The Law Society of NSW Specialist Accredititation 

BLOGS

Any information contained in a blog on this website is general in nature only. The content of any blog posted below reflects information which is known to us as at the date of the posting of the blog. Please be aware that the law regularly changes. Please do not rely on the general information contained in the below blogs, instead we recommend that you contact us to obtain legal advice tailored to your own specific situation.

 

May02

Security Interests

Amanda Quin - Tuesday, May 02, 2017

SELLING AGRICULTURAL GOODS AND REGISTERING A PERSONAL PROPERTY SECURITY INTEREST

It is not unusual for a farmer/grazier to sell grain or wool or other products on terms that payment shall occur at a later date.

A risk which arises in this scenario is the possibility of the buyer becoming bankrupt or entering into liquidation prior to paying the farmer for the grain or wool.

In such cases, the farmer could potentially not be paid at all for the farmer’s produce.

Where a person or entity becomes bankrupt or is liquidated, then secured persons, such as a bank with a registered mortgage will always be entitled to receive payment from a liquidator prior to unsecured creditors.

It is possible however for a farmer who has sold agricultural products on terms for payment in the future, to become a secured creditor and this can be done by utilising the Personal Property Security Interests Act 2009 (“the PPSA”).

WHAT DO YOU NEED TO EFFECTIVELY REGISTER A SECURITY INTEREST

Firstly, for a security interest to be registered and to be effective, then you need to ensure that:

(a) You have the right to register a security interest; and

(b) You need to know sufficient information about the buyer of your produce to be able to register a security interest; and

(c) The security interests needs to be “attached” to the collateral; and

(d)The security interest needs to be perfected.

The simplest way to ensure that you have the right to register a security interest is to have a written agreement with the buyer of your produce that grants you the right to retain title in your produce until you receive payment for it AND a right to register a security interest on the Personal Property Securities Register. If required we can assist with preparing such an Agreement.

The information that you need to know about the buyer includes:

  • The full and correct legal name of the buyer of your produce (ie whether they are a company, trust, partnership or an individual);
  • The buyer’s ABN (where they have one); and
  • The date of birth of the buyer (but only where the buyer is an individual or a partnership of individuals).

The security interest attaches to the grain or wool or other produce (“the collateral”) in a number of different ways, but the simplest way to meet the requirement for “attachment” is to ensure that the written security agreement is completed and signed prior to delivering your goods to the buyer.

The easiest way to “perfect” an interest in the collateral and to therefore become a secured party, is to register your interest electronically on the Personal Property Securities Register at https://www.ppsr.gov.au/ and we can also assist you with that process, if required.

Dec02

Mandatory Energy Efficiency ratings for Commercial Office Space

Amanda Quin - Friday, December 02, 2016

As at 1 July 2017, the threshold for reporting energy efficiency ratings pursuant to the Building Energy Efficiency Disclosure Act 2010  will be reduced from 2,000 square metres to 1,000 square metres.

Where the said legislation applies, then a Building Energy Efficiency Certificate (BEEC) needs to be obtained and registered. A BEEC incorporates both a National Australian Built Environment Rating System (NABERS) Energy star rating and a Tenancy Lighting Assessment (TLA) of the relevant area of the building.

Where the BEEC requirements apply, then the BEEC must be registered prior to approaching the market regarding a proposed sale or lease and the Energy star rating must be included in any advertising for the sale or lease or sublease. Therefore if you do need a BEEC for a building, then you need to obtain the BEEC and register it before you advertise the office space for sale or for lease.

This legislation does not apply if:

  • The proposed lease is for less than 12 months;
  • The building is a strata titled building;
  • The occupancy certificate for the building is less than 2 years old; or
  • The building is a mixed use building and the office space is less than 75% of the building’s net lettable area.

 

In addition the disclosure requirements only apply where either:

(a) the office space is owned by a corporation/company; or

(b) where the tenant is a corporation/company (and in this case, only where the tenant or purchaser asks for a BEEC).

That is, this law does not apply to office space that is owned by natural persons and leased or sold to natural persons.

You can also apply for an additional exemption, if you are approached by someone who is seeking to buy or lease the building (as opposed to you as the owner advertising it for sale or for lease).


 

 


 


 



Jul25

NEW WITHHOLDING TAX ON TRANSFERS OF PROPERTY

Amanda Quin - Monday, July 25, 2016

From 1 July 2016 every person or entity who acquires land in Australia which has a value of $2 million or more must withhold money on account of the transferor’s potential Capital Gains Tax liability. The person acquiring the property is then required to remit any such amount to the ATO.

In addition, entering into an option to purchase (regardless of the value of the underlying property) and acquiring interests in certain landholding companies and trusts will also be caught by this new tax requirement.

If the transferee (ie purchaser) fails to withhold the correct amount of tax, then the purchaser will be penalised. Significant penalties will apply.

Generally, the amount to be withheld will be 10% of the purchase price or the value of the property, but this may be varied if the vendor obtains a variation notice from the ATO and serves a copy of the notice on the purchaser prior to completion of the sale.

The transferee is also not required to withhold or remit any money if an exception applies.

Accordingly, unless an exception or variation notice applies, all persons selling land or interests in land for $2 million or more must be aware that the purchaser will withhold 10% of the purchase price from completion.

Any withheld amount will be credited to the Vendors when the Vendors next lodge their tax return with the ATO.

