Equilaw Solicitors

Buying a Property?

Sun, 22 Mar 2026 10:57:36 GMT

Don't Skip the Pest and Building Inspection

Purchasing a property is one of the most significant financial decisions you’ll ever make. Whether you’re buying your first home or expanding your investment portfolio, it’s important not to let excitement overshadow careful decision making. One of the smartest steps you can take before signing a contract is obtaining a Pest and Building Inspection Report.

What is a Pest and Building Report?

A Pest and Building Report is a combined inspection that assesses both the structural condition of a property and the presence of timber pests such as termites. These inspections are carried out by licensed professionals trained to identify issues that may not be visible during a standard property inspection.

Why is this Report Important?

Uncover Hidden Structural Issues

A home may appear perfect at first glance, but underlying problems can go unnoticed. Issues such as cracks in walls or ceilings, poor drainage, subfloor damage, or roof leaks may not be obvious during an open inspection. If left undiscovered, these problems could cost thousands of dollars to repair.

Detect Termite and Pest Activity

Termites are a common problem in many parts of NSW and can cause serious damage to a home’s timber structure. A pest inspection helps identify active infestations, detect signs of past damage, and assess the risk of future pest activity.

When Should You Get One?

Ideally, a Pest and Building Report should be obtained before exchanging contracts or during the cooling-off period. In NSW, once contracts are exchanged, buyers are generally legally committed to the purchase.

If the report reveals defects, you may be able to negotiate a lower purchase price, request repairs before settlement, or decide to walk away from the purchase. Knowing that a qualified professional has inspected the property gives buyers confidence and helps avoid costly surprises after moving in.

Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Domestic Violence

Sun, 22 Mar 2026 10:42:19 GMT

Domestic Violence

Domestic violence can affect anyone regardless of gender, age, cultural background, religion, or socioeconomic status. It occurs when one person in a relationship uses behaviour intended to control, intimidate, or harm another person. Domestic violence can happen in many types of relationships, including between partners, spouses, family members, carers or paid support workers, and children.

Domestic violence does not only involve physical harm. It can take many different forms, including physical abuse, emotional or psychological abuse, verbal threats, coercive control, financial abuse, social isolation, and sexual abuse.

Domestic violence often develops as a pattern of behaviour rather than a single incident. The person responsible may use fear, intimidation, or manipulation to maintain control. In some cases, the abuse can escalate over time, making it increasingly difficult for the victim to seek

help or leave the situation.

It is important to understand that domestic violence is never the victim’s fault, and support is available. Speaking to a trusted friend, family member, or professional service can be an important first step towards getting help. There are also many organisations that provide

confidential advice, crisis support, and practical assistance.

If you or someone you know is experiencing domestic violence in Australia, support services are available 24 hours a day. You can contact 1800RESPECT (1800 737 732) for confidential counselling and information about domestic, family, and sexual violence. 1800ELDERHelp (1800 353 374) provides assistance for older Australians experiencing abuse, including abuse by carers or family members. Lifeline (13 11 14) offers crisis support and emotional assistance for people in distress.

In addition to these helplines, there are many online resources that provide information about recognising domestic violence, understanding your rights, creating safety plans, and accessing legal or housing support. Seeking help can be difficult, but there are trained professionals and organisations ready to listen and provide support in a safe and confidential way.

Understanding Your Bail Condition

Sun, 22 Mar 2026 10:33:21 GMT

Understanding Your Bail Condition to Report to a Police Station

One of the most common conditions attached to bail is the requirement to report to a police station. This condition can be set by either the Police or a Magistrate in Court. Its main purpose is to allow the Police to keep a level of supervision over you while your criminal matter is ongoing.

It’s important to understand exactly what your bail conditions require. This includes knowing which days you must attend the Police Station, the specific times you need to report, and any other instructions provided. Keeping to these conditions is not optional—failing to report as required can lead to further penalties, including possible arrest or additional court action.

If you find the instructions unclear, or if you’re unsure about how to comply, it’s crucial to get advice as soon as possible. Even small mistakes can have serious consequences. We are here to help you navigate this process.

If you have any questions about your bail conditions, or if you need guidance about a criminal matter more generally, you can contact Joshua Whale at 02 6542 5566 . Getting clarity early can help you meet your obligations and avoid unnecessary complications.

Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Seatbelt Detection Cameras In Operation

Sun, 21 Dec 2025 20:36:55 GMT

Seatbelt Detection Cameras in Operation

Seatbelt and mobile phone detection cameras are currently operating across New South Wales. These cameras detect both drivers and passengers who are not wearing a seatbelt, or who are wearing one incorrectly.

Penalties apply to any driver detected not wearing a seatbelt properly, as well as to drivers whose passengers are not correctly restrained. Under NSW road laws, drivers are legally responsible for ensuring that all vehicle occupants are wearing an approved seatbelt or appropriate child restraint, and that each seatbelt is worn correctly.

Seatbelts have been saving lives on NSW roads for more than five decades. Correct seatbelt use remains one of the simplest and most effective ways to reduce the risk of death or serious injury in a motor vehicle crash. For more information, visit:

https://www.transport.nsw.gov.au/roadsafety/topics-tips/seatbelts

Double Demerits in Place Over the Holiday Period

Sun, 21 Dec 2025 20:31:08 GMT

Double Demerits in Place Over the Holiday Period

Double demerit points are in force in NSW for 12 consecutive days, from 24 December 2025 to 4 January 2026, covering Christmas Day, Boxing Day and New Year’s Day.

Double demerit periods usually operate during public holidays and long weekends and are enforced across the entire period — from the start date through to midnight on the final day.

What Offences Attract Double Demerits?

During a double demerit period, double demerit points apply for:

Speeding
Illegal use of a mobile phone
Not wearing, or incorrectly wearing, a seatbelt
Riding a motorcycle without a helmet

It’s important to note that only the demerit points are doubled — not the fine. Demerit points remain on a driver’s record for three years from the date of the offence. All drivers start with zero points, which accumulate as offences are committed.

Please drive safely this holiday season and take extra care on the roads to protect yourself, your loved ones, and other road users.

If you require advice regarding your driving offence, please contact our Mr Joshua Whale on 02 6542 5566 .

Happy Households at Christmas

Sun, 21 Dec 2025 20:29:49 GMT

Happy Households at Christmas

Christmas and the summer holidays should be a joyful time for children, but for separated or divorced families, this period can bring added stress and tension.

This is why the Federal Circuit and Family Court of Australia prioritises urgent parenting matters in December, recognising that conflict often arises as parents try to maximise time with their children during the holidays. Children are highly sensitive to conflict between their parents, even when adults believe they are shielding them from it.

When planning holiday arrangements, parents should focus on what is in the child’s best interests. While special days like Christmas Day can feel significant, flexibility is key. Celebrating Christmas on different days with each parent can allow children to enjoy the

season with both families. With school holidays often lasting six to eight weeks, there is usually time for meaningful time with each parent.

If parenting orders or a parenting plan are in place, these arrangements must be followed. Where arrangements are informal, open communication, cooperation, and common sense can help prevent misunderstandings and avoid unnecessary conflict.

If disagreements arise, family dispute resolution or mediation can be effective. In more complex situations, seeking advice from an experienced family lawyer may help parents reach practical solutions that prioritise the wellbeing of their children. If you wish to speak to a Family Lawyer, please contact our office on 02 6542 5566 .

Who Will Look After Your Loved Ones

Mon, 29 Sep 2025 11:25:40 GMT

Who Will Look After Your Loved Ones If the Unexpected Happens?

Have you thought about who would care for your children if you were to pass away? Or who

would make decisions on your behalf if you were left mentally incapacitated due to an

accident or illness?

These are difficult questions — but they’re important ones. At Equilaw, our compassionate

and experienced team is here to help you find the answers and put the right protections in

place.

Preparing or updating your Will doesn’t have to be a complex or time-consuming process.

But it does offer something invaluable: peace of mind that your wishes will be respected and

your loved ones protected.

It’s not only important to have a Will — it’s just as essential to review and update it regularly.

A current and valid Will ensures your assets are distributed according to your wishes, and

that the right people are appointed to look after your affairs.

You should consider updating your Will if:

 Your personal circumstances have changed

 A spouse, family member, or executor has passed away

 You’ve bought or sold significant assets

 Your family structure has changed (e.g. marriage, divorce, new children).

If you’re unsure whether your Will is up to date, or if you’ve never created one, we’re here to

help.

Call Equilaw today on (02) 6542 5566 to arrange an appointment to prepare or update your

Will. Let us help you protect what matters most.

Liability limited by a scheme approved under Professional Standards Legislation.

This newsletter is intended to provide general information.

You should obtain professional advice before you undertake any course of action.

Making Christmas Easier for Separated Families

Mon, 29 Sep 2025 11:16:18 GMT

Making Christmas Easier for Separated and Divorced Families

The Christmas season can be a challenging time for separated or divorced families. Often, tensions arise when both parents have different expectations about how the holidays should be shared — particularly when it comes to time with the children.

The key to reducing conflict is early and open communication. Start the conversation well in advance and keep the focus on what matters most: your children’s happiness and wellbeing. Make plans together and try to reach an agreement ahead of time. Wherever possible, involve your children in the discussion. Ask them what they’d like to do and consider their wishes when making arrangements.

Even with the best intentions, challenges may still arise — and that’s okay. What’s important is knowing that support is available.

At Equilaw Solicitors, we can guide you through the legal aspects of parenting arrangements and help you understand your rights and responsibilities. Our team is here to offer practical advice tailored to your family’s unique circumstances.

If you have questions or need assistance, don’t hesitate to contact us. We’re here to help make this Christmas as smooth and stress-free as possible for you and your family.

Mobile Phone Use While Driving - Know the Risks

Mon, 29 Sep 2025 10:55:36 GMT

Mobile Phone Use While Driving – Know the Risks and the Rules

Mobile phones are a constant part of our daily lives — so much so, we often don’t realise how often we’re using them. But when it comes to driving, even a momentary glance at your phone can have serious consequences.

It might seem harmless to change a song, read a message, or quickly check social media — but touching your phone while driving is against the law.

Driving requires your full attention. Any distraction that takes your eyes off the road, your hands off the wheel, or your mind off the task significantly increases your risk of being involved in a crash.

Being distracted while driving can:

Slow your reaction time
Cause you to miss critical road signs, signals, or hazards
Put pedestrians, cyclists, and other drivers at risk
Lead to serious legal consequences

Even a few seconds of distraction can be the difference between a safe trip and a serious accident.

If you need to use your phone while driving:

Pull over in a safe and legal place first.
If you must take a call, use a hands-free option, such as a phone cradle or Bluetooth system.

Knowing and following the road rules around mobile phone use is not just about avoiding fines — it’s about keeping yourself and others safe.

Learn more about mobile phone rules while driving in NSW: https://roadsafety.transport.nsw.gov.au/stayingsafe/mobilephones/know-the-rules.html

If you have been caught using your phone behind the wheel — whether by a police officer or mobile phone detection camera — and need legal advice or representation, our experienced team at Equilaw is here to help.

Family Law Property Settlement Changes

Sun, 01 Jun 2025 08:20:09 GMT

What the Property Settlement Changes Mean for you?

What the Property Settlement Changes Mean for you?

As a firm located in the Upper Hunter experienced in Family Law matters, our team knows how convoluted property settlements can be, as they are contingent to various factors.

From 10 June 2025, the Family Law Act 1975 will require an additional consideration - that being the economic effect of family violence to be considered when the courts are making decisions about property and finances after separation. As part of the definition of ‘family violence’ extends to include economic and/or financial abuse, such as instances where a person has exclusive control of finances.

This additional economic consideration may be relevant to assessing each party’s contributions to the property pool anticipated to be divided, the welfare of the family, and the current and future needs of the parties separating.

It is important to note, however, that these changes do not involve the prosecution of family violence offences. These offences are to be made in the respective state or territory criminal courts.

I have already started a family law proceeding – does this apply to me?

Yes, it can. The Attorney-General’s Department has confirmed that this additional consideration applies to all new and existing proceedings, excluding where a final hearing has commenced.

For further information, please consult the Attorney General’s Fact Sheet for Separating Couples.

If you wish to discuss with a solicitor about how these changes may impact your separation, please consult our team on 02 6542 5566 today.

Liability limited by a scheme approved under Professional Standards Legislation.

This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Changes in Average Speed Cameras

Sun, 01 Jun 2025 08:10:48 GMT

Changes in Average Speed Cameras? - What You Should Know

New South Wales is trialling the use of average speed camera to monitor all vehicles between 1 May 2025 until 30 June 2026. This trial is taking place in two locations, being:

The Pacific Highway between Kew and Lake Innes (Port Macquarie), with 15 kilometres between cameras; and
The Hume Highway between Coolac and Gundagai, with 16 kilometres between cameras.

If your vehicle exceeds the speed limit by 30 km/h or less between 1 May 2025 and 30 June 2025, you will receive a warning letter. If you exceed the speed limit by more than 30 km/h, you will be fined and penalised accordingly. Effective 1 July 2025, all speeding violations will

be enforced using average speed cameras.

For further information, please consult the Transport for New South Wales website . For clients seeking advice on traffic infringements or licence appeals, please contact our friendly team on 6542 5566.

Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information.

You should obtain professional advice before you undertake any course of action.

Before You Commit: A Guide to Cooling-Off Periods

Sun, 01 Jun 2025 07:58:16 GMT

Before You Commit: A Guide to Cooling-Off Periods

When buying a residential property, the excitement of finding “the one” can sometimes lead to quick decisions. That’s where the cooling-off period comes in—a legal safety net designed to give buyers a chance to reconsider after signing a contract.

At Equilaw, we believe informed clients make confident decisions. Here’s what you need to know about cooling-off periods.

What Is a Cooling-Off Period?

A cooling-off period is a short timeframe after signing a contract during which the buyer can cancel the purchase without major penalties. It’s designed to provide breathing space for buyers to conduct inspections, finalise financing, or simply reconsider the purchase.

How Long Is the Cooling-Off Period?

In New South Wales, the cooling-off period for a residential property purchase is 5 business days from the date of exchange.

What Happens If You Cancel?

If you choose to pull out during the cooling-off period, you will forfeit 0.25% of the purchase price to the vendor. The rest of your deposit is returned.

Can the Cooling-Off Period Be Waived or Extended?

Yes. The buyer can waive or shorten the cooling-off period by providing a 66W certificate, which must be signed by a solicitor or conveyancer.

The cooling-off period can also be extended, but only with the seller’s written agreement.

When Does a Cooling-Off Period Not Apply?

Some situations where a cooling-off period does not apply include:

• Purchasing at auction

• Contracts entered into on the same day as the auction (for passed-in properties)

• Commercial or rural properties

• When the buyer has waived the right using a 66W certificate

Why It Matters

Even though it may seem like a formality, the cooling-off period can provide valuable time to:

• Organise a building and pest inspection

• Confirm finance approval

• Get legal advice or clarify terms of the contract

Need Advice? We’re Here to Help

At Equilaw, our conveyancing team is experienced in guiding buyers through every step of the property transaction process. If you’re considering a property purchase, get in touch with us to ensure your interests are fully protected on 02 6542 5566 .

Liability limited by a scheme approved under Professional Standards Legislation.

This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Joint Tenancy. What Do I Need to Know?

Thu, 27 Mar 2025 23:00:47 GMT

Should We be Signing the Contract for Sale as Joint Tenants, or Tenants in Common?

When purchasing a property with another person, it is important to consider the best way to own your property. Whether you are purchasing a property with a partner, sibling/s or friends, it is important to ensure that the type of ownership agreement you select agrees with you. Correctly selecting your type of ownership may be helpful should one of you wish to relinquish your percentage or portion of ownership, or if one of you were to pass.

Joint Tenancy

Joint Tenancy requires co-ownership, with joint tenants holding equal shares of the property. When a joint tenant passes, their share is automatically passed to the surviving joint tenant/s.

Tenants in Common

When a property is owned as tenants in common, each tenant owns a percentage of the property, and the share or each tenant must also be specified. When a tenant in common dies, their share passes to their estate and is distributed in accordance with their Will.

What Ownership Option is Best for You?

If you are unsure which option is best for you and your circumstances, our experienced and professional team is here to assist. For more information or to arrange a consultation, please contact our office on 02 6542 5566 .

Liability limited by a scheme approved under Professional Standards Legislation.

This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Why Do I Need a Will?

Thu, 27 Mar 2025 22:53:17 GMT

Why every Adult Should Have a Will (and What Happens if You Don’t)

What does a Will Achieve?

Having a valid Will ensures that your loved ones are able to honour your wishes as to the distribution of your estate after you pass. It allows you to legally designate the intended recipients of your assets and property, minimising prospective family conflict over inheritance and sentimental items.

What happens if I don’t have a Will?

If an individual passes without a will, it is known as dying intestate. It is in this circumstance that your assets are distributed in accordance with the intestacy rules under the Succession Act 2006 (NSW).

Generally speaking, the estate is passed to the surviving spouse. In the instance that you do not have a spouse, or you survive your spouse, your estate will to distributed to your relatives in a set order: children, parents, siblings, grandparents, aunts, uncles, and cousins. This may be problematic in circumstances of legally married couples having separated, and estranged family members. Hence, the importance of having a current, and valid will.

How can we help?

Our team here at Equilaw provide the legal expertise to draft, witness and execute your Will, ensuring that your wishes are accurately reflected. To book your Will drafting appointment, please contact our friendly team on 02 6542 5566 .

Liability limited by a scheme approved under Professional Standards Legislation.

This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Binding Financial Agreements

Thu, 27 Mar 2025 22:44:41 GMT

Are the right for you?

At Equilaw, we help protect our clients’ financial interests in relationships. A Binding Financial Agreement (BFA) can provide financial clarity and security, but is it the right option for your circumstances?

What is a BFA?

A Binding Financial Agreement is a legally binding contract which outlines the intended division of property and/or assets should two people separate.

Who can enter a BFA?

A Binding Financial Agreement may be entered before, during, or after separation of a marriage. A Binding Financial Agreement may also be entered before the commencement, during or at the conclusion of a de facto relationship. This is in accordance with the Family Law Act 1975. It is important to note, however, a Binding Financial Agreement has strict legal requirements to be met, such as independent legal advice being provided to the parties involved.

How Our Solicitors Can Help

Equilaw drafts, reviews, and advises on Binding Financial Agreements to ensure that they are legally sound and protect your interests. Should you be considering entering a Binding Financial Agreement, contact our office for expert legal advice on 02 6542 5566 .

Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information.

You should obtain professional advice before you undertake any course of action.

Double Demerits Over the Holidays

Sun, 01 Dec 2024 00:58:34 GMT

Double Demerits During the Holiday Season: What NSW Drivers Need to Know

As the Christmas season approaches, road safety becomes a high priority for everyone on the move. The holiday period also marks the start of double demerits, a safety measure designed to deter dangerous driving during times of increased traffic. Here’s what you and your loved ones need to know about double demerits and how to stay on the right side of the law this holiday season.

What Are Double Demerits?

During designated holiday periods, NSW enforces double demerits for specific traffic offenses, including speeding, using a mobile phone while driving, not wearing a seatbelt, and failing to wear a helmet. This means that the usual points for these offenses are doubled, making it easier for drivers to accumulate points and potentially face license suspensions.

When Will Double Demerits Be in Force?

For this holiday period, double demerits are expected to start 20 December 2024, and finish 1 January 2025. This period is chosen strategically, as the roads see increased traffic from families and holidaymakers, which often correlates with a higher incidence of road accidents.

By being mindful of the rules, you can help protect yourself and others on the road.

Wishing you a safe and joyous holiday season!

Essential Tools for Planning your Future

Sun, 01 Dec 2024 00:43:18 GMT

Understanding Wills, Enduring Guardianship, and Power of Attorney

Planning for the future is one of the most caring things you can do for your loved ones. When it comes to ensuring your wishes are adhered to, three essential documents come into play: a Will, an enduring guardianship, and a power of attorney. Here’s what each one means and how they work together to provide peace of mind.

1. Will

A Will is a legal document that outlines how you would like your assets distributed after your death. It also allows you to appoint an executor—someone who will oversee the administration of your estate and ensure that your wishes are carried out.

2. Power of Enduring Guardianship

An enduring guardianship document allows you to appoint a person (or people) to make lifestyle and health decisions on your behalf if you become unable to do so yourself. Unlike a Will, which takes effect after your death, an enduring guardianship is only relevant while you’re alive but unable to make these decisions.

3. Power of Attorney

A power of attorney authorises a trusted person (your ‘attorney’) to manage your financial and legal affairs on your behalf. This can range from paying bills and managing bank accounts to handling property transactions.

How These Documents Work Together

These three documents work together to create a comprehensive plan that covers different stages and aspects of your life:

• Will: Ensures your wishes are followed after your death.

• Enduring Guardianship: Protects your health and lifestyle decisions if you lose capacity.

• Enduring Power of Attorney: Provides for the management of your financial affairs if you’re unable to do so yourself.

Each document serves a specific purpose but together they offer a complete safeguard for your future. Please contact our friendly team to for more information on 02 6542 5566.

The Holiday Season

Sun, 01 Dec 2024 00:32:30 GMT

The Holiday Season: Family Law

The holiday season can be complex for families managing shared parenting arrangements and navigating post-separation dynamics. A few simple strategies can help reduce stress and ensure a harmonious holiday for all involved.

If not already done so, finalising parenting arrangements as soon as practicable can help create an amicable holiday season for all. It’s also essential to adhere to existing consent orders or parenting plans.

Ensure holiday plans focus on the children’s well-being and stability. Prioritising their needs can contribute to a peaceful holiday and foster positive co-parenting relationships.

By planning carefully, focusing on the children’s needs, and approaching issues constructively, separated families can still enjoy holiday season. If you require advice, please contact our team for assistance on 02 6542 5566 .

New Road Safety Regulations

Sat, 07 Sep 2024 04:41:08 GMT

Are You Familiar with the New Road Safety Regulations?

As noted by the Hon. Jenny Aitchison MP, “…country residents make up one-third of the NSW population, two thirds of all fatalities happen on country roads”. Motorists and their passengers are advised to fasten their seatbelts or face penalties, as mobile phone detection cameras will start enforcing seatbelt violations which began on Monday, July 1.

New Regulations Overview:

To address road safety and reduce fatalities, the NSW Government has introduced new measures. From Monday, any driver or passenger caught by these cameras not wearing a seatbelt or wearing it improperly will face fines of up to $410 and a minimum of three demerit points. There will be no grace period for warnings; penalties will be issued from the outset. Transport for NSW and Revenue NSW will monitor the enforcement of seatbelt regulations via cameras with daily oversight to address any issues that arise.

Seatbelt enforcement is not the only form of new road safety incentives:

Foreign License Requirement: Eliminating a loophole that requires all motorists with a foreign licence to obtain a NSW licence within six months;
Demerit Points Return Trial: The demerit points return trial, which has rewarded over 1.2 million drivers with a clean driving record during the initial 12-month period ending 16 January 2024;
Roadside Speed Camera Expansion: The number of mobile speed camera sites will be doubled, with 2,700 new locations added while maintaining current enforcement hours.
Road Safety Forum: New South Wales will host its first Road Safety Forum, featuring both international and local experts.

For further information, please consult the NSW Government media release page.

Mediation

Sat, 07 Sep 2024 04:35:54 GMT

What is Mediation

What is mediation?

Mediation is a method of Alternative Dispute Resolution (ADR) that offers an efficient way to resolve conflicts. Its attractiveness is attributed to the aim to deliver quick, cheap and just outcomes by settling a dispute without needing to engage the traditional court system. Meditation is confidential in nature, keeping disputes private where only those invited to attend may attend in the ADR session.

Who is involved in mediation?

Those in attendance of mediations include all relevant parties in the dispute and one or more mediators. The role of a mediator is to remain impartial as they guide participants through a process of identifying and discussing their underlying interests, generating potential options, and addressing relevant matters to informed decision making. They are there to support you and the other participants in reaching a final agreement that you all deem appropriate. Where it may be necessary, they may refer you to other services if you require legal, financial or other expert advice.

Benefits of Mediation include

Confidentiality;
Can resolve the dispute in weeks or months, as opposed to court, which may take years;
Preserve relationships with co-operation of parties;
Reduces stress and anxiety that is associated from court appearances, time and costs

When is mediation suitable?

Mediation is suitable for many matters of law such as family, commercial disputes, corporate matters. For further information, please consult the Local Court New South Wales page.

Executor Duties

Sat, 07 Sep 2024 04:31:54 GMT

Executor Duties

We understand the emotional turmoil and turbulence that is synonymous with the passing of loved ones. Managing the administration of the Will, preparing all necessary documents required for probate and ascertaining all relevant information about assets and debts by contacting the necessary financial institutions can be daunting task.

Our compassionate solicitors and staff at Equilaw are readily available to help you through the legal easement of this process.

What is an Executor?

An executor of a will becomes effective when the person who has nominated you passes away. As an executor, your role is to carry out the directions contained in the Will and legally administer the estate accordingly.

Primary Tasks of the Executor

As an executor, you are required to complete the following tasks:

Funeral arrangements in the case of no family or direct family members not wishing to be involved in organising the funeral;
Confirmation of assets and debts;
Protecting the assets of the estate, notification to banks, businesses and government agencies;
Realisation of assets;
Accounting;
Tax liabilities; and
Estate distributions

Important considerations

Additionally, it is important that, as an executor, considerations such as the time it takes it finalise estate, your ability to understand legal and financial requirements, and the possibility of taking on personal and financial liability are accounted for. For further information and clarification, please contact our team on 02 6542 5566 .

Questions for your Criminal Lawyer

Wed, 03 Jul 2024 10:58:23 GMT

Questions to Ask Your Criminal Lawyer

It is important you seek assistance from a Criminal Lawyer so that you can discuss the possible outcomes of your case and how you can improve your chances of success .

Criminal law can be quite complex, so do not hesitate to ask the following questions:

Question 1: What can I do to help with the case?

There are several things you can do to help, this involves gathering evidence, getting counselling or treatment, describing everything in detail as to what happened and providing relevant documents.

Question 2: What are the possible penalties for this charge?

There are a number of potential penalties with any criminal case. By understanding the nature of your case and the possible outcomes, you and your lawyer can take all the necessary steps beforehand to aim for a reasonable outcome.

Question 3: Have you dealt with cases similar to mine?

Every case and its outcome are different, however there are certain aspects that can be quite common, chances are your lawyer might have dealt with a similar case in the past.

Question 4: How long will the process take?

The length of criminal cases usually depends on their complexity. There are several considerations that determine the exact time it takes for your case to be resolved. Court can be a lengthy process and can take months or even more than a year.

Regardless, a lawyer’s assistance and advice should ease the process for you. If you need assistance or require advice then please make an appointment to meet with Joshua Whale of our office to discuss your options, call us on 02 6542 5566 .

What do the different courts do?

Wed, 03 Jul 2024 10:53:54 GMT

High, Supreme, Federal, Family and Local

Ever wondered what all the different courts do, and which one is best suited for certain legal matters, well there is no need to wonder no more. In this article we will go through the different courts and the generalise matters they typically will deal with. Imagine it as a pyramid with local courts at the bottom then high court at the point. Then have little branches for more certain matters.

Local Courts

Local courts are the biggest and busiest courts amongst them all as they typically deal with majority of all matters from minor criminal matters such as traffic offences, shoplifting, lesser assaults, to less serious civil matters such as a person or business suing another (limited to A$100 000 within New South Wales). Apprehended violence and restraining orders also go through local courts.

Although local courts deal with all the above matters, the other reason that they are always busy and the biggest is all legal matters (civil and criminal) start in local courts and then work their way up to higher courts depending on the severity. It is also heard by only a magistrate with lawyers representing for the accused, with no jury.

District Court

This is where the more serious crimes such as sexual assault, high-level violence, and major drug offences are dealt with. Whilst civil matters that the amount exceeds local court limit can be trialed here up to $750 000. In the District court Judges, Barristers and juries may be present in dealing with matters, along with the accused and the accused’s lawyer.

Supreme Court

The next court is the Supreme Court. This court is split into two divisions The General Division and Court of Appeals.

General Division

General Division of the Supreme Court, here is where cases involving murder, or manslaughter are heard. They also deal with other matters such as defamation, treason and piracy. Civil matters that deal with money over A$750 000 are also heard in the Supreme Court.

Court of Appeals

The second division is the Court of Appeals. They hear matters of appeal from District Courts, Supreme Courts as well as other matters such as Land and Environment Court appeals and many other tribunals.

High Court

Lastly at the top of the hierarchy is the High Court. This is where the functions of to interpret and apply the law of Australia to cases of certain federal significance as to challenge the constitutional validity of laws and to hear the appeals.

Not all appeal matters against other tribunals are heard by the High court, but those who wish to appeal must justify and persuade the Court in a preliminary hearing that there are certain reasons to cause the appeal to be heard.

Other courts Amongst the above courts there are more specialised courts that deal with certain matters.

Family Court

The Family Court mainly deal with divorce, separation, children, and parenting arrangements. They also deal with the property and financial matters that come with separation and divorce matters.

Download Factsheet: Family Law at https://www.facs.nsw.gov.au/__data/assets/pdf_file/0010/818470/Factsheet-Family-Law-Overview.pdf

Federal Court

The Federal Court usually deals with majority civil cases and some summary and indictable criminal matters. They are able to hear and make decisions on matters such as bankruptcy, copyright, migration, privacy, consumer, workplace relations, human right, native title, intellectual property and consumer protection and several other issues relating to the previous.

Preparing for Auction Day

Wed, 03 Jul 2024 09:57:55 GMT

What is a Property Auction?

An auction is a public sale where potential buyers gather to bid for the property On the day of the auction, the sellers (vendors) must set a reserve price. Once the price has been met or exceeded the reserve price and there are no more bids, the auctioneer announces that the property is sold to the highest bidder.

Start with your finances

There is no cooling-off period in NSW if you buy a property at auction. This means that if you’re the highest bidder on the day, once the hammer falls, a contract is immediately binding and enforceable. That’s why you must ensure your finances are in order before you head to auction day.

Here’s what you’ll need:

Your deposit (generally 10% of the purchase price) ready to go.
Your written home loan approval from your lender. We recommend ensuring that your approval is either ‘unconditional’ or is a ‘pre-approval’ with conditions capable of being met shortly after the auction day.
Don’t forget to tell your bank or broker you intend to bid at the auction so they can guide you appropriately.
If the property is sold to you on auction day and you can’t pay the balance of the purchase price at the time of settlement, the 10% deposit will be forfeited to the vendor.

Contact your solicitor or conveyancer

The earlier you contact your Conveyancer or Solicitor, the better! They’ll undertake all the necessary title and property searches and conduct a pre-purchase review of the sale contract to ensure there are no surprises if you’re the lucky buyer on the day.

Inspect the property

You should attend as many inspections of the property as possible before it is sold at auction.

Organise building and pest

Just because you’re buying a property at auction doesn’t mean you should skip a building

and pest inspection. You’ll want to ensure the property is in good condition.

Familiarise yourself with the auction process

Going to a house auction can be intimidating and overwhelming. Be prepared for what’s to come by understanding how auction day will unfold.

For more information on the auction or bidding process, visit the Fair Trading NSW website. If you’re looking to buy a property at auction, engage a conveyancer early. Here at Equilaw Solicitors, we want to ensure everything goes smoothly before and on the auction day. Call us on 02 6542 5566 .

Family Law Addition Facts and Questions

Tue, 02 Apr 2024 23:58:11 GMT

Facts and Questions – Family Law Addition

When can I get divorced?

You must have been separated for 12 months before you can apply for a Divorce. The 12-month period is calculated from the date of separation until the date the Application for Divorce is filed. You can be separated and still live under the same roof.

2. Do I need to attend Court for the Divorce Hearing?

If you and your spouse file a joint Application for Divorce, there is no requirement for you or your spouse to attend the hearing.

If you file a sole application and there are no children of your marriage under the age of 18, and you can prove that the application has been served upon your spouse, then you do not have to attend the hearing.

If you file a sole application and there are children of your marriage under the age of 18 then you, and/or your legal representative must attend the hearing.

If you have filed a sole application and you have had difficulty in serving the application upon your spouse, you will need to file an application seeking to substitute service or dispense with service. If this application is filed, you and/or your legal representative will be required to attend the hearing.

3. Are there any time limits on when property orders can be made?

If you get divorced, you must start property maintenance proceedings within 12 months of your divorce becoming final. If you have been in a de facto relationship, you must commence property proceedings within 2 years of your separation.

4. Do I need a Solicitor for parenting arrangements for my children?

We strongly recommend that if you are going through a separation and attempting to reach an agreement on parenting arrangements for your children, you seek independent legal advice. Our Family Solicitors will offer you one-on-one advice, specific to your circumstances, which

will guide you to reaching an amicable arrangement with your former partner/spouse which is in the best interests of your children.

5. Am I in a de facto relationship?

A de facto relationship is marked by 2 people living together in a relationship for 2 or more years. In essence, de facto and same sex couples are treated in exactly the same way as married couples when a Court determines the division of your assets (including superannuation), financial support and child support.

6. Do you charge for the first consultation?

We offer a free consultation in person or via telephone to new clients. This gives you the opportunity to obtain legal advice and information about legal costs. There is no obligation to procced after receiving the free advice.

Slow Down, Move Over and Give Space...

Tue, 02 Apr 2024 23:49:28 GMT

Slow Down, Move Over and Give Space...

Did you know you must slow down when passing stationary emergency vehicles with flashing lights?

Motorists travelling 80km/h or less must slow down to 40km/h when passing stationary tow trucks, breakdown assistance or emergency vehicles with flashing lights. Motorists travelling 90km/h or more must slow down safely to a speed that's reasonable for the circumstances.

Reduce your speed if:

• You see a stationary vehicle with flashing lights.

• The stationary vehicle is close to moving traffic with little space available.

• There are pedestrians moving on the road near the incident or breakdown.

When you hear a siren or see flashing lights:

• Keep clear and give way to the emergency vehicle at all times.

• Move out of the way as soon as you can safely do so.

• Remain stopped until it's safe to proceed, even if the traffic light is green.

