Recent changes to the Retail Leases Act mean both tenants and landlords could be caught out by outdated Section 28 notices.
If you're a tenant, you could delay locking in a new lease — or end up paying more than expected.
If you're a landlord, you could lose control over your rental income.

Watch my latest video to learn more.

At Millens, we make sure your leasing documents are fully compliant and your interests protected.
Got a question about exercising an option or issuing a notice? Contact us — we’re here to help.

You may have seen the recent announcement in the Federal Budget about banning restraint of trade clauses for employees earning under $175,000.

While this change won’t come into effect until at least 2027—and we’re yet to see the fine print—it raises important questions about how you protect your business interests.

In this short video, I break down what we know so far, what the courts typically enforce (and don’t), and how to ensure your agreements still stack up.

If you’ve got any questions about your current employee or business sale agreements, feel free to get in touch with me or anyone at Millens.

I wanted to talk to you today about a situation that some of our landlord clients have been placed in recently where their tenants have defaulted under their leases. Now, we then can prepare a notice of default. Normally, you must give the tenant 14 days to rectify their default. But what happens if they don't? Well, then you're entitled to re-enter and terminate the lease. Now, re-entry, you need to be not using any violence or force, but go at a time, take a locksmith, change the locks. Maybe you need a security guard or your managing agent to go along. In certain circumstances, we then put a notice of termination or notice of re-entry on the premises.

                                    But what then happens when there's a whole lot of items of chattels and equipment, maybe stock left behind? What happens with that? Well, you can't seize all that material and sell it. You need to give the tenant an opportunity to come and take it away. And if they don't, well then it's abandoned, and depending upon what your lease says, you can dispose of it or sell it. But there's a few little tricks there. For instance, we probably need to do a company search to make sure that the tenant hasn't gone into liquidation, so then you need to be dealing with a liquidator or an administrator instead. And you need to do a PPSR search because maybe they've got a financing company behind them that has an interest in some of those chattels and the stock, and you need to be dealing with that company instead of the tenant.

                                    So there's a number of complications, a number of things that could go wrong, and a number of ways you could end up with a liability you didn't intend. So if you've got any problems with your tenants, got any problems with them abandoning the premises or leaving things behind, contact us, we can look at the lease, we can give you advice to make sure you're not going to waste your money or have a liability you didn't expect. I'm Ross Millen from Millens and I look forward to helping you.

Hi. Last video I was talking about trusts, and I want to point out some of the other problems that can arise with trusts, particularly old trust deeds.

Now, old trust deeds just might say you can distribute income to beneficiaries, but what is income? Well, there's income according to ordinary principles, money that's generated out of a business or rent. But sometimes you can have income for tax purposes, which is a taxable capital gain. And sometimes old trust deeds don't distinguish between taxable capital gains and other types of income.

So as you know with a taxable capital gain, people are entitled to a 50% discount. Now, do you want to keep the character? How can you do a distribution where you distribute perhaps the capital gain out to one beneficiary who's got some capital losses and you want to distribute the other normal income out to another beneficiary? Now, if your trust deed allows what's called streaming, so you can send the different incomes down different streams, great, fine. But older trust deeds sometimes don't do that.

So if you've got some problem with your trust deed and you want us to have a look, we can let you know if it permits streaming or not. And if it doesn't, then we've got an amendment that you can amend your trust deed, after reading the trust deed and making you follow the amendment rules that are set out in that, to include streaming. So this means that one type of taxable income can go to one beneficiary and another type of taxable income can go to a different beneficiary, to give you a legitimate tax planning advantage.

So remember, if you've got particularly an old trust deed, let us have a look at it. We can let you know, obligation-free, whether it has streaming or not. And if it doesn't have streaming, we can give you the amendment you need to make your trust more tax-effective. So remember to contact me, Ross Millen at Millens, if you've got any questions about your trust deeds.