Exceptions to the new withholding regime

There is no requirement for a purchaser to withhold any money on account of the vendor’s potential CGT liability if:

1. The market value of the property is less than $2 million; or

2. A clearance certificate has been obtained from the ATO by the vendor (or all of the vendors when there is more than one vendor) and provided to the purchaser before settlement; or

3. In relation to an option or an interest in a landholding company, the vendor gives the purchaser a declaration that the vendor is or will be an Australian resident for a period which covers the transaction (and the purchaser is not on notice of the declaration being false), or

4. The vendor is under external administration or in bankruptcy.

Who is eligible for a Clearance certificate

Australian residents are eligible for clearance certificates.

Foreign residents are not eligible for clearance certificates, but they may be able to obtain a variation notice to reduce or eliminate the need formoney to be withheld from the sale, if they can show that a CGT exemption or other exemption will apply.


Apr01

Abolition of Duties in NSW - Pitfalls

Amanda Quin - Friday, April 01, 2016

The NSW State Government has flagged that on 1 July 2016 it will be abolishing stamp duty on the following transactions:

  • Transfer of business assets
  • Transfer of marketable securities (eg shares in private companies and units in unit trusts)
  • Transfer of statutory licences and gaming machine entitlements
  • Mortgage Duty (to the extent it has not already been abolished)

You may recall that the NSW State Government has on a number of occasions flagged that these duties were being abolished and then delayed the abolition date. Hopefully, this time the abolition will proceed as planned.

LANDHOLDER DUTY – LAND RICH COMPANIES AND UNIT TRUSTS

However, there is a potential pitfall for companies and unit trusts which are landholders.

Despite the proposed abolition of stamp duty on the transfer of shares in a private company or units in a unit trust from 1 July 2016, it appears that landholder duty will still remain.

Landholder duty is payable on the acquisition of a significant interest in a private company or unit trust that owns land and meets certain other requirements.

As such, stamp duty may still be payable on the transfer of shares in a private company or units in a unit trust, where the transfer involves a significant interest and where the company or unit trust (or its linked entities) has land holdings in NSW with a value of $2 million or more.

There are some exemptions for companies which hold rural land. This can be a complex area of law and we recommend legal advice be obtained prior to any transfer occurring.

TRANSFER OF A LEASE IN CONJUNCTION WITH A SALE OF BUSINESS

Where a lease is transferred with the business (which often happens with business premises that are rented), then although the goodwill of the Business will be exempt from stamp duty, nevertheless the plant and equipment and any consideration for the transfer of lease is liable for duty.

If the transaction were instead structured with a new lease being granted to the new owner of the business, then the plant and equipment would not be liable for stamp duty.

Accordingly when buying a business that operates from leased premises, you should consider whether the costs of the stamp duty that would be payable in relation to the plant and equipment and the transfer of the lease is likely to outweigh the costs of negotiating and entering into a new lease instead.

TRANSFER OF LAND IN CONJUNCTION WITH A SALE OF BUSINESS

Where a sale of land and a sale of business takes place, then whilst the goodwill of the Business will not be liable to duty, nevertheless the land and the plant and equipment of the business will be liable to duty.

Oct09

REGISTERING PERSONAL PROPERTY SECURITY INTERESTS

If you sell personal property (such as goods or equipment or livestock or vehicles etc) on account OR if you lease or hire out personal property to third parties (hereafter referred to as "your customer"), then you need to be aware of the Personal Property Security Act ("the PPS Act").

The PPS Act enables you to record your ownership and other rights in goods or equipment or other personal property that your customer has not yet paid for. This type of security interest can be registered even if the anticipated account payment period is quite short.

The PPS Act also permits you to record your ownership of goods, equipment, livestock (including racehorses) or other personal property that has been leased to your customer, if the lease is a long term lease.

From 1 October 2015, the PPS Act deems leases to be on a long term basis if:-

  • The lease has no defined term or is for an indefinite period; or
  • The lease is for a motor vehicle, boat or aircraft (or equipment with a serial number) and is for a term of 12 months or more (including options) (this was previously only 90 days); or
  • Where the lease itself does not contain provision for a long term, if you consent to your customer keeping the goods or equipment for more than one year.

If you register your interest within the relevant time frames AND if your customer goes into liquidation, then you can protect your assets from being sold by your customer's liquidator.

However if you fail to register your interest by the relevant deadline AND if your customer enters into liquidation, then their liquidator is entitled to sell your goods and equipment, without needing your consent and you will merely be an unsecured creditor among many seeking their money back.

There are different deadlines to register your ownership interest depending on the type of transaction that has taken place. These deadlines are as follows:-

SECURITY INTERESTS WHERE PERSONAL PROPERTY IS SOLD ON ACCOUNT OR BY WAY OF VENDOR FINANCE -

Type of Goods Deadline for PPS Registration
Where your goods are part of your customer's inventory:
The PPS security interest must be registered by you before your customer obtains possession of the goods from you.


Where your goods are not inventory:


The PPS security interest must be registered by you within 15 business days of your customer obtaining possession of the collateral.

If you do not register a PPS interest within the relevant timeframes, then the PPS interest may still be validly created as a general security interest (ie an interest which effectively puts other parties on notice of your interest in the goods, eg this may be useful if your customer sells his or her business), however it will not benefit from thesuper-priority over liquidators.

In addition where your security interest relates to a company, the Corporations Act also provides for a 20 business day registration time limit for general security interests, if you wish to minimise the risk of your property being sold as part of your customer's liquidation.

Given the competing time limits, we recommend that, if in doubt, you register a PPS registration as early as possible in any transaction where a PPS interest may arise.