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In yet another home made Will disaster, the Supreme Court on 27 June ordered that probate be granted of an informal Will.  As tends to be typical of these sorts of matters, the Will maker used a Will kit, and completed it himself.  In this case, while the Will maker had filled out the Will form, he did not sign it.  It was signed by two witnesses, but for whatever reason, the Will maker did not get around to signing it himself.  The court was satisfied that the document complied with the requirements of section 18 of the Succession Act in that it: The decision was made in respect of a relatively small estate – an estate so small that usually probate would not be required and the expense of it could be avoided. Because of the deficiencies in the home made Will, a court application has become necessary supported by six affidavits and submissions.  Fortunately, the cost of a formal hearing was avoided, saving perhaps something in excess of $5000 but regardless the episode is likely to have unnecessarily cost the estate (and its beneficiaries) well over $5,000. The circumstances of the matter reinforce yet again the dangers of home made Wills or for that matter, not having a Will properly executed.  In effect, the estate will be diminished by costs of several thousand dollars at least, when the cost of preparing the Will would almost certainly have been less than $1000.  For advice on wills and estates, please contact Jessica Murray at jessicam@qbmlaw.com.au or Peter Muller at peterm@qbmlaw.com.au

In Queensland, payroll tax is payable by employers if the “Australian Taxable Wages” paid by the business operator (or group, if it is a member of a group) exceeds $1.3M per annum. The obligation to register occurs immediately after the end of a month in which the employer (or group) pays more than $25,000 per week in Australian taxable wages. Obviously, Australian taxable wages would include salary and wages.  Also, annual leave, sick leave and long service leave are included.  But what of drawings in a partnership?  Drawings in a partnership are often characterised as loans made by the partnership to the partner until the share of profit is calculated, usually at the end of the financial year.  As such, it is possible that a partner’s drawings might exceed their share of profit which would then give rise to the balance remain a loan from the partnership to the particular partner.  In other years, the payments might be less than the partner’s share of profit.  This is similar to payments made to shareholders, which are generally treated as loans until dividends are declared. The Queensland Revenue Office has issued public ruling PTA016.1 to clarify whether payments are loans made to the owner of a business, who is also an employee of that business, are subject to payroll tax.  The ruling provides that: While the ruling was issued on 28 May 2013, it takes effect from 1 July 2008. Get it from the horse’s mouth here https://qro.qld.gov.au/resource/pta016/

A recent decision of the Queensland Civil and Administrative Tribunal (Huenerberg v Murray [2023] QCAT 175) has highlighted that a person can be found to have made a racially based insult when referring to a country rather than a race. In the particular matter, the Respondent had referred to the Applicant in a way that was found to be vilification on the grounds of race contrary to sec 124A of the Anti-Discrimination Act 1991.  The part of the comment which referred to “race” was the description of the person as “German”. Is “German” a race? We often consider “race” as something that is relevant to physical characteristics. Relevantly however, the Anti-Discrimination Act has a very wide definition of “race” including: As a result, for the purposes of the Anti-Discrimination Act 1991, it seems that one could have a race of German, Australian, or any other nationality, although it is relevant that the Member considered that the reference to being German was insulting that it was a reference “to the fact that he was in some way foreign to Australia”.  Of course, the complained of comment was not just that the complainant alleged that he was called “German” (there was a more colourful description that followed), but it was the reference to “German” that enlivened sec 124A. While the decision raises a number of interesting concepts in the interpretation of sec 124A, it is worth noting before letting fly with any choice insults that racial vilification – for the purposes of the Anti-Discrimination Act – is not limited to matters that would involve physical characteristics, but can involve many other matters.

It is not uncommon for private companies to make loans to their directors, and for those loans to to be made without any formal agreement.  It is also not uncommon for those loans to remain unpaid for a period in excess of six years.  A question then arises as to whether recovery of the loans is statute barred.  This can have serious ramifications, first as to whether the director is responsible to repay the loan, as an example if the company is placed into liquidation, and second, whether it has triggered any adverse issues due to debt forgiveness. Leaving aside arguments that a director might be responsible regardless for preferring their own interests to those of the company or failing to act reasonably as a director in not causing the company to recover the debt or at least obtain an acknowledgment, another question arises as to whether the limitation period has been extended because of any acknowledgments of indebtedness made by the director, triggering the extensions of the limitation period provided in section 35 of the Limitations of Actions Act (Qld).  In this regard, it is also important to note that in Queensland, an acknowledgment of debt can re-enliven the limitation period even after the limitation period had expired (this is not the case in some other jurisdictions).  The Queensland District Court recently considered whether the annual accounts of the company – signed by the director and noting the loan – were a sufficient acknowledgment of the debt to trigger the restarting of the limitation period.  On the facts, and having regard to the type of accounts, His Honour Porter KC DCJ considered that the accounts comprised an acknowledgment made by the director to the company in respect of the debts owed by the director to the company shown in the accounts.  The director’s opposition to recovery on the basis that it was statute barred failed. The decision (Commercial Images (Aust) Pty Ltd (in Liq) v Manicaros [2023] QDC 77) provides a very useful discussion of law relating to acknowledgments of debts, and then applies that discussion to a number of factual scenarios.   It is not uncommon for directors to take money out of companies by characterising the payments as loans to them rather than salary.  Doing so however carries a number of risks, one obvious risk being that if the company is put into liquidation or control of it is lost, then the loan can be called up. For advice in respect of company loans, contact Peter Muller at peterm@qbmlaw.com.au