AREAS OF EXPERTISE
- Commercial Law
- Intellectual Property
- Professional Negligence
Dr Philip Bender practices in administrative law and various areas of commercial and property law, including taxation/superannuation and trusts/deceased estates. He is also a sessional member of the Victorian Civil and Administrative Tribunal and the Fisheries Licensing Appeals Tribunal. Philip was the best graduating student in both law and accounting at his University and a University Medalist. He is a Chartered Accountant and was the Victorian Candidate of the Year in the Chartered Accountants course.
He previously worked in a "Big 4" firm acting for corporates, financial institutions/managed funds and superannuation funds, including acting in many large cross-border transactions and fund listings. As a barrister he has acted for various regulators, including the ATO, ASIC, the SRO, VGSO, the Official Trustee in Bankruptcy and WorkSafe. He has also acted for private clients consisting of individuals, businesses of various sizes, managed funds, superannuation funds, and charities.
Administrative and constitutional law
Philip was previously a committee member on the Law Institute's Administrative Law Committee. He has written papers and presented on a number of administrative law issues (eg unreasonableness, procedural fairness, exercise of administrative discretions) to Government Law Conferences and Government departments. He has acted for Government departments and private individuals in a number of important cases involving administrative law principles and judicial review, including acting as sole counsel in a special leave application to the High Court on principles relating to appeals on questions of law from administrative tribunals. Philip recently acted in a novel constitutional case relating to State immunity from Commonwealth laws.
Corporations law and finance/securities law
Philip has acted for ASIC in cases involving disqualification from providing financial services (eg financial planners) and director banning, including for breach of director's duties, phoenixing, and in respect of Takeover Panel issues. He has appeared in one of the leading cases in the High Court involving breach of fiduciary duties by company directors and in a commercial context. He has also acted in cases involving shareholder oppression in the Supreme Court.
He has advised on and acted in cases involving alleged breaches of the National Credit Code, breaches by financial institutions of the Banking Code of Conduct and the ASIC Act, and matters involving the former Financial Ombudsman Service (eg complaints against the banks and against financial planners).
Philip has presented on the Personal Properties Securities Regime (PPSR) to legal practitioners on several occasions and advised a number of clients on transitional issues when the regime was first introduced. He has assisted with drafting issues involving the PPSR including retention of title clauses, PPS lease issues, and consignment arrangements. He has also advised liquidators on PPSR issues, predominantly in respect of priority issues (eg with circulating assets).
Philip has also acted in other matters involving securities issues, such as issues regarding the enforceability/priority of equitable charges arising under contracts and guarantees.
Commercial and competition and consumer law
Philip is a member of the Law Institute's Competition and Consumer Law Committee and recently chaired the Law Institute's Competition and Consumer Law Conference. As a VCAT member, he has decided numerous contractual and Competition and Consumer Law cases in a wide variety of industries.
He has experience advising, drafting pleadings and appearing in contractual and trade practices matters. These have involved a wide variety of business disputes such as partnership disputes, joint venture disputes, sale of goods disputes, and other commercial disputes, including where the proportionate liability regime has been an issue.
Taxation and charities/not for profits
Philip has advised on and acted in numerous tax disputes for private clients and for the ATO involving FBT, GST, luxury car tax, capital gains tax, and other income tax matters (eg the small business CGT concessions, the research and development concessions, employment termination payments, trusts, personal services income etc). He has a particular interest in international tax matters, including those involving CFCs, treaties, residency issues and transfer pricing. Prior to coming to the Bar, Philip was involved in a number of tax consolidation projects for corporates on commencement of the regime and on consolidation issues relating to business acquisitions and divestments.
In respect of State taxes, Philip appeared in the first ever land tax grouping discretion case in Victoria and has acted in cases involving land tax exemptions (eg for primary production). He has also acted in payroll tax disputes involving the contractor provisions and the de-grouping discretion. Philip has advised on a wide variety of stamp duty issues for property developers, on business sales/restructures, and involving trusts/superannuation/charities.