Emergency vehicles travelling with audible sirens or flashing lights are responding to urgent situations. You should always be extra cautious when you see flashing lights or hear sirens. For more information visit https://www.transport.nsw.gov.au/roadsafety/topics-tips/emergency-vehicles

The Importance of Buy/Sell Agreements

Tue, 02 Apr 2024 23:36:47 GMT

Partnership Protection: The Importance of Buy / Sell Agreements

Amidst the flurry of day to day business operations, many overlook a critical aspect of partnership: protecting each other's interests in the event of unforeseen circumstances. This is where buy/sell equity protection emerges as a vital safeguard, offering reassurance and stability to business partners.

Buy/sell equity protection, commonly structured as a buy-sell agreement or a cross-purchase agreement, is essentially a contractual arrangement between business partners. It outlines the terms under which a partner's equity interest can be bought or sold in various triggering events such as death, disability, retirement, or disagreement. While it might seem pessimistic to plan for such scenarios, doing so is a proactive measure that ensures continuity and minimises disruptions to the business.

One of the most significant advantages of buy/sell equity protection is its role in facilitating a smooth transition of ownership. In the unfortunate event of a partner's passing or incapacitation, having a predetermined mechanism for the transfer of equity prevents ambiguity and potential conflicts among remaining partners or the deceased partner's heirs. Without such protection in place, disagreements over the valuation of the business or the rightful heirs' involvement could lead to prolonged legal battles, jeopardising the business's stability and reputation.

Buy/sell agreements provide financial security to both the departing partner and the remaining partners. For the departing partner or their beneficiaries, it ensures a fair market value for their equity stake, thereby enabling them to realise the value of their investment promptly. On the other hand, for the remaining partners, it prevents the sudden infusion of unfamiliar stakeholders into the business and safeguards against unwanted dilution of ownership or control.

Life and Total and Permanent Disability (TPD) insurance can also serve as crucial funding mechanisms to facilitate the execution of buyout provisions. By securing adequate insurance coverage on each partner's life and ability to work, partners can ensure that sufficient funds are available to finance the buyout of the departing partner's equity. This pre-emptive measure not only eliminates the need for partners to dip into personal assets or seek external financing but also provides a sense of financial security to all parties involved.

In essence, buy/sell equity protection is not just a legal formality but a strategic imperative for business partners. It safeguards their investments, ensures a smooth transition of ownership, preserves business continuity, and fosters a collaborative and conflict-free environment. By proactively implementing buy/sell agreements, partners can navigate unforeseen challenges with confidence, secure in the knowledge that their partnership is built on a solid foundation of trust, transparency, and mutual protection.

Luke Volker

BYB Wealth Management Pty Ltd t/as Ausure Financial Planning Scone and Luke Volker are authorised under Fintegrity Wealth Advisers ABN 89 653 321 487. AFSL 534971. Authorised Representative Number: 426676

General Advice Warning. The information on this site is of a general nature. It does not take your specific needs or circumstances into consideration, so you should look at your own financial position, objectives and requirements and seek financial advice before making any financial decisions.

Going through a Divorce

Sat, 09 Dec 2023 19:47:56 GMT

Going through a divorce is a stressful time and it is understandable that you may want to get through it as quickly as possible.

Divorces can be complicated, and it is important that all the right procedural steps are taken. We recommend instructing a Solicitor to make it a smooth process.

We understand that divorce comes with a number of questions and concerns. How long do I need to wait before I can file an application? How long does the process take? How much will it cost?

Equilaw Solicitors can provide you with advice, support and answer all of your questions you could have.

Give our friendly team a call on 02 6542 5566 .

Mobile Phone Use While Driving

Sat, 09 Dec 2023 19:45:28 GMT

Mobile phone use is so integrated into our lives. We may not even realise how often we’re using them. It can be tempting to use our phones while driving to listen to music, scroll social media, text and talk to each other. However, touching a mobile phone while driving is illegal.

Driving is a complex task. Anything that distracts you by taking your mind or eyes off the road, or your hands off the wheel, not only compromises your safety, but puts everyone else on the road at high risk.

Being distracted increases your chances of having a crash. It slows down your reaction times and puts you in danger of failing to see hazards such as traffic lights, stop signs or other road users.

Make sure you know the rules about mobile use while driving. For more information visit

https://roadsafety.transport.nsw.gov.au/stayingsafe/mobilephones/know-the-rules.html

The better option is to pull over in a safe place if you need to use your mobile phone. Otherwise, the next best thing is to use handsfree options, such as a cradle or Bluetooth linked to your car.

If you have been caught using your phone or caught by a mobile phone detection camera and need legal help, contact our friendly team on 02 6542 5566 .

The DO’S and DON’TS of Family Law for Christmas

Sat, 09 Dec 2023 19:39:30 GMT

For most of us, Christmas is a time to see family and friends, swap presents and stories and enjoy each other’s company. Christmas holidays can be a time of mixed emotions, particularly for families experiencing divorce or separation. The holidays can bring stress and conflict and be challenging for both parents and children as they adjust to a changing family dynamic.

DO’s

Communicate with the other parent for spending time with the children over the Christmas period and school holidays.
Follow the terms of any Parenting Plan or Consent Order.
Consider alternating Christmas Eve/Christmas Day so that each parent has an
opportunity to have either Christmas Eve or Christmas Day with the children.
Allow the children to video call or speak to the parent they are not spending time with to share in their excitement.
Arrange a Family Dispute Resolution Conference (Mediation) with the other parent if you have not been able to reach any agreement or if you want to change the current parenting arrangements.
Arrange to formalise any custody and access arrangements by way of a Parenting Plan or Parenting Order.
Get Family Law legal advice if you are contemplating separating or have separated.
Follow the terms of any Domestic Violence Protection Order. If you breach the terms of a Protection Order this is a criminal offence.
Ask your children what they would like to do. Give them input and some control over the process.

DON'Ts

Don’t commit to events involving the children’s attendance such as holiday camps holidays away or overseas until discussing this with the other parent.
Don’t take your children overseas without the written agreement of the other parent if you have a Parenting Order in place which doesn’t allow for such travel or if an
Application for a Parenting Order has been filed in the Court.
Don’t change your plans at the last minute. If you and your former partner have agreed on a plan, only change it if you both agree.
Don’t run out of time. If you have a time limit approaching for property settlement or maintenance matters file court proceedings within the time limit.
Don’t commit any acts of family or domestic violence including against your partner or children and do not expose your children to domestic violence.
Don’t denigrate the other parent in the presence or hearing of the children.
Don’t relocate the children’s residence without the consent in writing of the other parent or without a court order.

Protecting your wishes...

Tue, 26 Sep 2023 06:07:41 GMT

Do you know who will look after your children should you pass away? If you were in an accident and left mentally incapacitated, who would look after your well-being and your finances on your behalf?

The compassionate staff at Equilaw can help you answer these questions.

The process of updating your Will does not need to be complicated or time consuming. But it does give you peace of mind that your wishes will be carried out as you had planned. Whilst preparing your Will is important. Reviewing and updating your Will to ensure it is still current is equally important. Keeping a current and valid Will is the best way you can ensure your assets will be distributed according to your wishes when you die. Your Will should reflect any significant changes.

If you have changed circumstances whether change in personal circumstances, death of a spouse or executor named in your Will, or purchase or sale of assets, you should review and update your Will as soon as possible.

Call us today on 02 6542 5566 for a free quote if you would like to prepare or update your Will.

Time limits on family law property settlements

Tue, 26 Sep 2023 06:04:52 GMT

Did you know time limits apply in family law proceedings, property settlement and spousal maintenance matters.

Under the Family Law Act, the time limit to commence property proceedings for married couples is 12 months from the date on which the divorce order becomes final.

For de facto couples, the time limit to commence proceedings for property or maintenance matters is 24 months after the date of separation.

If you have recently separated from your partner and you require assistance with understanding your rights with respect to property matters, or if you think you have missed the deadline the file an application for property proceedings we recommend you seek legal advice as early as possible. Give our friendly team a call now on 02 6542 5566 to book a consultation with our family

lawyers.

Can I appeal my sentence?

Tue, 26 Sep 2023 05:59:39 GMT

An appeal is a challenge of a previous legal decision. You may be able to file for an appeal if you have been found guilty of an offence and believe you are not guilty or think your sentence was too harsh.

You have 28 days from the date of your sentence in the Local Court to lodge an appeal. An appeal can be lodged at any Local Court registry in New South Wales. Once you have lodged your appeal, your court outcome is 'stayed'. This means any convictions, good behaviour bonds and fines that were imposed by the Local Court are placed on hold until your appeal is heard in the District Court. You should always check with the Registry or your Solicitor whether your sentence will be stayed until your appeal is heard.

If your appeal is not lodged within the required 28 days, then you must seek leave to appeal. An application for leave to appeal must be lodged within 3 months of the Local Court decision.

When the matter is heard in the District Court, the judge will first determine whether leave should be granted. Generally, this means that submissions have to be made about the reasons why the appeal wasn’t able to be lodged in the first 28 day period. After that three month period, there is no avenue for appeal.

We recommend it is best to obtain legal advice as soon as possible so that the documents can be filed within the first 28 day period. If you are considering appealing your matter, Equilaw Solicitors are here to help. Contact us

on 02 6542 5566 .

Family Law

Mon, 19 Jun 2023 01:05:43 GMT

Making a decision about separating can be difficult. There’s a lot to consider if children and property are involved or if a parent wants to relocate.

Every family law situation is unique. It is important to have a lawyer who listens and supports you.

At Equilaw Solicitors we will strive to secure the best possible outcome in your settlement matter. We are committed to offering a fast, efficient and understanding service so you can move forward with confidence.

Negotiation and mediation are always considered in every situation. Most family matters can be resolved without the need for court intervention. However, unfortunately, there are times where court is unavoidable to move forward. Rest assured, we will work with you throughout

the process, no matter how difficult the matter may become.

If you would like to schedule a consultation with our compassionate family solicitors call us on 02 6542 5566 .

Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

What You Need to Know About Apprehended Violence Orders

Mon, 19 Jun 2023 01:03:28 GMT

An Apprehended Violence Order (AVO) is a court order that aims to protect a person from another person that causes them to fear their safety.

There are two types of Apprehended Violence Orders (AVOs):

Apprehended Domestic Violence Orders (ADVOs) that protect a person from domestic violence. For example a spouse, ex-partner, or parent.
Apprehended Personal Violence Orders (APVOs) that protect a person from violence by anyone else. For example a neighbour, co-worker, or friend.

Your relationship with the person will determine what type of AVO might be made in your case. The Police can take action under an AVO if they believe you have breached it or threatened to breach it. Breaching an AVO could result in imprisonment.

A final AVO is usually made for 12 or 24 months but can be made longer if the Judge thinks it is necessary. It may be possible for someone to apply for a longer order, but evidence will be necessary for approval.

If you need assistance or require advice then please make an appointment to meet with Joshua Whale of our office to discuss your options, call us on 02 6542 5566 .

Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

The Importance of a Final Inspections Before Settlement

hannahguilfoyle@equilaw.com.au (Equilaw Solicitors Client) — Mon, 19 Jun 2023 00:57:04 GMT

The final inspection before settlement is also called a pre-settlement property inspection and is extremely important. The final inspection is a purchaser’s final chance to check the condition of the house before settlement is effected. Settlement is when the purchaser provides the vendor with final payment for property in exchange for the title deeds to the land.

You should complete your final inspection of the property as close to settlement as possible ie. the morning of or the afternoon before settlement.

Purchasers should not take the final inspection before settlement lightly. It is the only opportunity for the purchaser to check whether the property is in the same condition, as it was when the contract was signed and dated, called exchange of Contracts.

Why Should You Attend the Final Inspection Before Settlement?

The settlement period is usually around 42 days after the vendor and purchaser have exchanged contracts. During this period of time, it is likely that there were people occupying the property.

During the final inspection before settlement, purchasers should check:

the condition of the property
has the house been vacated properly?
all inclusions listed on the contract are at the property and in working order;
if all fixtures are in place, and
has the vendor met all contract obligations dutifully?

What Should I Look Out for During the Final Inspection Before Settlement?

Before you attend the pre-settlement inspection, it is important to be aware of things that you need to look out for. The purchaser will need to pay the costs for repairing the damages if they don’t notice it during inspection. However, you must hold evidence the damage was not there prior to exchange of Contracts.

In this section we provide an outline of all the important things that you need to keep an eye out for during the pre-settlement inspection.

Damages

The first and the foremost thing to check for is damages. You need to check if there is any significant damage in the house or property. This can include things like a hole in the wall, broken windowpanes, or damaged kitchen sinks.

2. Inclusions and exclusions as per contract

Inclusions and exclusions are identified on the front page of the contract. They are items that need to remain in the house, and items that need to be removed from the house respectively.

Inclusions can include things like a stove, range hood, light fittings, clothesline, and built-in wardrobes. Exclusions can include items that the vendor wishes to remove from the property such as a BBQ, relocatable spa, TVs fixed to the wall, and any other specified item list on the Contract.

The inclusions must be checked properly by the purchaser during the pre-settlement inspection.

What Can I Do If I Find Issues During the Inspection?

Purchasers may find some issues or damages with the property during their final inspection. In such circumstances, they must inform the vendor’s agent, and their own solicitor as a matter of urgency. The purchaser’s solicitor will then notify the vendor or their solicitor about the damages that

they have come across.

It is the vendor’s responsibility to repair any damage before settlement. The purchaser’s solicitor can negotiate with the vendor’s solicitor for such repairs or provide compensation. For example, if the vendor is unable to make the necessary repairs before settlement, the purchaser’s solicitor may negotiate an agreement to reduce the sale price. The sale price may be reduced to compensate for the purchaser bearing the costs associated with making repairs.

Accordingly, if a purchaser does not complete a thorough pre-settlement property inspection before settlement, the purchaser will accept the property in its current condition and accordingly bear the costs of any and all repairs at the property.

Liability limited by a scheme approved under Professional Standards Legislation. This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

PEXA Leaders in the Upper Hunter

Mon, 12 Dec 2022 21:57:00 GMT

In 2017 Equilaw Solicitors became the first Muswellbrook Conveyancing or Law Firm to join the PEXA Electronic Settlement Platform. Since the transition, Equilaw Solicitors have established themselves as PEXA leaders in the Upper Hunter.

In October we were pleased to welcome the PEXA staff to attend our office to congratulate us on our success and provide us with our user rankings in the last 12 months. We are proud to report, that Equilaw Solicitors, is currently ranked 54 th in New South Wales (out of a pool of 4000 PEXA users) and 397 th in Australia (out of a pool of 10,000 PEXA users).

This is a significant achievement for a firm of our size, and we wish to thank Renee, Michael and Rebecca for their relentless hard work and professionalism.

Drinking and Driving. The Risks

Sun, 11 Dec 2022 06:08:00 GMT

Drinking and Driving. Do you know the risks?

The upcoming festive season will undoubtedly mean celebrations, and potentially a few drinks. It is important to keep in mind there are serious penalties if you are caught driving with alcohol or drugs in your system.

Unfortunately, some people in the community continue to take this risk. The best option is to have a Plan B in place if you are planning to drink or take drugs. Since 20 May 2019, tougher penalties were introduced and if you are caught drink driving over the legal limit in NSW, even for a first-time or low-range offence, police may suspend your licence immediately.

Drink and drug driving are serious offences, and it is also an offence if you refuse to take a breath test or drug test. Penalties can include loss of licence, fines, imprisonment, and a requirement to install an alcohol interlock device. If you have been charged with a Drink or Drug Driving offence, contact our friendly team on 02 6542 5566 .

For more information on drink and drug driving penalties visit
https://www.nsw.gov.au/driving-boating-and-transport/demerits-penalties-and-
offences/offences/alcohol-and-drug-offences/drink-and-drug-driving-penalties

Spending Time with your Children

Sun, 11 Dec 2022 06:00:00 GMT

Spending Time with your Children over Christmas

Are you experiencing difficulties with parenting arrangements? Every family is different and there are no “automatic” arrangements for the care and custody of children following separation. At the time of separation, one of the major concerns for parents is the withholding of children from the other parent.

This can cause anxiety and lead to a complete deterioration of the co-parenting relationship. Ideally parents can share responsibility and have a say in major long term decisions in the best interests of the children. Spending time and parental responsibility issues can be determined by an agreement between the parents known as a “parenting plan” or, as is advisable in many cases, can be formalised by way of “consent orders”.

If an agreement cannot be reached, an application to the Court may be required. The court will consider the arrangements that suit the best interests of the child. Equilaw Solicitors can guide you through the parenting arrangements process. For more information, please call us on 02 6542 5566 .

Getting Through Christmas

Mon, 07 Nov 2022 06:11:00 GMT

Coping with Christmas

What can separated and divorced families do to make Christmas a little easier on themselves and their children? Many disagreements start because of parent’s expectations of what will happen at this time of year. You expect that children will spend Christmas with you. The other parent may expect the same.

Communication is the key. Start communicating well ahead of time and keep your children’s happiness as your priority and you will have a good start to a happier Christmas. To avoid conflict, you need to agree on what you will do ahead of time. Discuss your ideas with your children and ask your children what they want to do.

Despite your best efforts, it is possible that difficulties may still arise. If you find yourself in this situation, always remember that help is available. Equilaw Solicitors can explain what the law says regarding various situations with relationships and children and give you advice about the options available to you. To make an appointment or to discuss your options please call us on 02 6542 5566 .

A Quick Guide to Conveyancing

Mon, 07 Nov 2022 05:59:00 GMT

A Quick Guide to Conveyancing

Buying or selling a property is one of the biggest financial decisions most of us will ever make. Whether you’re a buyer or a seller, there are many steps to consider, and it can quickly become stressful.

The conveyancing process can be particularly complicated, which is why most people engage a licensed conveyancer or lawyer to navigate through the possible difficulties that can arise. Our experienced conveyancing team promote a stress-free experience when it comes to purchasing or selling your property. Equilaw Solicitors are here to support you from start to finish. If you are looking to buy or sell your property, contact our friendly team today by calling 02 6542 5566 .

How Fast Are You Going?

Mon, 27 Jun 2022 11:47:00 GMT

Speeding in School Zones

School zones exist to keep children safe while crossing roads, getting on and off buses, walking and riding bikes to and from school. School zones are enforced at two specific times during the day and aren’t in use during school holidays.

As a driver it can be easy to ‘forget’ that school zones exist. The speed limit in school zones is 40km per hour and the school zone time frames are generally 8am to 9.30am in the morning and from 2.30pm to 4pm in the afternoon.

There are some non-standard school zone times in NSW, for more information visit https://roadsafety.transport.nsw.gov.au/stayingsafe/schools/ .

The penalties for exceeding the speed limit in a school zone depend on what type of vehicle you are driving, and what type of licence you have. Stronger penalties may apply where the driver is using a mobile phone, the driver tests positive for alcohol or drugs, the driver is driving an unregistered vehicle or the driver has previous driving offences.

If you have received a fine and need advice, please contact our team on 02 6542 5566 .

Liability limited by a scheme approved under Professional Standards Legislation.
This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Family and Domestic Violence – What Can I Do?

Mon, 27 Jun 2022 11:34:00 GMT

What can I do?

Family and domestic violence is becoming an increasing issue in Australia. So many individuals are afraid of their partner, their reaction, and the separation process. Domestic violence can happen to anyone, regardless of gender, age and religion. It can also present itself in many forms, including physical harm, emotional abuse, financial manipulation and coercive control.

This type of violence can occur in all types of relationships. It is a pattern of control and usually has a goal to hurt and intimidate you. It is important to know that there is help available. If you or someone you know is experiencing domestic violence, you can contact helplines like 1800RESPECT (1800 737 732), 1800ELDERHelp (1800 353 374) and Lifeline 131 114 .

If there is any threat of immediate danger towards you/and or your children, please call 000 immediately to seek emergency assistance. There is also a number of online sources which can help you understand domestic violence and provide you with support and resources.

Liability limited by a scheme approved under Professional Standards Legislation.

This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

First Home Buyer – What Are You Entitled To?

Mon, 27 Jun 2022 11:26:00 GMT

First Home Buyer – What Are You Entitled to?

The First Home Buyer Assistance Scheme allows first home buyers to claim a stamp duty exemption or concession (reduced stamp duty) on their purchase of an existing home, new home or vacant land in which a home is to be built.

A first home buyer can apply for a stamp duty exemption for homes valued less than $650,000.00. For homes valued between $650,000.00 and $800,000.00, the first home buyer can apply for a stamp duty concession.

For vacant land, a first home buyer can apply for a stamp duty exemption for land valued less than $350,000.00. For land that is valued between $350,000.00 and $450,000.00, the first home buyer can apply for a stamp duty concession.

The NSW Government has also adopted the First Home Owner Grant. This allows for a first home buyer who is buying or building a new home to apply for a $10,000.00 grant. To be eligible for the grant, the purchase price of the new home must be less than $600,000.00. Purchasing land to build a new home, the total price of the land and home must not exceed $750,000.00.

If you need assistance determining your eligibility for stamp duty concessions and grants or need help with the conveyancing progress, please contact us on 02 6542 5566 .

Liability limited by a scheme approved under Professional Standards Legislation.
This newsletter is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Long Weekends and School Holidays with Your Children

Tue, 19 Apr 2022 07:35:00 GMT

Long Weekends and School Holidays with Your Children

Many parents find it challenging to reach an agreement in relation to parenting arrangements. This is even more apparent during holiday periods. So, what can parents who are separated do to make it a little easier on themselves and their children?

Communication is the key. Start communicating well ahead of time. The best interest of the children is an important consideration. If the parties can communicate and negotiate effectively it is more likely an agreement can be reached to avoid conflict. It is important to keep children away from conflict between the parties. Criticising the other parent when talking to your children or arguing in their presence is unhealthy for the child’s development and may contribute to mental health issues.

Despite your best efforts, difficulties may still arise. If you find yourself in this situation our lawyers can explain the law regarding various situations with relationships and children. They will give you advice about the options available to you. For more information or to make an appointment at our office to discuss further, call us on 02 6542 5566 .

*Liability limited by a scheme approved under Professional Standards Legislation. This information is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Red P Plates: Do You Know the Rules?

Tue, 19 Apr 2022 07:26:00 GMT

Red P Plates: Do You Know the Rules?

The provisional P1 Licence (or red Ps) is the next stage after your learner licence. You have a new found freedom and the road seems limitless. However, with this freedom comes great responsibility. Every long weekend and holiday period our Roads and Maritime Services promote their “towards zero” campaign which aims for zero road deaths or injuries involving motor vehicles. This means you have a responsibility to make sure you are following road rules and are always vigilant behind the wheel.

If you are unsure of what road rules apply to you visit https://www.service.nsw.gov.au/services/driving-and-transport/driver-and-rider-licences/provisional-driver-licences

Pursuant to P1 road rules as at 28 February 2022, when your red Ps, YOU MUST :

Only drive compliant cars;
Display red P plates clearly on the outside of the front and back of the car;
Tow trailers less than 250 kilograms of unloaded weight, and display your red P plate
on the back of the trailer;
Ensure all everyone in the car is seated wearing a seatbelt or approved restraint;
Only drive a car of the same transmission in which you passed your driving test. If
you took your test in an automatic car, that is the only type of car you can drive while
on your red Ps.

Pursuant to P1 road rules as at 28 February 2022, when your red Ps, YOU MUST NOT :

Drive above the speed limit of 90 km/h;
Have any alcohol in your system;
Supervise a learner driver;
Drive a high-performance vehicle;
Use a mobile phone while driving, or while your vehicle is stopped but not parked.
This includes hands-free devices or loudspeakers.

The peer passenger condition:
If you are under the age of 25 and are on your red Ps, you must not drive with more than one (1) passenger who is under the age of 21 between 11pm and 5am. In some circumstances there are exemptions. You may apply for an exemption at your local service NSW.

Failure to comply with any P1 Licence rules can result in a variety of consequences, including fines, demerit points and even the loss of your licence. If you receive a penalty notice and require advice then please make an appointment to meet with Joshua Whale at our office to discuss your options, call on 02 6542 5566 .

What To Do If You Get Charged with DUI Over The Break?

Wed, 08 Dec 2021 11:04:00 GMT

The Christmas Break, charged with DUI Over The Break?

It is that time of year again, where everyone is winding down and celebrating the end of 2021. With the weather warming up, we tend to celebrate by having a few drinks. Unfortunately, some take the risk of drinking and driving. With such heavy penalties, the best option is to have a Plan B in place if you are planning to drink or take drugs.

What happens if you have been driving under the influence and get pulled over for a breath or drug test? Police can pull you over at RBT and MDT stations, for a random breath or drug test or if they find your driving/vehicle suspicious. This means Police can pull you over at any time.

Once pulled over, Police may ask you to show your licence to verify your identification and confirm your privilege to drive. Under section 175 of the Road Transport Act 2013 you are required to produce your licence when requested by Police.

It is important to know that there are penalties for refusing to provide samples when requested by Police. Penalties for refusing can include fines up to $5,500.00, automatic disqualification and imprisonment for subsequent offences.

If you are charged with a DUI offence or need a Criminal Lawyer during the Christmas break contact our Joshua Whale on 0427 410 129 .

Equilaw reaches 2000 settlements in PEXA

Wed, 08 Dec 2021 10:59:00 GMT

Equilaw reaches 2000 settlements in the PEXA workspace!

Wow! The property market has been absolutely crazy during 2021 and it is not showing signs of slowing down.

Our wonderful Conveyancing Team have been busy working away at their files to make sure our clients are meeting deadlines whilst still receiving the best service from our Firm. We currently have over 100 active files on the electronic settlement platform, PEXA, and have opened a massive 1982 files through PEXA so far. We are not far off achieving 2000!

Our experienced Conveyancing team make aim to prevent uncertainty and promote a stress-
free experience when it comes to purchasing your property. We are a professional and trusted Law Firm and are here to support you from start to finish, including liaising with Agents and the Banks, negotiating contractual terms and advising on subdivision and stamp duty.

If you are looking to buy or sell your property, contact our friendly team today by calling 02 6542 5566 .

Christmas and Shopping: Risks and Rights

Wed, 08 Dec 2021 10:53:00 GMT

Christmas and Shopping: Risks and Rights

Only two weeks to finish your Christmas shopping! Remembering all that has happened over the past year, we encourage you to spend local wherever you can. With families and businesses struggling from the drought, floods and COVID-19 still causing an economic downturn, our local businesses will be grateful for your support this Christmas Season.

If you are unable to spend local and chose to purchase your gifts online, make sure you are careful not to become a victim of credit card fraud. Credit card fraud, by definition, is the fraudulent use of a credit card done so through the theft of the cardholder’s personal details.

You can take a number of measures to help protect your personal details this Christmas. This includes ensuring your anti-virus software is up-to-date, never click suspicious links, be skeptical of suspicious websites, keep a close eye on your credit card statement and raise any suspicious activity with your bank immediately and make sure your package has instructions to deliver to a safe place to avoid someone stealing it from your front door.

If you have become a victim of credit card fraud, it is important to inform your bank or financial institution immediately. They will be able to investigate the matter and, if necessary, freeze your account so no further funds can be stolen.

It is also important to understand your rights when it comes to exchanges and refunds. We have all experienced exchanging or returning an item at some stage in our life, whether it be due to faulty goods or incorrect size. You have a right to ask for a repair, replacement or refund if the product or service you purchased does not meet the consumer guarantee. This is governed by Australian Consumer Law.

It is a good idea to keep your receipts, however, if you do not have one you can offer an alternative proof of purchase, including bank statements, lay-by agreements and a photograph of the receipt. For more information on your rights as a consumer, visit https://www.accc.gov.au/consumers/consumer-rights-guarantees .

Finally, when doing your Christmas shopping this year, please spare a thought for those who are doing it tough. At Equilaw we run an internal food drive and ask our staff for a donation of goods to be delivered to a charity of our choosing. Donating even one item to a local charity can make a big difference.

We would like to wish you and your family a very Merry Christmas and a safe New Year. Happy spending!

Casual Workers: Rights and obligations of the employment relationship

Sun, 19 Sep 2021 00:17:00 GMT

Casual Workers: Clearly defined rights and obligations of the employment relationship

If you are a casual worker or employer who requires casual staff, you may be aware of the Federal Court of Australia’s determination that casual employees may be able to claim the same or similar entitlements as permanent employees.

This claim is based on last year’s determination of Workpac Pty Ltd v Rossato where the Federal Court of Australia ruled that certain casual employees, in particular those who are long-term casual employees with expectations of continuing regular work, could claim permanent employee entitlements.

However, in the recent appeal the High Court of Australia discarded the Federal Court of Australia’s ruling and found that factors such as continued and regular work was not enough cause to award permanent employment.

In the Federal Court of Australia’s ruling it was determined that the entire employment relationship should be considered when establishing permanent employment with casual employees, however, the High Court of Australia’s decision found that there are only two factors that need to be considered, being a definite commitment to permanent work and a binding written employment contract.

As a result of the above rulings, the definition of ‘casual employee’ has changed. For more information on the definition of a casual employee click here . Employers who have already faced claims under the Federal Court of Australia’s ruling may be able to rely on the statutory offsetting rule to reduce the amount payable.

If you are uncertain of your employment relationship or would like assistance instituting an Employment Contract, do not hesitate to contact our friendly team on 02 6542 5566 .

*Liability limited by a scheme approved under Professional Standards Legislation. This article is intended to provide general information. You should obtain professional advice before you undertake any course of action.

Significant Changes Are Coming to The Land Title System

Sun, 08 Aug 2021 22:00:00 GMT

Significant Changes Are Coming to The Land Title System

You may have seen our post on social media regarding the abolition of Certificates of Title. So, what happens now?

On 11 October 2021, branded ‘Cessation Day’, all current Certificates of Title (“CT”) will cease to have a legal effect and CTs will no longer be issued. This change is by order under Section 33AAA of the Real Property Act 1900.

As a result, paper dealings will no longer be accepted and all dealings will be done electronically. Fortunately, our conveyancing team are experienced in electronic dealings and believe this welcomed change will be beneficial for our clients.

The Torrens Title Register remains and has always been the single source of truth as to a person’s ownership or interest in land. For landowners, you may receive an Information Notice where you would traditionally receive a CT. This Information Notice will be a written record of the dealings and date of registration.

For landowners of unencumbered land, you do not have to do anything in relation to this change. For landowners who plan to make dealings in the next six (6) months, make sure you hold onto your CT, even after 11 October 2021. This is to ensure you have the proper requirements for current or
ongoing dealings.

Those who own unencumbered land, but have someone else holding or storing their CT, may wish to request to have it back. If we hold your CT in our safe keeping and you wish to have it back, please call our friendly team on 02 6542 5566 and we will be happy to assist you with your request.

For more information regarding this change, visit Changes to the land title system .

Have you been caught by a mobile phone detection camera?

Sun, 08 Aug 2021 22:00:00 GMT

Have you been caught by a mobile phone detection camera?

Mobile phone detection cameras are well and truly underway in NSW with the initiative raking in millions of dollars’ worth of fines. The roll out of mobile phone detection cameras are part of the NSW Government’s strategy to reduce road fatalities and injuries with an aim for the toll to be 0 by 2056.

The cameras work by using infrared technology and AI to determine if the camera has captured a mobile phone. The image is then analysed by professionals to determine if the photo shows the driver illegally using a mobile phone. If the image is proven to show the driver illegally using a mobile phone, they will be fined and should receive their penalty notice within a week of the offence.

The better option is to pull over in a safe place if you need to use your mobile phone. Otherwise, the next best thing is to use handsfree options, such as a cradle or Bluetooth linked to your car. If you have been caught by a mobile phone detection camera and need legal help, contact our friendly team on 02 6542 5566 .

Your Rights as a Consumer: Refunds and Exchanges

Thu, 27 May 2021 11:55:00 GMT

Your Rights as a Consumer: Refunds and Exchanges

We have all experienced exchanging or returning an item at some stage in our life, whether it be due to faulty goods or incorrect size. But what happens if you do not have your receipt?

How do you provide proof of purchase? Is it just a matter of ‘touch luck’ and take it as a loss?
The customer has more rights than you may think.

You have a right to ask for a repair, replacement or refund if the product or service you purchased does not meet the consumer guarantee. This is governed by Australian Consumer Law.

Although there are guarantees regarding repair, replacement and refund, you are not always entitled to it. If you simply change your mind or do not need the product, it is at the discretion of the vendor to provide you with a repair, replacement or refund.

If you ask for an exchange, the product you receive must be similar, if not the same, as the original product. You cannot demand for a more expensive product and cannot be offered a cheaper version of the product.

If the product has a fault, the vendor can offer you a free repair prior to offering a replacement or refund. Even if the vendor states that they do not accept refunds or exchanges, you have rights under consumer guarantee to be awarded one.

If returning the product, you do not have to return the item in the original packaging. It is a good idea to keep your receipts, however, if you do not have one you can offer an alternative proof of purchase, including bank statements, lay-by agreements and a photograph of the receipt.

It is always a good idea to keep your receipts for big ticket items, like washing machines and televisions. You should take a copy of the receipt as well as keeping the original because the receipt will fade overtime and become illegible. For more information on your rights as a consumer, visit
https://www.accc.gov.au/consumers/consumer-rights-guarantees .

If you are disputing a repair, replacement or refund and would like us to assist in negotiating with the vendor, do not hesitate to contact our friendly team on 02 6542 5566 .

Domestic Violence – There is Help Available

Thu, 27 May 2021 11:39:00 GMT

Domestic Violence – There is help available

On 5 May 2021, our Amber attended the National Day of Remembrance vigil at Muswellbrook. This candlelight vigil was held to pay tribute to those who have lost their lives as a result of domestic and family violence and was one of five vigils held across the Upper Hunter.

Domestic violence can happen to anyone, regardless of gender, age and religion. It can also present itself in many forms, including physical harm, coercive control and emotional abuse.

Domestic violence can occur in various types of relationships including husband and wife, carers or paid support workers and children. It can be described as a pattern of control and often has a goal to hurt and scare you.

It is important to know that there is help available. If you or someone you know is experiencing domestic violence, you can contact helplines like 1800RESPECT (1800 737 732), 1800ELDERHelp (1800 353 374) and Lifeline 131 114. There is also a number of online sources which can help you understand domestic violence and provide you with support and resources.

Online Support

https://www.1800respect.org.au/
https://www.relationshipsnsw.org.au/support-services-category/domestic-violence/
https://www.facs.nsw.gov.au/domestic-violence
https://www.whiteribbon.org.au/
https://www.servicesaustralia.gov.au/individuals/subjects/family-and-domestic-violence

Special Edition – 25 years with Libby Bartholomew

Thu, 27 May 2021 11:21:00 GMT

Special Edition – 25 years with Libby Bartholomew

The team at Equilaw would like to congratulate our Elizabeth (Libby) Bartholomew for her 25th Anniversary of working within our Firm.

