these types of arrangements from the charitable exemption.

But the Act does not exclude social and affordable housing from a rate exemption. In fact, the Act gives a rate exemption to affordable housing.  Many Councils are simply ignoring the Act. If Councils want to give a boost to affordable housing, they could grant the rate exemption and they could do it today.

Giving effect to existing laws by granting rate exemptions would free up millions of dollars in the housing sector, which could be used to generate more housing. Housing solves homelessness.

How we can help

Our team has deep expertise in the social housing sector. We provide peak industry bodies and a large number of social housing clients with expert legal advice. For more information, please do not hesitate to contact us.

Moores’ Elder Financial Abuse lawyer, Jessica Latimer has been crowned Winner of the ‘Special Counsel of the Year’ Award at the Australian Law Awards 2020.

Jessica joined Moores in 2018 to establish one of Australia’s only dedicated elder financial abuse and elder law practices. We are so proud that Jessica’s innovation, passion and dedication has been recognised and awarded as the winner of the ‘Special Counsel of the Year’ Award.

As a passionate industry leader, Jessica applies her commercial litigation skills and her understanding of elder law to achieve outcomes for often distressed older clients who have lost property or funds as a result of elder financial abuse.

Find out more about Jessica’s practice here or for more information, please do not hesitate to contact us.

Jennifer Dixon, Lachlan McKenzie, Krista Fitzgerald and Luke Haley have all featured as leading lawyers in Doyles Guide 2020, recognised by their peers and referrers for their expertise in Wills & Estates Litigation and/or Wills, Estates and Succession Planning.

This ranks Moores as a First Tier Law firm in both the ‘Wills & Estates Litigation‘ and ‘Wills, Estates & Succession Planning‘ categories this year.

Our expert team is experienced in assisting families with complex Estate Planning arrangements as well as challenging and defending all manner of Disputes relating to Wills, Estates, Trusts, SMSF and Bequests.

For more information or to speak with one of our experienced lawyers, please do not hesitate to contact us.

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Jennifer Dixon, Practice Leader

• Preeminent Wills, Estates & Succession Planning Lawyer – Victoria, 2020
• Leading Wills & Estates Litigation Lawyer – Victoria, 2020

Lachlan McKenzie, Practice Leader

• Preeminent Wills & Estates Litigation Lawyer – Victoria, 2020
• Leading Wills, Estates & Succession Planning Lawyer – Victoria, 2020

Krista Fitzgerald, Practice Leader

• Leading Wills, Estates & Succession Planning Lawyer – Victoria, 2020

Luke Haley, Senior Lawyer

• Recommended Wills & Estates Litigation Lawyer – Victoria, 2020

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Leading Law Firm

• First Tier Wills, Estates & Succession Planning Law Firm – Victoria, 2020
• First Tier Wills & Estates Litigation Law Firm – Victoria, 2020

There is no legal obligation for a parent to look after a child into adulthood and beyond.

However, where a child becomes financially dependent on their parent during adulthood, it can give rise to a moral obligation for the parent to continue to fulfil that dependency after their death, via their Will. If a parent subsequently breaches this obligation, the disappointed child can bring a ‘family provision’ claim against their estate.

Such a claim is possible even where the relationship between parent and adult child is otherwise extremely poor, or estranged, as in the recent Supreme Court decision of Joss and Joss¹, which involved a family provision claim by an adult daughter of the deceased father.

Case study: Joss vs Joss

In Joss, the relationship between the father and his daughter was dysfunctional and involved a lengthy period of estrangement. At one stage, the daughter even threatened to kill her father and had acquired a cross-bow for that purpose. Despite his daughter’s conduct, the deceased continued to maintain her financially during her adulthood. He provided her with a generous weekly allowance that meant she did not need to work, and paid for almost everything she needed.

In other circumstances, a threat to kill might have been held to amount to ‘disentitling conduct’, wherein a Court may determine that a parent is justified in leaving no or minimal provision for a child claimant.

For instance, Australian courts have previously held that a child who is violent towards their parent cannot expect to be provided for in their parent’s will, or to claim for further provision from their estate².

Yet, in Joss, the daughter was successful in obtaining further provision valued at $3,225,000 from her father’s estate, given the extent of the financial dependency at play, amongst other matters.

The Court held that in financially supporting his daughter to the extent he did, the father allowed her to become financially dependent on him and lose much, if not all, of her capacity for employment. In the circumstances, neither their estrangement nor the daughter’s conduct towards him was sufficient to extinguish the father’s moral obligation to provide for her.

