2004 Articles and Publications

2004 Publications

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December 2004
"Who will win in bankruptcy, family law merger?" by Nabil Wahhab
Legislation that will allow the Family Court to hear cases that involve bankrupts was re-introduced last month in an effort to simplify proceedings. However, the amendments could end up creating more confusion. This article originally appeared in The Lawyers Weekly, December 3, 2004. Nabil Wahhab is a senior associate at the Argyle Partnership and an accredited specialist in family law.

"Heed your own advice” by Peter Bobbin
Many financial planners are too busy planning for everyone else’s retirement to think about their own succession plans. Planning for a retirement involves identifying current risks and ways of addressing these. Start today and start by examining the core question: who owns the client? The answer to this question will have profound taxation and other implications. This article originally appeared in the Dec 2004/Jan 2005 issue of Asset magazine.

November 2004
"The spirit of soft dollar" by Peter Bobbin
When is a conference a welcomed initiative for continuous professional development, and when does it cross the line into soft-dollar benefits? This article originally appeared in the November 2004 issue of Asset magazine.

"Caveats to Protect Interests in Land" by Ben Smits
It is a common perception that lodging a caveat on a property gives the caveator similar interests in the property to a registered interest. A caveat can only prohibit the recording of a dealing to the extent that the recording would affect the interest claimed in the caveat. Solicitor Ben Smits analyses various issues that arise in this complex and technical area of property law, and suggests various solutions to help protect unregistered interests.

"Independent Contractor or Employee: why is it relevant and what’s the difference" Andrew Ireland
In recent years there has been a movement away from the traditional employment relationship and toward the more appropriate and relevant modern day contractor relationship for large portions of the Australian work force. This article sets out the factors to be considered in drafting a service contract to comply with various Tax acts, workers compensation, insurance and liability considerations, and industrial relations matters. November 2004.

October 2004
"Beware Bad Apples" by Peter Bobbin
People are looking for someone to blame for the current crisis of uncertainty in the financial services industry - and the lawyers are the easiest target. But did you know that the most common source of litigation in the financial services industry is not what the lawyer finds? It is what the lawyer is given by you. Don’t worry about the lawyers, worry about the next adviser. In Peter Bobbin’s experience, the more professional the next financial planner, the more intent they are in searching for rotten apples. This article summarises the state of play with risk management in the financial services industry, including the recent decision in Newman v Financial Wisdom and ASIC’s 'bad apples' program. Mr Bobbin concludes that the financial services industry can regulate itself if everyone tells the truth. This article originally appeared in the October 2004 issue of Asset magazine.

"Divorce is difficult, death is harder" by Nabil Wahhab
Nabil Wahhab, recently acted in a family law matter in which a party died before the property settlement was completed. This case highlights the importance of ensuring clients are aware of the need to change their will after separation. Failing to do so can have serious consequences, not only for beneficiaries, but for the deceased's lawyers and financial advisers as well. This article originally appeared in Money Management, 21 October 2004.

"Conflicting Interest – the great debate” by Peter Bobbin
Controversy over soft dollar payments and conflicts of interest are threatening the financial planning industry. Money Management invited some of the industry’s leaders, including Argyle Partnership’s Peter Bobbin, to hammer out the issues in a roundtable discussion. This article originally appeared in Money Management, 14 October 2004.

"Fees for Services doesn’t maketh the profession" by Peter Bobbin
The law profession has come to the conclusion after many years that charging an hourly rate isn’t as clean and transparent as it is perceived to be. In the face of ongoing criticism over the advice industry’s reliance on commissions, financial planners are destined to find out the pitfalls of fee for service the hard way. This article originally appeared in Independent Financial Advisor, October 2004, and includes an interview with Peter Bobbin.

"Lease Incentives – don’t lose the (tax) benefit" by Andrew Ireland
This article is a healthy reminder for both landlords and tenants to carefully review the structure of their next lease incentive arrangement to ensure the full tax benefit is gained by the tenant. (October 2004).