Libby joined our team back in May 1996 as a casual legal secretary at Halletts Solicitors and it did not take long before she was working with us full-time.

Before she moved to Muswellbrook, Libby worked as a legal secretary at Avern McIntyre in Inverell. Her experience in legal administration was beneficial to our Firm and we quickly recognised the skills Libby brought to our team. In total, our Libby has dedicated over a quarter of a century working within the legal industry. What an achievement!

When Libby started working in the legal industry, she became efficient in shorthand and very skilled in using a typewriter to draw up legal documents. Thankfully, Libby was witness to the development of technology in the legal industry. We can only imagine how frustrating it would have been if you had to amend a legal document using a typewriter!

During the course of her employment with our firm Libby worked under numerous Solicitors and Partners and has also supervised and assisted with training of new staff. Libby was also present during the name change from Halletts to Equilaw and assisted in moving the office from ‘Loxton House’ on Bridge Street to where we are now, being ‘Market House’ on Market Street. Libby’s vast experience and friendly personality makes her an invaluable asset to our team.

We asked Libby to comment on what she has valued from working with us over the past 25 years and she said that, overall, the friendships she made are very important to her. We couldn’t agree more, Libby!

We are grateful to have Libby and look forward to working with her for many years to come. Thank you, Libby, for your dedication to our firm and to the legal industry. We appreciate you and the wonderful work that you do.

Here’s to Libby!

Talk to Your Family About Your Final Wishes

Sun, 18 Apr 2021 00:39:00 GMT

Talk to Your Family About Your Final Wishes

There is no one-fit solution when it comes to estate planning. You have the important decision as to who will be your Executor, Attorney and Guardian, and you also need to determine who receives your assets.

Your executor is your personal legal representative when you die. He or she has the role of ensuring that the wishes set out in your Will are followed. Your executor will deal with your estate lawyers, accountants, financial advisors and real estate agents. He or she will maintain estate accounts, pay bills and generally oversee the administration of your estate.

Generally, a person’s spouse or child will be nominated for this role. However, because of the dynamics involved in blended families it may be preferable to appoint one or more neutral friends or professionals who you trust so that the role may be carried out with impartiality.

When making your Will, you may choose to provide an immediate gift to your children upon your death rather than your children waiting to inherit after the death of your partner. A life insurance policy nominating the children as beneficiaries might be appropriate in this instance.

If the estate is significant, the Will could provide for an immediate gift of real estate, money or other valuable asset to the children. This will safeguard against the possibility of your children missing out on an inheritance should your partner later change their Will or your estate assets diminish.

If you and your partner hold real estate as joint tenants, you might consider changing this to a tenancy in common. A joint tenancy means that the share of property held by a deceased tenant automatically goes to the surviving tenant. This cannot be altered by Will. However, if the property is held as tenants in common, your share may be left to your children subject to leaving your partner a life interest in that share of the property.

A life interest will provide your partner a continued right to reside in and use the property until he/she dies at which stage your share will revert to your children. Note however, that life interests can be complex due to circumstances such as health and aging of the surviving partner who may need to downsize or move to an aged care facility.

According to New South Wales law, if you don’t have a legal Will your estate will be divided according to the rules of intestacy which is set in legislation. This means that even if a friend or relative is appointed to obtain administration of your estate, the law decides who your beneficiaries are and how your estate is
divided.

If there is a question about someone’s mental capacity to make a will, then an opinion, preferably in writing, should be obtained from that person’s treating doctor. The opinion should state that the Will maker has the required testamentary capacity to make a Will.

If you are worried because you know someone who wants to make a Will and may not have capacity or may be in the early stages of dementia and you are not sure, then it is prudent to encourage them to consult a lawyer who is experienced in Will making and to do this as soon as possible.

Making a Will is important, particularly if you are part of a blended family. A blended family is a family in which one or both partners have a child or children from a previous relationship. Careful estate planning now should ensure that all of your intended beneficiaries are provided for when you die and that the potential for conflict within the family unit is minimised.

The dynamics and needs within families evolve and personal assets may fluctuate from year to year. However, by identifying the potential issues that might arise within each family unit, and considering some options to address these, an effective estate plan can be accomplished. To ensure that your estate and your desired beneficiaries are protected into the future and to avoid these avoidable dramas talk to an experienced wills and estates lawyer.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Electronic Signatures and Legal Documents

Sun, 18 Apr 2021 00:18:00 GMT

Electronic Signatures and Legal Documents

During COVID-19, we saw the rise in electronic signatures to avoid face-to-face contact. But is your electronic signature legally binding? How does the recipient know that it was you that
signed the document?

Our Firm has recently welcomed the use of DocuSign to sign Contracts for Sale and various other documents in conveyancing matters. This method of signing has proven to be time efficient and more convenient for our clients, as the document is sent straight our clients through email and with a click of a button it is sent straight back to us.

With the rise in the use of electronic signatures, how do you know if the document is legal if it is signed electronically?

Some forms and document still require wet signatures and your solicitor or the person managing the document will inform you of this. Once you sign any document using your electronic signature, it is considered to have the same effect as it would if you signed it with a pen.

This is why it is important to understand the document in its full capacity before you sign the same. If you have any doubts or concerns using this method of signing, always ask the person managing the document.

But how would they know if it was you that signed the document?

The recipient of the electronically sign document would know it was you who signed by confirming the email address it is being sent to belongs to you, and having open and clear communication with you to ensure that the document is being sent to you electronically.

Having clear communication is the key to success when using electronic signatures because it ensures that all parties are on the same page. It is important to ask questions and confirm all details if you are ever unsure of signing documents electronically.

If you have any further questions regarding electronic signatures, please do not hesitate to
contact our friendly team on 02 6542 5566 .

The post Electronic Signatures and Legal Documents appeared first on Equilaw Solicitors .

Is your Business Exposed? Keeping Your Business Safe

Sat, 17 Apr 2021 23:54:00 GMT

Is your Business Exposed?

As we enter the second quarter, it may be a good time to review your terms and conditions and any further agreements or contracts you may hold.

Unfortunately, a number of clients come to us for civil litigation matters but do not have the correct terms to protect their business. This becomes difficult when trying to enforce their claims to payment, indemnity and confidentiality.

So, what should a business have in place to protect their civil claims?

The most common and least complicated would include terms and conditions. This can be as simple as having clear terms on the bottom of the invoice. They should clearly state when the invoice is due, the invoice number, the date of service, a list of services provided and clearly show your business name and credentials.

This provides clear information regarding your services to the recipient. A longer version of terms and conditions can be separate to the invoice and include further information like indemnity and interest clauses.

How do I protect my business when it comes to my employees?

The most effective way to protect your business when it comes to employees is to have a signed Employment Contract in place. This contract should include clear terms on confidentiality, remuneration, restrictions on employment when terminated, reimbursements on expenses and role description. This will assist in preventing employees from taking confidential information on your business with them and will discourage the employee from disrupting your business.

If you do not have any terms and conditions in your business, we recommend contacting our office immediately to discuss how we can help you protect your business. Call our friendly team on 02 6542 5566 .

‘Tis the Season to be Credit Card Safe

Wed, 09 Dec 2020 23:22:00 GMT

Christmas and Credit Cards

Only two weeks to finish your Christmas shopping! Remembering all that has happened over the past year, we encourage you to spend local wherever you can. With families and businesses struggling from the drought, bushfires destroying livelihoods and COVID-19 forcing an economic downturn, our local businesses will be grateful for your support this Christmas Season.

card-not-present (CNP)
counterfeit and skimming
lost and stolen card
card-never arrived, and
false application

With the rise of online shopping, CNP fraud is becoming more occurrent. Although the eCommerce collective is developing measures to mitigate CNP fraud, there are still some risks when entering personal information online.

Phishing is also popular and can take on many forms. A common phishing hack includes receiving an email from a trusted source asking you to click on a link. The email may look like it was sent from businesses such as Australia Post and PayPal, however, once you click the link your device can be corrupted and the hackers can access your personal information.

A good way to check if your email is genuine is to hover over the sender’s email address or hover over the link, this will show the actual link and from there you can determine if it is safe to click or not. You can also call the sender to confirm the email was sent from them before opening the link.

We would like to wish you and your family a very Merry Christmas and a safe New Year. Happy spending!

What To Do If You Need Help During the Christmas Break

Wed, 02 Dec 2020 20:49:00 GMT

What to do if you Get in Trouble with the Law During the Christmas Break

It is that time of year again, when everyone is winding down and celebrating surviving what has been an unforgettable 2020.

Most businesses shut down over the Christmas break, including our Law Firm, which may leave the question of, what happens if you need a lawyer over the Christmas break?

Our offices will be closed, however, we will have two lawyers on standby and available by way of phone during the break. If you need to speak with a lawyer in relation to urgent criminal matters, traffic offences, and family law, contact our Joshua Whale on 0427 410 129 .

If you need to speak with a lawyer in relation to urgent conveyancing, commercial law, wills and estates and all other matters, contact our Michael O’Brien on 0409 455 622 .

Restrictions Ease Just In Time For Christmas

Wed, 02 Dec 2020 20:27:00 GMT

Christmas and COVID-19

Finally! NSW Premier Gladys Berejiklian has announced easing of restrictions to commence on Monday, 7 December 2020. This announcement is welcomed and comes just in time for Christmas.

From Monday, the following will change:

Standing outdoors at hospitality venues will be allowed (but not indoors)
Fifty people on indoor dance floors will be allowed
Up to 5,000 people will be allowed to attend outdoor ticketed events
There will be no upper cap on the number of people allowed to attend weddings and funerals
Outdoor gatherings like picnics will have their cap raised to 100 people
Stadiums and outdoor theatres will have a 100 per cent capacity
Indoor theatres will be allowed to have up to 75 per capacity

Fans of cricket welcome the changes to capacity, which means they can facilitate full capacity for next week’s T20 International and the New Year’s Test.

Families will also be able to spend Christmas together and employers are able to host Christmas parties for their personnel, with social distancing rules of 2-square-metres still being adhered to. For more information on restrictions and COVID-19 visit https://www.health.nsw.gov.au/Infectious/covid-19/Pages/latest-updates.aspx

The post Restrictions Ease Just In Time For Christmas appeared first on Equilaw Solicitors .

COVID-19 Update: Restrictions Eased

Thu, 29 Oct 2020 00:31:00 GMT

COVID-19 Update

On Friday, COVID-19 restrictions eased for NSW. This included gatherings in outdoor public spaces and group bookings at restaurants being increased to 30 per table and corporate events being increased to 300 people.

The easing of these restrictions have been welcomed by some, especially with the silly season fast approaching. For more information regarding this topic, visit https://www.nsw.gov.au/media-releases/covid-19-restrictions-eased-2020-10-19

As previously mentioned, if you have travelled overseas or to any of the COVID hotspots in the last fourteen days, or you or someone you have been in close contact with are unwell, please contact our office on 02 6542 5566 to arrange a telephone conference.

If you have taken steps to self-isolate for the protection of you and your loved ones then we are able to offer you appointments by telephone, skype call or zoom conferencing. We can also come to you for the signing of required documents. If you require assistance please give us a call on 02 6542 5566 .

Spending time with your kids this Christmas Holidays?

Mon, 26 Oct 2020 09:39:00 GMT

Spending time with your kids this Christmas Holidays?

This Christmas will be a little different to what we are normally used to. With COVID-19 affecting visitations and border restrictions reducing travel, families may find it difficult to host their usual Christmas get togethers with the ones they love.

Tensions can also start to rise between parents regarding who will see their kids at Christmas. With the Christmas Holidays just around the corner we encourage families to ensure they are organised and have necessary documents in place so they can spend time with their children this Christmas. If you are planning to spend time with your children, you need to have your mediation organised or documents filed with the Court within the next few weeks.

There are no entitlements for parents to spend equal time during Christmas. It is important to remember that Christmas is supposed to be a happy time for our children, with Santa on his way, Christmas lights and candy canes. It’s not a time for parents to engage in custody disagreements and cause distress to their children.

Some tips to avoid issues during the Christmas break include:

Have clear communication between both parents.
Be organised. Have a plan, including mutual drop-off and pick-up times.
Organise a third party representative to collect and drop-off children should the parents be unable to present themselves in a civil manner.

If you need assistance with shared custody or want to discuss more about how to make a plan to see your children at Christmas, please make an appointment with Joshua Whale to discuss your options, call on 02 6542 5566 .

Have you been caught driving under the influence?

Tue, 06 Oct 2020 09:51:00 GMT

Have you been caught driving under the influence?

With the weather warming up and summer quickly approaching, we tend to celebrate by having a few drinks. Unfortunately, some take the risk of drinking and driving. In May 2019, tougher penalties were introduced for drink and drug driving, this is as a result of the reforms in the Road Safety Plans 2021.

High range PCA (0.15 or above) can result in heavy penalties, such as fines up to $5,500.00, an interlock order, disqualification and even two years in prison for subsequent offences. For mid range PCA (0.08 to less than 0.15) you could be issued fines up to $3,300.00, disqualification and a term of imprisonment for up to one year.

With such heavy penalties, the best option is to have a Plan B in place if you are planning to drink or take drugs. So, what happens if I have been driving under the influence and get pulled over for a breath or drug test?

Police can pull you over at RBT and MDT stations, for a random breath or drug test or if they find your driving/vehicle suspicious. This means Police can pull you over at any time. Once pulled over, Police may ask you to show your licence to verify your identification and confirm your privilege to drive.

Under section 175 of the Road Transport Act 2013 you are required to produce your licence when requested by Police. Generally, Police will explain that they are conducting a random breath test or drug test.

If your roadside test is positive, you will be taken to the roadside station or local police station to conduct a further sample. If this test is returned as positive, tougher penalties may apply and it may result in the issue of a court attendance notice.

If you have been charged with a DUI offence, contact our friendly team on 02 6542 5566 . For more on DUI penalties visit https://www.rms.nsw.gov.au/roads/safety-rules/demerits-offences/drug-alcohol/drug-alcohol-offences.html

Pest and Building: When Do I Request One?

Mon, 21 Sep 2020 11:20:00 GMT

Pest and Building: When Do I Request One?

For some home buyers, purchasing a house is unfamiliar territory. There are many steps to consider and it can quickly become a stressful task.

Our experienced Conveyancing team make aim to prevent uncertainty and promote a stress-free experience when it comes to purchasing your property.

One of the most common questions we are asked is when to request a Pest and Building Report . Like many legal questions, there is generally no ‘one sizes fits all’ answer and each matter may require a different response.

For most matters, it is wiser to wait until you are granted pre-approved finance before requesting the Pest and Building Report. This is simply due to saving costs, as you do not want to request a report only to find out you are not approved, resulting in spending money on something you do not need.

It is also beneficial to ensure you have conducted a thorough inspection on the property before you consider buying it. We recommend checking all inclusions are in working order, including hot water, light fittings and stove tops/ovens. If you find any inclusion is not working, further negotiations of the price may be required with the Vendor before exchange of Contracts.

We are a professional and trusted Law Firm and are here to support you from start to finish, including liaising with Agents and the Banks, negotiating contractual terms and advising on subdivision and stamp duty.

If you are looking to buy or sell your property, contact our friendly team today by calling 02 6542 5566 .

Jeans 4 Genes Day | Friday 7 August 2020

Wed, 15 Jul 2020 11:21:00 GMT

Jeans For Genes Day is Back!

Help us help make a difference. Every dollar you donate goes directly to Children’s Medical Research Institute and helps find treatments and cures for children’s genetic diseases. We can’t do it without you.

Equilaw will be raising funds for Jeans For Genes Day. Please help us make a difference. To make a donation go to out fundraising page at https://www.myjeansforgenes.org.au/equilaw-solicitors , which can also be located on our website and socials, or by cash donation at our office. Every donation brings us closer to finding treatments and cures for kids facing a serious genetic disease.

NSW and VIC Border Closures – Impact on Family Court

Sun, 12 Jul 2020 10:51:00 GMT

NSW and VIC Border Closures – How does this impact Family Court Orders and Parenting Plans?

As at 8 July 2020, new temporary border restrictions where placed into effect to assist in reducing the spread of COVID-19 in the states of New South Wales and Victoria.

This means no persons will be able to cross the border between NSW and VIC unless they hold a current permit from Service NSW. Anyone who fails to comply with the rules could face up to six months prison, a fine of $11,000, or both. So, what happens if you have legal obligations which require you to cross the border, such as Family Court Orders or a Parenting Plan?

If you hold a current Court Order or legal document which requires you to cross the border, you may be eligible for a permit from Service NSW. You must ensure you have the correct evidence and provide accurate information when submitting your permit. Inaccurate information provided during the application process could result in a $4,000.00 fine.

Should you be granted a permit, strict guidelines and rules are to be complied with, such as self-isolation and hygiene measures. For more information regarding the NSW and VIC border closures see https://www.nsw.gov.au/news/nsw-and-victorian-border-closures . To apply for a permit or check your eligibility see https://www.service.nsw.gov.au/transaction/apply-covid-19-nsw-border-entry-permit#eligibility . For all Family Law matters, please do not hesitate to contact our team on 02 6542 5566 .

Reducing Our Environmental Footprint

Wed, 24 Jun 2020 09:11:00 GMT

Equilaw Goes Green!

As at July 2020, the wonderful staff of Equilaw Solicitors will adopt a ‘reduce, reuse and recycle’ policy to improve sustainability and minimise our environmental footprint.

Our office has pledged to reduce our carbon emissions by turning off electrical devices when not in use, reuse stationary and focus on procurement, take advantage of technology to reduce paper usage and use reusable food containers.

Given the worlds current overuse of resources, we are of the view that incorporating environmentally friendly procedures and policies will be a positive change for both the business and our environment.

This is a welcomed change for our office and we look forward to playing our part in a sustainable future.

Equilaw Breaks The 1,000 PEXA Transaction Milestone!

Tue, 26 May 2020 11:10:00 GMT

Equilaw Breaks The 1,000 PEXA Transaction Milestone!

Equilaw Solicitors was an early adopter of the online real property transaction service known as PEXA , an online property exchange network, for playing a leading role in bringing property transactions online and assisting peers in the network.

Equilaw is now one of very few firms to have crossed the 1,000 PEXA transaction milestone and is notable for being a mid-sized regional law firm achieving results that many of our city colleagues will be envious of.

If you have any questions about the sale or purchase of real property please contact our dedicated team on 02 6542 5566 or Michael O’Brien at michaelobrien@equilaw.com.au .

Witnessing Documents Online – A New Age

Sun, 17 May 2020 12:04:00 GMT

Witnessing Documents Online – A New Age

In response to the COVID-19 crisis the NSW Government has amended the Law in NSW to allow for the electronic witnessing of documents such as Wills, Powers of Attorney, Statutory Declarations and Affidavits.

Under the new rules a witness may watch a person sign a document over a video link in real time and then execute a scanned copy of identical counterpart. For more information visit https://www.nsw.gov.au/news/covid-19-video-tech-for-witnessing-legal-documents .

These changes will make it easier for you to stay at home, and still be able to executing important legal documents without delay. Should you have any questions related to a new Will, Power of Attorney or Appointment of Enduring Guardian please contact our team on 02 6542 5566 or email benhoffman@equilaw.com.au .

Auctions and House Inspections Resume

Mon, 11 May 2020 12:24:00 GMT

Auctions and House Inspections Resume!

It has been announced that traditional property inspections and onsite auctions will resume from Saturday, 9 May.

The guidelines issued by the NSW Government require that social distancing of 1.5 metres is maintained, numbers entering premises are controlled and that contact details for all persons attending are kept. More guidelines below:

Use digital platforms where possible to remove physical contact.
Maintain physical distancing of greater than 1.5m between people by:
limiting the number of people viewing a property and attending an auction
managing the number of people entering small spaces
considering an extended timeframe for open house viewings and inspections
using outdoor venues for auctions wherever possible
using large venues for indoor auctions to maintain the 4 square metre rule .
Promote good hygiene on premises and at auctions by:
making hand sanitiser available
ensuring clients do not touch surfaces
cleaning the property before and after inspections.
Keep detailed contact records of people attending open homes and auctions.
Ensure people with any symptoms of illness do not attend a property.

For other government guidelines on what you can and can’t do visit https://www.nsw.gov.au/covid-19/what-you-can-and-cant-do-under-rules .

If you have been holding off listing your property for auction or inspection now would be a good time to contact your real estate agent and for all conveyancing matters please contact our team on 02 6542 5566 .

COVIDSafe App and your Privacy

Fri, 08 May 2020 00:06:00 GMT

COVIDSafe App and your Privacy

As you are no doubt aware the Federal Government has released a downloadable App, COVIDSafe, for importing onto mobile phones.

The object of the App is to alert us if we spend time in the close presence of somebody who has been diagnosed with the COVID-19 virus.

Privacy groups have expressed some concerns relating to the application and many people will have questions about how their data will be utilised.

The draft Legislation criminalises the use or disclosure of the application data for any purpose not related the contact tracing of persons diagnosed with COVID-19. There are also protections in place to prevent the export of the data to outside of Australia.

With the safeguards as drafted there would seem to be little concern for misuse of the data. Although people who download it should remember that the data can and will be used for contact tracing of persons diagnosed with COVID-19 and that may lead to self-isolation orders and/or a direction to attend testing.

If you have any questions about your privacy of the COVIDSafe App or any other concerns please contact our team on 02 6542 5566 .

Court Responses to COVID-19 Pandemic

Thu, 02 Apr 2020 10:10:00 GMT

Court Responses to COVID-19 Pandemic

For those who have matters presently before Courts or Tribunals should, by now, have been given notice of the impacts of the COVID-19 pandemic upon your matter. If not below is an outline of the various Courts and Tribunals responses to COVID-19 thus far.

NSW Local Court
The Local Court deals with a majority of criminal matters in NSW and many smaller civil claims. All criminal defended hearings, except for defendants in custody, are being vacated and relisted for mention in early May so as to set a new hearing date.

All serious sentence matters, being matters for which a sentence to a period of imprisonment are a realistic possibility, are being adjourned for at least 8 weeks with a further mention date to be set in order to assign a new hearing date.

At this time any matters adjourned to a further mention date for relisting, whether it be for hearing or for sentence, do not require a personal appearance of the defendant so long as they are legally represented.

People who are already in custody will have their matters heard but by way of audio visual link likewise sentence proceedings for person in custody will proceed by way of audio visual link.

Less serious sentence matters are, at the time of publishing this article, still taking place though you should seek advice from your solicitor as to whether or not you are required to attend Court. In many instances your solicitor may be able to appear on your behalf or alternatively file submissions on your behalf.

ADVO matters that are not attached to criminal charges are being adjourned for a period of 3 months. Provisional Orders (those Orders granted on Police Application but have not yet been mentioned before a Court) can now be listed up to 6 months from the date the Order is made and will be listed at some future date to be notified to the parties.

In civil litigation matters, the parties will now appear via telephone and if no telephone arrangements are made the matters are to be adjourned to a later date.

District Court NSW
The District Court has announced that all criminal matters where the defendant is not in custody will be adjourned for review on or after 1 May 2020, though it is likely this date will be further extended. It is not expected that jury trials will resume until after October 2020.

Federal Circuit Court of Australia and Family Court of Australia – Family Law
Chief Justice Alstergren has issued a statement dated 26 March 2020, ( http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/about/news/mr260320 ) setting out a guide to parents for managing arrangements surrounding the care of children during the COVID-19 response period.

Parents are encouraged to work collaboratively and to engage alternative dispute resolution options such as mediation. At this time matters already listed for hearing/trial are proceeding, however this may well be subject to change in coming weeks. Matters set for mention are being conducted primarily by telephone.

Registry services are now being provided remotely by telephone and online with urgent face-to-face services only provided after an initial phone assessment. Review of subpoenas is limited to urgent matters and those coming for trial within the next few weeks.

NSW Civil and Administrative Tribunal
All NCAT proceedings will now proceed by way of phone or online until further notice. For matters listed for hearing the Tribunal will proceed by way of telephone hearing, audio visual link hearing or on the papers alone.

If you have any questions or unsure of how the Court and Tribunal responses to COVID-19 will affect you legally, we would encourage you to contact your solicitor or give us a call on 02 6542 5566 so you get the necessary assistance.

Police Powers on Public Gatherings

Tue, 31 Mar 2020 21:50:00 GMT

Police Powers to Enforce Restrictions on Public Gatherings and Movement

On Tuesday, 31 March 2020 new laws came into effect in New South Wales. Under the Public Health Act 2010 the NSW Minister for Health and Medical Research has issued the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020.

There are two broad categories of restriction contained in the Legislation being a restriction on people’s movement outside their home and a restriction on people grouping in numbers greater than 2 in public.

Part 1 – directs that people are not to leave their home without reasonable excuse and reasonable excuse is defined as:

Obtaining food or other goods and services; or
Travelling for the purposes of work or education if it is not possible to do it at home; or
Exercise; or
Medical or caring reasons.

Part 2 – restricts people from gathering in groups larger than 2 persons save for:

A gathering of persons for the purposes of work;
A gathering of persons all of whom are members of the same household;
A gathering for a wedding at which there are no more than 5 persons (including the person conducting the service);
A gathering for a funeral service at which there are no more than 10 persons (including the person conducting the service);
A gathering to facilitate a move to a new place of residence (including a business moving to new premises);
A gathering to provide care or assistance to a vulnerable person;
A gathering to provide emergency assistance; or
A gathering necessary for the person to fulfil a legal obligation (including attending a court or tribunal, satisfying bail requirements or participating in legal proceedings).

The Legislation further sets out which business premises and public spaces are presently restricted from opening whatsoever and the limits that apply to businesses which remain open.

If you have any concerns related to the operation of your business then we would recommend taking prompt legal advice as to the effect of the Legislation upon your business.

These new powers are in addition to those announced last week allowing Police to issue fines for people found not to be observing the social distancing rules or for disobeying a self-quarantine directive.

We have received many enquiries as to whether or the restrictions on movement and meeting prevent separated parents from effecting changeover with children in accordance with existing arrangements or Orders.

Schedule 1. to the Legislation specifically exempts such changeover from sanction and parents should endeavour to make all reasonable adjustments necessary in order to give effect to existing arrangements and Orders. If you have any questions regarding the effect of the restrictions upon your co-parenting relationship and the time the child is to spend with the other parent please contact us to discuss.

At Equilaw we are committed to assisting our local community during these difficult times and should you have any questions related to these new restrictions please contact our office on 02 6542 5566 for a telephone appointment. Stay safe.

Federal Government Assistance for Individuals During the COVID-19 Pandemic

Mon, 30 Mar 2020 04:28:00 GMT

Federal Government Assistance for Individuals During the COVID-19 Pandemic

The Federal Government has announced a number of measures designed to assist individuals through the economic crisis brought about by the COVID-19 pandemic.

Many income support recipients who are receiving payments from Centrelink will receive an extra $550 a fortnight for six (6) months commencing 27 April 2020. Eligibility for income support payments have been expanded to include people who are self-employed (whose work has reduced due to the virus) and to people who are caring for persons who are subject to isolation restrictions due to the virus. It is important to note that before persons who are partnered that their spouse’s income will be taken into account as to the eligibility.

For further information please access the Centrelink website at https://www.servicesaustralia.gov.au/individuals/subjects/affected-coronavirus-covid-19/if-you- need-payment-coronavirus-covid-19 .

For persons not receiving unemployment or student income support but receiving other government support (family tax benefit, disability support pension, pensioner concession card, seniors health card, Commonwealth gold card or farm household allowance) will receive two bonus payments of $750.00 in coming months. Please note that you will not receive this payment if you are receiving the $550.00 fortnightly bonus listed above.

The existing crisis payment options through Centrelink remain available and you should refer to this in the link website for information.

Overnight the Federal Government also announced a $1,500 wage subsidy that would be paid to employers so that they may keep on staff during the crisis. As the details on eligibility and application processes become known we will post further updates.

The Federal Government has also announced that there will be changes to the Bankruptcy and Insolvency legislation. The amount of debt that needs to be owing to a creditor in order for bankruptcy proceedings to be instituted will be raised from $5,000.00 to $20,000.00 and the time for debtors to respond to a statutory demand for payment will be increased from 21 days to 6 months.

At Equilaw we remain committed to helping our local community through this crisis and if you have any questions please do not hesitate to contact our office on 02 6542 5566 . We are here to help.

Federal Government Assistance for Businesses

Tue, 24 Mar 2020 22:41:00 GMT

Federal Government Assistance for Businesses

As your business faces an uncertain environment with the COVID-19 impacts you will likely have questions about the range of Government assistance recently announced and your eligibility to access it.

Your business can request deferral of outstanding tax and superannuation guarantee obligations. If you have outstanding liabilities or penalties and you are experiencing difficulty in meeting those then you should contact the ATO so as to discuss the available options. Whether it be a deferral, remittance of penalties and interest or variation of payment schedule. We will post further updates on our web page and Facebook as more guidance comes out of the ATO.

There is a wage subsidy scheme of up to 50% of the wage of an apprentice/trainee and up to a ceiling of $21,000 per apprentice/trainee, for small and medium size businesses. At this point the subsidy is available for wages for the period 1 January 2020 until 30 September 2020 but this may be subject to an extension.

Registrations for this scheme are not yet open and are expected to open early April. The instant asset write-off threshold has been increased from $30,000 to $115,000 for the period 12 March 2020 until 30 June 2020.

Businesses with a turnover of less than $15,000,000 per annum will be eligible for a payment of up to $25,000 which will be delivered directly by the ATO after 28 April 2020 once businesses have lodged their Activity Statements. It appears the payments will range from between $2,000 to $25,000 and be indexed to 50% of the tax withheld on wages/salaries as part of the businesses’ obligations to the ATO.

The details for each of these relief schemes are still emerging and you should monitor the Australia Taxation website https://www.ato.gov.au/Individuals/Dealing-with-disasters/In- detail/Specific-disasters/COVID-19/ .

If you have any questions please give our team a call on 02 6542 5566 . We are here to assist you and you may also wish to speak to your accountant.

Equilaw Response to COVID-19 and Our Commitment to You

Mon, 23 Mar 2020 01:03:00 GMT

Equilaw Response To COVID-19 And Our Commitment To You

Following the overnight Government announcement that all non-essential services are to close for
an indefinite period, we at Equilaw are taking this opportunity to assure you that our office remains open and our team is committed to providing you with the highest levels of service during this difficult period.

No doubt you will have questions around your conveyance, employment, family law, insolvency,
wills and business operations as you reflect upon the current environment. Michael, Ben, Rebecca, Joshua, Renee and the team are available to provide the guidance you need on those topics and more.

The health of our clients, staff and community is a paramount consideration and like all responsible organisations we are committed to following the COVID-19 guidelines issued by New South Wales Health.

To access these guidelines and a handy FAQ questions section on COVID-19 please visit https://www.health.nsw.gov.au/Infectious/diseases/Pages/coronavirus.aspx . At this time none of our staff are unwell or at risk and we will ensure that the strictest hygiene controls are maintained in our office to ensure your safety.

If you have travelled overseas in the last 14 days, or you or someone you have been in close contact with are unwell then please contact our office on 02 6542 5566 to arrange a telephone conference.

As more detail is forth coming from Government on the stimulus measures available to individuals and businesses as well as the impact of non-essential closures on businesses, we will post regular updates by email and on our Facebook page: https://www.facebook.com/EquilawFirm/ . If you wish to be added to our mailing list please email benhoffman@equilaw.com.au or call 02 6542 5566 .

At this time the most efficient method of contacting our team is calling 02 6542 5566 or by email . Should your inquiry occur after hours or during a time of shut down then our team of lawyers can still be reached on:

Michael O’Brien – 0409 455 622
Ben Hoffman – 0439 645 800
Joshua Whale – 0427 410 129
Rebecca Stanley – 0412 252 678
Renee Allen – 0408 271 738

We are to help. Stay well. Stay safe.

Home Building Warranty Claims – Your Rights

Mon, 02 Mar 2020 09:53:00 GMT

Home Building Warranty Claims – Your Rights

At Equilaw we have noticed that a significant number of properties built around the Muswellbrook and Scone areas over the last decade are showing significant and worsening structural defects.

Even if you were not the original purchaser or builder you may have rights to rectification or compensation under the original builder’s warranties or if they are defunct the insurances, they were required by law to take out prior to building the residence.

Strict time limits apply in these matters and if you have any concerns related to defects in your home please make an appointment with our team as soon as possible on 02 6542 5566 or email Ben Hoffman at benhoffman@equilaw.com.au

Do I Really Need a Pest and Building Report When Buying a Property?

Fri, 21 Feb 2020 02:05:00 GMT

Do I really need a Pest and Building Report when buying a property?

While there may be no law requiring a Pest and Building Report to be carried out on a property you are purchasing, there are several very good reasons why you should engage a professional to inspect the property prior to entering into a Contract for Sale:

You will know in advance if there are any defects inside or outside property;
You will know if there is or ever has been any termite damage to the property;
If there are any problems at the property, a report can assist in negotiating a lower purchase price (if you have to pay to repair some of the issues identified); and
You will have expert advice about any major problems the property may have and how these problems might affect the property over time.

The Pest and Building Report will include any significant defects or problems and will also highlight minor defects such as cracking, weathering and general deterioration.

If issues arise with the property following settlement and you have chosen not to get a Pest and Building Report, will have no recourse or claim against the vendor. Equilaw Solicitors can assist you in arranging a detailed Pest and Building Report for your next property purchase with a trusted inspector.

How To Get In The Property Market Soon

Fri, 21 Feb 2020 01:46:00 GMT

How To Get In The Property Market Soon

The First Home Loan Deposit Scheme has been introduced by the Government to help First Home Buyers get into the property market sooner.

Instead of spending years trying to save a 20% deposit, the Government can guarantee you 15% of the deposit if you have 5% of the purchase price saved. You will also avoid the usual Lenders Mortgage Insurance.

To be eligible for the scheme, you must satisfy the Governments criteria. Apart from being First Home Buyers and Australian Citizens, individual applicants must have earned less than $125,000.00 and couples less than $200,000.00 in the last financial year.

The price of the property you wish to purchase will also need to fall within the price cap of up to $700,000.00 for a property in a capital city or regional centre (eg. Newcastle or Wollongong) and up to $450,000.00 for the rest of the state.

