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  • Employees or Volunteers?
    subject to PAYG withholding In Volunteers and Tax http www ato gov au content downloads SME8729 nat4612 pdf the ATO specifies that three types of payments may be made to volunteers without it being required to be treated as assessable income namely Honoraria paid to a person who is not delivering the service as part of their own professional income producing activities A reimbursement that is direct compensation for an expense or certain to be incurred by the volunteer An allowance that is calculated to cover an anticipated expense where the volunteer pays back any remaining amounts not required to cover the expense However just because some payments made to volunteers may be subject to taxation as assessable income does not mean that the volunteers to which payments are made should be classified as employees by the organisation and that the organisation should therefore register for PAYG withholding Whether a person is an employee for the purposes of the legislation enforced by the ATO depends on a number of factors applicable at common law Usually the factors are expressed in case law as distinguishing between whether a person is an employee or an independent contractor but there are also cases dealing with the distinction between employees and volunteers Nevertheless Schedule 1 section 10 5 1 of the Act states that payments to religious practitioners payments to officeholders and remuneration paid to directors of a company will be subject to PAYG withholding So if your volunteer falls within one of those categories then your organisation should be registered for PAYG withholding You should remember that whether a person is a religious practitioner is a technical legal term defined in case law and on the meaning of that term you should seek legal advice If you want to discuss the PAYG withholding

    Original URL path: http://www.kyliemaxwell.com.au/employees-or-volunteers/ (2014-01-05)
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  • Company Title Unit Disputes – New Legislation
    is awaiting proclamation before it commences In essence it will reserve some matters as only to be dealt with in the Local Court and others to be dealt with by the higher courts Matters that will remain to be dealt with in the higher Courts will include lease and residential tenancy agreement matters the sale transfer disposition or forfeiture of shares in the company title corporation while issues relating to common property health and safety uses of residential premises behaviour of residents including noise refusals by the company title corporation to allow a shareholder to create a lease or licence to use or occupy premises and administrative matters involving the corporation are to be dealt with at the Local Court level Members of the executive of company title corporations should be aware that these changes will mean reduced costs for claimants and greater accessibility Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile 61 405 124 975 Subscribe to our FREE Newsletter indicates required Email Address First Name Connect with Us Recent Posts New Charity Definition at Law Commences Operation Today Financial Report of Charities Clarified Private Ancillary Funds and Others Benefit from

    Original URL path: http://www.kyliemaxwell.com.au/company-title-unit-disputes-new-legislation/ (2014-01-05)
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  • Easement Deliberately Removed Not To Harm Interest-Free Title
    Sahab Holdings Pty Ltd Anor an easement burdening Property A and benefiting Property B was created in 1921 In 2001 a new owner of Property A requested that the Registrar General remove the easement in the Register A notice was sent to the owner of Property B but no objection was raised by that owner The easement was therefore removed Some time afterward the owner of Property B requested that the Registrar General restore the easement to the Register When the Registrar General refused to do so the owner of Property B applied to the Supreme Court but that Court also resisted So the owner appealed to the Court of Appeal and was successful Finally the owner of Property A appealed that decision to the High Court of Australia and won the appeal The decision impacts on the concept of indefeasibility which is the concept that a property owner takes land free of all interests and estates recorded in the Register Under s42 1 this is so unless there is an omission of an easement The High Court clearly decided that the reference to an omission of an easement in that section did not include easements rightfully removed according to legal processes The key to avoiding easements that benefit your property from being removed from the Register while you are unaware is to ensure that you know where notices are being sent to from the Registrar General s office so that you do not miss a request to remove an easement and the chance to object If you are unsure where your notices are being directed you can check this with the solicitor who performed the conveyance of your property or with the Department of Lands Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215

    Original URL path: http://www.kyliemaxwell.com.au/easement-deliberately-removed-not-to-harm-interest-free-title/ (2014-01-05)
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  • New Planning System Afoot
    and Development and Agenda 21 embraced by Australia in 1992 and a stated commitment to environmental principles This would if adopted be replaced by sustainable development a concept more devoted to economic principles and social welfare If crystallised into legislative provisions the proposals in the White Paper will see the end of development specific community objections as the focus will be placed on the community s participation in code making activities to develop the plans that will apply to the locale and which will not be available to be challenged in any respect once in place Such plans are also not mandatory so may require community momentum to get started Again if implemented the rights of neighbours to have a say in how development progresses will be further curtailed by the intention to have 80 of all development code assessed or exempt and complying within 5 years Exposure Bills putting some of these plans into action have already been released and it remains to see whether and when these will be introduced into the New South Wales State Parliament Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile 61 405 124 975 Subscribe