I wanted to continue our little mini series on trusts. And today I wanted to focus on the person in the trust called the appointor or sometimes the guardian in old-fashioned trusts. But the appointor is the person that's got a lot and lot of power because they are the person that appoints the trustee. So if for some reason the trustee is not doing what the appointor wants, the appointor, subject to principles of equity and whatever, can remove that trustee and add a new trustee. So the appointor is a very important person.

                                    Now, there's two key things about the appointor. Let's say that in estate planning, you want to provide who's going to be the appointor following your death. Now, you might put a whole lot of provisions in your will, but you still need to read the trust deed because the trust deed might say who's automatically the appointor so that your will won't operate. So any essential estate planning requires us to also read all of your trust deeds to make sure that whoever you want to be the appointor upon your death is someone that we can appoint under the trust deed, even if it may not be necessarily done in your will.

                                    Another thing about the appointor is often we use trusts for asset protection, but in a matrimonial situation, what happens if you are the appointor, you are the trustee, you are the principal beneficiary? Well, the family court has very broad powers to look through all that and say, "Essentially, those assets in that trust belong to you." Because you are in complete control, you are the appointor, you're the trustee or the sole director of a corporate trustee, et cetera. So we're going to look through and say, "Those assets are yours, and they have to be brought into account for the purpose of doing a division of assets." So sometimes it's a good idea in those situations to have someone else as the appointor, not you. So you can say, "Hey, I'm not in control of those assets, someone else is. I can't automatically decide to make distributions or to share out the capital."

So remember, who is the appointor and how you change it is very important. If you've got any questions about your trust or setting up the appointor or changing it, remember to contact me, Ross Millen or anyone else at Millens, we'll be able to help you

I wanted to speak to you over the next couple of videos about trusts and some of the pitfalls that you can fall into with trusts. Now, sometimes it's necessary or a good idea for you to amend your trust. You want to add some new beneficiaries, or maybe you want to delete some beneficiaries, maybe there's been a matrimonial situation. For any sort of reasons. There may be you want to take beneficiaries out or add new beneficiaries in. Now, the main thing, and I must stress this, the most important thing is someone's got to very, very closely read the trust deed because the power to amend beneficiaries must be found inside the trust deed.

Now, why is that? Well, the courts have decided in taxation situations that as long as you're performing something that the original trust deed intended, where there might be a power to add or remove beneficiaries, that's fine. Where there's no such power in the trust deed, question if you can do it. And even if you do, then maybe that's going to be what they call a resettlement, where the assets of the trust are deemed to be transferred into a new type of trust with all sorts of capital gains tax or maybe stamp duty problems, and that's something to definitely be avoided.

So the trust deed has got to be read very clearly. Then you've got to make sure that you follow whatever the process is in the trust deed. Maybe you need the appointor's approval. Maybe you've got a guardian or someone else who's got to give approval, or you've got to give a certain number of days' notice. So you've got to make sure that when you're amending your trust deed to add or remove beneficiaries, you follow exactly what the trust deed says. Then, of course, you've also got to make sure that the power to amend the trust deed, you follow what's in the trust deed in that respect. So there can be really very bad consequences if you don't clearly follow what you want to do.

Now, if you've got any problems with your trust deed, you want us to review it, you need any amendments, remember to contact me, Ross Millen, or anyone else at Millens. We'll be able to help you amend your trust deed so that you avoid all of these pitfalls and achieve what you set out to start to do. Thanks for listening.

Welcome to 2025, and I hope you had a fantastic break over the holiday period. I was very fortunate over the holiday period. A Nigerian prince contacted me, want to send me millions of dollars. And then even the next day, I found out someone who'd died in South Africa had a whole lot of billions of dollars of United Nations money that they wanted to send to me.

Now, these sorts of scams are very amateurish and they're very easy to spot, but there are some scams and they're legally based that are a little bit harder to spot. And here's three of them to watch out for.

Now, one at the moment is called the copyright infringement scam. You get an email saying, "Hey, you've somehow breached our copyright. We can sue you for all this money. But look, let's settle it out of court. Just send us a couple of thousand dollars to this bank account and all will be forgiven." So watch out for that one, copyright infringement scam.