To apply for the First Home Loan Deposit Scheme, you can apply with any lender participating in the scheme.

If you are thinking about purchasing your first home and think you might like to take advantage of the First Home Loan Deposit Scheme, or would like further information, please feel free to contact our office on 02 6542 5566 and we will put you in touch with a Bank participating in the scheme who will be able to assist you.

What You Need To Know About Search Warrants

Wed, 19 Feb 2020 10:34:00 GMT

What You Need To Know About Search Warrants

Search warrants, you’ve heard of them, but does your knowledge extend beyond an episode of your favourite crime drama?

While the law does vary between different jurisdiction there are some important points you should keep in mind. A consultation with one of our experienced solicitors could be a safeguard if your property has been searched, or if you fear that it’s likely.

A search warrant is a written order which has been applied for, and granted, allowing police to search a premises. For Police to be granted a warrant, they must have reasonable grounds to suspect that they will find something related to a searchable offence on the premises, this must also be specified in the warrant.

Some of the offences that are commonly connected to search warrants are illegal drugs, weapons and firearms, property that has been stolen and child abuse material (pictures, videos, computer data etc.). Material related to indictable or serious offences are also grounds for a warrant to be issued.

One form of warrants that has been highlighted with recent media attention is criminal organisation warrants under s46A(1)(c) of the Law Enforcement (Powers and Responsibilities) Act 2002 . This has seen many members of Outlaw Motorcycle Clubs subject to search warrants.

If the Police seek entry to a premises, they must present the occupier an occupier’s notice, which must include certain information including the name of the applicant for the warrant, the time and date of the warrant, and the address in relation to the warrant.

Covert warrants may also be sought be certain police officers which allow a search without the occupier’s knowledge in certain circumstances.

If you have been subject to a warrant, please book a free consultation with one of our solicitors who can provide you with information regarding any potential charges you are facing, or if your rights have been unfairly violated in the warrant process.

The Department of Family and Community Services and YOU

Mon, 03 Feb 2020 12:25:00 GMT

The Department of Family and Community Services and YOU

Whilst people are generally familiar with the Family Law system as it relates to children thereis significantly less public awareness of how the Children’s Court care and protection jurisdiction operates.

It can be particularly confronting when as a separated parent, grandparent or aunt/uncle you become aware that a child in your family has been taken into the care of the Department of Family and Community Services.

If you are a close family member you may have the right to be heard on what happens next and it is important that you take legal advice from a practitioner familiar with the care and protection jurisdiction.

Please do not hesitate to contact Equilaw if you wish to have a confidential discussion regarding the care of a child that the Department of Community Services have taken into care.

Mobile Phone Detection Cameras : WARNING!

Thu, 05 Dec 2019 09:29:00 GMT

Mobile Phone Detection Cameras : WARNING!

Mobile phone detection cameras went live on NSW roads on 1 December 2019. These detection cameras will be both fixed and mobile. Unlike speed cameras there will be no warning signs to give drivers a heads up.

Penalties are severe. Drivers will accrue 5 demerit points and receive a $344 fine. If the offence occurs in a school zone then the fine will rise to $457. During double demerit periods the accrued demerits points will be 10.

Drivers on a learner or provisional licence must keep in mind that any usage of a mobile phone is prohibited whilst driving. This includes blue tooth operation. Drivers on a full licence can only utilise their mobile phone if it is either secured in a cradle fixed to the vehicle or operable without touching the phone (such as through a blue tooth connection to controls on the steering wheel).

If you receive a Penalty Notice and require advice on challenging it or challenging a decision of the Roads and Maritime Service to suspend your licence then please make an appointment to meet with our team on 02 6542 5566.

Your Children and Family Law

Thu, 28 Nov 2019 10:51:00 GMT

Your Children and Family Law

Clients often ask us what the most likely result will be as they enter into post separation parenting negotiations and/or Court action.

It is our experience, and reflected industry wide, that about two-thirds of cases dealing with the care of children aged 14 years and under, that the children will live primarily with the mother and spend regular and significant time-with the father.

In about 20% of cases there will be an equal time arrangement and in the remainder of cases the child will live with the father or a close relative such as a grandparent or uncle/aunt.

Only about 2% of all matters relating to the care of children are decided after a final trial/hearing in the Federal Circuit Court or Family Court of Australia. The vast majority of matters settle by way of direct negotiations or mediation and of the approximately 10% that progress into Court action, a great majority of those settle during the preliminary stages and do not advance to final hearing.

Every family circumstance is unique and if this article has raised any questions for you, please make an appointment with Ben Hoffman or Mr Joshua Whale to discuss your options, call on 02 6542 5566 .

CONSENT – A MINE FIELD

Tue, 19 Nov 2019 11:16:00 GMT

CONSENT– A MINE FIELD

Currently, the Law as it stands in NSW regarding consent to sexual intercourse is that each party must give their conscious and voluntary agreement to the act.

This agreement can be expressed verbally or in actions and likewise the refusal of consent, or withdrawal of consent, may be communicated in words or in actions.

Importantly, not physically resisting another person is not to be taken as consent.

There are currently proposed reforms before the NSW Law Reform Commission that if adopted by Parliament would potentially remove being able to rely upon consent by way of actions alone. This may well lead to a circumstance whereby express verbal consent to sexual intercourse must be obtained in each encounter.

A great many sexual assault allegations occur in a context of drunkenness and people would be well advised to think very carefully about the choices they make whilst intoxicated and the steps they have taken to guarantee their prospective partner is consenting.

Whilst is may be unsexy to ask for consent it is perhaps the only safe way forward for both your friend and yourself.

You No Longer Need to Slow to 40km When Passing Stationary Emergency Vehicles

Thu, 31 Oct 2019 21:46:00 GMT

You No Longer Need to Slow to 40km When Passing Stationary Emergency Vehicles

On 1 September 2018 there was a much-touted change to the Traffic Legislation in NSW which required motorists to slow to 40kms when passing stationary emergency vehicles with their lights flashing.

This change of legislation saw a marked increase in traffic matters coming before the Court with almost 1,000 infringements issued during the course of the new Legalisation’s operation.

On 26 September 2019 the road rules were amended so that motorists now must slow down, move over and give space to stationary emergency vehicles with their lights flashing. The speed to which vehicles must slow down is one that is reasonable for the circumstances on roads where the posted limit is 90kms or over.

On roads where the limit is 80kms or less then motorists must still slow to 40kms.

If you have any questions regarding this or any other traffic matter please contact Joshua Whale, Ben Hoffman at our Muswellbrook office on 02 6542 5566 .

Police Strip Search – Your Rights and Obligations

Thu, 31 Oct 2019 21:44:00 GMT

Police Strip Search – Your Rights and Obligations

A current topical issue is the use of strip searches by Police at music festivals and public order disturbances.

The test that Police must apply in order to order a strip is one of reasonable suspicion. A reasonable suspicion must have some factual basis for believing that a person has committed an offence, such as drug possession.

Whilst it is not illegal to refuse an unlawful strip search you will likely run into the real world practicality of the Police who have issued the order taking the view that you are now resisting Police and this situation may escalate. A better course of action is to state clearly and repeatedly that whilst you are not refusing their direction you say that the search is illegal.

For more information about your rights and obligations of a strip search give our team a call on 02 6542 5566 .

Bankruptcy And Its Effect Upon Your Home

Tue, 01 Oct 2019 11:39:00 GMT

Bankruptcy And Its Effect Upon Your Home

Should you enter into bankruptcy, whether voluntary or involuntary, a Trustee is appointed to manage your estate and does so by taking charge of your income streams, assets and liabilities.

This will often include the family home should it be in your sole name or joint names with your spouse. In certain circumstances a home that is being disposed of into your spouse’s name recently can be clawed back into the pool of assets.

Should you find yourself in financial difficulties or you are uncertain about your future income stream then perhaps it would be wise to approach your lawyer and accountant early so as to take every possible step to minimise the future risk to your family home.

Michael, Rebecca and Ben are available to assist you should you have any enquiries. Give us a call on 02 6542 5566 .

Estate Planning – Is It Worth the Cost?

Sun, 11 Aug 2019 22:31:00 GMT

Estate Planning – Is It Worth the Cost?

It is common place for people to view making a Will as an unnecessary expense or something that can be put off until later.

Ordinarily a Will can be drafted and executed in just two consultations and the reasonableness of the cost will likely surprise you.

Not having a valid Will, Power of Attorney or Appointment of Enduring Guardian could end up costing you or your loved ones, tens of thousands of dollars.

If you have been contemplating making a new Will, Power of Attorney or Appointment of Enduring Guardian or wish to revisit your existing documents please make an appointment to meet with Michael or Ben on 02 6542 5566 and they will gladly explain your options.

Appealing Police Suspensions Of Your Driver’s Licence

Fri, 05 Jul 2019 03:30:00 GMT

Appealing Police Suspensions Of Your Driver’s Licence

Following the State Government’s overhaul of the Driver Licensing Legislation from 20 May 2019 all PCA (drink driving) offences will receive an on-the-spot driver licence suspension by Police.

These suspensions can be challenged in Court however it is important to know that filing the Local Court Appeal against the suspension does not automatically stay the Police suspension. That is, the mere filing of the appeal does not stop the suspension from continuing and it will continue until your appeal is heard in Court unless you apply for an urgent stay.

If you wish to discuss your options following Police suspending your licence for a PCA offence then contact our office on 02 6542 5566 as a matter of urgency as in limited circumstances you may be able to apply for a stay of the suspension pending hearing of the appeal.

Recovering Legal Costs

Thu, 27 Jun 2019 03:34:00 GMT

Recovering Legal Costs

A question that we are often asked is “Can I recover my legal fees?”

In Family Law, Criminal Law, Traffic Law and Care and Protection Law matters, recovering legal costs is not a straight forward matter. Parties should approach the litigation on the understanding that they will almost certainly have to bear the cost of all of their own legal fees and disbursements.

Costs Applications are possible and usually only follow a final hearing. At Equilaw wehave had success in obtaining costs orders for our clients in Family Law, Criminal and Care and Protection matters.

We endeavour to resolve your matter as commercially efficiently as possible andlook to more cost-effective techniques such as direct negotiation and mediation as a cost effective alternative to a costly and time-consuming litigation with uncertain costs outcomes.

The best strategy for keeping your legal fees manageable is to retain an open mind on settlement without resort to a final hearing. However, should that not be possible in your matter we will do everything possible to minimise the expense and recoup your costs.

If you would like more information or advice please give our team a call on 02 6542 5566 .

Low Range PCA Law Changes

Wed, 29 May 2019 00:48:00 GMT

As of Monday the 20 ^th of May, new laws will give NSW Police the power to automatically suspend drivers for Low Range, novice or special drink driving charges. The Police will issue a penalty notice which will result in an immediate three-month suspension as well as a fine.

The primary proposed benefit of this change is to send a clear message to drivers that if you drink and drive you will lose your licence. Furthermore, it can be argued that these changes will lower the burden on the local court. However only 1.6% of local court work is taken up by these kinds of offences.

The changes do undermine the courts power to apply discretion when dealing with these kinds of offences. The penalty notice, however, is appealable and it may be worthwhile appearing before a magistrate to present the exceptional circumstances in each individual case.

The factors that are taken into account by a magistrate in these cases are things such as;

Prior good record
Factors or the offence, ie speed and nature of driving
Passengers in the car
The BAC reading

It is important that if you are issued a penalty notice and/or immediate suspension that you do not continue to drive. This will result in further offences and the issues can quickly snowball out of control resulting in sever court penalties.

If you need to know more about any of your drink driving or traffic matter, please feel free to arrange an appointment with one of our helpful staff who will be more than happy to provide advise and appear on your behalf in relation to any appeal.

Family Law and Property Settlement

Wed, 29 May 2019 00:48:00 GMT

Family Law and Property Settlement

It appears there is a common misconception throughout the Upper Hunter that Family Law Property Settlements in which one spouse is employed in the mining industry and the other is not must result in a net asset percentage split that is unfavourable to the spouse who is employed in the mining industry.

Figures such as 60% / 80% nett split in favour of the non-mining industry spouse are often touted as to be the expected result however it is important that people understand that every property settlement is different and the result will vary depending upon the size of the asset pool, the individual circumstances of each of the parties, contributions, income and importantly the manner in which the property settlement is undertaken.

At Equilaw we will make every effort to ensure that your matter is settled promptly out of Court by way of direct negotiations and/or mediation.

Already in May 2019 we have settled two property matters by way of negotiation with a disbursement to the spouse employed in the mining industry of 47% and 48% respectively.

If you have separated or are in the process of separating please make an appointment to meet with us for a confidential and thorough assessment of your position.

Ben can be contacted on 02 6542 5566 or at: benhoffman@equilaw.com.au

Ben Hoffman was admitted to the Practice of Law in September 2006. Ben has extensive advocacy experience in the Local Court, District Court and Federal Circuit Courts. Ben’s primary areas of practice are – family law, criminal law and traffic law.

Equilaw Solicitors partners with PEXA

Sun, 14 Apr 2019 23:26:00 GMT

Equilaw Solicitors partners with PEXA

Left to Right: Michael O’Brien, Renee Allen and Catherine Eather from PEXA.

Equilaw Solicitors has been recognised by PEXA , an online property exchange network, for playing a leading role in bringing property transactions online and assisting peers in the network.

PEXA (Property Exchange Australia) is a Australia’s online property exchange network. PEXA assists solicitors, conveyancers and financial institutions in lodging documents with NSW Land Registry Services and completing financial settlements electronically.

PEXA was formed to fill the Government’s initiative to deliver a single National EConveyancing solution to the Australian Property Industry. From 1 July 2019 all eligible transfers of property will be required to be completed electronically in order to be registered at NSW Land Registry Services.

Equilaw Solicitors was the first firm in Muswellbrook to join the PEXA community and completed their first electronic property transfer in February 2017. They have since completed in excess of 600 property transfers electronically.

The principal of Equilaw Solicitors, Michael O’Brien, said that he was thrilled to be recognised by PEXA for playing a leading role in bringing property transactions online in the Upper Hunter. He said “It is a fitting recognition for the work that is undertaken by my staff and in particular Renee Allen of our firm. At the forefront of our work ethic is the delivery of a professional and efficient service to clients”.

Australasian Law Awards Nominations

Wed, 20 Feb 2019 03:23:00 GMT

Australasian Law Awards Nominations

The Australasian Law Awards celebrate the outstanding achievements of Australia and New Zealand’s leading legal professionals, firms and in-house teams for their contribution to the industry over the past year.

This year Equilaw Solicitors has been nominated for the Australasian Law Award in the category for Regional Firm of the Year. This category is judged on excellence in client service and demonstrated expertise across a range of practice areas.

We are very honoured to be nominated for this Award and would like to take this opportunity to say a big thank you to all our dedicated staff and wonderful clients. Finalists are announced on Monday, 25th March 2019.

Divorce Explained For De Facto Partners

Mon, 19 Nov 2018 01:15:00 GMT

‘Divorce’ explained for de facto partners

Unlike married couples, de facto partners cannot apply for a divorce when their relationship breaks down. Their property affairs and arrangements for the future care of their children however may be finalised by agreement, with the assistance of their legal advisors or, if necessary through Family Court proceedings.

Couples in a de facto relationship generally share the same rights and responsibilities as those who are married and may access provisions of the Family Law Act 1975 (Cth) (the ‘Act’) to determine property and children’s matters if the relationship breaks down.

The Act will apply to all children’s matters regardless of whether the parents were married or in a de facto relationship. To access the provisions for property and maintenance matters however, a party must establish the existence of a de facto relationship and meet other criteria.

If you are separating from a de facto partner, it is important to be aware of how a de facto relationship is defined and how the Act applies.

What is a de facto relationship?

A de facto relationship is where a couple, of the same or opposite sex and who are not legally married or related by family, live together in a genuine domestic relationship. Factors considered in establishing a ‘genuine domestic relationship’ include the duration of the relationship, the nature and extent of common residence, the existence of a sexual relationship, financial interdependence and property acquisition and ownership.

Once a de facto relationship can be established, the Family Court may make maintenance and property orders if:

the de facto relationship has lasted for at least two years; or
there is a child of the de facto relationship; or
the party applying for orders has made substantial contributions to the relationship and would suffer injustice if a property order was not made; or
the relationship is registered under a prescribed law of a State or Territory.

Time limits and keeping records

Timeframes and time limits are relevant to family law proceedings so it is important that you maintain accurate records. As noted above, unless there are children of the relationship or extenuating circumstances, property proceedings may only be commenced if the person bringing an application can show that the de facto relationship lasted for at least two years.

Additionally, property proceedings must normally be commenced within two years of separation. In this regard records of the date of separation should be maintained and ex-partners should provide written notification to the other confirming that the relationship is at an end.

Agreeing on the division of property

The least exhaustive and most efficient way to divide property after ending a de facto relationship is to negotiate a settlement with your ex-partner and document the consensus reached in a financial agreement or consent orders.

A financial agreement sets out the agreed division of assets between the parties and can include provision for the sale of real estate or other property, the payment of outgoings and distribution of surplus funds. The agreement can also require the parties to pay off joint credit cards or loans and close bank accounts.

When negotiating a financial agreement, the parties must give proper disclosure of their assets and financial resources.

Once a verbal agreement is reached, the parties meet separately with a lawyer to receive independent legal advice and sign an acknowledgement that they are each aware of their rights and obligations under the agreement.

If done correctly and in the right circumstances, financial agreements can be a less formal and cost effective solution for dividing property.

Sometimes, it is preferable to have an agreement for the division of property endorsed by the Court through consent orders . This is more formal than a financial agreement because the Court must approve the orders proposed.

The application for consent orders must include full financial disclosure by both parties and the Court will only approve the order if it is just and equitable to do so.

Because of the Court’s involvement in considering and consenting to the orders they are usually considered more binding than a financial agreement, providing greater finality to the parties’ financial affairs.

Court proceedings

Parties to property or children’s matters must first attempt to resolve their conflict through dispute resolution processes, unless there are extenuating circumstances. Proceeding to Court requires careful preparation and consideration of the expense and emotional stress likely to be involved in light of the asset pool.

If a matter proceeds to Court, the following steps are taken to determine the division of property:

The assets, liabilities and financial resources of the parties are identified – this includes real estate, motor vehicles, business interests, investments and shares, furniture, cash and superannuation.
The parties’ contributions are assessed including monetary contributions such as assets brought into the relationship and earnings from employment, and non-financial contributions such as caring for the family.
The parties’ future needs are evaluated in consideration of their respective earning capacities, age, health and need of the primary carer of children to provide a suitable home.
In all of the circumstances, orders are made that are ‘just and equitable’.

The Court’s determination in these matters is discretionary and it will take account of various factors. The starting point however is usually an equal distribution of assets.

Arrangements for children

If there are children of the de facto relationship, agreements regarding their future care may be documented in parenting plans or consent orders (as for property division) without going to Court.

If agreement cannot be reached on parenting issues it may be necessary to apply to Court for the appropriate orders. The overriding principle considered in children’s matters is always that the best interests of the child are paramount. Essentially, this means that children:

should have the benefit of a meaningful relationship with both parents;
be protected from physical and psychological harm;
receive parenting that allows them to reach their full potential;
unless there are issues of risk, have the right to spend time on a regular basis with both parents.

Generally, parental responsibility should be equally shared. This does not necessarily mean that the children will spend equal time with each parent but that the parents are jointly responsible for long-term decisions affecting the health, welfare and education of their children.

The length of time children spend with each parent will depend on various factors such as their ages and ability to cope with change, their relationship with other siblings, the parents’ respective work commitments, schooling and location.

If you are ending or beginning a de facto relationship it is important to know your legal rights and obligations.

If your relationship has broken down, even if you and your ex-partner are amicable, agreements on property division should be documented to legally end your financial affairs.

If there are children involved, a conciliatory process is almost always better for all, bearing in mind that care arrangements and the needs of the children may change over time.

If you are going through a relationship break down and not sure what to do please give our team a call on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Wills for Blended Families

Thu, 08 Nov 2018 01:19:00 GMT

Wills for Blended Families

There is no one-fit solution when it comes to estate planning for the blended family. The dynamics and needs within families evolve and personal assets may fluctuate from year to year. However, by identifying the potential issues that might arise within each family unit, and considering some options to address these, an effective estate plan can be accomplished.

The important thing is to discuss your circumstances and objectives with your legal advisor so that your wishes can be properly set out in your Will and other estate planning documents. These documents should be reviewed regularly to take account of changing circumstances.

Competing interests – the common issue

The most typical issues faced by a Will-maker within a blended family are the competing interests of past and present partners, biological children and step-children. The Will-maker is likely to want to look after the current partner and also children from previous relationships. There may also be children of the present relationship and children from the partner’s prior relationship to consider.

Traditionally, a Will for a married couple provides for the estate to go to the surviving partner in the first instance and then upon their death, to the children. This is likely to be inappropriate for blended families – not only must the children of the deceased wait until the step-parent dies before inheriting, but there is a risk that the surviving partner may change their Will so that the deceased’s own children miss out. A further risk is that the assets may over time diminish, leaving little for the deceased’s children.

In some instances, if adequate provision is not made from a deceased estate, an eligible beneficiary may be able to make a family provision claim causing distress, delay and uncertainty during an already stressful time.

The following may provide some helpful suggestions when considering these complex issues.

Immediate gifts and interests in real estate

Testamentary trust

A testamentary trust is a trust contained in a Will that comes into effect upon the testator’s death. A testamentary trust provides flexibility and control in asset distribution amongst beneficiaries and assists in protecting your assets from third parties and creditors. Assets can be preserved so that they can pass through future generations and the trust can provide for different scenarios.

Testamentary trusts are generally tax effective and may be worthwhile considering in your estate planning if the value of your likely assets warrants the establishment and administrative costs.

Choosing your executor

These are some important points worth remember when considering estate planning for the blended family:

Talk to your partner about your estate planning objectives.
List all assets including those held separately and jointly.
Consider everybody from the family including spouses, previous spouses, biological and step-children, and identify those whom you wish to benefit – preparing a family tree may be helpful.
Contemplate if your choice of beneficiaries might leave open the potential for a family provision claim. You may need to discuss this with your legal advisor.
Choose impartial executors.
Discuss your objectives with your lawyer so the relevant documents can be prepared.
Ensure that you have binding death benefit nominations in place for your superannuation and life insurance policies.
Review your Will and plans regularly, and immediately if your personal, health or financial circumstances significantly change.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

What to do if your Driver’s Licence is at Risk

Thu, 08 Nov 2018 01:09:00 GMT

What to do if your Driver’s Licence is at risk

Did you know that in certain circumstances a driver of a motor vehicle, who may otherwise have their licence suspended or possibly cancelled, may be able to apply to a Court for a good behaviour licence?

And did you know that it may be possible to have a Court review a decision by the Roads and Maritime Service (RMS – formerly the RTA)? The Court may still impose a penalty but it might be more lenient than the current penalty. In short it pays to get advice if you are confronting this.

What is a good behaviour licence?
For unrestricted licence holders who accumulate 13 or more points in a three year period a good behaviour licence may be a welcome solution for you. Rather than having your licence suspended at this point, you may apply to RMS for a good behaviour licence. This licence runs for a 12 month period and during this time you are only entitled to accumulate 2 demerit points.

When do you need to apply?
If you have exceeded your demerit point limit you will be issued with a Notice of Suspension by the RMS. The suspension notice will state the date on which your suspension will start. It is essential that you apply for a good behaviour licence prior to your licence suspension commencing.

When Can You Appeal a Licence Suspension?

You can appeal against a Licence Suspension in the following circumstances:

RMS suspension for exceeding the speed limit by 30kph or 45kph. In these circumstances you will receive a suspension letter after paying the infringement notice.
On the spot suspensions for offences such as mid-range drink driving, high range drink driving, driving in a manner dangerous, speed dangerous, street racing, burnout to name the most common offences
A decision by the RMS to suspend a P1 or P2 provisional driver’s licence for loss of demerit points

Note you cannot appeal a Licence Suspension for drivers with a ‘full licence’ as a result of demerit points exceeding the limit.

No second chances
There are no second chances with Licence Appeals, it is important to be properly prepared the first time as the Court’s decision is binding.

You will need to know the Court process and should expect to be giving evidence. In addition it is likely that you will need to gather supporting evidence. You will need to seek legal help from a lawyer with experience in this field.

Time limits apply
You only have 28 days to lodge an Appeal after you receive the RTA notification letter or find out that you are suspended.

Section 10 Orders
In general terms when a judicial officer makes an Order under this section it has the effect of the offence being proven in Court against you but there is no finding against you.

In these circumstances the RMS is not to impose demerit points where a Court orders that a person not be convicted of a traffic offence under Section 10 of the Crimes (Sentencing Procedure) Act. This means that you can elect to take a traffic infringement notice to Court and ask the Court not to convict you.

If you are successful in persuading the Court to order a section 10 you will not accumulate demerit points for the traffic offence and therefore your licence will not be suspended.

Do you know a driver who needs assistance?
Appealing decisions should not be taken lightly. Any applicant should ensure that they have received fully informed legal advice as to how they should plead and how best to maximise their chances of success with an application.

These matters require the assistance of a legal specialist who can not only advise as to the merits of the application but also prepare the necessary documentation. For any assistance call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Mortgages Made Easy: Obtaining Finance to Buy a Home

Wed, 26 Sep 2018 04:26:00 GMT

Mortgages Made Easy: Obtaining Finance to Buy a Home

Most people buy a home with a combination of their savings, proceeds from the sale of an existing home and a loan from a bank.

Securing finance to purchase a property involves a number of steps and expenses.

Below is an explanation of a typical mortgage. However, care should be taken to read and understand the specific terms of your mortgage document and to obtain legal advice relating to the particular document.

What is a Mortgage?

When you borrow money from a bank to buy a home, the bank will hold a mortgage over the property as security for the loan. A mortgage provides security to a bank and is usually registered on the title to the property.

If a borrower defaults in making loan repayments or complying with the other obligations under the mortgage, such as insuring or maintaining the property the bank can call in the loan and sell the property to cover its costs and expenses.

There are a number of different types of mortgages, including:

Variable rate mortgage: where the interest rate varies over the term of the loan.
Fixed rate mortgage: where the loan has a fixed interest rate and repayments for a set period.
Low-start and high-start mortgages: where the loan allows your initial repayments to start low and increase over time, and vice versa.
Reverse equity mortgage: where lenders advance money to people in their retirement years and repayment is often deferred until the house is sold.

Finding a home loan provider

There are many mortgage providers in the market which offer different rates and products. You should identify what it is you want from a home loan and shop around in order to find the right home loan for you and your needs. The key issues to discuss with a mortgage provider are interest rates, loan features and fees.

There are a number of comparison sites which provide up to date mortgage rates and list the loans currently available in Australia. However, you might want to engage a mortgage broker to compare home loan providers and to find a home loan which suits your individual needs and lifestyle.

Mortgage application

Once you have found a home loan and lender which you think might be suitable, steps can then be taken to submit a home loan application.

A potential borrower’s credit history will be scrutinised by a lender. If you have failed to pay off a loan or credit card debt in the past, a lender might reject your loan application. If you have previously defaulted, it is best to be up front with the lender and explain the circumstances as to why it occurred.

It is also important to ensure that all your expenses are declared and that you submit your home loan application with all the required documentation. Not submitting the right paperwork can delay your application being processed and can derail any property purchases.

A guarantee for you loan

If a home loan provider thinks that you might have difficulty repaying the loan, it might ask that a third party provide a guarantee to satisfy your loan agreement obligations if you default on repayments. It is often a family member or friend who will act as a guarantor.

Although a guarantee might help you to secure a loan, it is a significant responsibility for the guarantor and not something to be treated lightly. A guarantor should always obtain their own legal advice about the guarantee documents and the obligations being entered into.

Consumer protection

Under the National Consumer Credit Protection Act 2009 a loan provider must provide information which is clear and easy to understand. A loan provider must also give you information about the relevant fees and charges associated with your home loan and a statement outlining your rights and obligations.

Buying a property can be an exciting time. However, with so many home loan providers and loan features on the market, it can be a complicated process to secure the right home loan for you. The better informed you are the more likely you will be able to secure a loan which meets your needs.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

The post Mortgages Made Easy: Obtaining Finance to Buy a Home appeared first on Equilaw Solicitors .

Business Structures: Company

Wed, 26 Sep 2018 04:22:00 GMT

Business Structures: Company

When commencing a business venture, it is necessary to consider the most appropriate type of business structure to put in place. Different business structures have different benefits and disadvantages. This article looks at companies – how to set one up and the pros and cons of a company structure.

Key Features

A company is a separate legal entity capable of holding assets in its own name and liable for its own obligations. A company is owned by shareholders. The liability of shareholders is usually limited to the amount of their shareholding guarantee. This means that shareholders can limit their personal liability and are not generally liable for the debts of the company.

Directors manage the day to day business affairs of the company. There are a number of duties and obligations for company directors including an obligation that a director must act in the best interests of the company.

In Australia, the most common forms of company are:

Private company (or a proprietary limited company): this is a company which does not sell its shares to the public and cannot raise money from the general public through share issue.
Public company: is a company whose shares are owned by the public at large, with the company’s shares usually listed for trade on a stock exchange

Companies are regulated by the Australian Securities Investment Commission (ASIC) and governed by the Corporations Law.

How to Set up a Company

An Australian company must be registered with ASIC. When ASIC registers a company, the company will be given an Australian Company Number (ACN). An application must nominate a principal place of business and registered office for the company.

Prior to lodging an application for registration, consideration should be given to:

the proposed company name. A check should be undertaken to confirm the availability of the proposed name. If no name is specified in the application, the company will be referred to by its ACN.
what rules will apply to govern the company. This can generally be the replaceable rules from the Corporations Act (which means that the company does not require its own written constitution), a constitution or a combination of the two.
who will be the shareholders and directors of the company.

A company needs its own Tax File Number, which can be obtained online from the Australian Taxation Office (ATO) and an annual tax return must be filed.

A company must be registered for GST if its annual turnover is $75,000 or more. An Australian Business Number (ABN) is required to register for GST and can be obtained online through the Australian Business Register.

Pros and Cons

The advantages of forming a company include:

liability for shareholders is limited
easier to raise finance for expansion
ownership can be easily transferred
taxation rates can be favourable

The disadvantages include:

expensive to form, maintain and wind up
reporting requirements can be complex
must publicly disclose key information
owners cannot offset losses against other income

A company might be a suitable business structure for unrelated parties who want to commence a business venture together, where there is a degree of risk and limited liability is wanted or where there is a desire to list the company on the stock exchange.

Establishment of a company and ongoing administrative and compliance costs associated with the Corporations Law can be high. An accountant or lawyer can help you understand the cost and risks of a company and explain whether a company structure would be suitable for your business going forward.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Avoid Nasty Taxation Surprises In Family Law Settlements

Wed, 26 Sep 2018 04:04:00 GMT

Avoid Nasty Taxation Surprises In Family Law Settlements

There are significant differences in the tax consequences of certain family law related actions particularly when negotiating property settlement outcomes – the cutting of the cake!

Unique opportunities in the family law environment can enable a couple to lawfully restructure wealth while avoiding, or minimising, the hefty tax and revenue consequences. Conversely, concluding a family law property settlement only to discover adverse and unintended tax consequences is the last thing anyone wants.

Naturally this area is very complex and each person needs to seek their own advice to ascertain their own tax implications from an experienced family law expert.

Different ways a couple can reach a property settlement

Separated couples do have choices when it comes to resolving the division of their property. There are a number of ways in which a separating couple can adjust their property interests, most commonly these include:

Implementing transfers amongst themselves;
By a Court Order (either by consent or after a Defended Hearing);
By way of Financial Agreement under the Family Law Act.

This article examines the tax consequences for the different types of assets that are often held. We highlight some beneficial restructuring opportunities that are unique to family law property settlements and, if used with care, can allow spouses to maximise their property settlement outcomes.

There are two main revenue taxes Stamp Duty and Capital Gains Tax:

Stamp Duty

The Family Law Act contains an exemption from duty payments on transactions which adhere to a Family Court Order or certain financial agreements.

In some cases, if the terms of the order or agreement clearly provide for it, property can also be transferred from a spouse to a company (trustee of a trust), or vice versa.

Rulings as to transactions under Family Law Act Orders and specified financial agreements are usually available from state-based Stamp Duties Authorities as they can be subject to discretionary decisions.

Capital Gains Tax (CGT)

In lengthy marriages it is not uncommon for the property pool to comprise investments acquired many years prior with significant unrealised capital gains. Fear can surround the selling down of these assets to create cash sufficient to implement a property settlement, given the tax liability which will be triggered on the disposal and which will immediately erode the asset pool.

However, if orders are made or a financial agreement reached in accordance with the Family Law Act, the triggering of such CGT liability is automatically deferred as roll-over relief under the matrimonial exemptions of the Income Tax Assessment Act 1997.

This means that the title to the asset passes from one party to the other on the basis that the unrealised gain is deferred until the spouse receiving the asset disposes of it at some future point. The receiving spouse is deemed to have acquired the asset when the transferor did, the extent of any gain being calculated based on the transferor’s cost base at the time of the transfer to the receiving spouse, plus incidental costs.

Roll-over relief also ensures that a pre-CGT asset can be transferred to a spouse while preserving its pre-CGT status.

This relief can potentially be used to address ‘sleeping giant’ tax issues, by moving an asset from one spouse to the other (so as to access concessional rates of tax or capital losses available to one spouse but not the other) before a disposal occurs, so that the optimum tax outcome can be achieved in respect of any capital gains.

A short summary of tax consequences for different types of assets is set out below:

Real estate

The most common form of real estate is the matrimonial home which is often held in the joint names of the separating couple. Generally, a settlement which involves the transfer of the matrimonial home from one person to the other will not be affected by Capital Gains Tax. This is because the Capital Gains Tax legislation contains a main residence exemption.

Investment properties

Families often have investment properties which are held in the name of one or both of the parties, or in the name of a corporate entity as Trustee for a Family Discretionary Trust.

If the property was acquired after 20 September 1985, a transfer of the property will generally trigger a Capital Gains Tax liability. This means that the difference between the cost of the property and the sale price (or half the difference if the property has been held for more than 12 months), will be added to the income of the person selling and taxed at the marginal income tax rate.

An investment property owned by one spouse can be transferred to another spouse by way of property settlement, with a stamp duty exemption.