Philip sits on the Law Institute's Charities and Not-for-profit Committee. He has experience advising clients on charitable status and the relevant Federal and State tax concessions and related ACNC issues, including religious organisations, clubs and other not-for-profits (eg a number of organisations in the employment industry that were reviewed by the ATO). Prior to coming to the Bar, he acted for Victoria's largest mutual entity and provided advice on the application of the mutuality principle to its activities.
Superannuation and Trusts/deceased estates
Philip has acted in a number of cases for the ATO and ASIC involving disqualification/registration of superannuation fund trustees and SMSF auditors and involving breaches of the SIS Act and SIS Regulations. He has assisted a number of clients with superannuation trust deed drafting issues relating to the 2016 and 2017 reforms. Both before and after coming to the Bar, he has provided tax and regulatory advice to SMSFs, retail funds and industry funds. He recently acted in a novel case in the Supreme Court (which settled) on the fiduciary duties of an executor/SMSF trustee where there are death benefits to distribute.
Philip has been involved in a number of TFM disputes and other cases involving trusts, including appearing in the Supreme Court to obtain approval to amend a trust deed. He has experience in providing advice on trust law and other deceased estates issues, including interpretation of trust deeds. Philip has recently presented papers to the Society of Trust and Estate Practitioners and Legalwise on trust fundamentals, including trustee duties, lost trust deeds, trust deed drafting, and issues with amending trust deeds. Philip has also acted in a numer of unit trust dispues involving property development and trading businesses.
Building and property law
Philip is allocated to the Building and Property, Owners Corporations and Residential Tenancies lists at VCAT, and prior to that allocation had previously acted in retail lease disputes in that jurisdiction. He has acted in some novel building disputes, such as a successful Supreme Court appeal involving an issue of whether there could be repudiation where a subcontractor was negotiating a contract price, but not refusing to complete works, and a dispute concerning the application of Mutual Recognition legislation for a builder registered interstate. Philip also acted in the adjudication part of a novel case concerning the application of the pay when paid provisions in the Building and Security of Payments Act (Maxcon v Vadez) and recently gave a presentation to Legalwise on case developments under that Act.
Philip has acted in a variety of general property law disputes including a major adverse possession claim for a listed utilities company, caveat disputes involving equitable charges, mortgage disputes, constructive trust issues and issues involving estoppel/part performance and unconscionable conduct.
Professional negligence and common law/occupational health and safety
Philip has been involved in a number of professional negligence cases and costs disputes involving accountants and lawyers (including negligence in the provision of tax advice). He acted for Insurance Australia Group as sole counsel in an insurance test case in the Supreme Court on issues relating to damages in insurance matters including the once-and-for all principle, the compensatory principle and mitigation of loss.
Philip is also on WorkSafe's list of preferred counsel. He has acted in a number of occupational health and safety related matters, including in a matter related to the Hazelwood mine fire and in an application for leave to appeal to the Court of Appeal on an issue arising from an OHS prosecution.
Bankruptcy and insolvency
Philip has experience in statutory demands and company wind up applications, including setting aside of winding up orders and "claw back" in an insolvency situation. He has also appeared in and provided advice on bankruptcy matters, including debt recovery by the ATO, "claw back" transactions and judicial review of trustee's action (eg on decisions relating to travel by a bankrupt and on acceptance of proofs of debt). He acted in a test case for the Official Trustee in Bankruptcy on an issue about the assets that can be retained by a bankrupt. Philip has also recently acted in a matter dealing with the interaction of bankruptcy law and family law and claw-back from an ex-spouse where a financial agreement was in place.
Philip has written articles and presented to the LIV and Victorian Bar on insolvency issues, including Australia’s cross border insolvency legislation. He has spent time as a visiting scholar to UNCITRAL in Vienna, which is the United Nations body that drafted the model law on which Australia’s cross border insolvency legislation is based.
Maritime, international law and customs law
Philip holds a PhD in international law and maritime law and is a member of the Victorian Fisheries Licensing Appeals Tribunal. He has also spent some time working as an intern at the International Tribunal for the Law of the Sea in Hamburg and at the UN in Vienna. He has advised on and appeared in customs matters.
*liability limited by a scheme approved under Professional Standards legislation