Another one is the tax offers scam. Someone sends you a message saying, "We are from the tax office. You've forgotten to pay this amount of tax." Maybe it's even just a small amount. And they say, "Look, it's been overlooked. We've got all these problems. We'll have to send you interest and penalties and whatever. But look, just pay this small amount of tax now." Again, this is another scam. Contact the tax office or contact your accountant or whoever handles your tax if you've got any doubts at all.

And the third one is the trademark infringement scam. Now, what this says is, "Hey, we act for someone who wants to register or is about to register this trademark. It's very similar to your name, but look, hey, we'll give you first go at applying. So contact us, send us some money, and we'll register this trademark on your behalf rather than our other client." Now, again, that's another scam intending you to send money. It's not legitimate, and it's all intended to get your money into the hands of the scammers.

So if you get anything that's legally based about infringements or trademarks or tax and asking you to make a payment, if you've got any queries, contact us. We'll be able to let you know whether it's legitimate or a scam, and save you your hard-earned money.

Hi. I wanted to finish up giving you some tips and tricks to make your negotiation as effective as possible. Remember, last time I said never bet against yourself and always try to make the other side go first. Well, two more things to bear in mind I think are that timing is everything, as a very astute Australian businessman once said. So sometimes you can put the pressure of timing on the other side. You can say, "Look, I'm authorized to make an offer, or I can make this offer today, but you've got a time period to accept. Otherwise, we have to get the lawyers involved," or something else is going to happen. So it's like you've got to take the offer today. Sometimes that works.

On the other side, if someone says that to you, I always think if they make an offer today, the same offer will be there tomorrow. So sometimes you can think, "Oh, I don't really like this, but I better take it because they're going to take it off the table." I always think, "Look, I need some time to think about this. I've got to go back and talk to my business partner or shareholders," or, "I want to think about it, talk to my spouse," et cetera. Buy yourself a bit of time to think about it and then go back and say, look, it wasn't really something you could accept, but it's getting close. So timing, timing is everything as far as that goes.

Another thing, and I know this is an old one, is good cop, bad cop. If you can get two people involved in the negotiation, and one might say, "Oh, your offer's okay, maybe I could accept it. But, oh, Fred, No way. You're going to have to do something better to get Fred over the line, but I think you could give us this, and now I can talk to Fred and maybe convince him to accept your better offer."

So use good cop, bad cop, where appropriate and where you can, to try and influence people to think, "Look, I'm really on your side trying to get the deal over the line." And the final thing I'll say to you is, when you've done a deal, make sure you get us to document it. So it's in a binding way so people can't walk away from it at a later date. So I hope these have been useful for you. I hope your negotiations are always successful. Remember, I'm Ross Millen from Millens. If you need any help, give us a call.

I've recently been helping some of our clients with commercial negotiations, and what I've seen over the years is how people can make very, very simple mistakes that make them lose the deal. That make them end up with a deal that's so much worse than what they wanted. Now, today I am going to give you two bits of information that are negotiation gold. The first one is make the other side go first. Whoever speaks first, they're the loser. Make the other side make the first offer. Either that's going to set your floor or your ceiling. Then, you know, can never do a worse deal than what they made at their opening bid. The second thing and the second mistake I see that people make that lose them a great deal is they start bidding against themselves. Now, never do this. You wouldn't go to an auction and bid a million dollars and think, oh, maybe I'll bid a bit more.

Maybe I'll bid 1.1. No. But this happens in negotiation a lot. You make an offer, someone makes a counter offer, it's still not good enough. What do you do? You come back and make another offer, and then there's silence. So you think, oh, I want to get a deal. Maybe I'll make an even better offer, or even a better offer, or a better offer. So they're sitting there doing nothing, getting a better offer every time. So what you can do is if you're waiting for the other side, you just sit and wait as well, and then you just say, look, the ball's in your court. You've got to come to me with something, and you make sure that the other side comes back with a realistic counter offer before you make your next bid. So these are some negotiating tips. Hope you enjoy them. You've got any difficult commercial negotiations, remember to contact me or anyone else at Millens. We're here to help.