Family Trusts

Where a Trustee of a Family Trust holds real estate this can, in some instances, be transferred to a spouse beneficiary through a Court Order or Financial Agreement. This may attract a ‘rollover relief’ which will postpone the payment of Capital Gains Tax.

Shareholdings

Transfers of shares between spouses and de facto couples are generally subject to Capital Gains Tax unless the transfers are by way of a Court Order or a Financial Agreement which then enables it to attract “rollover relief”.

Motor vehicles

Transfers of motor vehicles are generally not subject to Capital Gains Tax.

Businesses

A transfer of a business or a company structure operating a business or the closure or sale of a business, may have significant taxation consequences.

Specialist advice must be provided in order to ensure that any settlement is undertaken in the most tax effective manner.

As you can imagine the tax implications that can arise through divorce are almost boundless. For those who take advice from their specialist lawyers and accountants early in their property settlement, there is potential for some restructuring benefits.

Having a legal expert thinking creatively in terms of options and taking into account the nature and characteristics of the property pool, there is potential to move assets into a position where there are reduced revenue consequences and with deferred and potentially minimised tax consequences.

The law here is very complex and if you know someone who might need assistance feel free to get them to call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Understanding Spousal Maintenance Obligations

Tue, 28 Aug 2018 06:00:00 GMT

Understanding Spousal Maintenance Obligations

It is not widely known that when we enter into a marriage or de facto relationship, in certain circumstances, a spouse may be liable to maintain the other in the event that their marriage or de facto relationship breaks down.

This responsibility to financially assist the other is set out in the Family Law Act and exists if that person cannot meet their own reasonable expenses from their personal income or assets.

Where this need exists both parties have an equal duty to support and maintain each other as far as they can and this obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

Spousal Maintenance is different to Child Support

It is important to note that spousal maintenance is not child support.

Child support is paid for the benefit of children and in addition to that the Family Court can order a party to pay spousal maintenance. The Department of Human Services administers Australia’s Child Support Scheme and works with separated parents to manage their child support responsibilities for the benefit of their children.

What is Spousal Maintenance exactly?

The Family Court can only make an order for one party to pay “spousal maintenance” to the other if the spouse making the application is unable to adequately meet his or her own reasonable needs and the other spouse has the capacity to pay.

Maintenance for a former spouse or de facto partner is the division of future income and/or current capital assets following the breakdown of a marriage or de facto relationship. In certain circumstances, separating couples can have an obligation to provide ongoing financial payments in the form of weekly or lump sum payments by way of maintenance for their former spouse or de facto partner.

This liability to maintain a former spouse or de facto partner can continue until their death or until they have the financial capacity to support themselves. Usually the payment of spousal maintenance is tailored to end upon the occurrence of a specific event, for example, the person receiving maintenance completing training or re-skilling, securing employment or commencing a new de facto relationship.

Time Limits

Applications for spousal maintenance for married couples must be made within 12 months of their divorce becoming final whereas applications for de facto partner maintenance must be made within 2 years of the breakdown of the de facto relationship.

It is possible to apply outside the time limits but the Court does not always grant these late applications.

What if the person is in a new relationship?

A former spouse is not entitled to maintenance if they marry another person. If you start a new de facto relationship the court will have regard to the financial relationship between that person and their new de facto partner when considering whether the former spouse can support himself or herself adequately.

What does a Court consider?

Spousal maintenance is not automatic. In deciding a maintenance application, a Court considers the needs of an applicant and the respondent’s capacity to pay including the parties:

Age and health
Income, property, and financial resources
Ability to work
Ability to earn an income as a result of the marriage
Suitable standard of living

It is most likely to be ordered in cases where one party is at home with the care of young children and therefore unable to exercise their income earning capacity.

Other examples could be where one party has been out of the workforce for a significant period of time raising the children and has become de-skilled or unemployable due to age, or where one party was unable to work due to illness.

A party’s obligation to pay spousal maintenance may be discharged in various ways including through periodic and regular payments or by way of a lump sum payment. It may also exist for different periods of time.

Although spousal maintenance is generally intended to operate only for a short period of time following separation to enable applicants to get back on their feet, in certain circumstances, it may be appropriate that spousal maintenance be paid for a longer period of time.

The calculation of and assessment for the need of spousal maintenance requires a deep understanding of family law and time limits apply.

If you know someone who needs help and would like to have a confidential discussion please arrange for them to call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Property Transfers Following A Deceased Estate

Tue, 28 Aug 2018 05:49:00 GMT

Property transfers following a deceased estate

Executors and administrators, referred to as the Legal Personal Representative (LPR), of a deceased estate hold a position of considerable trust and must act with care and diligence in handling estate assets.

The role of the LPR includes the identification, protection and preservation of estate assets, ascertaining liabilities, paying debts and then distributing net assets to those entitled.

The LPR is accountable to the beneficiaries and may be held liable for losses sustained through negligence. They must ensure that the terms of the Will or rules for distribution of an intestate estate, are strictly followed. The transfer of property forms a large part of this role.

When can property be transferred?

Unless all estate assets are held jointly or the estate is very small, and it is unlikely that a claim will be made on the estate, a grant of probate or letters of administration (in the case of an intestate estate) is generally required.

A grant gives the executor or administrator Court approval to commence dealing with the assets of the estate.

Although the estate should be administered without undue delay, the LPR must also ensure that all liabilities are met and there are no claims on the estate before transferring assets.

To protect an LPR from liability, a notice of intended distribution of the estate is published. This gives potential claimants and creditors an opportunity to make a claim. If no claim is received within the timeframe applicable for the respective state / territory in which the grant was made, the estate can be administered and property transferred.

Where to start

It is important that a full list of assets and liabilities is held – if a grant of probate or letters of administration has been made then the list would already have been prepared.

The LPR will need to read the Will carefully to ensure that property is distributed in accordance with the wishes of the deceased. This is generally straight-forward however sometimes Wills are ambiguous or contain complex formulae for working out the respective amounts or assets that the beneficiaries are to receive. The Will may also establish one or more trusts which will require ongoing management and administration.

If there is uncertainty regarding the terms of the Will, or in calculating the beneficiaries’ respective shares, then appropriate advice should be obtained. Assistance may also be required to establish and maintain trusts.

The LPR should open an account in the name of the estate to receive funds from the closure of the deceased’s bank or building society accounts, the cashing of investments, or the sale of assets. The account may be used to pay estate expenses and, finally, to distribute surplus funds to beneficiaries.

Transferring personal property

The transfer of personal items is generally straight-forward. The Will may identify and provide specific gifts of certain pieces of artwork, jewellery or antiques to named beneficiaries. Alternatively, it may provide for the general distribution of personal items between all beneficiaries.

A common-sense approach generally works when transferring personal property.

The transfer of motor vehicles will be in accordance with the respective state / territory legislative requirements. The authorities will generally require proof of death and proof of entitlement of the transferee (a copy of the grant or Will).

Transferring Real Estate

Real estate is generally the most considerable asset to be transferred from a deceased estate. A grant of probate or letters of administration is required to transfer property owned outright by the deceased or a share in real estate held in his or her sole name.

Property that was held by the deceased with another party or parties as joint tenants does not form part of the estate. It is simply transferred to the surviving co-owner/s in accordance with the processes required in each state or territory. This generally requires completion of the appropriate transmission and sales notices, and lodgement with the title document and proof of death with the relevant authority.

The sale or transfer of real estate forming part of the estate may have significant capital gains tax and stamp duty implications. Executors, administrators and beneficiaries should ensure they obtain appropriate financial or legal advice on such matters. For example, the timing of a beneficiary receiving a high-value asset may need to be carefully considered – it may be financially beneficial to retain an asset in trust for a certain period of time, rather than transferring it immediately.

The LPR may need to arrange valuations prior to the sale or transfer of real estate. These costs generally come out of the estate funds. The LPR will also need to ensure that insurance is maintained for real estate (and other considerable assets) and that beneficiaries are advised to obtain their own insurance. Once the property is transferred and before current insurance policies are cancelled.

To transfer real estate held New South Wales, the executor or administrator completes a transmission application which is lodged with the Land and Property Office with a notice of sale and certified copy of the grant of probate or letters of administration.

Real estate can be transferred directly to a beneficiary named in the Will or alternatively, to the executor who may then sell or otherwise deal with the property. Nominal stamp duty (currently $50) is payable on the transfer from the executor to a beneficiary. Your lawyer can advise on the process required to transfer real estate in other states or territories.

Executors and administrators have a duty to act with care and diligence and should understand the requirements for accessing and dealing with estate assets. It is important to obtain legal or financial advice to ensure that stamp duty and taxation implications are considered.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

An Overview of Retail Leases

Tue, 28 Aug 2018 05:41:00 GMT

An Overview of Retail Leases

Commercial leases form part of many business transactions. When leasing commercial property, it is important for both landlords and tenants to understand the relationship they are entering and the rights and obligations they each have. A commercial lease governs such matters.

Some commercial leases are classified as ‘retail’ and, in New South Wales, are governed by the Retail Leases Act 1994 (NSW) (the ‘Act’). A retail lease is essentially a commercial lease regulated by the Act.

The Retail Leases Amendment (Review) Act 2017 which commenced on 1 July 2017 aims to enhance transparency during the leasing process and streamline some of the key features of retail leasing. This article provides a brief overview of retail leasing and explains some of the important changes impacting retail leases.

Landlord’s key requirements for retail leasing

A landlord must provide all information relevant to a prospective tenant’s decision about whether to enter or renew a retail lease. For a new retail lease the following documents must be available before the landlord or agent offers to lease retail premises:

a draft copy of the proposed lease;
a disclosure statement;
the NSW Retail Tenant’s Guide, which outlines the rights and obligations of retail tenants and landlords and explains some commercial matters.

These requirements are widely referred to as a landlord’s disclosure obligations.

Disclosure statement

The disclosure statement outlines important information about the lease and includes details about:

the premises to be leased, amenities, shared facilities and any other items included such as air conditioning or other services;
the term of the lease and renewal options;
the rent payable, rent reviews and the method for calculating reviews;
the tenant’s estimated liability for itemised outgoings;
tenant’s fit out requirements;
relocation or demolition clauses and details of any future works planned;
specific information for shopping centre leases such as trading hours and details of other retail shops, leases, etc.

The lessor disclosure statement must be provided to a tenant at least seven days before the lease commences.

Key changes introduced

Excluded premises

The characterisation of a property as a ‘retail premises’ is usually obvious by the nature of the property itself and its location. Retail premises largely include shops and outlets situated in a retail centre and / or utilised for selling, hiring or providing goods and services to the public.

Certain premises, although located in a retail shopping complex, are now excluded from the Act. These include premises in which ATMs, vending machines, storage lockers and digital display screens are situated. Market stalls of a temporary nature are also excluded from the Act.

No minimum lease terms

Retail leases previously needed to be for a term of at least five years unless the tenant obtained a solicitor-verified section 16(3) certificate waiving that requirement. Traditionally, this was to allow tenants the opportunity to develop longevity and goodwill in a business. The requirement however was frequently contracted out of by agreement between the parties and a retail lease no longer has a minimum term requirement.

Registration requirements

Leases for a term exceeding three years must be lodged for registration within three months after being signed by the tenant and returned to the landlord. The landlord must also provide the tenant with a copy of the fully-signed lease within three months of having received it from the tenant.

The Act provides some leeway for delays due to the need for a landlord to obtain mortgagee consent to the lease and for delays beyond the control of the landlord.

Compensation for termination within six months

Failure by the landlord to issue a lessor disclosure statement within seven days prior to the lease being entered or for providing a materially false, misleading or incomplete disclosure statement enables a tenant to terminate the lease within the first six months.

The Act now provides that tenants who validly terminate a lease in such circumstances have the additional right to claim compensation for expenses reasonably outlaid in entering the lease including recovery of fit-out costs.

Disclosure statements and outgoings

Disclosure statements play an important role in the retail leasing process and must set out the tenant’s liability for outgoings and estimate the cost of those items.

New provisions preclude a landlord from requiring a tenant to pay for an outgoing that has not been included in a disclosure statement. Further, landlords are restricted to claiming only the estimated amount of an outgoing noted in a disclosure statement in circumstances where the actual cost exceeds the estimated cost and there are no reasonable grounds for the estimate provided.

The restriction does not apply to taxes, rates or levies imposed under legislation and not anticipated or effective prior to issuing the disclosure statement.

The definition of outgoings now specifically includes fees charged by the landlord in connection with the management, operation, maintenance or repair of the retail shop building or land.

Disclosure statements may be amended by agreement between the parties after the lease has commenced – any changes will be effective as determined in the agreement. Additionally, the New South Wales Civil and Administrative Tribunal (NCAT) may order the rectification of a disclosure statement or deem that a disclosure statement has been provided in certain circumstances.

The jurisdictional limit for resolving retail lease disputes at NCAT has increased from $400,000 to $750,000.

Turnover rent

Online transactions are clearly excluded from calculating percentage turnover rent. Except when goods relating to the transaction are delivered to the leased premises for collection, or where the online transaction occurs whilst the customer is on the premises. The landlord is prohibited from requesting information about online transactions unless they fall into the exempted categories noted above.

Demolition clauses

A demolition clause allows the landlord to terminate a lease if the building in which the leased premises is situated is to be demolished. These provisions have been unclear in the past. The definition of demolition has been amended to clarify that ‘repair, renovation and reconstruction’ works may invoke a demolition clause.

This means that only part of a building needs to be the subject of demolition work for a landlord to rely on a demolition clause in the lease.

Reforms to the Retail Leases Act 1994 have introduced changes to the retail leasing process. Leasing documents and procedures should be carefully reviewed to ensure compliance with the Act. Parties should be conversant with their respective rights and obligations.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Have You Been Left Out Of A Will?

Mon, 23 Jul 2018 02:49:00 GMT

Have You Been Left Out Of A Will?

The loss of a family member is always a difficult time, but it can become more distressing to learn that you have not been included in the family member’s Will.

Generally, a person may leave their assets to whomever they wish. However, the law recognises that there are those who relied on the deceased for support who can sometimes be unfairly left out of the deceased’s Will and are therefore able to make a claim so that their needs are adequately provided for.

In these circumstances a person can consider challenging the deceased’s Will or contesting the Estate. There are two main ways that this can happen:

The validity of the Will may be challenged on the basis that the Will maker did not have the legal capacity to make the Will, or didn’t understand what they were signing; or
A claim can be made under the Succession Act on the basis that the Will maker failed to provide for a family member where they had a moral obligation to do so.

Under the Succession Act, only persons who qualify as eligible persons under the Act may apply to the Court. There are seven categories of eligible persons, namely:

The wife or husband with the deceased when they died;
A person in a de facto relationship with the deceased when they died (including same sex partners);
A child of the deceased;
Former wives and husbands of the deceased or former de facto partners of the deceased, who were receiving or entitled to receive maintenance from the deceased when they died;
A grandchild of the deceased, in certain circumstances;
A step-child of the deceased in certain circumstances; and
A parent of the deceased.

To show that you are entitled to receive some benefit from the estate you must show that the deceased had an obligation to provide for you and that you have been left without adequate provision for your proper maintenance, education or advancement in life.

It is important to note that inheritance claims are subject to strict time limit, which is 12 months after the date of death.

You may not need to go to court as most parties encourage mediation to avoid unnecessary legal costs or any lengthy delays.

If you are concerned, please be sure to contact us as soon as possible or you may be prevented from making a claim. It is usually a good idea to try and get a copy of the last Will of the deceased so that you can discuss the details with us more accurately.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

What Happens If Your House Is Damaged Before Settlement?

Mon, 23 Jul 2018 02:33:00 GMT

What Happens If Your House Is Damaged Before Settlement?

You’ve walked the streets, negotiated with agents and vendors, signed contracts and loan documents and finally await the settlement date with great anticipation.

With just a week to go before the big day your lawyer calls to advise you that last night’s big storm front hit your dream home. The roof of your house is no more. There is extensive water damage to most of the internal fixtures.

Can you get out of the contract? Is the vendor obliged to fix the damage before settlement? What if you still want to proceed with the purchase but the vendor does not?

This article explores the legal position of a purchaser and vendor when the subject of the sale is damaged after exchange of contracts but before settlement. The information is equally relevant to both parties involved in a residential conveyancing transaction.

The passing of risk

The time that risk passes between a vendor and purchaser is the key to determining the parties’ rights if the property is damaged between exchange of contracts and settlement.

The Conveyancing Act 1919 (NSW) (the ‘Act’) provides that risk for a residential property under contract does not generally pass to a purchaser until the contract is completed. This means that vendors are responsible for any significant damage to the property and should therefore retain insurance until settlement.

The exception to this rule is when a purchaser takes early possession of the land. Possession of the land means an entitlement to occupy the property (through licence or otherwise) or to receive rent from the property.

In these circumstances, the risk passes to the purchaser and vendors should insist on evidence of adequate insurance cover. It is also recommended a licence agreement be prepared setting out the obligations of the parties and confirming the transfer of risk.

Purchasers should complete an inspection of the property prior to taking possession as thereafter they may lose their right to claim for damages.

The parties’ rights when property is substantially damaged

Part 4. of the Act sets out what happens if a property is substantially damaged between exchange and completion.

The determination will turn on whether risk has passed to a purchaser and if the damage is considered ‘substantial’.

The Act defines substantial damage to land as damage that renders the land materially different from that which the purchaser contracted to buy. Land includes buildings and other fixtures. A basic example would be severe damage that causes a house to be inhabitable.

Section 66L provides that a purchaser may rescind a contract if the land is substantially damaged before the risk passes to the purchaser. Generally, a purchaser must give the vendor written notice of rescission before completion and within 28 days of becoming aware of the damage.

The purchaser’s statutory right of rescission in the event of substantial damage to a residential dwelling cannot be modified by provisions to the contrary in the contract.

The effect of rescission is that the deposit will be refunded to the purchaser and the parties will be relieved of further obligations under the contract. An exception to this is any liability incurred by a party from an earlier breach of the contract or adjustments due for any benefit the purchaser has received arising from early possession of the land.

If the damage has been caused by the purchaser’s negligence, then there is no entitlement to rescind.

Price reductions for damaged property

If land is damaged between exchange and completion, whether substantially or not, the Act provides for an abatement of the purchase price which may be adjusted on settlement. The price reduction should be ‘just and equitable in the circumstances’.

If a price reduction cannot be agreed and is not made on settlement, then the purchaser will have a right to recover an amount as a debt after completion. This, of course, is not ideal and to avoid delays, the parties may agree to proceed to settlement and retain a portion of the purchase price in trust pending resolution of the matter after completion.

If land is substantially damaged, and the purchaser does not wish to rescind, the Court may refuse to force a vendor to complete a contract (specific performance) if it is unjust and inequitable to do so. In such matters, the Court may order the repayment of money to a purchaser and give any other directions considered appropriate. For example, if a house under contract is completely destroyed by fire, it may be onerous to force a vendor to complete as he / she would need to claim on insurance to have the house totally re-built.

Minor damage / fair wear and tear

Essentially, a vendor is required to provide ‘vacant possession’ of the property on completion. Subject to any provisions in the contract to the contrary, the property should have items and furniture removed and be in the same or similar condition and state of repair as when it was sold to the purchaser.

Claims for ‘damage’ do not encompass matters considered to constitute ‘fair wear and tear’. Most contracts include conditions that specifically prevent a purchaser from making a claim for compensation, or delaying settlement, for these things. Consequently, if an appliance such as an air-conditioner or stove-top breaks down between exchange and completion, the purchaser would have no recourse to compensation or other remedy.

Determining ‘substantial damage’ – an example

Whilst the legislation seems straight-forward the definition of substantial damage may be difficult to determine and will generally turn on the circumstances of each case.

In the case of Bakhos v Fenner and Anor [2007] NSWSC, damage caused to a property by a fire was not determined ‘substantial’ and the plaintiff (purchaser) was denied the right to rescind the contract.

Considerable damage was evident, including shattered windows, smoke damage, burnt carpets and sagging ceilings due to water damage caused by fire-fighting efforts. However, the Court ruled that the buyer did not have a right to rescind the contract and his attempts to do so constituted a repudiation enabling the vendor to retain the deposit. The factors influencing the Court’s decision were:

the nature of the property, being a two-bedroom outdated brick and tile home of 50 plus years and ‘showing signs of age’;
the economic significance of the house in light of the contract price of $1,400,000;
the purchaser’s redevelopment plans for the property; and
the fact that the vendor carried out satisfactory repair work prior to the proposed settlement date.

In all the circumstances, the Court found that the damage to the property did not render it materially different to the property that the purchaser contracted to buy – it was ‘ extremely improbable that the house and the condition of the house were material in the valuation of the property and [the purchaser’s] decision to buy the property’ .

The passing of risk and the determination of ‘substantial damage’ affect the rights of the parties to a contract after exchange and prior to completion. Vendors and purchasers should be aware of these rights. Ensure insurance is maintained and inspections completed before taking possession or prior to settlement.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Business Structures – Trusts

Mon, 23 Jul 2018 02:17:00 GMT

Business Structures – Trusts

When commencing a business venture, it is necessary to consider the most appropriate type of business structure to put in place. Different business structures have different benefits and disadvantages. This article looks at trusts – how to set up a trust and the pros and cons of the trust structure.

Key Features

A trust is an obligation imposed on a person (the trustee) to hold property or income for the benefit of others (the beneficiaries). A trustee is responsible for the operation of the trust. A trustee can be an individual, partnership or a company.

There are a number of laws which govern how a trustee must perform his or her obligations to the trust. The primary obligation of a trustee is to act in the best interests of the beneficiaries of the trust.

Trusts are set up for a number of reasons, including family and charitable purposes. For business purposes, the most common types of trusts are:

Discretionary trusts (also called a Family Trust):

The trustees of a discretionary trust are able to distribute income and capital gains to beneficiaries in whatever way they desire. There is no fixed entitlement for each and every beneficiary.

Unit Trusts:

A unit trust is like a company where the trust property is divided into a number of shares called units. The number of units held by each beneficiary determines his or her entitlement to a share of assets and income.

Hybrid Trusts:

A cross between a Discretionary and a Unit Trust. Beneficiaries hold a defined amount of units but the trustee has the discretion to vary each beneficiary’s entitlements and income.

How to Set Up a Trust

A formal deed is required to set up a trust. A trust deed outlines the purpose of a trust, the property involved, the rights and obligations of the trustee and beneficiaries and how assets will be distributed to the beneficiaries. It is recommended that a trust deed be prepared by a solicitor.

A trust must have its own Australian Business Number (ABN), which can be obtained online through the Australian Business Register.
A trust must also have its own Tax File Number (TFN), which can also be obtained online from the ATO.
A trust must be registered for GST if annual turnover is $75,000 or more.

Trusts that run a business must complete a tax return, showing the income the trust earns, deductions it claims and the amount of income distributed to each beneficiary.

Pros and Cons

The advantages of a trust structure include:

Flexibility in how income is distributed
Tax planning flexibility, including income splitting
Asset protection
Beneficiaries are generally not liable for the debts of a trust
Beneficiaries of a trust pay tax on the income they receive from the trust at their own marginal tax rates
A trust is more private than a company

The disadvantages include:

A trust is a complex legal structure, which is expensive to set up and run
There are considerable legal and compliance requirements
There can be inflexibility, as powers are restricted by the trust deed and the law
It can be difficult to make changes to the structure once it is set up

A trust might be an appropriate structure if a business venture will involve a sizeable amount of property and money. That is because a trust can be beneficial in protecting assets and minimising taxation obligations. Trusts are also a common structure choice for family businesses. This is because various family members can be made beneficiaries of the trust that is operating the business.

A trust is the most complex of all the business structures, with complicated tax implications and legal and compliance requirements. As such, it is highly recommended that advice is sought from a solicitor to check whether a trust suits your circumstances.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

The Process of Obtaining Probate

Mon, 18 Jun 2018 11:20:00 GMT

The Process of Obtaining Probate

Probate is a grant made by the Supreme Court of New South Wales. This ‘proves’ the Will of a deceased person and vests title to the estate’s assets in the named executor/s. This is the official process that enables the executor to legally deal with the deceased’s estate.

As the legal personal representative of the estate, the executor must determine the assets and liabilities, liaise with debtors, creditors and beneficiaries, sell, transfer and distribute assets and generally finalise the estate in accordance with the Will.

The executor should maintain written records of the affairs of the estate and, where necessary, file estate tax returns.

The executor is often guided by a lawyer who provides professional advice to ensure protection from liability and to deal with any complications or claims made on the estate.

If the deceased died without a valid Will or the Will appointed an executor who is unable to fulfil that position, an interested person (usually an entitled beneficiary – spouse, partner, child) may apply for letters of administration. This involves additional procedural steps.

This article explains the process of obtaining a grant of probate where there is a valid Will, and the general process of administering the estate.

Is a grant of probate necessary?

There is no statutory requirement that probate is obtained and a grant may not be necessary for small estates. Property held jointly can be transferred to the name of the surviving tenant/s by lodging the appropriate documents with the relevant authority.

Financial institutions will generally release funds of up to $50,000 on evidence of the death of the deceased, proof of those entitled to the funds and an indemnity releasing the financial institution from future claims. This is not always the case however, and relevant enquiries should be made with each institution.

A grant of probate is always required to transfer real estate that is not subject to a joint tenancy.

Unless the estate is small, simple and there is no risk of a claim being made against it, an executor will generally seek an application for a grant of probate.

Process

An application for probate should be made within six months of the testator’s death. Delays will usually require an explanation to the Court.

A notice of intended application must be published on-line with the Supreme Court Registry at least 14 days before the application is made. This warns interested parties (creditors, family provision claimants) of the application and provides an opportunity for the relevant claim, objection or caveat to be lodged.

The following documents are prepared and filed with the Court:

Summons (or application) for probate;
Will and any codicils;
Affidavit of executor/s attaching the death certificate and an inventory of assets and liabilities.

The affidavit sets out the relationship between the deceased and the executor, identifies the Will and, if appropriate, attests to the deceased’s signature on the Will. The affidavit includes details of the beneficiaries and any additional information to explain irregularities or unusual circumstances (for example, different spellings of names or the death of a beneficiary).

The affidavit discloses the estate assets and liabilities by way of an inventory and the filing fee is determined according to the estimated net value of assets. Joint assets are included in the inventory but not in the assessment of filing fees.

Once probate is granted, the executor may commence administration of the estate. If assets are held outside of New South Wales, the grant of probate will need to be ‘resealed’ in the relevant jurisdiction. This is a procedural matter in which a copy of the original grant, together with a summons and supporting documentation is filed with the relevant Court in the jurisdiction where those assets are held.

Protecting executors

Executors have a duty to uphold the provisions of the Will and to distribute the assets in accordance with the testator’s wishes. As a fiduciary to the beneficiaries, executors must act with care and diligence as they may be held liable for losses sustained through negligence or delay.

On the other hand, before distributing assets, executors must ensure liabilities are met and there are no claims on the estate. Consequently, a notice of intended distribution should be published, giving potential claimants and creditors a specific timeframe within which to make a claim. This process protects the executor from liability provided the requisite notice period has expired before distribution.

Administering the estate – dealing with the assets and liabilities

Once probate is granted and the period in the notice of intention to distribute expired, the executor may deal with the estate assets.

The Will should be carefully examined to ensure the wishes of the deceased are upheld and the distribution is in accordance with its provisions. This may be obvious where the executor is the sole beneficiary however occasionally there is uncertainty regarding some of the terms. The construction of the Will should be properly explained and understood.

The executor and beneficiaries should receive appropriate legal or financial advice when transferring / receiving assets to ensure that stamp duty, capital gains, land tax and other taxes are considered.

Executors and trustees (if the Will creates a trust) may need to make strategic decisions, under the guidance of an expert as to the appropriate timing for the sale or transfer of significant assets such as real estate and shares.

Executors should also be mindful of their duty to protect and preserve estate assets and to ensure that appropriate insurance, where relevant is in place.

If the estate includes a business interest this will require careful attention, whether the business is to be wound up, sold or transferred to a beneficiary.

Prior to distributing assets, the executor will need to be certain that:

the debts of the estate have been ascertained and paid in accordance with the statutory order for payment of debts;
funds are retained in the estate for contingent expenses such as taxes and other fees;
all beneficiaries have been identified and provision (if relevant) made for holding a minor beneficiary’s share in trust;
the minimum notice of distribution period has expired and any claims have been considered and dealt with;
a proposed distribution statement has been prepared and approved, particularly where there are multiple beneficiaries;
beneficiaries who are receiving insurable assets have arranged insurance cover in their own names before cancelling existing policies.

Applying for probate and administering an estate is an important function, and for many executors and beneficiaries, the process can seem tedious and daunting.

However, these processes are in place to ensure that executors and beneficiaries are properly protected and, importantly, that the testamentary wishes of a deceased person are properly carried out.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Childhood Immunisation and Family Law

Mon, 18 Jun 2018 11:14:00 GMT

Childhood Immunisation and Family Law

Some Australian parents have recently begun to question whether to immunise their children, expressing concerns about possible side-effects risks associated with childhood vaccinations. But what happens if parents are separated and can’t agree?

Childhood vaccines, introduced in 1932, are said to have greatly reduced illness and deaths from diseases such as whooping cough, polio, measles and mumps. However, in recent years immunisation rates have fallen amid some parents’ fears about the safety of vaccines, whether vaccines have been adequately tested and concerns about vaccines’ links to conditions such as autism, sudden infant death syndrome and multiple sclerosis.

Approximately 92% of Australian 5 year olds are fully immunised; however, in some areas the figure is lower than that. Some diseases, whooping cough for example, previously thought to be “extinct”, seem to again be on the rise.

The Australian government maintains a register of the vaccinations received by children under 7 years of age. Parental eligibility for some family payments is now linked to children’s immunisation status, and in some circumstances unimmunised children may not remain at school or daycare if there is an outbreak of a particular disease. Exemptions can be obtained if there are approved medical reasons why the child is not immunised.

Who gets to decide?

It is hoped that parents would agree on whether or not to vaccinate their children, perhaps after discussing any concerns with their family doctor. But what if they can’t agree? Who gets to decide?

Equal parental responsibility

In the absence of a Court order, both parents, whether separated or not, have equal parental responsibility for their children. In addition, except in unusual situations, the Court normally orders that both separated parents have equal shared parental responsibility.

What is equal shared parental responsibility?

Equal shared parental responsibility means that the parents both have the right to consult with each other, hopefully agree on and then implement decisions about their children’s long-term care, welfare and development. Those long-term issues include decisions such as a child’s name and religion, schooling and major health decisions. Major health decisions are things like an operation, treating a broken bone, commencing certain medication such as Ritalin, or arranging for a child to see a psychologist. Whether or not to vaccinate a child probably also constitutes a major health decision.

In other words, where parents have equal shared parental responsibility, they share the right to be consulted about and hopefully agree on whether or not to vaccinate their children. Neither parent has the right to make that decision without consulting with and obtaining the other parent’s consent.

What if we can ’ t agree?

For some parents, the immunisation debate can become emotionally charged, as they may approach the decision from different lifestyle, wellness and health care philosophies. One parent may also be concerned not to lose government benefits if the children are not fully vaccinated.

In such circumstances, no matter how much the parents consult with one another, they may never be able to reach agreement. In addition, the immunisation debate is quite “black and white” – it would not be easy to reach a compromise or middle ground. The parent who opposes vaccination is not likely to agree for the children to receive half their vaccinations, for example; just as the other parent would probably equally strongly believe that the children should get all, not half, their necessary jabs.

Can we go to Court?

If parents cannot agree about how to exercise their equal shared parental responsibility, they may have to ask the Court to decide for them. Before going to Court, they must first try to resolve their issue through mediation with a family dispute resolution practitioner.

If the parents still can’t agree, going to Court and asking a Judge to decide may be the only option. The Court generally prefers not to make these sorts of decisions for parents, but if the parents really cannot reach an agreement, then a Judge would ultimately impose his or her decision about whether or not the children should be vaccinated.

Although childhood vaccines against a range of diseases have been in use for many decades, in some parts of Australia today there is strenuous debate about the need for and safety of immunisation programs. This debate could be a source of conflict for separated parents.

In most situations, parents have equal shared parental responsibility, meaning that parents share the right to consult with one another and hopefully agree on issues relating to their children’s long-term welfare, which would include decisions about vaccinating their children. However, if they cannot agree, the Court can be asked to decide for them.

To find out more about your rights regarding the immunisation of your children, call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Airbnb: Legal Tips For Property Owners

Mon, 18 Jun 2018 10:54:00 GMT

Airbnb: Legal Tips For Property Owners

If you have looked at booking holiday accommodation recently chances are you have come across Airbnb or maybe you know someone who rents out their spare room and is always talking about the extra money they are making.

But what is Airbnb exactly, how does it work and what are the potential pitfalls and legal implications of making money out of your spare room on a casual basis?

What is Airbnb?

Airbnb styles itself as a “Community Built on Sharing” and an easy way in which people can make money from their extra space. The idea of making money out of spare space or an empty property is not new. The difference with Airbnb is that both hosts and guests must create a profile which is rated after every stay. So both hosts and guests are rated.

Airbnb started in San Francisco in 2008 and from quite modest beginnings has grown to a worldwide network of both hosts and guests with in excess of 2 million listings in over 34,000 cities worldwide. Airbnb claims to have had in excess of 60 million guests use its services.

So how does it work?

Both hosts and guests start by creating an Airbnb profile. If you are planning to host you then add details of the accommodation you wish to offer.

Accommodation options currently offered on Airbnb range from rooms in private home with shared facilities through to sole use of a castle and everything in between. The price for the accommodation is set by the host and Airbnb add a service fee to every booking.

Is it legal?

When you sign up as a host on Airbnb you agree, under the terms and conditions that any accommodation you list will not breach any lease or rental agreements or any homeowners’ association rules and that you are complying with all applicable zoning laws that govern the renting of residential properties. But is this true?

At the present time whether you are likely to run into strife with your local council will depend on where you live and whether your neighbours lodge a complaint about you, as Mr Wally Salinger, a resident in the popular inner west suburb of Annandale in Sydney recently found out.

Mr Salinger recently received a notice from his local council threatening him with a $1.1 million fine for using his home as an Airbnb rental after a neighbour lodged a complaint. Mr Salinger sought advice from the council as to what he needed to do to make sure his property could be legally rented out on Airbnb but met with a brick wall in terms of any clear solution.