Key lessons

Willmakers may believe they are justified in leaving minimal provision for a child due to the significant benefits they have already provided them during their lifetime. However, the reality is that the consistent payment of such benefits may in fact increase the moral duty they owe their child, particularly where it has engendered financial dependency.

Joss illustrates that financial dependency can also act to diminish the impact of conduct that may otherwise disentitle an adult child from making a family provision claim.

Where factors such as these are at play, it’s crucial that a willmaker receives specialised legal advice about their options.

How we can help

Our expert team can assist you with Disputes relating to Wills, Estates, Trusts and SMSF as well as provide strategic advice for complex family provision claims. For more information or guidance, please do not hesitate to contact us.

¹ [167] VSC 424
² See Christie v Christie [2016] WASC 45

As is often the case, the political announcement has preceded the legal detail. Not until the detail comes will we know what is happening and how things will work in practice. But we can glean some useful information from Premier Daniel Andrews’ announcement yesterday (thanks to leasing barrister Sam Hopper for his prompt article alerting us to the news).

1. The ban on evictions and rent increases will be extended to 31 December 2020. We assume this will ban evictions for non-payment of rent as well as evictions for failure to trade.

2. There is no mention yet of whether this will also include an extension of compulsory rent relief. However, there is a hint that the CTRS will be amended in favour of tenants to ensure that rent relief is proportionate with turnover reduction. To us at Moores, this can only mean that the rent relief measures will continue until 31 December and that landlords will be pushed harder to accept a rent reduction that is more aligned with the tenant’s turnover reduction (maybe even point for point).

3. The ban on evictions and/or rent increases will not apply in ‘specific circumstances’. That is already the case – the CTRS doesn’t apply to everyone and doesn’t excuse other breaches of lease. It is not clear yet what ‘specific circumstances’ Daniel Andrews has in mind – are they new or existing? One thing we know – not everyone will benefit from the CTRS and it will be important to know whether you’re in or out.

4. The new arrangements are intended to give the Victorian Small Business Commission ‘greater capacity to make an order on rent relief if a landlord refuses to respond to rent relief requests.’  This is something brand new. To date, the SBC has been effective as an advisor and mediation service. One might expect the larger landlords (like Westfield, who seem to be sick of negotiating with some of their retail tenants) to challenge the ability of the SBC to make binding rulings over their leases.

5. Land tax relief for 2020 is increasing from 25% to 50% (where rent relief has been giving over minimum levels) and a new fund is being established to make payments available to landlords (up to $3,000 per tenancy). No doubt this is intended to create additional incentive for landlords to ‘come to the party’. We doubt it will go far enough to undo the feeling that government has effectively made landlord’s a ‘shock absorber’ for the Victorian economy.

We will keep you updated as further information becomes available.

Contact us

For assistance or advice, please do not hesitate to contact us.

In a win for common sense, the High Court has overturned the Full Federal Court’s decision in Mondelez v AMWU [2019] FCAFC 138 about the accrual of personal leave.

You may recall the Full Federal Court decision of Mondelez v AMWU [2019] FCAFC 138 found all permanent employees (including part-time employees) are entitled to 10 days of paid personal leave per year of service.  

The Federal Court’s original decision indicated that all permanent employees should accrue one day of paid personal leave for every 5.2 weeks worked, irrespective of their ordinary hours. This posed a significant challenge for most payroll accrual systems that calculate personal leave entitlements against ordinary hours of work, generally capping personal leave at 76 hours per year (for full-time employees).

Unsurprisingly, the decision created confusion and uncertainty for employers.

Last week the High Court provided welcome clarity on the correct method of calculating personal leave, finding that a ‘day’ of personal leave is a notional day, being 1/10 of ordinary hours in a fortnight.

Moores welcomes the decision in Mondelez v AMWU [2020] HCA 29, which quashed the decision of the Full Federal Court and reinstated the historical approach to personal leave accrual. The High Court noted:

“[The original decision] would give rise to absurd results and inequitable outcomes, and would be contrary to the legislative purposes of fairness and flexibility in the Fair Work Act, the extrinsic materials and the legislative history”

The proper and lawful approach to personal leave accrual is now settled. A ‘day’ of personal leave is a notional day, being 1/10 of ordinary hours in a fortnight. This means that an employee accrues one hour of personal leave for every 26 ordinary hours of work.