    Original URL path: http://www.kyliemaxwell.com.au/new-planning-system-afoot/ (2014-01-05)
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  • Visa Decision Creates New Law Impacting on Planning and Environmental Appeals
    authority TRA that she had skills as a cook However the delegate of the Minister deciding her application denied her the visa on the basis that it was not a genuine representation of her skills as she had admitted to the delegate that her migration agent had falsely represented to TRA that she had worked in one restaurant Mrs Li appealed to the Migration Review Tribunal MRT on the decision of the Minister s delegate and the MRT asked her to comment in reply to which she claimed she had recently acquired the skills at another place and was awaiting reassessment by TRA The assessment by TRA was not successful for Ms Li so she requested that the MRT adjourn the appeal until she could appeal the TRA assessment However the MRT stated that she had had quite enough opportunities to represent her case and therefore affirmed the delegate s original decision On an appeal to the High Court Ms Li was successful in having this affirmation overturned because the High Court said she had been denied procedural fairness and the MRT had seemingly made the decision arbitrarily and without consideration of the legislative objectives In short the MRT had failed to apply the law to the situation and Ms Li had every right to lodge further evidence in support of her application The decision has ramifications for planning and environmental appeals where an assessment is to be made preliminary to the making of a Ministerial decision which although unfavourable might be changed on appeal to the assessing body It further emphasises the procedural fairness in granting an applicant appealing the decision of a Minister to put on further evidence beyond the initial claim Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile

    Original URL path: http://www.kyliemaxwell.com.au/visa-decision-creates-new-law-impacting-on-planning-and-environmental-appeals/ (2014-01-05)
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  • Redefining waste for the purpose of transportation
    Justice Craig determined on the facts of the matter that the defendant was not guilty of unlawfully transporting waste The guiding legislation is the Protection of the Environment Operations Act 1997 POEO Act Of significance is the finding that the relevant substance did not constitute waste because the end user had a material use for the substance which had been transported Justice Craig s judgment has significantly altered the previously accepted notion of what constitutes waste for the purposes of the POEO Act and clarifies the definition of waste for the offence of unlawfully transporting waste As a result this case may have significant consequences for people whose activities include transporting material which may be waste or creating dumping or re using it and those involved in recycling resource recovery and related industries Industries involved in document shredding and hardware recycling such as whitegoods computers and other electrical equipment may be affected Given the material was not waste in the determination from Justice Craig it was not necessary for him to make a finding on whether the place to which the material was delivered could lawfully be used as a waste facility His Honour therefore made no ultimate finding on this issue but did note that there was a dual onus of proof when addressing whether the place was a lawful waste facility However noting that this case is likely to be the subject of appeal it would be wise for parties to still maintain a conservative view of what constitutes waste until any appeal has been determined Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile 61 405 124 975 Subscribe to our FREE Newsletter indicates required Email Address First Name Connect with Us Recent Posts New Charity Definition at Law Commences

    Original URL path: http://www.kyliemaxwell.com.au/redefining-waster-for-the-purpose-of-transportation/ (2014-01-05)
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  • Real Estate Agents’ Commissions – A Recent Case
    first contract was rescinded the sale did go through on the second contract and a commission was paid to the plaintiff who was the agent entitled to receive the payment The Court said said it was not appropriate that the vendor be confronted with the possibility of an agent earning a double commission for the sale of the same property involving the same vendor and the same purchasers for the performance of the same work performed by the agent which brought about his services as set out in the agreement even though in this instance the contract was re executed as a result of certain advice or a contract has been the subject of rescission A number of other matters were raised at the local court including a determination from the Consumer Trade and Tenancy Tribunal CTTT and issues of estoppel raised by the plaintiff but the local judge did not consider it necessary to consider these matters The verdict at the local court was in favour of Mr O Halloran The plaintiff then used his right of appeal with the case being heard by the Supreme Court of New South Wales The plaintiff amended his summons identifying three errors of law in the Magistrate s reasons being His Honour failed to properly construe the agency agreement in so far as he denied the plaintiff s claim His Honour erred in relying upon an implied term as a basis for denying the plaintiff recovery and His Honour erred in holding that the principles of res judicata and issue estoppel did not apply to the CTTT proceedings with respect to the first contract The agreement between the plaintiff and Mr O Halloran was the central piece of the considerations of the appeal In particular Clause 8 refers to three events in

    Original URL path: http://www.kyliemaxwell.com.au/real-estate-agents-commissions-a-recent-case/ (2014-01-05)
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  • New Online Guides for Conveyancing Clients
    The guides cover the main stages of each transaction and stress the importance of seeking legal advice The Selling a Home guide here guide covers important topics in selling a house or apartment in NSW including preparing the contract for sale laws the seller needs to comply with how the conveyancing process works agent s fees the cooling off period and what happens at settlement The Buying a Home guide here guide discusses the pros and cons of buying off the plan and covers the differences between an auction and private treaty sale whether purchasers should pay for inspections the requirement of stamp duty and other taxes information about different types of ownership such as strata title and what happens at settlement If you have any questions about buying or selling a home do not hesitate to call Kylie Maxwell on 02 8215 1593 or 0405 124 975 or send her an email Office 61 2 9889 2881 Mobile 61 405 124 975 Office 61 2 8215 1593 Mobile 61 405 124 975 Subscribe to our FREE Newsletter indicates required Email Address First Name Connect with Us Recent Posts New Charity Definition at Law Commences Operation Today Financial Report of

    Original URL path: http://www.kyliemaxwell.com.au/new-online-guides-for-conveyancing-clients/ (2014-01-05)
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