Presently different council areas have different rules governing what they will and won’t allow in terms of home sharing and short term rentals. There is pressure on state governments to clarify the rules around home sharing so that there is consistency. Some councils will allow bed and breakfast arrangements (with appropriate approvals) and some councils prohibit these types of short term rentals altogether.

In Victoria and other states there is also a similar level of uncertainty. Although a recent decision of the Victorian Civil and Administrative Tribunal (“VCAT”) may bring some comfort to would be Airbnb hosts.
VCAT recently held that the owner’s corporation at the Watergate Apartments located in Melbourne’s Docklands area did not have the power to make a rule which prohibited stays of less than 30 days paving the way for Airbnb style rentals to be permitted in that particular complex.

What about insurance?

While noting on its website that it provides a “Host Guarantee” for certain types of damage done to a host’s property, Airbnb’s terms and conditions stress that any agreement between a host and a guest is strictly between those parties and that Airbnb is simply a limited authorised payment collection agent for the host for the purpose of accepting the guest’s payments.

Airbnb recommends that hosts obtain appropriate insurance for any accommodation they are offering and also that hosts review their insurance policies to make sure the insurance coverage extends to the property when it is being rented out.

Importantly, the Host Guarantee is not insurance and should not be considered to replace the host’s own home or renters insurance. The Host Guarantee does not protect cash and securities, pets and personal liability and certain types of property such as jewellery and artwork have more limited protection than say furniture.

What if someone is injured while staying at an Airbnb property?

A recent tragedy at an Airbnb rental in Texas highlighted the potential issues that can arise with this type of rental. In a tragic accident a man died after a tyre swing that he was sitting on fell when the tree trunk that it was tied to broke in half and fell on the man’s head.

In that particular instance the man’s family did not pursue a claim against Airbnb as the host’s homeowner’s insurer responded to the claim and there was no commercial activity exclusion on the policy. If the host’s insurance policy had not responded then the host could have faced potential financial ruin if a claim had been made by the family. Whether a claim against Airbnb would have succeeded remains untested.

It is always best to check first

If you are thinking of renting your home out for short term accommodation, it is important to sort out all necessary insurances and permits before you offer the accommodation to potential guests. As regulations vary widely between local government areas it is always a good idea to seek legal advice first rather than waiting until a complaint or some other problem arises.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

The Perils Of Not Making A Will

Wed, 09 May 2018 12:23:00 GMT

The Perils Of Not Making A Will

What do Michael Jackson, Abraham Lincoln, Picasso, Jimi Hendrix, Stieg Larsson and Robert Homes a Court all have in common?

You would be forgiven for thinking, not much. But in fact they do—all six died intestate which means, they died without leaving a Will. Even the rich and famous can fail to plan ahead when it comes to their estate.

What happens if someone dies without leaving a Will?

According to New South Wales law, if you don’t have a legal Will you have died intestate and your estate will be divided according to the rules of intestacy which is set in legislation.

This means that even if a friend or relative is appointed to obtain administration of your estate, the law decides who your beneficiaries are and how your estate is divided.

According to some statistics up to two-thirds of adults do not have a valid Will, potentially their leaving families with serious problems if they die. In all likelihood many more would make a valid Will if they knew what would happen if they died intestate.

Under New South Wales law, if a person dies without a Will and has a spouse who survives them by at least 30 days (including a de facto relationship as set out in the law) the estate is automatically given to the surviving spouse. This is the case even if there are children of the relationship.

After this, seemingly straight forward application of the law, the legislation provides a specific order of distribution of an intestate estate’s assets, depending on the particular situation.

Common scenarios in which an intestate’s assets are distributed include:

Spouse and Children

Where all the children are children of the relationship between the intestate and the spouse, the spouse takes the whole estate. If not all of the children are children of the relationship the spouse will take the following:

Personal effects;
Statutory legacy; and
One-half of the remainder of the estate.

The Statutory legacy is determined by a CPI adjusted formula of the base amount set when the law was introduced in 2006.

Children and No Spouse

The children are entitled to the whole estate. If there is more than one child then the estate is distributed in equal shares between the children. Where a child has died before the interstate any grandchildren will take in equal shares the share the deceased child would have taken

No Children and No Spouse

The whole estate passes to the interstate’s parents in equal shares.

No Children, No Spouse and No Parents

Brothers and sisters will take in equal shares the estate provided they survive the interstate by at least 30 days. If a brother or sister does not survive the interstate but leaves children, then that share passes to the children of the deceased brother or sister.

These are just some common examples of how an estate will be divided according to the rules of intestacy which is set in legislation. There are other situations that might arise and your lawyer can advise you about the law depending on your personal circumstances.

Famous People who died without a Will

Famous or not, everyone should have a valid Will. It’s simple to do and it saves your family a lot of money and headaches as illustrated below:

Abraham Lincoln

Probably the most famous person not to leave a Will was Abraham Lincoln, the 16th president of the United States. Even though he was assassinated and died unexpectedly in 1865 he himself was a lawyer.

Jimi Hendrix

In 1970 Jimi Hendrix the famous musician died intestate and left a massive fortune to no nominated beneficiaries. The battle to control his millions took place over 30 years. His estate had the added complication of continuing to generate significant income after his death through record sales.

Stieg Larsson

More recently in 2004 the Swedish author Stieg Larsson who wrote The Girl with the Dragon Tattoo died without leaving a Will. As a consequence Swedish law dictated that Larsson’s estate was to be divided up between his father and his brother. Sadly his lifelong partner of 32 years, Eva Gabrielsson, received nothing, although the family did grant her ownership of the couple’s apartment.

Robert Holmes a Court

In Australia Robert Holmes a Court, Australia’s richest man before the October 1987 stock market crash, left no Will when he died of a heart attack. At the time of his death his property and shareholdings were worth almost $460 million, while Heytesbury Holdings, the family’s private company, had estimated cash reserves of more than $154 million.

Interestingly, he had carried an unsigned Will with him for 18 months before his death.

Pablo Picasso

Pablo Picasso died in 1973 at the age of 91. He was one of the most famous artists of the 20th century and left behind a fortune in assets that included artwork, homes, cash, gold and bonds. It took 6 years and $30 million to sort out his estate with his assets eventually being divided up among six heirs.

Michael Jackson

Although a Will was later discovered, immediately following Michael Jackson’s death in July 2009, his mother filed court papers claiming that Jackson died intestate. Like Hendrix, Jackson’s estate continues to generate money after his death. In the years since his death, his estate generated over $242 million.

As illustrated by the stories above, you’re never too young, or too smart or too powerful, not to need a Will.

To ensure that your estate and your desired beneficiaries are protected into the future and to avoid these avoidable dramas talk to an experienced wills and estates lawyer.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Strata Reforms – New Requirements for Developers

Wed, 09 May 2018 12:15:00 GMT

Strata Reforms – New Requirements for Developers

In November, 2016 the Strata Schemes Management Act 2015 (NSW) (the ‘Act’) and Strata Schemes Development Act 2015 (NSW) introduced reforms affecting owners, managers, developers and builders of strata titled properties. The reforms include new processes for the collective sale and refurbishment of strata schemes and streamlined provisions for cosmetic renovations and for resolving disputes.

The reforms also introduced a building defects bond scheme which will have significant impact on developers. The scheme is aimed at consumer protection and commenced on 1 January 2018 (it was originally scheduled to commence on 1 July 2017). Developers should be aware of their obligations under these reforms and implement systems now to ensure compliance when they take effect.

Payment of building bond

From 1 January 2018 developers of new high rise residential and mixed use strata buildings (for which Home Owners Warranty Insurance does not apply) must lodge a bond with New South Wales Fair Trading. Developers must also arrange for inspection of the building works and rectification of any defects within a prescribed timeframe.

Payment of the bond, by cash or bank guarantee, will be a pre-requisite to the issue of an occupation certificate. The bond is calculated as 2% of the total price paid under all relevant contracts for the works.

Where there is no written contract or the developer and builder are related entities, the contract price is determined by a quantity surveyor who must consider construction and fitout costs, demolition and site preparation, excavation, car parking, common property and associated work, professional fees and taxes.

The bond and prescribed documents are lodged with the Secretary, Department of Finance, Services and Innovation. Bonds must have a maturity date of no less than two years and no more than three years.

Developers must appoint a building inspector to report on works

Twelve months after completion of the building works, the developer must, at its own cost, appoint an independent building inspector. The appointment must be approved by the owners’ corporation by resolution at a general meeting.

An appointed building inspector must be impartial and not represent the interests of the developer. If the proposed building inspector has been employed by the developer or by a contractor of the developer within the past two years, then the inspector and developer must disclose this to the owners’ corporation.

A building inspector who is, or has within the past two years been ‘connected’ with the developer cannot be appointed. A connected person includes a relative / business partner of a key person within the developer entity, an executive of the developer if it is a corporation, a person that was involved in the design, construction or certification of the building works, or who has a financial interest in the project.

The owners’ corporation may refuse the appointment on any grounds in which case an inspector will be appointed by the Commissioner of Fair Trading.

Process for inspection of works

The independent building inspector will inspect the building works and prepare:

within 15 – 18 months after completion, an interim defect report identifying any defects in the building works and, if practical, the cause of each defect;
within 21 – 24 months after completion, a final report identifying any works that have not been rectified since the interim report, or any additional defective works arising because of any rectification works undertaken.

Within fourteen days of preparing an interim or final report the building inspector must give copies to the developer, the owners’ corporation, the Secretary and the builder responsible for any defective works identified in the report.

The final report cannot include additional defects (not identified in the interim report) unless they arise from the rectification efforts of defective works already noted in the interim report.

Developers and builders should arrange cooperatively to rectify any defects identified in the interim report. The owners’ corporation must cooperate in providing access to the relevant parties to inspect and fix defects.

If any defective work identified in the report is not fixed within two years of completion of the building works or within 60 days of submission of the final report (whichever is the later) the owners’ corporation may claim all or part of the bond which must be used to rectify the defects.

The Secretary must give fourteen days’ notice to the developer, builder and owners’ corporation of a decision to pay a claim.

If no defects are identified, or all defects are fixed by the developer, then the developer is entitled to reclaim the bond.

If no defective work is tabled in the interim report then the Secretary may determine that a final report is not required in which case the interim report will constitute the final report.

Applications for review

An interested party (the developer, owners’ corporation or a lot owner) may apply for review of a decision.

An application by a developer for review of a decision to release the bond to the owners’ corporation will stop payment until the matter is determined. The reviewer appointed must be a suitably qualified employee of the Department who was not substantially involved in the initial decision.

A developer will need to set out in writing the grounds upon which the claim is opposed and provide any additional supporting information.

The reviewer may affirm, set aside or vary the Secretary’s decision. Once determined, there are no further grounds for review within the Department however the parties may pursue proceedings in a Court or Tribunal. Although not binding, a report prepared under the bond regime must be considered if brought to the attention of a Court or Tribunal in subsequent proceedings.

Additional administrative requirements for developers

When lodging a bond, developers must complete the relevant form with details of the developer, principal certifying authority for the work and the owners’ corporation. Several other documents must accompany the bond, including copies of:

the building contract and any other documentation relevant to the calculation of the building price;
specifications and variations;
written warranties relating to the building works;
development approvals, consents and certificates issued under the Environmental Planning and Assessment Act 1979 (NSW);
any inspection reports and design certificates with respect to the works;
fire engineering reports;
Building Code of Australia complying certificates.

Developers and builders should review the new processes and consider the financial, contractual and administrative implications.

Contracts should be reviewed to ensure they contain provisions between the developer and builder that are consistent with the obligations under the reforms.

The respective timeframes for fixing defects and reviewing the Secretary’s decision to pay a claim must be carefully monitored.

Internal processes will assist in overseeing the administrative requirements and to ensure timely compliance under the reforms. Developers and builders might consider appointing a key person to manage these new processes.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Family Law Restraining Orders – Things You Need To Know

Wed, 09 May 2018 11:59:00 GMT

Family Law Restraining Orders – Things You Need To Know

Many people going through a relationship breakdown want a Court order restraining or stopping their former spouse or partner from doing something. Those circumstances include:

personal protection of that party or the children;
sole occupation of the former home;
protection of property.

While parties often want a restraining order, such orders are not appropriate in every case. The Court is strict about the evidence needed to obtain a restraining order.

Personal Protection

Sadly, relationship breakdowns can sometimes involve actual or threatened violence. At a time when emotions are running high, some people “lose their cool” or use intimidation or violence to control the other person. Occasionally, one person thinks they may gain a tactical advantage by untruthfully alleging violence by the other person.

The Family Court takes family violence extremely seriously. It is defined broadly to include actual or threatened violence, stalking, derogatory taunts, damage to property, harming of pets, exerting financial control, preventing the other person from maintaining relationships with family and friends, and exposing children to such behaviour.

When the Court is satisfied that there has been actual or threatened violence, the Court can restrain one of the parties from engaging in certain conduct in order to protect the the other party and the children.

The restrained conduct could include:

contacting or approaching the other partner, the children or other members of that person’s family or household;
approaching those people’s homes or workplaces or the children’s schools;
assaulting, harassing, intimidating or stalking those people;
denigrating or taunting those people.

A restraining order of that sort could be made at an early stage of Court proceedings or as a final order or both.

If someone fears violence from their former partner, they could seek an Apprehended Violence Order ( AVO ) with the assistance of the police. An AVO can provide the same sort of protection as a Family Court personal protection order. However, AVOs are usually quicker, easier and cheaper to obtain. The consequences of breaching an AVO can be more serious.

What about parenting orders?

Even though there is an AVO or personal protection order, the person against whom that order was made could still spend time with the children. In making parenting orders, the most important consideration is always the children’s best interests. The Court will try to weigh up the benefit to the children of spending time with both parents with the risks of family violence which gave rise to the restraining order or AVO.

Sole occupation of the former home

When a couple separates, one of them usually moves out. However, that doesn’t always happen – sometimes for financial reasons, for the children, or for tactical or intimidatory reasons.

When an AVO or personal protection restraining order has been made, the protected person often asks the Court to order that their former partner be restrained from living in the former home. That person (and usually the children) would then have the right to sole occupation of the former home.

Unfortunately, some people going through a relationship breakdown occasionally make up or exaggerate allegations of violence to try to obtain an AVO and then an order for sole occupancy of the parties’ former home.

Protection of property

As well as protecting personal safety, the Court can restrain someone from dealing with property, if there is a risk that one party may dispose of an asset, so that there would not be enough assets left for an appropriate property settlement between the parties.

Relevant situations include:

where real estate is owned by only one party who has put the property up for sale. The Court might restrain that person from selling the property or dealing with the proceeds of sale

where one party has liquid assets, such as cash or shares, few ties to Australia and has threatened to transfer the assets overseas. The Court could restrain that person from dealing with some or all of the assets.

Restraining orders of this sort would ordinarily be made at an early stage in Court proceedings, in order to maintain the assets pending a final property settlement.

What happens if the restraining order is breached?

If someone breaches a personal protection restraining order, he or she could be arrested and held in custody pending trial, with a prison sentence a possible penalty.

If a party breaches any other sort of Family Court restraining order, including one to preserve property, the Court has a range of sanctions available to it, including fines, good behaviour bonds or imprisonment.

In a family law matter, the Court can make orders restraining one or both parties from engaging in certain conduct. A restraining order is usually intended to protect people or property, or it might be to force one person to vacate the parties’ former home.

The Court takes the issue of family violence very seriously and that is often a factor in making a restraining order. The Court also takes the breach of restraining orders seriously, and it has the power to impose a range of significant penalties.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Selling Your Home In Autumn

Tue, 27 Mar 2018 05:32:00 GMT

Selling Your Home In Autumn

Spring is traditionally seen as the best time to sell a home, when the weather is warming up and buyers become more active. However, there are a number of studies which have revealed that autumn is equally as good, if not better than, spring to sell a residential property.

We look at the reasons why below and provide some tips on preparing your home for a sale in autumn.

The benefits of selling in autumn

The primary reason why autumn can be an advantageous time to list your home for sale is that there are often less houses on the market at that time, so there is less competition.

As spring is the time when most home owners put their property up for sale, the market can become flooded with stock. An increase in stock can discourage buyers from paying premium prices because there are many other buying opportunities. In contrast, reduced stock in autumn increases competition between buyers.

Another benefit is that, by autumn, many buyers have recovered from the busy Christmas holiday season and are ready to focus on progressing their property search. Buyers may have made resolutions for the new-year to purchase a property and will actively start looking in the early months of the year.

Tips to selling in autumn

The key recommendation for selling in autumn is to list your property as early in the season as possible. The weather is still warm in March and people are inclined to go out and attend open houses. April is less favourable, because of the many national events which take place (Anzac day, Easter often falls in April, school holidays) and due to the fact that many families choose to go away at that time. Furthermore, as the weather cools down in May, buyers start heading indoors.

Sellers should be mindful of changes to daylight savings in some states in April, particularly when booking times for open houses.

The weather can be unpredictable in autumn, so care should be taken to keep the home comfortable during open for inspections. This might mean checking that both your heating and cooling systems are in good working order before arranging inspections.

Finally, thought should be given to the presentation of your garden. This might include planting flowers that bloom in autumn and ensuring that all dead growth and weeds are removed.

The real estate market is impacted by a number of factors, including the state of the economy, local supply and demand and interest rates.

However, consideration should be given to listing your home for sale in autumn, when less competition and mild weather can facilitate a speedy sale.

The legal process for selling your property involves some forward planning and preparation. Our team of property specialists can help by preparing the documentation and advising you on the process.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Inheritances and Family Law

Tue, 27 Mar 2018 05:28:00 GMT

Inheritances and Family Law

Families and money can sometimes be a volatile combination. That is never more so than when divorces and Wills are concerned.

When is an inheritance an asset for family law purposes?

The simple answer is “almost always”. But the answer is not always simple.

Why is an inheritance an asset?

When a separating couple needs to divide their assets, they must work out what is in the pool of net assets to be divided. That pool includes all the assets and liabilities in each person’s name and in the parties’ joint names, as well as each person’s share of an asset owned jointly with another person.

If one person received an inheritance before or during the relationship, that inheritance would normally form part of the pool of assets available to be divided.

Does that mean my partner gets half my inheritance?

No, not necessarily. Just because an asset is included in the pool of assets available for distribution does not mean that the asset or the whole pool will be divided 50/50.

Once the couple has worked out what is in the pool of net assets, they must then consider what contributions they each made and consider their respective future needs, in order to work out the percentages of the net assets they will each receive.

What are contributions?

When working out which partner made what contributions, family law looks at financial contributions – i.e. who earnt what, who brought what lump sums into the relationship, who bought what and who paid for what – and also non-financial contributions – such as being a homemaker and parent, physically renovating a home or landscaping a garden, managing the parties’ financial affairs, etc.

After a long relationship, where there haven’t been any significant inheritances or other financial windfalls, the Court usually finds that financial and non-financial contributions during the relationship were roughly equal.

An inheritance received by one partner before the relationship started would be treated as an initial financial contribution by that partner – i.e. money or assets that person brought into the relationship. Similarly, an inheritance received by one partner during the relationship is usually considered to be a financial contribution by that person.

In these circumstances, depending on factors such as the size of the inheritance, when it was received, what it was used for and the parties’ other contributions, this would normally mean that the person who received the inheritance would be treated as having made greater contributions during the relationship.

What about an inheritance received after separation?

This situation is less clear cut. The Court usually finds that an inheritance by one partner was contributed solely by that person. So, it would usually find that the other partner did not contribute to the post-separation inheritance and it should not be included in the pool of assets to be divided.

However, different circumstances could produce a different outcome. For example, if the post-separation inheritance had been received from the husband’s mother and the wife had had a close relationship with her mother-in-law and had cared for her during an illness, the Court might find that both parties had contributed to the receipt of the inheritance.

Future needs

After working out financial and non-financial contributions, the couple or the Court must compare each person’s future needs before finalising a percentage division of the net assets. Future needs include things like income, earning capacity, financial resources, ongoing care of children, age, health, etc.

An inheritance, even one received after separation, could be relevant at this step. That is, it would likely mean that the recipient of the inheritance would have greater financial resources and might be receiving income from an inherited investment, so that their future financial circumstances could be stronger than those of the other partner. In such a case, the Court would probably adjust the percentage division of the net asset pool in favour of the other partner.

An inheritance received before or during a relationship will almost always be treated as an asset available for distribution between separating parties, whereas an inheritance received after separation will usually be found not to fall into that pool of assets. However, that does not necessarily mean that the other person is entitled to half the inheritance.

The receipt of a large inheritance will almost always have a significant impact on the Court’s decision about which partner made what percentage of contributions. In addition, an inheritance, including one received after separation, could impact the Court’s future needs adjustment.

Every case is different and how an inheritance might be treated in your situation will depend on your particular circumstances. If you need assistance or advice on how to proceed please call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Can Your Ex-De Facto Inherit Under Your Will?

Tue, 27 Mar 2018 05:23:00 GMT

Can Your Ex-De Facto Inherit Under Your Will?

Once upon a time you were happily living together with your de facto partner. Roses were bought, dinners were cooked, finances were shared and Wills were signed leaving all your assets to the other partner in the event of what you then thought of as the far away time of your tragic passing.

Thoughts of either of you dying were such a melancholy distraction from the happiness of your lives together, that you put your Wills away in a bottom drawer and never looked at them again.

Unfortunately, however, there wasn’t a fairytale happily ever after ending to this story. You and your partner decided to take your lives in different directions. Joint bank accounts were closed, furniture and other assets were divided; but all the while, your Wills stayed in the bottom drawer, unread and forgotten. Until one of you died.

What happens now?

Your ex-de facto wants his or her share; your other family members think “They were never married. Why should she/ he be entitled to anything?”. It looks like this might get messy.

Are your other family members right?

Many people think that, because they weren’t married, their ex-de facto has no future financial claim on them or their estate. Some people might also think that if they and their ex-partner have divided up their assets, neither one could have a further financial claim on the other. Unfortunately, those assumptions aren’t always correct.

The laws relating to division of assets after a couple separates are completely distinct from those dealing with Wills and inheritances. A Will is not affected by a family law property settlement, which, of itself, cannot prevent someone receiving a gift left to them in their ex-partner’s Will.

So, can your ex-de facto inherit?

According to a recent Western Australian case, the answer might depend on exactly how you referred to your ex-de facto in your Will.

In Blyth v Wilken the Court considered a situation where, in his Will, the deceased left his assets to his now ex-de facto partner, with the parties having separated some three years before the deceased’s death. Eleven years before his death, and at a time when the couple were living together, the deceased made a Will leaving the bulk of his estate to “my de facto wife Kathrine”. The Will had not been changed after the parties separated.

The Court found that by using the words “my de facto wife Kathrine”, the deceased didn’t merely intend to benefit Kathrine; he intended to benefit Kathrine because she was his de facto wife. Accordingly, the Court found that, notwithstanding what the Will said, the deceased would not have wanted Kathrine to benefit from his estate as she was no longer his de facto wife at the time of his death. The gift to Kathrine, therefore, failed and other family members benefitted from the deceased’s estate.

Would different words have made a difference?

The decision in this case depended on the use of the words “my de facto wife Kathrine” in the deceased’s Will. If the Will had merely referred to Kathrine by name, without also describing her as “my de facto wife”, the outcome could well have been very different. That is, despite separating from the deceased almost three years before he died, Kathrine could have received the bulk of her former de facto partner’s estate.

A word of caution

The case of Blyth v Wilken is only one decision of a single Master (not a Judge). The decision is not binding on the West Australian Supreme Court, nor other Courts, which could come to a different decision on similar facts.

Just because your Will refers to “my de facto partner such and such” that is not necessarily a guarantee that that person will not be able to benefit from your estate in the event that you die after ending your relationship with him or her.

In most Australian States and Territories (NSW, Victoria, South Australia, Western Australia and the Northern Territory), separating from your de facto partner will not change your Will.

Any gift in your Will to your ex-de facto could still be valid, despite the fact that you have separated and divided up your assets. It is possible that, based on the decision in Blyth v Wilken , the Court could overturn a gift in your Will to your former de facto, depending on how that gift was worded.

In the ACT and Tasmania termination of a registered de facto relationship will revoke any gift in your Will to your ex-de facto partner. However, this only applies to registered relationships and registered terminations of them; and in the ACT it only applies to registered same sex relationships.

In Queensland amendments to the Succession Act which came into effect on the 5th June 2017 mean that the end of a de facto relationship has the same effect on a Will as a divorce. Unless a contrary intention appears in the Will the following are revoked:

a gift left to a former de facto;
appointment of a former de facto as executor or trustee of the Will; and
the grant of a power of appointment (in relation to a trust) in favour of a former de facto.

Regardless of where in Australia you live, the safest course of action is to review, and if necessary change, the terms of your Will as soon as possible after the ending of any relationship, even a friendship.

If, for example, your Will leaves your jewellery to “my friend so and so”, would you still want “so and so” to receive that jewellery if you’ve de-friended each other by the time of your death?

Blyth v Wilken suggests that the jewellery may not end up in your former friend’s hands, but would you want to leave that to chance and to the question of whether a Court would follow the Blyth v Wilken decision?

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Fact or Fiction – Top 5 Myths About Family Law Property Settlements

Fri, 09 Mar 2018 01:29:00 GMT

Fact or Fiction – Top 5 Myths About Family Law Property Settlements

Most people know someone who has been affected by a family breakup. It is usually a very stressful and emotional time where people are anxious about the divorce, the property settlement and the emotional well being and care arrangements for children.

Unfortunately this is reflected in a great quantity of inaccurate statements, often regarded as fact by those, in the community.

Every family law situation is different and it is important that people get the right advice and are able to make informed decisions about their family and their own future before entering into any agreement or going to court.

In this article we have identified the top 5 issues where myths exist and we have set the record straight.

Myth 1: You need to be divorced before you can divide your property

There is no provision that requires a divorce to be finalised before a financial settlement can be negotiated.

You are only entitled to a divorce after 12 months of separation, once you become separated you can immediately start negotiating a financial settlement.

In fact, if you have not finalised your property settlement by the time of your divorce you should do so within 12 months because there is a time limit of 12 months to start Court proceedings after you are divorced.

Myth 2: I owned it before we got together, so it’s mine if we separate

A person will not necessarily be able to keep those things in their own name that they brought into the relationship or that were paid for individually during the relationship.

The factors which must be taken into account when the Family Law Courts consider how property is to be divided is set out in the Family Law Act. There is no universal equation applied, property settlement is based on all of the information provided including the various contributions made by both parties to the accumulation of the assets and the Court will then use its discretion in deciding the matter.

The Family Law Courts may give greater weight to the individual contributions of one party in a very short relationship which may result in that party being awarded an asset that they brought into the relationship.

A lawyer practicing in family law can advise you exactly what is taken into consideration by the Court when providing detailed and specific advice to clients about their individual circumstances.

Myth 3: Property will always be split 50/50 in a property settlement

This is usually the most common myth in family law. There is no rule or presumption that parties have to divide their assets equally when they separate.

As outlined above there is no universal equation applied, property settlement is based on all of the information provided and the discretion of the Court in deciding the matter.

The percentage outcome depends on many factors, which include:

The length of the relationship;
The financial contributions of each person;
The non-financial contributions of each person; and
The current and future needs of each person.

The longer the relationship, the more likely it is that the Courts will consider the contributions and future needs of the parties as being equal, all factors need to be considered. The reality is that an exact 50/50 split is very rare.

Myth 4: The assets are held by a company or trust, so they are excluded from a property settlement

When a marriage or de facto relationship breaks down property can be divided between the parties.

The definition of “property” is very broad under the Family Law Act. In the case of assets owned by a company or trust the Courts will look at who has control over the company or trust. Even if a person is not a director, if the entity is under the control of one of the parties the Court has the power to deal with the assets as an asset of the marriage.

Usually, assets held by a company or trusts will come within the definition of property

Myth 5: Pre-nuptial agreements are only used in the USA

The use of Pre-nuptial agreements or “pre-nups”, as they are often known, has been popularised, sometimes sensationalised by their use in the USA. There have been plenty of newspaper stories and even movie storylines about them and their enforceability.

So, do we have them in Australia?

In fact, we do. In Australia they are known by the somewhat less sensational name of Binding Financial Agreements or BFA’s.

A BFA is often used as an asset protection mechanism by people going into a new relationship or marriage allowing a couple to agree in advance on an acceptable division of assets. After a relationship breaks down, a BFA can reduce the financial stress of a separation and allow the couple to amicably separate without the need for costly, time-consuming and stressful court action.

BFA’s must be properly drafted and executed to ensure the agreed property distribution is enforceable, so it is sensible to discuss this with your lawyer to ensure your assets are protected.

No two family law cases are the same and urban myths don’t usually apply. The Courts will always take into account the individual circumstances of each case before applying their wide discretion to make decisions.

It is important to obtain independent legal advice from experienced family law solicitors who will help you to understand the processes involved concerning your particular circumstances.

If you know someone who may need assistance or advice on how to proceed please call on 02 6542 5566 or email us michaelobrien@equilaw.com.au

Incentives For First Home Buyers, New South Wales

Fri, 09 Mar 2018 01:12:00 GMT

Incentives For First Home Buyers, New South Wales

First home buyers in New South Wales can expect big stamp duty savings through reforms which were delivered in the 2017 budget and commenced on 1 July 2017.

The new package is anticipated to assist many potential purchasers by improving housing affordability across the state.

Policies have also been introduced to target our growing population by boosting housing supplies in the right areas.

Would-be first home owners are encouraged to read on – these changes may bring the dream of owning your own home into clearer focus.

How can first home buyers benefit?

Entering the property market may now be more attainable for many first home buyers.

The First Home Buyers Assistance Scheme provides concessions and exemptions from stamp duty for eligible purchasers.

Stamp duty has been abolished on all homes (new and existing) with a purchase price of up to $650,000 for eligible first home buyers. This represents considerable duty savings – $24,740 on a $650,000 purchase.

Concessions are also available on homes priced between $650,000 and $800,000 for eligible buyers. The concessions will be calculated on a sliding scale and gradually decreased as the property value nears $800,000.

No duty is payable on vacant land to the value of $350,000 to be used to build a first home with concessions available for land valued between $350,000 and $450,000.

The First Home Owners Grant (New Homes) provides eligible first home buyers with a one-off grant of $10,000 if building a new home to the value of $750,000, or if purchasing a new property to the value of $600,000.

Am I eligible?

The stamp duty exemptions and grants apply to contracts entered on or after 1 July 2017.

A first home purchase means a property which you (or another eligible purchaser) will occupy for a continuous period of six months, within twelve months of settlement. Exemptions from this requirement apply for certain Australian Defence Force personnel.

To qualify, purchasers must be natural persons (not purchasing through a company or trust) and at least 18 years of age. The purchaser and purchaser’s spouse or de facto partner must not have previously received a concession or exemption under a First Home Buyers Scheme, or owned residential property in Australia unless the property was held solely as an executor or trustee.

At least one of the purchasers must be an Australian citizen or permanent resident at the time of the contract or transfer.

Applicants will need to meet Proof of Identity requirements and complete the relevant declaration.

Further savings and changes

Insurance duty on lenders’ mortgage insurance has been abolished for all borrowers, representing considerable savings, not just for first home buyers.

Mortgage insurance generally allows borrowers with less than 20% deposit to obtain a home loan. The insurance protects the lender if the borrower cannot repay the loan and the property needs to be sold. With the elimination of duty, buyers who are required to take out mortgage insurance for a home valued at $800,000 will be around $2,900 better off.

Speedier development approval processes and plans to build compact ‘smarter’ homes in appropriate medium-density areas are expected to improve housing supply and affordability, particularly for those first entering the market.

The State Government has also budgeted for significant funding boosts for infrastructure and capital works to support increased demands by additional housing supplies.

Why introduce the incentives?

The reforms aim to alleviate some of the competition between investors and first home buyers who are generally hard-pressed to buy property in a competitive market.

By increasing the incentives for first home buyers and hitting certain investors who buy residential property with higher taxes and duties, it is hoped that the playing field might end up a little more even.

For foreign investors, the surcharge on stamp duty has doubled from 4% to 8% and land tax has increased from 0.75% to 2%

Investors of off-the-plan properties, whether local or foreign, will now need to pay stamp duty within three months of exchanging contracts rather than deferring payment for fifteen months, as is generally the case for off-the-plan purchases.

Off-the-plan purchasers intending to use the property as their main residence will still be entitled to defer payment of stamp duty for fifteen months from exchange.

Whether you are a first home buyer or investor, it is important to understand the impact of stamp duty and taxes on a potential property purchase.

First home buyers are encouraged to do the calculations to see if now is the right time to get into the property market.

Your lawyer can assist in determining your eligibility for stamp duty concessions and grants and help you with the conveyancing process.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Starting a Business – An Overview of Common Business Structures

Fri, 09 Mar 2018 01:00:00 GMT

Starting a Business – An Overview of Common Business Structures

There are 4 main types of business structures for doing business in Australia, each with their own advantages and disadvantages. A person can carry on business as a sole trader, partnership, trust and company.

The choice of business structure is an important decision to make at the start of a business venture, as the structure can impact on tax implications and reporting requirements during the lifetime of the business. When setting up a business structure, consideration should be given to factors such as how many people will be involved in the business, what the business will do, how much income is likely to be earned from the business and the intended growth of the business.

1. Sole Trader

A person can carry on a business on his or her own behalf, as a sole trader. A sole trader can trade under his or her own name or a registered business name. The income earned as a sole trader is taxed at the same rate as individual tax payers.

This is the simplest form of business structure, with lower establishment costs and with minimal legal and compliance requirements. The main disadvantage to this type of business structure is that a sole trader is personally liable for all obligations incurred in the course of the business.

2. Partnership

Two or more individuals can carry on business in partnership, where the income from the business is received jointly. Partnerships are relatively inexpensive to form and operate. Most partnerships are established by a partnership agreement which sets out the rights and obligations of the partners. A partnership itself is not taxable, rather each partner pays tax on their share of the net income of the partnership.

The downside to this type of business structure is that partners are severally and jointly liable for the obligations of the partnership. There is also potential for dispute and loss of trust between the partners.

3. Trust

Under a trust, a trustee owns the property or assets of the trust and carries on the business on behalf of the beneficiaries of the trust. A trustee can be an individual or a company. A formal Deed is required to set up a trust and there are annual tasks for a trustee to undertake. As such, it can be expensive and complicated to set up and administer a trust.