Lessons for employers

In light of the decision, Moores recommends that employers:

• Provide new staff with the updated Fair Work Information Statement; and
• Review their contracts to ensure that they clearly stipulate ordinary hours of work.

Contact us

For further information or guidance, please do not hesitate to contact us.

You might have noticed that there’s been a tsunami of COVID rent relief-themed publications coming out from both lawyers and the general media over recent months.

With legislation being made on the run across the states and territories, for those involved in commercial leasing it’s felt like the ground has been shifting on an almost daily basis.  Managing agents in particular have been scrambling to keep up with the practical and legal implications of the COVID-19 restrictions and their impact on Victorian businesses.

Now that the dust has settled, it’s clear that for the majority of leases, rent relief arrangements can be made without the need to involve lawyers. This is a great thing – when the discussion is prompted by a lack of funds to go around, the last thing landlord and tenants need to be worrying about is funding legal advice, and thankfully Victoria’s commercial tenancy relief scheme (“CTRS”) is relatively user friendly.

However, there are a few situations when you might want to consider checking in with our experienced leasing team at Moores. 

1. You’re not sure of your rights

There are fairly complex qualifying criteria for the CTRS, particularly for tenants who are part of a corporate group. 

If you’re a tenant who’s not sure of your rights and you want to ensure your request to the landlord for rent relief is put in the strongest possible way, it would be a good idea to seek some preliminary guidance.  We can design a scope to suit your specific needs – this might include support with preparing an initial approach to the landlord, or it might be as simple as a brief phone discussion.

Similarly, landlords may want to know where they stand legally with regard to a request for rent relief from their tenant – money is tight across the board, and many landlords are concerned to ensure that the deal is fair and that tenants are not taking advantage due to a misunderstanding of the scope of the CTRS.  We’ve certainly seen a few of these!  Again, the scope of work can be tailored to the landlord’s specific needs – from a brief telephone advice to a written piece detailing recommended actions.

2. There’s a rent deferral involved

A straightforward rent waiver doesn’t require any formal documentation – a letter or even an email will do.  If rent is being deferred, however, we would recommend chatting with a lawyer to work out whether the arrangements you’re making need to be documented in a deed of variation. 

Doing a deed of variation benefits both parties by minimising the chances of someone claiming that the arrangement is not enforceable or disputing the terms of the deal made. 

A deed of variation may need to extend the lease to allow time for the rent to be repaid while the lease is still in place.  No tenant wants to be paying rent on a premises after they’ve moved on, and no landlord wants the lease to end while there’s still deferred rent to be paid. Sitting tenants tend to have a greater motivation to pay rent compared to departed tenants. 

Investing in a deed of variation up front greatly reduces the chances of a costly dispute down the track, saving both money and stress.

3. Subleasing or licensing is on the table

With so many workforces making the transition to remote working, it’s inevitable that many businesses will be considering whether they need to retain all of their pre-COVID leased space. 

One of the most obvious ways for downsizing tenants to deal with this issue is subleasing or licensing – getting a third party in to occupy your surplus space.  We’re starting to see this happen in the office market already, and we’re expecting to see a lot more of it over the coming period. 

Tenants or landlords looking at this type of situation should speak with an experienced leasing lawyer early to ensure that they know what’s permitted under the terms of the existing lease, and that the sublease/licence is properly documented and enforceable.

4. Tenant wants out

It’s inevitable that some tenants will be looking to get out of their leases altogether.  They might approach the landlord to talk about a surrender, or they might just walk away. 

For tenants, speaking with a lawyer first will ensure that you minimise the chances of a claim being made by the landlord and that you don’t expose yourself to unnecessary financial risk.  For landlords faced with this situation, getting advice early will help to avoid costly mistakes in dealing with the tenant’s actions.

If the parties agree on the tenant walking away, it is essential that this is documented in a deed of surrender.  From the tenant’s point of view, this ensures the landlord can’t chase you later for rent or other losses.  For landlords, it ensures that you are free to re-let the premises without risk and recommence your income stream as soon as possible.  An experienced leasing lawyer can help you to properly document the surrender and avoid these issues.

How we can help

If you spot an issue of concern in this list, feel free to reach out to our expert team of lawyers.  We’re regularly working with clients on similar issues and we can get you the help you need, when you need it. For more information or advice, please do not hesitate to contact us.

