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We have waited a long time – the tide is turning

The Federal Court has clarified the scope of the releases that may be agreed by a lead applicant in a class action. It has stated very clearly that under the legislation governing class actions, the release can only relate to the claim the class action. The lead application has no power to grant a release in relation to things beyond the claim in the class action.

The issue arose in Dillon v RBS Group (Australia) Pty Limited (No 2) [2018] FCA 395. Mrs Dillon sued RBS Group in relation to losses sustained by her and others in relation to exotic financial products known as ‘instalment warrants’. The case settled and as is typical in cases of this kind, RBS Group required each group member to sign a lengthy document containing, among other things, a release of RBS from any further liability by all group members in relation to issues raised in the proceedings.

The necessity of requiring group members to sign such a document prompted Lee J to consider the “important points of principle” about the scope of the proposed releases. It is an important point because defendants often ask for a release of all liability, whether or not connected with the issues in the case. A release of all liability would preclude group members from pursuing other claims they might have against a particular defendant. Lee J held that a release that went beyond the claim in the class action could not be maintained.

This decision has significant consequences. In the Great Southern litigation, a release was contained in the Deed of Settlement that clearly went beyond the scope of the class action. Bendigo and Adelaide Bank, in the course of its recovery action, has relied on that release to assert that borrowers have no defences to the bank’s demands for payment.

Lee J’s decision makes it plain that this is not correct and that the scope of any release must be construed in line with the content of the claim in the class action.

The SR Group’s Investment Tips for 2018

Investing money is always a trade-off between risk and return. Just like most things in life; the greater the risk, the greater the reward. Not all risk is the same, however, and we should aim to eliminate risk wherever possible, especially with our money.
When investing your money, you want to worry about the success of your investment; will the company’s new project be successful? Will it be profitable enough to pay the dividends I am looking for?
What you don’t want to be worrying about is the safety of the investment itself, whether you’ve been scammed and whether the assets you bought genuinely exist.

Our investment tips will assist you in navigating the investment landscape for 2018.

The big 4 banks lodge their submissions

The big 4 banks have all come out this week and made submissions to the upcoming Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. Australia’s top 4 financial institutions each lodged submissions this week, summarising instances of misconduct and delinquency over the past decade. With the public hearings approaching on 12 February 2018, this is the first step, though a substantial one, towards fostering and maintaining transparency from our major banks.  

Sydney Morning Herald - Business - Banking & Finance >

 

Five Tips to Prepare your Business for 2018

As 2017 starts to wind down, we begin to cast our eye forward towards the year to come. Here at the SR Group, we work closely with many small business owners and company directors, and we have decided to compile a list of tips to help your business thrive in 2018.

Plan Ahead

Success takes organisation and strategy, and your business is no different! As we look forward to 2018, consider what key events and milestones are occurring and when. Adjust your revenues and cash flows as appropriate to accurately reflect your perception of your business’ popularity. Making careful, considered forecasts will allow you to make better and more accurate business decisions for the future. Spend a few days running through all the likely (and unlikely!) scenarios that might occur to your business and make calculations accordingly. That way will there be no surprises and you will be prepared for any outcome.

Make it Easier for Customers to Pay

This one is simple. The easier it is for customers to pay, the more often they will pay! Times are certainly changing, and so is the way people pay for things these days. If your business is still not accessible to ‘tap and go’ or charges fees on EFTPOS, it’s probably time to get with the times. A recent survey by payment giants VISA has classed Australia as a ‘Digital Leader’ in adopting electronic payments, with 92% of face-to-face transactions being contactless payments. Make it easier for your business to make money – by making it easier for your customers to pay you!

Employee Entitlements

Employee entitlements are an important thing to stay on top of in the new year – especially if your business is in financial difficulty. An audit by the Australian Taxation Office (ATO) revealed that employers had short-changed staff by an average of $2.81 billion per annum, a truly terrifying figure for the employees of Australia. To tackle this, the Australia Government has introduced the Small Business Superannuation Clearing House, a free service to reduce compliance costs and red tape for small businesses.  Additionally, should your business undergo an insolvency event, you as a director can be personally liable for unpaid employee entitlements while in financial difficulty.