Are you aware of the new Vacant Residential Land Tax? Starting January 15, many holiday homeowners on the Mornington Peninsula and beyond may face an unexpected 1% tax on their property value if their homes have been vacant throughout 2024.

There’s still time to meet the exemption requirements. Use your holiday home for at least four weeks this year, and keep simple records like receipts or utility bills to show usage.   Watch this short video to understand what you need to know.

Hi. We had a situation the other week where a client had someone working for them as an independent contractor. They had an independent contractor's agreement, and for whatever reason, they brought it to an end. And what happened? The independent contractor went to the Fair Work Commission and said, "Hey, actually, I was an employee and I had been unfairly dismissed, and now I'm bringing a claim." It's very important to be very sure about whether people working for you are employees or independent contractors.

Now, you've probably all heard about the guy that worked for 30 years for a company. He was an employee. He finished up on a Friday, and then he turns up to work doing exactly the same job on a Monday, but through a company using an ABN and saying, "Well, now I'm an independent contractor." That just doesn't work because the person is still an employee.

What's the things to look at? Well, is there any promise of ongoing work? Are there fixed hours to do the work, or is the person able to choose their own hours? Do they provide their own tools and equipment? Do they have a discretion as to how to provide the services? Can they use other people? Can they delegate? There's a whole range of tests that are used to determine whether someone's an employee or an independent contractor.

And why is that important? Well, not only for fair work, but also taxation obligations, work cover, insurance, and a whole range of things that are important whether a person is an employee or an independent contractor. Now, if you are in this situation with people working for you or you are working or providing services to someone else, you've got any queries about this, remember to contact me or anyone else at Millens. We're here to help you deal with your employee independent contractor issues. Thank you.

Hi. I wanted to talk to you today about two common problems that I find in connection with assignments. Now, the first of these is what we might call a deemed assignment, and that's where you're not actually assigning the contract or the lease, but there's some change in the company that's one of the parties to the document. So what happens is that there's a more than say 50% change in the shareholding, and then that's deemed to be an assignment that you needed to get the landlord's consent to. And some people overlook this.

The other problem is some of these deemed assignment clauses, whether they're in leases or other contracts, are even more restrictive. Any change in the share ownership, any change in the directors can be a deemed assignment. So first, when you're entering into your contracts, make sure you don't have a very onerous deemed assignment clause, or later if you're doing an assignment, any change to your directors or shareholders, always check that this isn't going to be a deemed assignment that you need to get consent from the other party of the contract.

Now, the second problem I see is where people are assigning leases and maybe they've given a guarantee. So are they still on the hook with their guarantee? Better to try and get rid of it. And remember, if you've got a retail lease, you can follow the procedure set out in the Retail Leases Act to make sure your guarantee is at an end.

But if you've got any queries about deemed assignments in contracts or leases, or getting your guarantees cancelled, remember to contact me or anyone else at Millens; we're here to help

Thinking of buying or selling a business? Let’s talk about the phase between signing the contract and finalizing the deal. It’s often more complex than it seems!
Recently, at Millens, we've helped several clients with business purchases, and one thing is clear: settlement preparation is key. Some people think it’s smooth sailing once the contract is exchanged—but then we mention a few questions like:

• Have you transferred control of domain names, websites, or social media accounts?

• What about intellectual property?

• Is your stocktake organized, and have you handled stock in transit?

Watch the video here 

If you're scratching your head thinking, "Wait, I didn’t consider that," don’t worry! We’ve got a comprehensive checklist to make sure nothing falls through the cracks. One of our recent clients used it, checked off each item, and sailed through to a smooth settlement.

Whether you're buying or selling, our team at Millens is ready to guide you through the entire process.
Reach out today to get our checklist here. Ensure your settlement goes off without a hitch!

Ever wonder if you're misusing "without prejudice" in your communications? Many clients do! Often, it's used in the wrong context and could even weaken your position.