In a significant judgment decided by the Supreme Court of the Australian Capital Territory, an Australian National University College was ordered to provide a former student with $420,000 in relation to a sexual assault suffered by the former resident.

The judgment included exemplary and aggravated damages for the poor manner in which the John XXIII College (the College) responded to the sexual assault, leading to a finding that the College was more concerned with protecting its reputation than the former resident’s welfare. The case carries important lessons for all universities and colleges on their duty of care and the importance of efficient and survivor focused approaches to sexual abuse and concerns about student safety.

The facts

The plaintiff was a former resident at the College who commenced a combined degree in Commerce and Law at ANU in 2014. The College had a close association with a nearby pub called Mooseheads and the Residents’ Association at the College provided all students with a drink card.

On 6 August 2015, an event called Pub Golf was organised which started at the College and went to two pubs. The drinking began at the College where students were allocated into different rooms and provided with drinking cups. At 9pm, the residents were directed to leave the College and go to Uni Pub before heading to Mooseheads where residents regularly stayed until it closed at 3am.

The plaintiff did not remember leaving Mooseheads. She woke up the next morning at 8am and had limited memory after leaving the College. The plaintiff later discovered that another resident (NT) had engaged in sexual activity with her, which she did not remember. She recorded a conversation with NT where he admitted to having sex with her in an alleyway and that he “felt bad”.

The plaintiff reported this to the College and had a meeting with the Head of College, Mr Johnston, and the Deputy Head of College. After this meeting, Mr Johnston then met with NT and later told the plaintiff that NT had denied any sexual encounter. The plaintiff provided Mr Johnston with the recording where NT admitted to the sexual act. At a subsequent meeting, the Court found that Mr Johnston made a series of comments to the plaintiff including:

• “Sometimes when boys are drunk they can be quite arrogant but are often underperformers”
• “I’m not really sure that anything did actually happen”
• “I’m not even sure that anything did happen in the alleyway”
• “Another concern is how you managed to get that drunk.”

The plaintiff then made a complaint to ANU and was told by ANU and the College that they could not take any action against NT because there was not sufficient evidence. The plaintiff avoided NT as much as she could and eventually left the College.

Judgment

The Court found that the College owed the plaintiff a duty of care and that it breached this duty of care both in directing the residents to leave the College and in the manner it responded to the plaintiff’s complaint.

The Court found that the College had a reputation of having a party and drinking culture which it wore as a “badge of honour” and used to lure students. It relied on a report published in 2014 by the former Head of College who outlined his concerns that there was pressure on students to drink. As a result, the Court found that by directing the students to leave the College when they were intoxicated was a breach of its duty, particularly given that “the risk of sexual assault upon an intoxicated young woman was foreseeable and…not insignificant”.

Furthermore, the Court was particularly critical of Mr Johnston’s comments, which it found to be entirely inappropriate and a departure from the pastoral duty of care that Mr Johnston, as Head of College, had assumed. The Court outlined that the College had a duty to investigate the complaint competently and treat the plaintiff in a manner consistent with its obligation to provide pastoral care.

The total sum of damages awarded recognised the impact on the plaintiff who had suffered distress over five years, including a significant impact on her ability to pursue the career she had hoped for in law or finance. The sum included almost $300,000 in past and future economic loss and $30,000 in exemplary and aggravated damages, as well as medical expenses and general damages.

Key lessons

The judgment in this case and the significant amount of compensation awarded demonstrates the importance of responding carefully and thoroughly to allegations of sexual abuse. While the residents of Colleges are primarily adults, they still owe their residents a duty of care which includes investigating complaints and providing a pastoral response to complainants.

We recommend that organisations (particularly those that provide care for children or young people):

1. Review their process for responding to sexual abuse response – organisations should ensure they have adequate response processes for addressing complaints in a sensitive manner. It should be prescriptive to ensure consistency and compliance with their duty of care.
   
2. Prioritise health, safety and well-being – While procedural fairness is important, organisations should ensure that their documentation prioritises the health and safety of residents above all else. It should provide flexibility for the organisation to be able to take action separate from requiring complainants to make a criminal complaint.
   
3. Build capability – organisations (particularly Colleges) should allocate specific roles to individuals who are trained to manage sexual harm allegations. In particular, these individuals must receive training on how to respond to complaints and provide support to complainants. Comments such as those made by Mr Johnston in the above case can be incredibly damaging to survivors.
   