"Charitable Funds a Gift to Planners" by Lisa Chambers and Paula Zammit
Prescribed private funds allow clients to retain control of their monies when gifting such monies to charities, as an alternative to the usual philanthropic vehicles. Solicitors Lisa Chambers and Paula Zammit explain the rules. This article originally appeared in Money Management’s "Argyle Advocate" column, 23 September 2004.

"Conflict: part of life, part of business" by Paula Zammit
Recent amendments to the financial services law (“CLERP 9 amendments”) have put the spotlight on conflicts of interest. Solicitor Paula Zammit reviews the systems that financial planners must put in place to manage potential conflicts of interest. This article originally appeared in Money Management 26 August 2004.

September 2004
"The clash of the new millennium: Bankruptcy v family law" by Nabil Wahhab
Nabil Wahhab foresees a David and Goliath battle between trustees and spouses, and some tough decisions for the Family Court under the proposed family law and bankruptcy regime. This article originally appeared in the CCH Family Law News Service on 14th September 2004

"Employee Termination can be Terminal for the Employer" by Andrew Ireland
All employers, cavalier and cautious, should review how they deal with staff terminations. This article sets out the lessons from the Dibb and Avco matter, in which the settlement sum included several years of the employee’s remuneration and was the result of the employee suffering substantial adverse consequences as a direct or indirect result of the termination. September 2004.

"Handling Redundancy with a Velvet Glove" by Ben Smits
It is easy to think that mustering the courage to inform a long term employee that they are not needed as part of the team any more is the hard part of the job done, however sometimes, this can be just the beginning. In this article, Argyle Partnership solicitor Ben Smits provides step-by-step detail of the redundancy process. September 2004.

" Common Sense Rules" by Peter Bobbin
The real revolution in financial planning will not come from FSR. It lies in a recent Supreme Court decision and the evidence given by Wes McMaster, who is an expert in financial planning professional standards. This article, which originally appeared in the September 2004 issue of Asset magazine, is an extensive summary and analysis of Newman v Financial Wisdom Limited, Supreme Court of Victoria, Mandi J [2004] VSC 216.

August 2004
"The Legal importance of simply being responsible" by Peter Bobbin
Directors who are also responsible officers need to ensure their organisation allows them to fulfil their duties. This article looks at compliance obligations as illustrated by recent corporate collapses. The article was originally published in the August 2004 issue of Asset magazine.

"Bankrupt barrister 'beggars belief' but beats bankruptcy trustee, by Stephen Mullette
In this article, Argyle Partnership Senior Associate Stephen Mullette offers an extensive analysis of the Full Federal Court's decision in Cummins v The Trustees of the property of John Daniel Cummins, a Bankrupt [2004] FCAFC 191 (30 July 2004). In Cummins, the fact that a barrister had omitted to lodge tax returns for 45 years, could not be used to infer that he may have had a debt to the Tax Commissioner. In this way, the bankrupt’s wife and family trust were able to overturn a trial judge’s decision that transfers of the bankrupt’s property to them had been for the purpose of defeating the bankrupt’s creditors. This case is a salutary lesson on both the evidence required to challenge the transfer of assets by those who subsequently become bankrupt, and also on the difficulties facing bankruptcy trustees as they endeavour to recover assets for the benefit of creditors.

July 2004
"Dollar Disclosure: What you need to know" by Paula Zammit
The latest Corporations Regulations amendments are all about dollar disclosure. Known as ‘Batch 8’, the amendments are now in place, however, there is a six-month transition period. But there is no time to lose between now and 1 January 2004. Paula Zammit explains the new requirements for Statements of Advice (SOA) and Product Disclosure Statements (PDS). This article having originally appeared in the 22 July 2004 issue of Money Management.

June 2004
"Note Well: How to keep good file notes" by Christina Kalantzis
Managing risks often comes down to the paper trail. And with all the recent mayhem surrounding how and when is the SOA to be provided? What must the SOA contain? – we are forgetting about the important role that file notes take in the financial planning process. This article originally appeared in the June14-20, 2004, issue of IFA magazine.

"Alienation by no means personal" by Peter Bobbin
In this article Peter Bobbin identifies the recent cases dealing with taxation alienation of personal services income issues, but more importantly he provides an insight into the ATO's current 'test case program,' and its implications for the financial services industry and beyond. This article originally appeared in the July 2004 issue of Asset magazine.