Here’s the rule: Only use "without prejudice" when making a settlement offer or compromise. Simply laying out your case doesn’t require it.

Want to ensure you’re using it correctly? Watch our latest video to find out when you should and shouldn’t include "without prejudice" and why it matters for your claims.

If you’re unsure or need help with your letters, reach out to me or the Millens team—we’re here to guide you!

In case you missed it, significant changes are headed your way! New Commonwealth laws now introduce the “Right to Disconnect” for employees, and by August 26, 2025, every business, regardless of size, will need to comply.

Hi. The other day, I mentioned registering an interest in the PPSR. The Personal Property Security Register. This was for landlords if they held a cash security deposit from their tenant. But I had a couple of people ask me a few questions about the PPSR. And basically, it's a register run nationally where anyone who has a security interest, not in land, but in personal property, can register that so third parties dealing with a company or an individual can know that certain assets have encumbrances or charges or security interests registered in respect of them.

Now, if you don't register your security interest, then you are going to have that defeated by someone who deals with the property owner not knowing that you've claimed a security. So it's very important to understand when you have a security interest, and very important to register it properly. So one of the typical areas that I see where people miss out is where you're selling goods on credit to someone. You've delivered the goods, but you haven't been fully paid yet. You retain a security interest according to your terms and conditions of sale if they're properly drafted in what you've delivered but haven't been paid for. And you need to register that. If you don't register it, you lose your interest if the person doesn't pay or goes broke.

But the other important thing about registering your security interest is whether you're dealing with a company or a trust. With a company, you use their Australian Company Number, the ACN. But if it's a trust, you have to use their business number, their ABN. And if you don't do that, your registration could be invalid. It's very important when you're buying assets or buying a business to make sure that you search the PPSR register for the vendor and also for the company or the business that you're buying to make sure that you get details about all the security interests and you make sure they're discharged.

So if you've got any queries about when you have a security interest, how you properly register your security interest, or how to buy assets and make sure the security interests have been discharged, contact me or anyone else at Millens. We're here to help. We're here to solve your business problems. Thank you.

So I had a query the other day from a commercial landlord and they said, "Is it better for me to get a cash security deposit from my tenant or a bank guarantee?" Now, intuitively, you would think that cash is king. It's better to get the cash, and if the tenant defaults, you've immediately got access to the cash. Whereas with a bank guarantee, you've got to make a claim on it and go to the bank and go through various procedures. But there is a bit of a catch here that people aren't aware of, and that is if your commercial tenant goes broke, goes insolvent, or bankrupt, then the liquidator or the trustee in bankruptcy may be able to claim that cash security deposit back as an asset of the company that's gone into liquidation or the bankrupt.

Now, you can only prevent this if you've lodged a security registration on the PPSR, the Personal and Property Security Register. Now, not a lot of landlords know that, and so not a lot of landlords register. And so if you haven't registered, your cash security deposit is not protected. So sometimes it might be better to get a bank guarantee, because that can be enforced against the bank no matter what happens to your tenant.

So the two takeouts from this are, when getting a new security deposit, perhaps a bank guarantee is better. Or if you have a cash security deposit, make sure you've registered your security interest on the PPSR, or else it won't be any good.

Thanks for listening. I'm Ross Millen, and Millens, we're here to help.

I had a client come in the other few weeks ago and they said, "Oh, look, Jack used to work for us. He doesn't work for us anymore. He still owns 10% of the shares in the company that we gave him, and we really want to get him out of the business, so what we're going to do is we're going to issue some extra shares to ourselves and we'll reduce his shareholding down to 0.5 eighths of three quarters of nothing."

Now, two problems with this. The first is if you'd come to us and had a shareholders agreement right from the start, we could have said that when Jack or a person like that, an employee with shares, ceases to be employed, then they have to transfer their shares or have them bought back by the company, so that could have solved the problem.