4. Focus on prevention – While response is a critical aspect of an organisation’s safety strategy, prevention should be part of the culture. For Colleges, training or information should be provided to its residents at Welcome Week and the beginning of each semester regarding appropriate and inappropriate behaviour, as this helps to set expectations, particularly around drinking and respectful relationships.

How we can help

For more information or guidance regarding your duty of care as an organisation, please do not hesitate to contact us.

Moores has been assisting many of its school clients which are looking to recoup money paid for trips which have been cancelled due to COVID-19.

Apart from disappointment, many families and students find themselves out of pocket at the worst possible time, with many students having contributed to their own costs via part time jobs and fundraising initiatives.

In a recent success story, Moores was able to support a school to the point where an insurer, which had refused the school’s claim, decided it would reverse the denial of claim.

Initially, the travel company refused to refund the deposits which the students had paid. This was despite the fact that, quite clearly, nothing had been booked by the travel company.

The students were insured under a travel insurance policy which had been arranged by the travel company, however the insurer denied the claim, stating the students were not covered under the policy.

Through careful analysis of the policy, it became clear the students were covered and thus entitled to money for loss of their deposits. The insurer in question capitulated.

This experience shows that schools and others should not take a denial of insurance indemnity at face value.

It is important to ensure that you carefully read policy wording and seek legal advice when your indemnity position is unclear. This action could result in acceptance of an insurance claim and ultimately recovery of (hard-earned) deposit monies.

Tips for claiming on your school’s travel insurance

Cancellation clauses

If planning trips in the future, ensure you read the booking terms and conditions carefully, paying particular attention to the cancellation clause. Some cancellation clauses for travel providers can be overly onerous and do not provide any refund, even if the trip is cancelled due to circumstances beyond your control ie COVID-19. It is important to be mindful of these terms when negotiating an agreement for travel.

Australian Consumer Law provides some protection for overly onerous and unreasonable cancellation clauses, stating that cancellation costs should only be due to the “reasonable costs” that the travel provider has incurred and they cannot be excessive. If fees do not reflect reasonable costs, they can be viewed as a penalty.

If you believe you have been charged an excessive cancellation fee, you are able to make a claim with Consumer Affairs Victoria. Although, we recommend you engage with the travel provider in the first instance to try to negotiate a resolution prior to making a claim.

Travel Insurance

It is customary for travel companies to arrange travel insurance on behalf of travellers. Depending on when travel insurance was arranged, COVID-19 may or may not be covered by the policy. Pandemics and epidemics are often excluded in travel insurance policies. If you were insured before COVID-19 was declared a pandemic on 11 March 2020, you may be covered.

If a pandemic is not covered under the policy, you are at risk of not being covered (and thus out-of-pocket) for the following expenses:

• loss of deposits due to cancellation caused by COVID-19; and/or
• medical expenses which may be incurred due to COVID-19.

We therefore recommend requesting a copy of the product disclosure statement for the insurance policy so you can ascertain exactly what the travellers are covered for and then assess your risks in relation to the trip. Some insurance policies do provide coverage for “circumstances outside the insured’s control” which may cover expenses related to COVID-19, however coverage is not guaranteed.

Furthermore, we are aware of insurers denying liability for claims related to COVID-19 and even going so far as to put notices on their websites stating that their policies do not apply to COVID-19. In some instances, these statements can be misleading, so we recommend seeking legal advice if you think you should be covered under a policy and the insurer has denied your claim.

How we can help

If you require assistance with reviewing agreements with travel providers or advice in relation to travel insurance coverage, please do not hesitate to contact us.

Last year, Moores’ Education Team assisted a school in New South Wales which was required by the NSW regulator to meet all the requirements of a compliance agreement, or face losing funding. We worked closely with the School to navigate requirements but also preserve the School’s heart and soul in the process.

The School was advised this week that all conditions have now been met, and it was noted that the School had demonstrated exemplary compliance and undertaken appropriate rectification measures.

The Department noted that the School’s efforts were “commendable”.

As leading education lawyers we support clients to be fully compliant, while simplifying complexity and ensuring schools’ unique value propositions are preserved in the process.

Schools face a challenging exercise in keeping up to date with all requirements. But we’re here to help.

With deep expertise in regulatory compliance, governance and child safety, Moores is here to assist schools prepare for upcoming audits and ensure maximum compliance in all elements of the Minimum Standards and other key regulatory requirements.

How we can help

If you require assistance to prepare for your next regulatory audit, please do not hesitate to contact us.