Dr Philip Bender practices in administrative law and various areas of commercial and property law, including taxation/superannuation and trusts/deceased estates and is a Nationally Accredited Mediator. He is also a sessional member of the Victorian Civil and Administrative Tribunal and has been a member of 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. Philip is the author of Bender's Australian Stamp Duties, a book published by the Tax Institute.
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.
Corporations law and finance/securities law
Philip acted for ASIC in the Royal Commission into Misconduct in the Banking, Superannuation and FInancial Services Industry and in a number of investigations arising out of the Commission involving breaches of financial services laws. He has also acted in a wide variety of other matters for ASIC including matters involving financial services licenses, ASX share market manipulation, disqualification from providing financial serivces, director banning, 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.
Philip has also advised on and acted in cases involving alleged breaches of the National Credit Code, the ASIC Act and Banking Code and matters before the Australian Financial Complaints Authority.
Philip has advised on a variety of Personal Properties Securities Regime (PPSR) issues including retention of title clauses, PPS lease issues, consignment arrangements and priority issues (eg with circulating assets). He 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 was previously a member of the Law Institute's Competition and Consumer Law Committee. As a VCAT member, he has decided numerous contractual and Competition and Consumer Law cases in a wide variety of industries. He has acted in a wide variety of 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). He has a particular interest in international tax matters, including those involving CFCs, treaties, residency issues and transfer pricing.
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) and advised on other land tax matters. 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 and disputes involving property developments, 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, mutuality and the relevant Federal and State tax concessions and related ACNC issues, including religious organisations, clubs and other not-for-profits. He has also acted for the Victorian Attorney-General in a number of charities matters and has acted in matters involving judicial advice, interpretation of charitable trust deeds, general administraiton schemes, cy pres schemes and breach of duties by trustees of a charities.
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. Both before and after coming to the Bar, he has provided tax and regulatory advice to SMSFs, retail funds and industry funds. He has acted in superannuation death benefits disputes and advised on interpretation of superannuation trust deeds.
Philip has acted in numerous trust and estates disputes, including TFM claims, testamentary capacity matters, matters of will and trust deed interpretation, trustee removal, breach of trustee duties, and judicial advice.
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 has acted in a variety of general property law disputes including adverse possession claims, caveat disputes involving equitable charges, mortgage disputes, constructive trust issues and issues involving estoppel/part performance and unconscionable conduct.
Professional negligence, professional disciplinary and common law/occupational health and safety
Philip has successfully acted in professional disciplinary matters involving the Tax Practitioners Board, professional accounting bodies, insolvency practitioners disciplinary committees, and auditors and trustees of self managed superannuation funds.
Philip has been involved in a number of professional negligence cases involving financial advisers, accountants and lawyers (including negligence in the provision of tax advice and financial 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 acted for ASIC in one of the first matters involving the amended disciplinary regime for insolvency practitioners. He also 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 appeared in and provided advice on bankruptcy matters, including debt recovery by the ATO, "claw back" transactions and judicial review of trustee's action. He has also acted for the ATO in respect of the cross border insolvency regime and 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/fisheries, international law and customs law
Philip holds a PhD in international law and maritime law and was previously a member of the Victorian Fisheries Licensing Appeals Tribunal. He is familiar with Victorian and Tasmanian fisheries legislation, including the licensing and quota regimes and is currently acting in a major matter involving rock lobster fisheries. 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, including in respect of customs duties, import issues, customs brokers, and bonded warehouses.
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Education - secondary
Education - undergraduate
1998
1999
2000
2001
Education - postgraduate
Memberships and Law Reform Activities
Represented the Law Institute in consultations on proposed changes to the Competition and Consumer Law Act in 2016 and 2017
General Experience