"Is this the end of Asset Protection" by Stephen Mullette
Squarely within the the government's sights are bankrupts who are still able to enjoy the benefit of assets acquired with their money or effort, by arranging their affairs so that assets are not held in the bankrupt's name. While this has long been the basis of financial planning and "asset protection" advice, Stephen Mullette of The Argyle Partnership explains how proposed law changes represent a "fundamental shift away from the perceived legitimacy of these arrangements". This article originally appeared in the 23rd June 2004 edition of CCH's Australian Corporate News.

"Rules of Disengagement" by Peter Bobbin
Terminating a relationship with a client is not entirely different from a divorce – try not to hurt their feelings and keep in line with the law. In this article Peter Bobbin details the obligations of Australian Financial Services Licencees, including those under the Corporations law, individual client contracts, and the Financial Planning Association Rules of Professional Conduct and Code of Conduct. This article originally appears in the June 2004 issue of Asset magazine.

May 2004
"Levels of Respect" by Peter Bobbin
Is your early view of our reformed financial services industry glass half full or glass half empty? In this article Peter Bobbin offers his opinion that FSR should be viewed as a glass half full, which has brought about the beginnings of a more stable and secure financial services industry. This article originally appeared in the May 2004 issue of Asset magazine.

April 2004
"Undetected super crime" by Peter Bobbin
Self managed superannuaton funds do not always offer better protecgtion for members' savings - and when things go wrong help is hard to find. This article originally appeared in the April 2004 issue of Asset magazine.

“When is it bad to throw out your litter?” by Stephen Mullette
This case study of the decision in Hadfield v Commonwealth Bank is a timely reminder of the responsibility of a mortgagee when selling a mortgagor's property. The usual elements are there - inadequate advertising, misdescriptions and omissions in the sale process. There is also the valuable lesson that in certain circumstances a mortgagee may need to spend money to improve the property to obtain a better price at auction. And the case also contains an interesting tale of how one person's pile of manure can be another person's agricultural investment. This article originally appeared in the 19th April 2004 edition of CCH's Australian Corporate News.

March 2004
"Don't dob on your mates" by Peter Bobbin
Australia lacks an infallible framework to protect whistleblowers - and it is time the Goverment did something about it. This article originally appeared in the March 2004 issue of Asset magazine.

Statement of Anarchy: put the client first and the law will follow" by Peter Bobbin
It is important for financial advisors to stop looking for exceptions to the Statement of Advice requirement. In this article, Peter Bobbin stresses the importance of the SOA from a risk management perspective, and offers tips on the easiest way to draft an effective SOA. The reference to “Statement of Anarchy” refers to Mr Bobbin’s strategy of designing the SOA first, and then later testing it against the prescriptive law. This article originally appeared in the March 8-14, 2004, issue of IFA magazine.

February 2004
"The End Is Nigh: should the financial services industry beware the Ides of March?" by Peter Bobbin
Financial Services Reform (FSR) has been looming for the past 2 years, finally arriving on 11 March 2004. The approaching Ides of March (actually a few days before), has been viewed as the perfect opportunity to get that tax saving or corporate vehicle in place. But this raises issues of the dealer/rep relationship. In this article, Peter Bobbin examines the four forms of relationships post-FSR, especially the tax implications for financial planning businesses. This article originally appeared in the February 2004 issue of Asset Magazine.

"Don't Go Breaking My ... BFA," by Nabil Wahhab
Some say family law is boring - but not when the likes of Jodee and Maxine Rich are involved. In this article Senior Associate Nabil Wahhab gives a plain English explanation of the origins and uses of Binding Financial Agreements as a tool in asset protection. Mr Wahhab then explains the circumstances under which a third party - ASIC in the Rich case - can challenge a BFA. The lessons learned from the Rich case should be a wake-up call to financial planners. This article originally appeared in Money Management, 5 February 2004.

January 2004
"A point of reference" by Peter Bobbin
Net time a departing employee asks for a reference, think before you write - it could come back to haunt you. This article originally appeared in the December/January 2004 issue of Asset magazine.