The advantages of a trust are that there is flexibility in income distribution and income can be streamed to low income tax beneficiaries to take advantage of their lower marginal tax rate. Furthermore, assets can be protected through a properly drafted Deed. The disadvantages are that trusts can be costly to set up and there are more compliance and legal requirements.

4. Company

A company is a separate legal entity capable of holding assets in its own name. The words “Pty Ltd” after a business name show that the business is a registered legal entity trading in its own right. A company is owned by shareholders and directors manage the company’s day to day business and affairs.

The shareholders of a company receive any company profits in the form of dividends. Shareholders can limit their personal liability and are not generally liable for the company debts. Instead, the financial liability of the company is limited to the company assets.

Companies are governed by the Corporations Law and there are a number of duties and obligations for company directors. Primarily, directors have an obligation to act in the best interests of the company. Establishment of a company and ongoing administrative and compliance costs associated with the Corporations Law can be high. There is also a requirement to publicly disclose key information.

Each business will vary and no business owners’ circumstances will be the same. It is advisable to talk to an accountant or solicitor about the costs and risks of each business structure to make sure that the business structure used is the right one for the business and its needs going forward.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Understanding your Spousal Maintenance Obligations

Tue, 19 Dec 2017 11:50:00 GMT

Understanding your Spousal Maintenance Obligations

It is not widely known that when we enter into a marriage or a de facto relationship, in certain circumstances, a spouse may be liable to maintain the other in the event that their marriage or de facto relationship breaks down.

This responsibility to financially assist the other is set out in the Family Law Act and exists if that person cannot meet their own reasonable expenses from their personal income or assets.

Spousal Maintenance is different to Child Support

It is important to note that spousal maintenance is not child support.

What is Spousal Maintenance exactly?

Time Limits

It is possible to apply outside the time limits but the Court does not always grant these late applications.

What if the person is in a new relationship?

What does a Court consider?

Spousal maintenance is not automatic. In deciding a maintenance application, a Court considers the needs of an applicant and the respondent’s capacity to pay including the parties:

Age and health
Income, property, and financial resources
Ability to work
Ability to earn an income as a result of the marriage
Suitable standard of living

It is most likely to be ordered in cases where one party is at home with the care of young children and therefore unable to exercise their income earning capacity.

The calculation of and assessment for the need of spousal maintenance requires a deep understanding of family law and time limits apply.

If you know someone who needs help and would like to have a confidential discussion please arrange for them to call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Does Your Employment Contract Measure Up?

Mon, 18 Dec 2017 11:04:00 GMT

Does Your Employment Contract Measure Up?

If you are entering into an employment contract do you know what should be included? If you are an employer and using an old contract, should it be reviewed first?

It is clear contracts should be individually structured to meet the needs of those involved and in reality both employer and employee should seek legal assistance first before offering or accepting an employment contract.

This article is intended to provide a starting point only and attempts to clarify some of the important information all parties should know.

What terms should always be in an Employment Contract?

Naturally there are some preliminary matters. For example, the identity of the parties needs to be set out as well as the duration of the contract (if fixed).

The contract then needs to specify the terms.

Before the terms are considered, the application of any statutory provisions or award or collective agreement must be considered. Generally speaking, employers and employees cannot contract out of such instruments unless the instrument itself facilitates that.

The following are critical to mention and the particular entitlements need to be specified, including:

The remuneration;
The frequency of remuneration reviews;
The period of the contract (if fixed term);
The basis of remuneration adjustment and performance management/appraisal;
Termination conditions;
Any professional indemnity;
Specific employment conditions including
hours of work;
annual leave;
annual leave loading;
public holidays;
long service leave;
superannuation;
reimbursement of expenses;
sick leave or carer’s leave;
parental leave; and
other leave.

Depending on the nature of the employment and industry it may be important to also include:

Intellectual property;
Restrictive covenants;
Professional development and training; and
The location of employment.

A statement of duties should be attached to the contract. For this attachment to itself become part of the terms of the contract, it should be expressly incorporated into the contract by a statement which makes it part of the contract in the body of the contract itself or as an annexure.

Workplace policies

Some workplace policies will be incorporated into the contract because of the nature of their content, some will not, and it is often hard to know what matters a court will find are incorporated. If an employer definitely wants to incorporate a policy into the contract, they can expressly do so by reference in the contract.

Employees and contractors

There is often ambiguity in a workers’ status, as to whether they are a true employee of an independent contractor. Employment law differs from other law, such as tax law, on these questions.

There are also significant legal consequences of incorrectly assuming an employee is a contractor, or vice versa. The true nature of the working relationship should be considered at the time of drafting an employment contract or a contract for services.

Superannuation

The employer is responsible to ensure that appropriate superannuation contributions are paid into the employee’s nominated superannuation fund. Generally a contractor will be responsible for their own superannuation contributions.

Implied entitlements

Some entitlements and obligations that exist in the employment relationship are implied. This means that they are not written down or stated, but they still exist.

The implied terms include:

An employee must exercise reasonable skill and care in their performance of duties;
A general duty exists for an employee to obey all lawful and reasonable directions by their employer;
There must be fidelity and confidentiality within the employer/employee relationship; and
If there is no provision for termination within the contract then “reasonable notice” for termination must occur unless in circumstances of “serious misconduct”.

When negotiating an employment contract it is essential, for both employers and employees, that the contractual arrangements should be specific to the individual and the terms say what you want them to mean. Parties entering into these arrangements are wise to seek legal assistance beforehand to ensure they are right.

If you want to know more or if you run a business and would like your draft employment contracts reviewed please call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

The post Does Your Employment Contract Measure Up? appeared first on Equilaw Solicitors .

Have You Heard About a Living Will?

Mon, 11 Dec 2017 10:46:00 GMT

Have You Heard About a Living Will?

Imagine being in hospital unable to move or communicate following a serious medical event.

It is much easier for your family and loved ones to be sure they are making decisions consistent with your wishes provided they have been considered in advance. Today Australians are living longer and statistically some of us will face a drawn-out decline in our health, so being clear about your future healthcare plans is now more important than ever before.

This is where an advanced care directives or a “living will” can help.

What is an advanced care directive?

You might have heard of something called a “living will”, or as they’re officially called, advanced care directives (ACD).

An ACD describes what treatment you would or would not consent to have, in the event of a life threatening illness or injury. The most common instructions relate to circumstances in which you would refuse resuscitation (commonly called ‘Do Not Resuscitate’).

ACDs are more than just a directive for the elderly on when to end life support. They are just as useful for younger victims of disease or accident.

Are they legally binding?

Living wills are not legally binding in NSW.

There is no absolute legal requirement that your doctors or your relatives must carry them out. However, a court will regard them as persuasive in the right circumstances. This means that if they are relatively current, clearly expressed, and appear to concur with what you have said while you were still of sound mind, they will be preferred to any other opinion unless there are very strong arguments to the contrary.

A living will may be of some use if you suspect your intentions might not be heeded if you become incapacitated. As well as keeping the document up-to-date, you should provide copies to your doctors, family and maybe a responsible friend.

Enduring Guardianship should also be used

While a living will is certainly better than nothing, appointing an enduring guardian is better still.

Living wills have become less common since appointment of an enduring guardian became possible under the Guardianship Act 1997.

This is because enduring guardians are empowered to make legally binding decisions.

An enduring guardian can make personal, health or lifestyle decisions on your behalf, in the event you are no longer physically or mentally capable of making them.

You can direct your guardian to follow your wishes, or impose conditions or limitations on what they can do. You can even create a number of guardians to make different decisions.

What are the requirements for an Enduring Guardianship?

The form is simple enough, although there are some legal restrictions, in particular that:

You and your guardian have to be over eighteen,
You signed a document before certain witnesses prescribed by the law ,
You had capacity when you wrote the document,
Your guardian can’t be someone responsible for your medical treatment,
It has specific details about treatments that you would accept or refuse,
Were not influenced or pressured by anyone else when you wrote it.

You cannot instruct your guardian to do something illegal and that includes euthanasia.

Given the lack of uniformity within and between States, there’s understandable confusion about the legal validity of a living will. It is still persuasive in the eyes of a court.

However, in addition to a living will it is sensible to have an Enduring Guardianship document set up, particularly if you are unwell at a mature point in life.

No family member wants to be in a situation where no-one knows what you would have wanted and what if your family members disagree or don’t agree with your doctors?

If you want to have peace of mind and avoid these issues and you need assistance or advice on how to proceed please call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Life Beyond Bingo and Bowls!

Fri, 10 Nov 2017 15:00:00 GMT

Life Beyond Bingo and Bowls!

Not surprisingly people talk about buying their first home as being a life changing event and it is. However, in the past it has been rare for people to talk so excitedly about moving into some form of retirement living.

Given that sooner or later most of us are likely to have to deal with this issue either because we are assisting our parents, another family member or friend in making the transition from their home to a retirement community or because we are considering such a move for ourselves, it is important to know what your options are and to understand the legal and financial implications that come with this type of move.

A world of options

In days gone by the very notion of a retirement home was enough to send a shiver down many people’s spines. Thoughts of early dinners and endless games of bingo did little to encourage our more mature citizens to view this as a desirable life stage.

The good news is that things on the aged care front have changed considerably in the last decade and there is now a wider choice of accommodation options available than ever before.

Choices range from luxurious apartment complexes for the “Over 55” community through to multi-functional retirement communities where a variety of accommodation and services are provided on the one site ranging from independent living right through to around the clock nursing care of the more traditional nursing home variety.

Things to think about

The key to any successful life change usually starts with learning about the options available and understanding the legal and financial obligations that come with each option, so get out and start looking at what is available in the area where you or the person you are assisting would like to live. Then once you have an idea what is available in the area and price range you are looking for start considering the legal and financial issues that go hand in hand with the more emotional part of the process.

Remember not all retirement communities are created equal

First up ask “Is this the right retirement community for me?” If you are helping someone else it might not be right for you personally but is it what they are looking for?

Now this may sound like an obvious question, but it is important not to be dazzled by a new fancy fit out if on closer inspection the retirement community does not offer the range of services needed or if it is so far from family and friends that visitors will be few and far between and social isolation is likely to occur.

Just as every suburb and neighbourhood has its own quirks every retirement community is different and this is definitely not a case of one size fits all.

The Wish List

Make a wish list of what you are looking for.

At the top of the list put the “must haves” and at the bottom of the list add the “would be nice but not essential” things.

Things to consider including might be:

being close to public transport,
a range of on-site activities,
nursing assistance being available if needed,
a one-stop shop with different care levels all catered for in the one complex, or
proximity to current neighbourhood and family and friends.

Each person will have a different set of priorities.

The more you are able to focus on what is most important the easier it should be to eliminate options that are not the best for you and also the easier it will be to avoid getting side tracked by things that really don’t matter quite as much.

Some important things to think about

Making a move into a retirement community is a significant life change and there are emotional, financial and legal issues that will come up along the way.

Some things to consider before signing any paperwork and making a commitment of this kind include:

Do I need to sell my home first before I can afford to move?
If I buy into a retirement community what exactly am I buying?
Is the property strata or community titled or does some other form of ownership apply?
Does the property I am buying form part of my estate after I die or does ownership revert to some other entity (such as the company that operates the retirement community)?
Exactly what does the contract say – what are my rights and responsibilities under the contract?
Are there any ongoing fees and charges in addition to the purchase price?
What other costs do I need to factor in when I move? Don’t forget to include moving costs and possibly storage costs if you won’t be able to take all your possessions with you and are not yet ready to part with things you cannot fit into your new home.
Do I have to pay the whole price upfront or can you pay a portion of the cost and then pay the balance in ongoing instalments? Are they any other payment options such as pension sacrifice available?
Will the move into a retirement community affect any pension or rent assistance currently received?
Is the facility able to provide a higher level of care later on if your needs change or would you need to move to a different facility if your care needs increased?
What costs are associated with any care provided?

Ask for help

This type of move can prove to be a challenging one for both the person involved and anyone assisting them and it is important to understand exactly what is involved legally and financially before entering into any contracts.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Do Not Risk Losing Your Security Interests

Fri, 10 Nov 2017 11:00:00 GMT

Do Not Risk Losing Your Security Interests

It is crucial that people who have a security interest in personal property take it seriously or risk losing their security interests.

Many businesses are struggling to understand the implications of the Personal Property Security Register (PPSR).

In this article we have provided a simple summary and a timely warning about what to do, following changes that were implemented to the Personal Property Securities Act (PPS Act) in 2014.

The PPSR explained

The PPSR is a national, electronic register of security interests in personal property which was established on 30 January 2012.

It includes security interests in goods, vehicles, intellectual property and any other personal property, but does not apply to land.

A “security interest” includes any interest in personal property which is created by an agreement that secures a payment or performance of an obligation to another person (for example a fixed and floating charge over an asset).

The PPSR is the only register which determines whether a security interest:

is enforceable; and or
takes priority over other interests.

What about a security interest granted before 30 January 2012?

The PPSR transitional period ended on 30 January 2014 and anyone who was granted a security interest before 30 January 2012 needs to ensure that those interests are registered on the PPSR.

Failure to have a security interest registered on the PPSR will mean that those interests will be unenforceable if a subsequent security interest holder registers an interest on the PPSR.

Who is most likely to be affected?

This is particularly relevant for anyone who is engaged in the business of:

Leasing and hiring equipment;
Supplying goods based on retention of title;
Mortgaging equipment; and
Imposing a charge over the property of individuals or companies as security for loan repayments.

Note: Amendments to the PPS Act which commenced on 1 October 2015 means that businesses which frequently use fixed term leases with a duration of between 90 days and 1 year over serial numbered goods such as motor vehicles, aircraft, watercraft and other items may no longer need to register those leases once the amendment takes effect.

How you can do a search of the PPSR

Some security interests prior to 30 January 2012 have been migrated onto the PPSR (for example, charges registered on the ASIC Register of Company Charges) whilst others may not have.

Even where charges have been ‘successfully’ migrated onto the PPSR, issues have arisen during the migration process which mean there is no guarantee that all migrated charges are properly registered on the PPSR.

Therefore it is essential that a check be done.

To ensure you are protected it is important that you search the PPSR but before searching the online register you will need to set up an account. Once you have an account and pay a small fee you can search by serial number, individual or by company to locate a security interest.

The consequences if you don’t register

Failure to register interests on the PPSR may result in the priority of your interests being lost to other parties with competing interests.

For intellectual property interests, this is the case even if your security interests have already been recorded on the IP Registers maintained by IP Australia.

Why simply claiming a ‘retention of title’ won’t work

You also should register your interest in goods supplied to a customer where you and/or your business have not received full payment. This will assist in the recovery of any debt that may be owed.

Under the PPS Act a person who supplies goods on the basis that the supplier retains ownership until paid, or leases goods to a customer, can be treated as having a security interest in the goods.

A failure to register can mean that the goods are lost to their customers’ creditors even though the owner of the goods has not changed.

Need help?

There has been much written about the PSSA and this article is not intended to be anything but a simple ‘heads up’ message so you have the essential details.

Identifying the issues is one matter, but having a workable plan for you or your business is another matter entirely.

We can assist you with your due diligence enquiries and with recording your interests on the PPSR so call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Understanding Child Support

Fri, 10 Nov 2017 08:00:00 GMT

Family law principles recognise that both parents of a child should be financially responsible for his or her care, regardless of the parents’ marital status, past or present relationships or involvement in the child’s life.

The child support scheme in Australia is regulated through various laws and administered by the Department of Human Services (Child Support) (‘DHS Child Support’).

Child support payments may constitute regular or periodic contributions by one parent of a child to the other parent or carer, for the child’s ongoing welfare and maintenance. The amount of child support paid may be determined by administrative assessment through DHS Child Support or a child support agreement made between the child’s parents.

Applying for an administrative assessment

An application for an administrative assessment may be made to DHS Child Support by the primary carer of a child or children. Child support is payable with respect to all children until they reach 18 years of age or until they complete their secondary schooling if they are turning 18 years during that year.

DHS Child Support must be convinced that the applicant and paying parent are in fact the parents of the child. In many cases, parentage will be accepted by providing documentation such as a birth certificate.

Adopted children and children from previous same sex relationships are included in the child support scheme as are children born through artificial conception. In these cases, there are general assumptions made with respect to who the child’s parents are. These presumptions may be challenged through a court and / or DNA testing.

Challenges to parentage can be complex and emotionally charged – if disputes arise it is recommended that legal advice be obtained as soon as possible.

What factors are considered when calculating child support?

DHS Child Support uses a complex formula to calculate child support payments with consideration of the following factors:

the length of time the child spends with each parent / carer;
the costs of raising children relative to specific age ranges and the capacity for the parents to meet those costs;
the respective income of each parent;
each parent’s responsibility for supporting other children;
the age of the child and other children in the care of each parent;
the basic living needs of each parent.

Paying child support

Payments for child support can be made privately between the parties or collected and distributed by DHS Child Support. This applies whether payments have been calculated through an administrative assessment or are paid under a child support agreement.

DHS Child Support has the power to enforce payments of child support. This is of great assistance where the paying parent has previously been unreliable in meeting child support commitments or has a history of violence.

If necessary, payments may be enforced by debiting a bank account held in the payer’s sole name, taking payments from a tax refund due to the payer or commencing debt recovery proceedings in court.

Challenging an administrative assessment

Sometimes a child support assessment may not fully consider the special or unusual needs of a child or the circumstances of a parent or carer. Alternatively, a carer or payer’s circumstances may change, either short-term or permanently, resulting in financial hardship. This may be the result of a job loss or illness. In such cases, a parent or carer may apply for a reassessment of child support.

Once a review is completed, the applicant is notified in writing of any new assessment. If a person is unhappy with the decision reached by DHS Child Support, an objection may be lodged within 28 days of receiving the revised assessment. If, after a review is conducted, the applicant is still dissatisfied with the outcome, there may be grounds for appealing the decision through a specialist division of the Administrative Appeals Tribunal.

If you think a DHS Child Support assessment has been calculated incorrectly or that your personal and financial circumstances have not been fully considered, our family law team can assist in having the assessment reviewed or lodging an objection.

What are child support agreements?

Rather than have child support assessed through DHS Child Support, parents may enter a child support agreement. This is a written agreement made between the parents which sets out their agreed obligations regarding child support, the type, amount and frequency of payments. Payments may include regular ongoing contributions, lump sum payments or periodic payments for specific items such as school fees or health insurance.

Child support agreements may be binding or limited.

A binding child support agreement must be in writing and signed by both parties. The parties must receive independent legal advice and the agreement must include a statement signed by the parties’ respective lawyers to this effect. These agreements can only be varied mutually between both parties or alternatively and in limited circumstances, an order of the Family Court.

Parties wishing to enter a limited child support agreement must first have an administrative assessment conducted. This is known as a ‘notional assessment’ and may be used by the parties as a ‘comparison’ between what would otherwise be paid by assessment should the agreement not be in place. The agreement must provide for the same or greater child support than the notional assessment.

Whilst legal advice is mandatory only for binding child support agreements, we recommend advice is obtained before entering any agreement for child support.

What about adult children?

Child maintenance may be payable in certain circumstances for children over the age of 18 years in full-time study, or who have a physical or mental disability.

The Family Law Act 1975 makes provision for child maintenance orders for adult children if the court considers such payments are either necessary to complete the child’s education or justified due to the child suffering from a mental or physical disability.

In such cases the financial and special needs of the child will be assessed and, if relevant, orders made for financial contributions considered appropriate in the circumstances. There are a range of factors that the court must consider in its approach in determining whether maintenance is payable.

Child support and maintenance issues can become contentious and are often charged with emotion and frustration. The principle that both parents should contribute financially to their child’s upbringing is often overlooked and it is during this time that common sense and the guidance of an experienced family lawyer will benefit all parties.

Our family law team can assist in lodging a child support application with DHS Child Support, check whether child support payments have been correctly assessed and, if necessary, object to an assessment, or prepare and negotiate a child support agreement.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Traps to Avoid When Buying a Property – Pre-Contract Inspections

Sun, 24 Sep 2017 10:53:00 GMT

Traps to Avoid When Buying a Property – Pre-Contract Inspections

Buying a home is the biggest investment or financial outlay that most of us will make in a lifetime. It is critical to your financial future that you make well-informed decisions when you purchase a property, whether it be for your own home or an investment.

The Contract for Sale of Land basically follows the common law of “caveat emptor”– let the buyer beware. This means that the purchaser must make their own enquiries and investigate the quality of the improvements on the property before they enter into a contract to buy that property.

A vendor or seller of the property is not allowed to deliberately hide defects or deceive the buyer by fraud, but the purchaser should undertake searches and inspections of the property to discover any defects in the property.

Failure to do this may result in the buyer losing their deposit and being sued by the seller for breach of contract, or the buyer can end up with a property that needs expensive repairs.

Pre-contract inspections

There are various inspections that a purchaser should get done prior to entering into a contract to buy a property. The number of inspections and searches depend on the location and type of property you are purchasing, the inspections may be different for a residential house in town, a strata unit, vacant land, rural property or industrial property.

In this article we shall look at pre-contract inspections for a standard residential house.

Timber Pest Inspection

In locations which are susceptible to pest infestation a qualified and insured pest inspector will conduct a visual inspection of the property to discover if there is any termite or other pest activity at present or in the past.

More detailed inspection such as thermal imaging or photographs of the walls and bathrooms to highlight any damp areas that should not be present may also be conducted if required. The inspector will also conduct a moisture meter reading of the bathrooms and other wet areas as termites are attracted by damp timber. They will also examine the property for any wood decay, borers or rot that will affect the structure of the home.

Termite damage undiscovered can not only increase but can cost many thousands of dollars to repair. Sometimes if the damage is really bad that part of the house might have to be demolished and rebuilt wreaking damage on your investment.

Building Inspections

A qualified and insured building inspector should be commissioned to inspect the property including the house, any garage or other buildings located on the property.

The Inspector will investigate the interior and exterior of the buildings including the most costly items to repair being the roof, kitchen and bathroom/s, looking for any defects that are not usual “wear and tear”.

In an existing home there are usually small defects which accumulate over time due to use and are readily visible, but it is the not so visible defects that are costly like a leaking roof that can cost tens of thousands of dollars to repair.

If the inspection reports show issues of concern, other specialist tradesmen may be required to check specific areas or issues.

Plumbing and Electrical

A licensed plumber may be required to inspect drainage issues.

If the property has a septic waste system that is not connected to the town sewerage supply, a plumber’s report should be obtained as a new septic system can cost $10,000+ to install plus excavation works in trenching a faulty system.

If there is any indication that electrical wiring may be faulty or the house is very old, an electrician may be requested to evaluate the property.

Pools and spas

If the property includes a pool or a spa then the pump and any ancillary equipment as well as the pool or spa itself should be investigated to ensure good working order.

Council records

It may be necessary to make application to the local Council for a copy of the building records for the property which will include any Development Applications (DA), building site records, floor plans and termite protection installed on building.

The DA for the original dwelling house and other buildings should be carefully matched to the existing structure to make sure that the plans approved by council have been complied with. If an owner builds structures on a property that require council approval and the owner builds without an approved DA, the council can lodge a demolition order against the property or require it to be approved as “continuing use” after payment of hefty fees to council.

Structures such as decks, large sheds, pools and pergolas can also fall into this category.

Building Certificate

If there are unapproved structures on the property you should request that the seller obtains a building certificate to ensure that council will not look to you after the sale to demolish, rectify or obtain approvals.

Survey

A survey shows the dimensions and boundaries of the property. It will also identify any encroachments by structures erected on the land.

In areas inhabited for a long time the fences are often not right on the boundary or there may actually be part of a building encroaching on your land. In more extreme cases, a driveway which appears to be on the property you are buying may actually be on the next door neighbour’s property which would mean you may end up with no access to your new home.

Strata

If you are purchasing a strata property then a full examination of the strata management records should be undertaken by an experienced person. The strata records will show not only the financial details of the administrative and sinking funds but will also show plumbing, drainage, fencing, driveway and other problems that may exist or which have been repaired in the past. Any proposal for additional works or levies should be identified via a strata inspection.

A penny saved is a penny earned

Your lawyer can advise you of the pre-contract inspections which should be carried out for each property. Not doing pre-contract inspections before you buy a property is not only risky but it is also false economy.

Considering that the cost of a building and pest inspection for an average house costs about $500-$650 the outlay represents about 0.1% of the purchase price of an average home!

The traps when buying a property are easily avoidable and the risk far outweighs the cost of proper and diligent investigation before you buy.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Can You Be Separated and Live Under the Same Roof?

Sun, 24 Sep 2017 10:35:00 GMT

Can You Be Separated and Live Under the Same Roof?

Before a person can apply for a divorce they have to be able to establish to the Family Court that their marriage has irretrievably broken down.

This can be established if the Court is satisfied that the parties to the marriage have separated and have lived separately and apart for a continuous period of not less than twelve months prior to the filing of the Divorce application.

The twelve month period commences from the date of communication of an intention to separate.

Separated but living under the one roof explained

Being separated and living under the one roof is when a husband and wife separate but continue to live in the same home. It may be for any length of time – a few days, weeks, months or years following separation.

If the husband and wife lived in the same home during part or all of the required 12 months separation period, they need to provide additional details to the Court before they can apply for a divorce.

Two practical examples of how it works:

The parties have been separated for 18 months. They have lived in the same home for the first 8 months after separation. They need to provide additional details about living under the one roof for two of the last months to the Court.
Husband and wife have been separated for 4 years. They lived in the same home for 2.5 years after separation but for the past 1.5 years have lived in different homes. Here they do not need to provide extra information to the Cour t

Additional proof required

The additional details are provided through an affidavit (which is a document sworn or affirmed by the party). The affidavit needs to establish evidence before the Court that there has been a change in the marriage, gradual or sudden, showing that the parties have separated. If the parties are making a joint application each must file a separate Affidavit.

If the Application for Divorce, relying on separation under one roof, is made by one party alone then there must be an additional Affidavit from someone else corroborating the evidence – and this could be a relative, close friend, or family member over the age of 18 years.

The Affidavit should contain the details that show the ending of the marital relationship and this usually includes the following:

Not sleeping in the same bed;
Separation of financial affairs such as separate bank accounts;
Separating household tasks;
Reduction in or cessation of shared activities;
Not representing that you are still in a relationship, such as no longer socialising together;
Communicating to family and friends that you have separated; and
Notifying Government Departments that you have separated if you receive Centrelink benefits or Child Support and attach any correspondence showing this .

It is easier to prove separation under one roof if you can show there were good reasons why you had to continue or resume sharing the same accommodation (such as for the sake of the children or one party could not find or afford separate accommodation) and that husband and wife intend to live apart in the near future.

Household services still being done can be explained

The Court understands that sometimes following a separation, husband and wife may still have to share the same accommodation and one party may still perform some household services for the other, such as washing or ironing, for example, where it is necessary for the running of the home and the convenience of others who live there. This does not adversely affect the application.

Attendance at Court

If it is a sole application and there are children under 18 years (whether relying on separation under one roof or not) the Applicant and/or their legal representative must also attend Court for the Divorce hearing.

In cases where there is a joint application and both parties are relying on separation under one roof and there is Affidavit material from both, then there is no need to attend.

In all other cases the Applicant and/or their legal representative need not attend so long as the Court has sufficient detail about the circumstances of your separation in your Application and Affidavit.

If you know someone who may need family law assistance, particularly if they are thinking of divorcing and continue to live under the one roof they should seek legal help from a lawyer experienced in family law. As you can see more details need to be placed before the Court to explain the circumstances.

For any help call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Employee or Contractor – Do You Know the Difference?

Sun, 24 Sep 2017 10:14:00 GMT

Employee or Contractor – Do You Know the Difference?

It’s important for all businesses to have systems in place to determine whether workers should be classified as employees or independent contractors, as tax, super and other government obligations are different depending on whether the working arrangement is employment or contracting.

Employees generally have PAYG withholding, super and fringe benefits tax paid by the employer. Contractors generally look after their own tax obligations.

If you get it wrong and fail to meet your obligations, you risk having to pay penalties and charges.

What factors do you need to consider?

There are a number of factors which need to be taken into account which help determine whether a worker could be classed as an employee or an independent contractor.

It is important to realise that no single factor can determine if a person is an independent contractor or an employee. To correctly determine whether a worker is an employee or contractor, you need to look at the whole working arrangement.

A worker isn’t automatically a contractor just because they have an ABN or specialist skills or you only need them during busy periods.

Courts will look at the whole relationship between the parties when determining the status of a person’s employment.

The Fair Work Ombudsman has produced a table of common indicators that may contribute to determining whether a person is an employee or independent contractor:

A simple way to help tell the difference

The Australian Taxation Office website uses the following simple descriptions:

Employees work in your business and are part of your business.
Contractors run their own business and provide services to your business.

Why is the distinction important?

Employment relationships are regulated by specific labour protection laws and various awards and workplace agreements. These laws generally provide a higher degree of protection to employees than the general commercial laws that regulate contractor relationships.

This protection includes minimum conditions and standards of employment for employees including minimum entitlements for leave, public holidays, notice of termination and redundancy pay.

Adopt good business processes

Business owners need to keep records to support any decision on whether a worker is an employee or contractor and the factors relied on to make that decision.

Most of the information needed to support the decision can be found in a service contract for independent contractors or an employment contract for employees, which should accurately reflect the actual conditions of the working arrangement.

All contracts should:

be in writing
specify whether it is a contract for services or an employment contract;
set out the period of engagement and the remuneration;
include dispute resolution provisions;
specify if/how the relationship can be terminated.

Penalties

It is illegal for an employer to misrepresent an employment relationship or a proposed employment arrangement as an independent contracting arrangement or make a knowingly false statement to persuade or influence an employee to become an independent contractor.

Under the Fair Work Act inspectors can:

seek the imposition of penalties for contraventions of sham contracting arrangements.
apply to the courts to grant an injunction or an interim injunction if an employer seeks (or threatens) to dismiss an employee for the purpose of engaging them as an independent contractor. The purpose of the injunction would be to prevent the dismissal from occurring, or otherwise remedy the effects. Courts can also make other orders to have the employee reinstated or compensated.

If you need more information or if you need assistance or advice on how to proceed please call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Verification of Identity in Property Transactions

Wed, 23 Aug 2017 11:24:00 GMT

Verification of Identity in Property Transactions

Verification of Identity (VOI) is a process used to confirm the identity of a person.

Lawyers and other parties involved in property transactions have an obligation to ensure that the person claiming authority to deal with land is legally permitted to do so. This includes confirming a person’s capacity to act as agent for a company or as an attorney.

The VOI process is particularly important in land and property dealings as it assists in reducing identity theft and land title fraud. Verification of Identity has always formed part of good practice however from 1 August 2016 it became mandatory for land transactions.

Lawyers and other parties must take ‘reasonable steps’ to verify the identity of their clients, their client’s agents and persons to whom title deeds are being provided.

This means that your Lawyer will need to formally verify your identity during a face to face interview or use other approved methods to confirm your identity and authority to enter into the contemplated transaction. The VOI requirements extend to any person authorised to act on behalf of the client.

When do I need to prove my identity?

Land and Property Information (LPI) is the central registration authority for real property (land) dealings in New South Wales. The LPI registers hundreds of transactions affecting land every week.

New provisions under the Real Property Act 1900 (NSW) allow the Registrar-General to make rules (Conveyancing Rules) regarding the verification and identity of particular classes of persons with respect to certain transactions (Conveyancing Transactions).

The Conveyancing Rules set out the framework required for VOI processes which also reflect the methods used by recently-introduced electronic conveyancing procedures.

Broadly, a Conveyancing Transaction is a transaction between one or more parties involving the creation, disposal or transfer of an interest in land. A typical conveyance, mortgage, charge or lease over property falls within this category.

The registration, recording or removal of an interest or notation in the titles register are also Conveyancing Transactions and will be subject to VOI processes. Examples include the registration of an easement, caveat or plan of subdivision.

The VOI process must also be used for documents that do not require registration at LPI (such as a contract for sale and purchase of land and agreement for lease).

How does the VOI process work?

Your Lawyer must be satisfied that he / she is dealing with the person claiming to be authorised to enter transactions regarding the property. Likewise, Lawyers acting for the party on the other side to your property transaction must confirm the identity of their client.

The idea is to create an ‘even playing field’ in the conveyancing and property transaction setting. By ensuring all sides to a transaction undertake diligent VOI measures the parties are better protected against property fraud.

If you are involved in a property transaction such as the sale or purchase of land or borrowing money secured by a mortgage, you will need to meet personally with your Lawyer or other agency to provide documents and formally prove your identity.

During the VOI process you will be asked to produce original documents so that your identity can be compared (ideally) with a document containing photo identification.

The documentation required for the VOI process is similar to the present ‘100 points’ system commonly used for banking and other identification processes. There are various categories and combinations of documents which may be used to prove your identity.

These include an Australian or foreign passport, drivers licence or photo card, birth or citizenship certificate, Medicare, Centrelink or Department of Veterans’ Affairs card. For those persons who are not Australian citizens or residents, other types of documents may be used.

The types of documents you need to produce are categorised with the higher category documents being the preferred VOI source, for example an Australian passport and driver’s licence.

If sufficient identification documents are not available, an Identifier Declaration may be used which enables another person to identify you. Your Lawyer can advise you on this process.

Verification of Identity documentation relating to a property transaction must be kept securely by your Lawyer for seven years. Once the VOI process is carried out, further verification need not take place for two years. This means that you need not undertake a further VOI process for a subsequent property transaction that occurs within two years of the initial VOI.

What if I cannot visit my Lawyer?

If you are unable to attend a face to face interview with your Lawyer, an Identity Agent can be used to confirm your identity. This is practical for clients who are travelling or do not reside close to their Lawyer’s office.

Australia Post and other reputable agents offer this service and your Lawyer can refer you accordingly. The Identity Agent will complete the VOI process in a similar manner as required by your Lawyer and provide an Identity Agent Certification.

What about companies and attorneys?

If a party involved in a Conveyancing Transaction is a corporate entity, a company search will be obtained to confirm the existence of the company and to establish those persons authorised to sign on behalf of the company. The authorised representatives will then need to undergo the VOI process.

Similarly, attorneys entering transactions on behalf of their principal must provide the document authorising such a transaction and complete the VOI process to verify their identity.

Identity theft leading to the registration of fraudulent documents and dealings over land is not a new phenomenon and can have devastating financial and other affects. Verification of Identity is an important safeguard against fraud and is an essential risk management tool.

