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Read this weeks top 3

Questions & Answers

11 July 2014

Question 1

Hi, I act for the vendor in the sale of a small business. There are several casual employees, two of whom have greater than 5 years of service.

Is it correct that any casual employee with greater than 5 years service has a long service leave entitlement irrespective of the consistency or regularity of their hours (provided they have not had a break of greater than 3 months). As a consequence an adjustment has to be made at settlement if the employee is continuing with the new owner.

If the employee is not continuing with the new owner a payment needs to be made as the employee is being terminated. (NSW question)

Answer

It is a matter for agreement. If you use the Law Society contract without amendment, I agree with you in relation to the adjustment.

I also agree with you in relation to the obligation to terminating employees. Casuals are entitled to long service leave.

Continuity of service may be broken by a shorter break than 3 months and may not necessarily be broken by 3 months. You need to review the circumstances against s4(11) Long Service Leave Act.

Question 2

Are you able to nominate a trustee of your self-managed super fund as a substitute buyer under the contract for the sale (prior to settlement)?

Presumably this will not be deemed as a 'sale' to your SMSF and will be okay from the SIS act & conveyancing perspective
(VICTORIAN question)

Answer

Correct, you can nominate.

Question 3

We have a client who has an outstanding account from a customer. The customer ("Debtor Company") has sold all its assets to a separate Company ("Company A").

Company A now operates from the offices of the debtor company. What right of claim does our client have against Company A? The Debtor Company is currently at court defending claims by other creditors. There is a high likelihood that the company will be put into administration.

Answer

There are a number of possible outcomes. If the company goes into liquidation then the transaction by which it sold its assets may be voidable by the liquidator for instance for uncommercial transactions or unfair preferences.

If the company has been engaged in insolvent trading then the directors may be personally liable.

If these factors do not apply and the transactions have not in effect been done to defeat creditors then there is no recourse against the new company or its directors.
Remedies for phoenix activities exist in relation to employee entitlements but not third party debts.

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