Small Business Superannuation Clearing House – Read More

Never get Complacent

This is an important point always, but even more so as we begin to enter 2018! The ever-present threat of competition means that as business owners, we must always be looking for ways to lower costs and improve our product. Our competition will be constantly trying to better our product, and we are no different. Similarly, the presence of competition means that you must stay vigilant in looking for the cheapest prices to lower your costs in running a business.

Use Support Services and Systems

It important for you to focus on what makes your business great, and leave the stuff you’re not as good at to someone else. There are companies around which provide a vast range of services to help with a number of different situations. Some types of support services include;

  • Advisory Services: Need help making a business decision or reconsidering your strategy? There are business advisers around who will help you make the right decisions for your business.
  • Hiring Services: Don’t waste your time sifting through thousands of resumes when you could pay a company to give you the top 10 applicants of the lot.
  • Financial Difficulty Services: Companies, such as the SR Group, exist to help companies and directors through periods of financial difficulty. A company, or person, in financial difficulty, has a lot of decisions to make in a very short period of time, which can have different and long-term consequences. Just because things aren’t going well at the moment, don’t let this period of hardship affect the rest of your life. Talk to the right people, get the right advice, make the right decision, and you and your business will be back on your feet in no time.

There are many tools and services available to businesses and their directors to help them through a variety of situations. Find out more through our advisory service.

ATO had been tipped off about accountant who sunk this couple’s business

Warren-Sheenah-Whitten-SR-Group-Advocacy

EXCLUSIVE

THIS couple has lost their successful small business after its tax payments were taken by an accountant the ATO was warned about three years ago.

Police are expected to charge Coffs Harbour’s Stephen Raymond Douglass as soon as this week over his pilfering of at least $500,000 and possibly $1 million from Warren and Sheenah Whitten’s Woolgoolga-based steel fabrication company, Arc Attack Engineering — money they thought he had remitted to the ATO.

In a confession he emailed to the Whittens a month ago, Douglass attempted to elicit sympathy by blaming his actions on a gambling addiction.

However, there was no mention of a gambling addiction in 2014 when another Woolgoolga client, Eadie Cabinet Making, discovered a decade’s worth of GST had not been paid to the tax office.

On that occasion Douglass said the money had been taken by an employee that Craig and Michelle Eadie doubt actually existed.

The Eadies alerted the ATO about Douglass. But it never even contacted them. It is unclear why. Its media unit said it could not comment.

“The system is a joke,” Mr Eadie said. “The ATO didn’t care. There was never any follow-up. The thing that really pisses me off is that I should’ve been able to warn the other local businesses (who were clients of his). Warren would never have been ripped off. But I was put under a gag order.”

In 2015, seemingly by coincidence, the ATO audited Arc Attack. But it did not speak to the Whittens. When News Corp Australia asked why, the ATO said “taxpayers may wish to have another person act on their behalf. The ATO will contact the nominated person to discuss related matters, for example during an audit.” After the audit, the ATO fined the Whittens $60,000.

In June, the ATO began winding up proceedings against Arc Attack in the Federal Court. The company, which employs seven people, went into voluntary administration in August.

Only then was the fact of the missing money identified — by Mrs Whitten.

Arc Attack is now in liquidation. The Whittens face having to remortgage their home if they are to be any chance of buying back the business. They’ve already had to sell their investment properties and shares.

“I think the ATO has something to answer for,” Mr Whitten said.

Liquidator Steve Nicols of Nicols & Brien said were it not for the misappropriation by Douglass “this company would not be in liquidation”.

Mr Nicols said he would sell “the assets to the highest bidder, which could be Warren. (But) they may not get the business back.”

The main creditor is the ATO. It is not yet known what dividend will be paid.

The Whittens said if it is less than 100 cents in the dollar they will pay the difference out of their own pockets.

“I want to walk around with my head up,” Mr Whitten said.

The couple had not wanted to go into administration. But Douglass encouraged them to do so, rather than hire business advisers the SR Group.

Its managing director Susie Bennell said it would have negotiated with the ATO to keep Arc Attack trading and in the Whittens’ hands.

When News Corp Australia approached Douglass for comment he said: “I do not give you permission to write anything. My solicitor says she will sue for all the world if anything is written against me.”