But what I want to talk about today is oppression of a minority shareholder, because a plan like that to reduce Jack's shareholdings down to virtually nothing could be oppression, probably is oppression, and then Jack would have a claim to go to the court and demand an order from the court that he be bought out at a proper price. When you control the majority shares in a company, you have to be sure that you are managing the company in the best interest of all shareholders. And so, anything like issuing extra shares to yourself to diminish a minority, entering into any arrangements that are with your other companies or using the company's assets for private purposes is what's called oppression. And if you are in the minority and these things are happening, then you've got a claim that you can bring against the majority.

What we say is this is an area to be very cautious where you've got a majority shareholder or a group and minority shareholders or a group, make sure that if you're the majority, you are exercising your rights for the benefit of all shareholders.

Now, if you've got any queries about this, if you're in a majority position or you're a minority being oppressed, contact us. We'll be able to give you the right commercial advice to get the best outcome. Thanks for listening

Hi, welcome to financial year '24/'25. And like all new years, let's make some New Year's resolutions. Now, one resolution that I recommend to you is horses for courses. Now, you would be absolutely crazy to ask me to fix your car, or cook you a restaurant style meal, or to do any range of other things. And so it surprises me sometimes that clients are maybe not realizing, but they're using non-lawyers to do legal things. And sometimes you can get into a lot of trouble.

Some examples that we've had recently, we had the financial planner that advised our clients to transfer a property from the husband and wife just into the wife's name. Now this wasn't their place of residence. So as a result, there was going to be a big duty bill. And the financial planner hadn't realized that the rules had changed a couple of years ago.

Or we had a client who was using their leasing agent to send a notice of default to their tenant. Unfortunately, got the fine print wrong. And as a result, we couldn't rely on that notice and we had to serve a new one.

Or about the landlord who got their agent to prepare the deed of renewal, but they forgot to send a disclosure statement because it was a retail lease.

So we were able to find solutions in all these cases. But it just brings home to me that there are a number of times when people are breaching New Year's resolution number one, which is horses for courses. When you've got legal issues, come to the lawyers because the lawyers know all the little itsy bitsy pieces that have to be dealt with to make sure you're fully compliant.

So for the new year, this is your resolution. Make sure that all your legal issues come to lawyers because lawyers are trained to give you the best advice. So I'm Ross Millen from Millens. Come and see me or any other member of the Millens team to satisfy your legal requirements.

Hey, if you watched my most recent video, I was talking about the role of appointors in a trust. And of course, the role of the trustee is also very important. I mean, they're the person that owns the assets on behalf of the trust, on behalf of the beneficiaries. Probably, the most common question I get asked about trust is as trustee, can I do this? Can I do that? Can I make this investment? Can I make that distribution? Can I advance some of the capital to one of the beneficiaries so they can pay for their school fees or university education?

Now, the things to bear in mind are always read the trust deed, because every trust is different. Sometimes trustees might have certain powers in one trust deed and not in another. So we always have to read the trust deed to make sure that what you want to do isn't prohibited, or that there are certain things you must do as a trustee. Another thing is investment powers. There'll be investment powers in the trust deed, but also in the Trustee Act. So some types of risky or unusual investments may not be permitted.

The other thing is, who are the beneficiaries? Now, there was a recent case that decided the discretion given to a trustee in a discretionary trust, the trustee has to consider the financial circumstances of all the various beneficiaries. So if you're in the habit of just giving the money, the income every year to one or two beneficiaries in the same shares, maybe that's risky. You need to think about who are the other beneficiaries, and do any of them need to receive a distribution of income?

And the final thing is if there's ever any issues about the trust that you need guidance and you're not sure, we can't give a hundred percent guarantee. You can always go to the Supreme Court. Sure, it's a bit expensive, but the court will look at the circumstances and it will either tell you as trustee that you can or you cannot do something. So if you're a trustee or a director of a trustee company, you must take your obligations very seriously. You need to get legal advice before doing anything out of the ordinary. So remember, I'm Ross Millen at Millens. We're here to help, help you administer your Trusts properly and efficiently. Thank you.