The Daily Telegraph
John Rolfe, News Corp Australia Network 

Building site Builders turn against construction watchdog

QUEENSLAND builders are planning to launch a class action against the state’s construction industry watchdog over what they claim is heavy-handed oversight that has destroyed businesses.

Small to medium-sized building firms are aiming to meet next week in Brisbane as the first step in lobbing the legal grenade at the Queensland Building and Construction Commission.

The aggrieved parties will be chasing an unspecified damages bill, certain to run in to the millions of dollars.

They also want to see sweeping industry reforms and the reinstatement of licences revoked “unfairly’’.

The looming Federal Court action, believed to the first in the nation against such a state regulator, has been spearheaded by self-styled “professional advocate’’ Susie Bennell.
Bennell, the Sydney-based former manager of champion boxer Kostya Tszyu, told Business Confidential yesterday she had already convened one meeting that drew about 20 interested parties.

“If the QBCC continues along its lines of just wiping out builders, liquidating their companies for a whole gamut of reasons and not addressing reforms, there will no longer be long-term builders,’’ she said.

susie_bennell_advocate

Despite the barely contained rage over aggressive policing of the sector, Housing Minister Mick De Brenni intends to double down on his support of the commission.

He wants to give regulators even greater powers to take on dodgy builders in a bid to protect subcontractors and homeowners.

De Brenni’s controversial plan to mandate the use of trust accounts to stop builders shafting their subbies has already drawn the fierce criticism of peak industry groups.

Indeed, Master Builders Queensland, making no secret of their displeasure with De Brenni, have even rented billboard space on the M1 to drive home the point.

City Beat with Anthony Marx - COURIER MAIL 

Builders plan QBCC class action

A SYDNEY-based advocacy group is representing a push for a class action against the Queensland Building and Construction Commission over what it claims to be unfair treatment and bullying. The SR Group, headed by professional advocate Susie Bennell, wants builders, tradesmen, subcontractors and construction workers who believe they have been unjustly treated to join the action. The goal is to drive legislative reform, licence reinstatement, and losses and damages for those affected. A meeting is being planned for October 20 to bring together people who feel they have been adversely affected.

A spokesperson said builders were receiving penalties that amounted to licence demerits unfairly and without proper mediation.

 "There is no full mediation service between the home owner and the builder," she said. A poster seeking people in the construction industry to join the class action claims the QBCC had been abusing its power as a regulator. "The watchdog is meant to police the dodgy builders in the industry, but instead cripples legitimate businesses whilst the real crooks disappear before they can be caught," the poster claims. A Department of Housing spokesman said a threefold increase in the level of penalties this year in most cases related to defective work. He said the penalty levels were raised in 2014 but have only just come into force. "They're larger than they used to be," the spokesman said. 

Bill Hoffman Sunshine Coast Daily 

Do you understand you responsibilities as a Director?

Being a director of a company comes with certain privileges and responsibilities, which must be managed with care. If you don’t stay on top of your responsibilities as a director, you can end up in significant financial and judicial trouble as a result. If at any stage, you are unsure about the position of your company or your obligations as a director, seek professional advice immediately.

Directorship’s come with a duty of care to the company and any shareholders it may have. As a director, there are numerous requirements you are personally responsible for under the Corporations Act 2001. These include, but are not limited to;

+ Duty to exercise your powers and duties in good faith in the best interest of the company;
+ Being fully aware of the company’s financial position;
+ Duty not to improperly use your position to gain an advantage for yourself or someone else, or to cause detriment to the company;

Furthermore, the Corporations Act 2001 also imposes responsibilities on the company, which you as a director are responsible for. The responsibilities of a company include:

+ Having a current registered office;
+ Having a principal place of business;
+ Disclosing personal details of directors;
+ Keeping financial records;
+ Notifying ASIC of key changes;
+ Paying relevant fees to ASIC;

Similarly, directors of companies in financial distress may be in a compromising position – Insolvent trading is a criminal offence and directors who engage in it can be sentenced to jail. Insolvency is defined as being unable to meet and repay all debts as they are due. This means that as a director, you must carefully consider the financial position of the company before incurring any new debts. A failure to keep adequate records or ignorance to the company’s financial position are both presumed to be acts of insolvency by regulators.