By imposing standard and reciprocal requirements for Lawyers and Conveyancers to identify their clients, mandatory VOI rules are likely to offer better protection and safeguard you against a possible fraud in connection with your property transaction.

For more information about VOI, talk to one of our experienced Property Lawyers or if someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Daffodil Day

Fri, 18 Aug 2017 11:23:00 GMT

Daffodil Day

Next Friday, August 25 is Daffodil Day. Equilaw Solicitors will be getting involved and helping raise much needed funds for the Cancer Council. We have a box of Daffodil Day merchandise for purchase here at the office. Please come in and say hello!

To read more about Daffodil Day or to make a donation to this wonderful cause go to https://www.daffodilday.com.au/

Social Media and Family Law – Just Don’t Do It!

Mon, 14 Aug 2017 11:05:00 GMT

Social Media and Family Law – Just Don’t Do It!

Social media – Facebook, Instagram, Twitter, Snapchat and the like – can be a lot of fun and have become an accepted part of modern life. Many of us use such forms of electronic communication to share the exciting, as well as the banal events in our lives, to express our views and to stay in touch with loved ones.

But what happens when people going through a relationship breakdown take to social media? Usually little good comes of it, and sometimes quite a lot of bad can result.

Social media as evidence

If you are going through a separation, you should expect your former partner, their lawyer or the children’s lawyer to search social media to see if they can find out anything damaging about you that could be used as evidence. For example, if you are involved in a financial dispute and might be claiming that you cannot afford to pay spouse maintenance or increased child support, it would probably not be a good idea to share on Instagram photos of your latest holiday or new car.

Similarly, when involved in a parenting dispute, you would be wise not to post to Facebook about your latest “big night out”, especially if the children were in your care at that time.

When making a decision about where children are to live and with whom they are to spend time, the Court can take into account the ability of the parents to communicate and cooperate with one another. So, it is not likely to be helpful if the Court is shown evidence of abusive or derogatory posts you have made on social media about your former partner.

Of course, many people have social media privacy settings which limit the information that can be seen by non-“friends”. If you haven’t set your social media privacy in that way, you would be wise to do that while you’re sorting out the issues arising from your relationship breakdown. However, even with tight privacy settings, it’s still better to be very careful about what you post, or just don’t do it at all.

Social media and prosecution

The law prohibits the publication, including by electronic means, of information relating to family law proceedings which identifies the parties involved, people associated with those parties or any witnesses. Anyone who breaches that rule is guilty of an offence, the maximum penalty for which is 12 months imprisonment.

That prohibition has not prevented some people involved in family law proceedings from using social media as a weapon against their former partner, by carrying out a campaign of cyber-bullying against their former partner, his or her lawyers, the children’s lawyers and the judicial officers involved in the case.

In two recent cases involving such unlawful social media publication, the Court focused primarily on two things.

The Court invoked its child protection jurisdiction and concerned itself with the harm that might befall the children if, as a result of social media publication of information relating to family law proceedings, members of the public could identify the children involved, such that the children might then be exposed to ridicule, curiosity or notoriety.
The Court considers it in the public interest to preserve public perception of the integrity and impartiality of the Courts and judicial system, which some litigants have used social media to attack.

In both cases, the Judges commented on the difference between unlawful publication of information about family law proceedings in a one off newspaper article, for example, and publication on the internet, which is and remains available for quick and easy access by anyone, anywhere, at any time.

In one of those cases the offending parent was ordered to remove all references to the parties and the proceedings from the website he or his family had set up to cyber-bully the mother and to expose the lawyers and judges involved in the case as “corrupt”. In addition, the Court ordered the Federal Police to investigate whether the father had committed an indictable offence.

Similar orders were made in the other case in which the offending party, again the father, had used Facebook to denigrate the mother and her lawyers, the Court, the Department of Community Services and the children’s lawyer.

Can social media be good?

The cases referred to above involved ongoing bitterness and acrimony between the separated couple. Happily, that isn’t always the case, and some separating parents can respectfully communicate and cooperate with each other for the benefit of their children.

In such a situation, tech savvy parents may find a way to use electronic communication or social media to their mutual advantage, for example privately sharing necessary information about the children and their activities.

Unless you and your former partner can find a way to privately use electronic communication to help you co-parent your children after separation, the general guideline when it comes to social media and family law disputes is just don’t do it.

Not only would you not want to find your Facebook posts being used as evidence against you in court proceedings, you could even expose yourself to prosecution by the Federal Police for breaching the law against publication of information relating to family law proceedings.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

FAQ on Estate Planning

Mon, 07 Aug 2017 13:25:00 GMT

FAQ on Estate Planning

While many people are unlikely to nominate estate planning aka “Thinking about what will happen to my assets when I die” as being on their “most wanted things to do” list, in reality, this is something that should be on all our “must do” lists.

Proactively planning for how you would like your assets distributed after your death can save many hours of heartache for friends and family, and can also aid in ensuring that the assets you have spent a lifetime accumulating are not eaten up by costly legal battles after your death, which can arise simply because no direction has been left as to how you wish your estate to be divided.

To help you to get started we have set out below some of the most common questions that arise when considering a plan for your estate.

What is a ‘Last Will and Testament’?

A ‘Last Will and Testament’ (often simply referred to as a ‘Will’) is a written record of how you would like your assets shared or distributed after your death. A Will is different to a Power of Attorney (‘POA’). A POA allows a person or company to manage your assets while you are alive. A separate legal Will is needed to deal with your assets after your death.

I don’t own very much do I really need to have a Will?

The short answer to this question is ‘YES’. There are a number of reasons why it is important to have a valid Will.

Firstly, having a Will gives you peace of mind that you have made your wishes clear and that your assets will be divided up and administered in accordance with your wishes.

Secondly, regardless of the size of your estate, you do not want costly legal disputes to end up eating into those assets. This can be particularly important if the assets of an estate are relatively modest. Disputes between would be beneficiaries quickly eat up an estate, and it is very possible that very little of an estate will be left for the beneficiaries if this occurs.

I made a Will some years ago but should I think about updating it?

Even though a Will does not generally have an expiration date it is sensible to consider reviewing your Will periodically. In addition, if your personal circumstances change it is important to review your Will to take into account those changes.

Important life changes such as marriage, divorce, the birth of children and any change in personal financial circumstances such as receiving an inheritance or buying a property are also relevant milestone points at which to consider updating a Will.

It is important to seek legal advice prior to updating a Will. Sometimes the implications of a seemingly minor change to a Will are not always readily apparent and it is also important that any amendments to the Will are properly documented, signed and witnessed to ensure a Will remains valid.

Are there rules about who I must leave my assets to?

While in theory you are able to prepare a Will leaving your estate to whomever you please, even if that is a home for stray cats, in reality it is very important to seek legal advice on this point.

Relevant matters may include whether you have any infant children or other dependents. In situations involving blended families or estranged children, careful consideration also needs to be given to the likely impact of leaving individuals out of a Will and whether this is likely to lead to a costly legal dispute and contest about the Will.

Who should I appoint as my Executor?

The role of an Executor is one that carries with it great responsibility and while it can be tempting to choose your best friend or eldest child simply because it seems the right thing to do, it is important to consider whether the person you are thinking of naming as Executor has the capacity to carry out the role.

The duties of an executor can include everything from arranging the funeral to managing the assets of the Estate during the period before probate is granted and the assets are distributed. Depending on the size of the estate, debts may need to be paid and the tricky waters of any potential dispute in respect of the Will may need to be navigated.

In circumstances where there is a potential for conflict between family and friends it may be sensible to consider appointing an independent Executor rather than a family member or friend. This can assist in ensuring the estate is dealt with fairly and without favour and also means the burden of the Executor’s role does not rest with a loved one.

The downside to appointing an independent Executor can be that considerable fees may be incurred depending on who or what organisation is appointed. Again, this is a matter where proactive legal advice can be of great assistance in determining the best way forward.

What happens if I die without a Will?

If you die without a Will you will be said to have died ‘intestate’. I f this occurs your assets will be distributed according to the relevant State law. This will of course be outside your control and may mean that your assets are not distributed in the way that you would have liked.

Can a Will be disputed or changed after I die?

It is possible that even with the most careful planning someone may wish to challenge your Will.

I f a Court finds that you did not make adequate arrangements for a person for who you have responsibility, such as a dependent family member, then it may overturn your Will and put in place alternative arrangements for the distribution of your assets. Depending on where you live this could potentially occur even if the claim is by a non-family member.

Another basis on which a Will can be overturned is if a Court were to find that you were not of ‘sound mind’ when you made the Will. Being of ‘sound mind’ means that you had sufficient intellectual and physical capacity to make a Will.

Matters that will impact on the question of ‘sound mind’ will be whether the person making the Will had an intellectual impairment or disability or suffered from memory loss, dementia or some other serious illness.

A validly prepared, properly witnessed and current Will is a good step in the right direction in ensuring that your assets are distributed how you want and to whom you want after your death. A carefully drafted Will can also aid in reducing the likelihood of a successful challenge to how you choose to distribute your estate.

The potential fall-out from a poorly prepared Will is significant both in dollar and personal terms and we strongly recommend that you seek legal advice before preparing or updating your Will. This is an area of law that we have considerable experience in and we are happy to discuss any questions you may have.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or emai l michaelobrien@equilaw.com.au .

Jeans for Genes Day

Sun, 30 Jul 2017 21:42:00 GMT

Jeans for Genes Day

This year Equilaw Solicitors is very excited to join the Jeans for Genes Day movement, August 4, and help fight against childhood disease. We have a box of Jeans for Genes merchandise for purchase in the office. Please come in and say hello!

To read more about Jeans for Genes Australia or to join the movement go to ht tps://www.jeansforgenes.org.au/

The Divorce Process Explained

Sun, 25 Jun 2017 08:45:00 GMT

The Divorce Process Explained

The idea of divorce is well known, as is the established principle of no-fault divorce in Australian law, but less is known or understood about the mechanics surrounding what is actually done and the steps involved.

In this article we explain the process in simple terms.

Today in Australia a court does not consider why the marriage ended. The only ground for divorce is that the marriage has broken down irretrievably. That is, there is no reasonable likelihood that the parties will get back together. A divorce may be obtained in either the Family Court of Australia or the Federal Circuit Court (or Federal Magistrates Court).

Separation

In Australia, the parties must have been separated for at least 12 months prior to applying for your divorce.

If the parties have separated but remained living under the same roof for any period (or are currently living under the one roof), they will need legal advice because there are further requirements that the Court will consider. For example, parties married less than two years who want to divorce must attend counselling with a family counsellor or nominated counsellor to discuss the possibility of reconciliation with their spouse, or if they have not attended counselling, seek permission of the Court to apply for a divorce.

Applying for a divorce

To apply for a divorce the parties must first satisfy the court that they have a valid marriage. A marriage certificate, with a sworn translation into English (if necessary) is needed. If no marriage certificate is available, the court may require the applicant to provide some alternate evidence of the marriage prior to granting divorce.

A person can apply for a divorce in Australia if either party regards Australia as their home and intends to live in Australia indefinitely, or they are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.

In addition, they must satisfy the Court they have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.

The process for De facto relationships

The law requires that people in a de facto relationship (who may be of the same or opposite sex) had a relationship as a couple living together on a genuine domestic basis. However, their relationship is not a de facto relationship if they were legally married to one another or if they are related by family.

Arrangements for any Children

The court will not grant a divorce in Australia unless it is satisfied that appropriate arrangements for any children are in place. That does not mean those arrangements are formal, nor does it mean that there is no dispute, but rather that at the time of the divorce hearing, the children are being appropriately cared and provided for.

The Court hearing

As mentioned above the only ground for divorce is that the marriage has broken down irretrievably and there is no reasonable likelihood that the parties will get back together.

There are circumstances where the parties do not need to attend Court. The party applying for a divorce must attend the divorce hearing where they made the Application for divorce themselves and/or where they have children who are under 18 years of age.

If the parties do not have children under 18, or if they made a joint Application for divorce, they can both choose not to attend the divorce hearing.

A party can only oppose the divorce where there has not been 12 months separation as alleged in the application, or the Court does not have jurisdiction.

Divorce hearings are generally quite brief. The hearing is usually conducted by a Court official known as a Registrar. The Registrar may ask the applicant questions about the information in their Application or about the service of the Application on the other party.

Where young children are involved, the Registrar may ask about arrangements for the children, such as which parent they live with, how often they spend time with the other parent and how they are financially supported.

If the Registrar is satisfied that the grounds for divorce have been established and that the Application has been properly served on the other party (if your Application was not made jointly), the Court will grant the divorce.

The divorce order will become final one month and one day from the date of the hearing, at which time a Divorce Order will be sent to you and your former spouse (if they have provided their address).

What next?

It is important to note that the granting of a divorce does not decide issues about property and maintenance or parenting arrangements for the children.

If parties want to make arrangements about these issues they can make an agreement with their spouse and file it with a court, or seek orders from a court if they cannot reach an agreement. However it is prudent to seek advice from an experienced lawyer.

For people wanting to remarry they should not plan to remarry until the divorce order is finalised. In most cases, this is one month and one day after the divorce hearing. But do not assume the divorce will be granted at the first court hearing as there may be additional evidence required. So it is best to allow more time.

Whilst it is possible to act without legal representation when applying for a divorce, many people find that they do not have the time to devote to this process and prefer to undertake the process with a lawyer highly experienced in divorce law who can provide advice and assistance at any stage of the divorce process.

If you know someone who could benefit from this advice please suggest they contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Strata Law Reforms – What You Need to Know

Fri, 23 Jun 2017 08:12:00 GMT

Strata Law Reforms – What You Need to Know

In 2015 the New South Wales Parliament passed the Strata Scheme Management Bill 2015 and the Strata Scheme Development Bill 2015, more than 90 law changes were passed.

The new pieces of legislation set out comprehensive reforms of NSW strata laws modernising the law to reflect the reality of living in a strata townhouse or apartment today.

The changes are aimed at improving strata living and providing greater opportunity for strata redevelopment. The new strata laws commenced operation on 30 November 2016.

Before the new laws commenced research and community consultation was undertaken:

new regulations were developed setting out how the laws will operate;
key information was developed and released for strata schemes; and
a public awareness campaign has taken place.

We examine some of the more significant reforms set out in the new legislation below.

Collective sale of a strata scheme

Previously, a strata scheme could only be ended or “collapsed” with the unanimous support from all owners in a strata scheme. The new provisions allow for the collective sale or redevelopment of a strata scheme by a 75% majority of lot holders. The rights of the owners are protected by the inclusion of certain checks and balances. For example, if a strata sale is agreed to, the owners are to receive the market value of their lot plus an extra amount to cover costs associated with moving.

The purpose of the amendment is to prevent individual owners from blocking redevelopment of aging and high-maintenance unit blocks.

Proxy Voting

The number of proxies a member of a strata scheme can hold is now limited to:

one proxy vote only for schemes with less than 20 lots; and
5% for schemes with more than 20 lots.

The intention is to restrict “proxy farming”, whereby members gather up the votes of uninterested or absent members in the strata scheme to enable them to pursue their own agenda.

Inspection reports

In relation to all future strata developments, a developer must appoint an independent building inspector to provide both an interim building report (identifying any defective building work) and a final report on completion of the building work.

Building defects

A developer of a high rise strata building is required to place a bond of 2% of the contract price of the building work, to cover potential defects identified after completion and those which are set out in the final inspection report. The building bond must be claimed or realised 2 years after completion of the building work or within 60 days after the final report is given.

The reforms are aimed at protecting buyers of new units, encouraging early identification and rectification of defects and helping improve the standard of building construction.

Other notable changes

The new legislation also includes provisions which:

make it easier for owners to complete cosmetic and minor renovations to their units;
address issues of parking, pets and smoke drift;
allow an owner’s corporations some flexibility in deciding when their general meetings will be held; and allowing more modern forms of communication to be used to attend meetings, such as video and teleconferencing.

What about the other states and territories?

NSW is not the only state turning its attention to strata law reform. In Queensland, discussion papers for similar reforms were prepared in 2014 at the request of the previous State Government. Similarly, in Western Australia a Strata Reform Project Team has been tasked with undertaking research into strata reform to ensure Western Australia has a modern Strata Titles Act. Victoria’s last round of reforms of owner’s corporation legislation took place in October 2014.

The reforms are intended to promote redevelopment of strata apartment buildings, assist in urban renewal and increase housing supply. Apartment owners are encouraged to make themselves aware of the strata reforms and consider the impact the changes may have on their strata living.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Dealing with Deceased Estates – Executor Duties

Fri, 16 Jun 2017 07:57:00 GMT

Dealing with Deceased Estates – Executor Duties

After a person dies someone has to look after the assets of that person and pay the person’s debt. Although the person is no longer here, his or her affairs must be finalised and the person to finalise the affairs is appointed by the Will of the deceased.

Where a person is appointed by a Will, that person is called “an executor”.

An executor is chosen by the person making the will to carry out their wishes in managing their estate, and is responsible for the administration and distribution of assets to beneficiaries according to those wishes. An executor may be a friend, a relative, or a professional.

Most people are unaware of the complexities and time involved in administering an estate and may find the role to be a burden.

What are the legal steps that are taken after someone dies?

The executor of a Will may need to make an application to the Supreme Court for Probate. This is usually done with the help of a lawyer. Probate is a Court order declaring a deceased’s Will valid and that the person named in the Will as the executor can finalise the deceased’s affairs.

It is not always necessary to get a Grant of Probate. The need for a Grant by the Courts has been relaxed over the years, although an application for a Grant is still necessary in many cases.

When do I need to apply for Probate?

The requirement to apply for a Grant of Probate will depend upon the nature of the assets of the estate. To determine whether a Grant is needed, the person appointed executor in the will must contact the organisations with which the deceased held assets to determine the requirements of those organisations for transfer of those assets to the executor or the beneficiaries. This is best done through your lawyer.

Where a dispute does or is likely to arise over the estate, a person appointed as executor would be wise to apply for a Grant of Probate. Where a person does not have the right to deal with an estate, the person can become personally liable to the beneficiaries.

How to apply for Probate

Anyone appointed an executor under a Will must firstly determine the deceased’s assets and debts. Once that is known the executor can then determine how the assets can be transferred to the beneficiaries.

In making an application to the Supreme Court, the executor must:

advertise the application;
lodge a formal application with the Court with an affidavit (a sworn statement) containing:
proof of the advertisement;
details about the Will;
certain details about the deceased person; and
the original Will;
do a search of the Registry records to indicate a previous Grant has not been made; and
provide a certified copy of the death certificate.

Paying any debts and distributing the assets

Any debts of the estate must be paid before the estate is distributed. Then the executor distributes the estate in accordance with the will.

After the Grant of Probate from the Supreme Court Registry has been made, evidence of the Grant must be sent to the various places where the deceased’s assets were held (ie. the deceased’s banks or share registries). Those institutions then transfer the assets as directed by the executor or the executor’s lawyer.

Any land in the sole name of the deceased can be transferred to the executor or the beneficiary by lodging the Grant of Probate with the Land Titles Office, together with an application to transfer the land.

Where the deceased owned land in more than one jurisdiction, it may be necessary to apply to the Supreme Court of each jurisdiction for a reseal of the Grant of Probate, before the land can be transferred under the Will.

If you need to know any more about administering an estate please call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

The Perils of Representing Yourself in the Family Court

Tue, 23 May 2017 11:35:00 GMT

The Perils of Representing Yourself in the Family Court

The Family Court of Australia was one of the first courts to recognise self represented litigants as a permanent and significant client group.

Research indicates that 20 to 30 per cent of Family Court cases involve a party who is self represented at some point.

It is important to weigh up the benefits of using a lawyer even if you don’t have to as the consequences of not following the correct process, filing incorrect documents or filing them out of time could be disastrous.

In this article we examine some of the issues that can be encountered.

How the Family Court can help

The Court has gone to considerable lengths to streamline the process for self represented litigants at court, providing them with increased support by simplifying its procedures to encourage the early resolution of disputes, and to make the Court more user-friendly.

The Court now provides do-it-yourself kits for guidance and assistance on completing some of the most common forms, including consent orders, financial statement, affidavit and service.

In addition and where possible, the Court provides a duty registrar to assist self represented litigants with Court processes and procedural advice.

Things to consider about the Court process

Where one or more of the parties is a self represented litigant, the principal effect on the judicial officer is to increase the time spent on the case, both before and during the trial and may include more delays than is usual and more adjournments. Family Court staff and court officers while not being able to give legal advice, are required of necessity to explain the court processes and procedures to the litigant.
Self-represented litigants often fail to identify a known cause of action in their pleadings.
A common complaint is that judges extend too much leniency to self represented litigants in making submissions. There may be a perception that judges sometimes take the line of least resistance and let the self represented litigant ‘get it off their chest’.
Situations frequently arise, particularly in the family law or domestic relationships jurisdictions, where self represented litigants use the court proceedings as an opportunity to embarrass or harass their former partner. This may or may not be deliberate.

Instructing a lawyer too late

We have encountered many potential clients who are either in the process of representing themselves in the Family Court or where their matter is already complete.

What we usually discover in these cases is that the outcome could have been better, the matter requires the immediate attention of an experienced lawyer or that it may have been so badly put together or presented that it is past the point where even the best lawyer can help.

There are also many practical issues that your lawyer can advise you about, that don’t appear in a DIY kit, if you are separated or in the process of divorce.

Some tips, traps to avoid and issues to consider

Agreeing to move out of the matrimonial home can cost you a lot of money. Seek legal advice first.
Everything you say, text, email, tweet or put on Facebook including things said in the strictest confidence to family or friends can get back to your former partner.
Don’t rely on memory – keep a diary but remember it may be read by the Judge, so be careful what is written. Perhaps limit it to points that will jog your memory.
If you decide to engage a lawyer, then make it worthwhile and have a comprehensive discussion, not just those points that you feel are in your favour.
Before you separate take photographs or photocopies of bank books or accounts, taxation records and superannuation papers, so the sums and account details are identifiable.
Before you move out take all your personal papers with you, including jewellery and your personal items.

What many people attempting a DIY divorce don’t know is how much they don’t know . It is like many tasks where experience can help speed the process and lead to a more successful outcome.

Self represented litigants often have difficulty identifying and pleading a cause of action, which may result in more court attendances as well as confused and lengthier trials.

It is most advisable to see an experienced family lawyer first to identify the appropriate issues, advise you on your options on those issues, fight for a positive outcome on those issues, and make sure all of the issues have been examined.

If you know someone who may need assistance get them to call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Understanding Unfair Dismissal Claims

Tue, 16 May 2017 10:48:00 GMT

Understanding Unfair Dismissal Claims

Unfair dismissal matters can be complex and frustrating for both employers and employees alike. Since the commencement of the Fair Work Act in 2009, employers have had expanded responsibilities to ensure they correctly terminate employees and more employees are able to successfully make unfair dismissal claims.

At the same time employers have narrower exceptions when they’re defending claims.

Terminating a person’s employment is usually stressful and upsetting for everyone concerned, so it’s always important to understand when and how it can be done in a fair and appropriate manner.

The issues can be complex

Unfair dismissal can also incorporate far reaching issues including employment type, award and enterprise agreement coverage, time limits for claims and the provisions of the legislation.

In addition the definition of ‘dismissal’ can include a situation where a person resigns but was forced to do so because of conduct, or a course of conduct, engaged in by their employer. This is commonly referred to as ‘constructive dismissal’.

What remains after the legislative changes is that a dismissal must be harsh, unjust or unreasonable for it to be an unfair dismissal under the Act. The primary remedy is said in the Act to be reinstatement, but in practice this does remain the exception rather than the rule. More often than not, compensation is ordered – the Fair Work Commission can order compensation of up six months of the employee’s salary.

Who is covered by the unfair dismissal provisions of the Fair Work Act?

In a small business (with fewer than15 fewer employees), an employee is covered if they have worked for at least 12 months;
For larger businesses, employees are covered after six months.
There is an additional hurdle for employees of small business. Even if an employee has worked in it for 12 months, a dismissal will not be unfair where the small business has complied with the Small Business Unfair Dismissal Code.
Under the Fair Work Act, a dismissal will not be unfair if an employer can show that it was a “genuine redundancy”.

What is a “genuine redundancy”?

There are three elements to a genuine redundancy

the employer no longer requires the employee’s job to be done by anyone because of changes in the employer’s operational requirements;
the employer has complied with any consultation obligations that it might have in an enterprise agreement or award;
it would not have been reasonable for the employer to redeploy the employee within the employer’s business or the enterprise of an associated entity of the employer.

Small businesses – don’t be caught out

Research by Benoit Freyens, assistant economics professor at the University of Canberra, and Paul Oslington, economics professor at the Australian Catholic University, found that in the change from the Workplace Relations Act 1996 to the Fair Work Act:

Where unfair dismissal cases were arbitrated between 2000 to late 2010, claimant success rates have lifted from 33% under Work Choices to 51% under the current Fair Work Act.
Claims under Fair Work against businesses with more than 100 employees have a 41% success rate, versus the 33% rate under the Workplace Relations Act.
Claims lodged under Fair Work have jumped to 17,000 per year, from 6000 under Work Choices – in line with the increase in the number of employees able to make unfair dismissal claims (and the removal of many employees from the State industrial relations system to the Federal industrial relations system). Payouts were steady, averaging about 12 weeks’ pay.

Employers need to be vigilant in conforming to process when dismissing somebody, even when the employer believes they have sufficient reasons to justify dismissal, such as theft. They need to follow the correct process – such as providing warnings and collecting documentary evidence. In the absence of this process it’s very easy to formulate an unfair dismissal claim on the basis of a lack of fair process.

For employers the best way to avoid claims of unfair dismissal is to make sure that your organisation and your employees really understand their obligations under the Fair Work Act when terminating someone’s employment. It also means there should be an internal review of the firm’s policies.

That said, only about 1% of unfair dismissal applicants to the Fair Work Commission successfully achieve reinstatement through arbitration. The most common outcome is a conciliated settlement. Understanding unfair dismissal claims helps parties optimise their outcome in what can be a confusing system.

We represent both employers and employees so if you or your organisation needs assistance or advice on how to proceed please call on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Buying a Rural Property

Wed, 10 May 2017 10:23:00 GMT

Buying a Rural Property

The process of buying a rural property or farm is a little different to buying a residential house in town.

A prudent purchaser should conduct the usual pre-contract inspections on the home and buildings on the rural land. This should include a timber pest inspection and a building inspection to discover any defects that are not usual “wear and tear”. Any issues of concern in these reports should be followed up with licensed tradesmen where required.

In addition, as with “town land” the buyer must beware and will risk financial loss if the proper investigations are not done before entering into a contract.

One of the major considerations when buying rural property is whether the purpose you are buying the property for fits the use allowed by the local council and other state government departments. It is a costly mistake to buy a property say for aquaculture in an area that does not permit that type of agricultural pursuit, or the area may have chemical residue which will destroy your organic farming intentions.

By commissioning searches and enquiries before you enter into a Contract for Sale you can minimise the risk of hidden “surprises” on your rural property.

Chemical Residues, Livestock and Plant Diseases, Noxious Weeds and Animals

If you intend growing crops on your land for sale or raising livestock for market, the presence of chemical residue in the soil can destroy your business. Organochlorines such as DDT were used extensively on farms (and all property) to control pests and the residue can remain for decades in the ground and attach to plants and animals.

Some diseases can stay on the land long after the animals are gone even for long periods of time after de-stocking. Protection zones often prohibit certain activities on farms if affected, and may stop you from keeping certain types of animals or stock at all if a significant risk exists. A Local Land Services (LLS) search will disclose some information regarding this.

Specific types of crops can be affected by specific pests, for example, fruit fly and nematodes. If you intend cropping a thorough investigation by an experienced horticulturalist is recommended and Local Councils often have officers who can assist. You may also want to get a soil test to establish firmly that there is no chemical residue in the soil.

Noxious weeds and pests can also be a problem on rural land. A search sent to the LLS (previously the Rural Lands Protection Board), can show any notifications or orders on the property for these issues.

Survey

A survey shows the dimensions and boundaries of the property and is particularly important when buying a rural property.

Existing fencing may not be accurate and can give an incorrect picture of the actual land you are buying. If a water source appears to be within the property and in fact it isn’t, a survey will show this error and you can negotiate for purchase of the property with this knowledge. If this is the only water source on the land, the result of not getting a survey might be devastating to you.

Land Use

Aspects of rural land use including development, agricultural use, irrigation and clearing are governed by the local council and state government agencies such as the EPA (Environmental Protection Authority). There are rules on what you can and cannot do on the land and these rules should be checked thoroughly before you buy a property, especially if it is for a specific purpose.

Infrastructure for your farm including building of roads and bridges should be investigated and environmental considerations for your intended use of the land checked to make sure they comply with land use rules.

Access

A right of legal access must be confirmed before you buy a rural property.

Sometimes what looks like access may just be an easement or a stock route that can be changed and leave you unable to access your land. This should be checked particularly around Crown Land areas where they may be “enclosed roads” that look like normal roads but are actually owned by the government and can be closed at any time, possibly denying you access to your property.

Easements

The current plan of the land should be carefully considered for any “proposed” or “intended” easements or rights of way. Easements not on the land at the time of inspection, but noted on a plan as approved, may impact on your farming in the future.

Water Entitlements

Rural land without water is not as valuable. To protect your investment you should check whether the water resources are registered as required by local government and state law. Irrigation licences, water access from rivers and water bores all need the appropriate approvals and details should be included in the contract for sale. Dams should also be checked for compliance if required in the area in which you are buying.

Native Title

A search can be obtained to show whether there is a current native title claim on the property and the extent of which this may affect your farming endeavours.

Taxation issues

If you are buying rural land on which to run a business you should discuss your purchase of the land and the type of business you wish to have with a competent accountant experienced in rural taxation who can advise you on GST and CGT implications and tax issues.

Every rural property is different and it is important that you get the right advice and assistance before and after you enter into a contract to buy a property.

Legal professionals who are experienced in rural conveyancing can assist you in properly investigating rural land for any risks to protect your financial investment.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Making a Will if Capacity is in Question

Sun, 23 Apr 2017 08:00:00 GMT

Making a Will if Capacity is in Question

It is well known that a Will is a legal document which sets out how a person wants their assets to be distributed once they die.

If you are over the age of 18 you can make a Will – provided you have capacity .

In general terms a person will have the necessary capacity if they:

know what a Will is;
know of the amount and type of property they are disposing of;
understand the moral claims to which they should give effect when deciding to whom to leave their property; and are not delusional or suffering from a mental illness at the time they sign their will .

Who decides on capacity?

It is not the role of a lawyer to be an expert in assessing the capacity of their client. However, a lawyer can be involved in carrying out a “legal” assessment of the Will maker’s capacity.

When should the Will be signed?

It would be ideal if the doctor could be present when the Will maker signs the will and even better if the doctor is one of the two witnesses to the will. In all likelihood this will not be possible.

Where there is the likelihood of the Will being challenged on the Will maker’s death on the basis of lack of capacity, it is important to obtain contemporaneous medical evidence from the Will maker’s treating doctor or in some cases a geriatrician confirming the Will maker has capacity. It is prudent for the doctor to conduct a medical examination to determine this and then provide a written report confirming his opinion.

We feel that the Will maker should on the same day provide instructions to the lawyer and sign the Will.

Having a medical report stating that, in the doctor’s opinion, the Will maker had capacity and then on the same day the person provided instructions and signed their Will, places the Will maker in a strong position so far as capacity is concerned.

Could the Will be challenged?

It is important to address the issue of capacity in some circumstances because a Will can be challenged on the grounds that the Will maker did not have sufficient capacity when signing the Will. This arises most frequently where the Will maker is ill, for example, in hospital on medication or elderly and suffering from dementia.

It is difficult to set aside a Will on grounds that the Will maker lacked testamentary capacity if the Will is prepared by a competent lawyer who took appropriate instructions from the Will maker and was satisfied the Will maker had the requisite testamentary capacity to make a will.

How your lawyer can help

It is also prudent to ensure the lawyer is made aware of this potential difficulty because as we suggest, it may be necessary for the Will maker to first attend their doctors surgery for an appointment with the doctor being able to provide a satisfactory written report so it can be taken to the lawyers office ahead of the Will making appointment but on the same day.

It is then a matter for the lawyer to be in a position to actually prepare the Will on the spot for checking and signing. Then the Will maker will have a Will that is dated the same day as a medical report saying they had capacity.

As you can see there is a degree of planning that is needed, so speak to your lawyer first to ensure that all the plans are worked out first.

If this is relevant to you or your family then please call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

The post Making a Will if Capacity is in Question appeared first on Equilaw Solicitors .

Saving Your Rights To See Your Grandchildren

Mon, 17 Apr 2017 08:00:00 GMT

Saving Your Rights To See Your Grandchildren

If you are a grandparent and face the sad circumstance of a break up in your family group, through separation or unforeseen events, you may be worried about your right to continue seeing much-loved grandchildren.

Unfortunately, some grandparents only see their grandchildren at crowded school events or from the sideline at sporting occasions. In Australia, grandparents have legal rights to approach Courts for orders that they be allowed to spend time with their grandchildren.

If you have concerns about the welfare of your grandchildren, you may be concerned about how to help protect them.

What rights exist?

When it comes to the law, grandparents do have some rights. While the law’s focus is on the well-being of the child, that includes a child’s right to know and have contact with both parents and others seen as significant for their care and development, including grandparents. It is important to note that grandparents do not have an automatic right to spend time with their grandchildren; rather they have standing to seek orders from the Courts.

Parents who are separating often make plans for the future care of their children informally, and will agree on where their children will live. Some may draw up a written parenting plan setting out their arrangements for caring for the children. They can make this more formal by registering it with the courts in Consent Orders.

If you are concerned about your future contact with your grandchildren, you can ask to be included in such plans if they are being drawn up. If you can’t agree with separating parents about your future contact with the children, you can apply to the courts for parenting orders yourself.

Are the rights automatic?

Grandparents don’t have automatic rights to see their grandchildren. However, amendments to the law have given them recognition and status. The courts emphasise the importance of children having contact with as much of their wider family as possible and of growing up feeling part of an extended and supportive family group. Others with a close ongoing relationship or who can show they are involved in the children’s welfare can also apply to the courts for parenting orders.

Twenty years ago in a case where a grandmother had applied to be allowed to have contact with her grandson the judge stated that “we live in troubled economic times and by way of example, in 20 years’ time, the child may have need for finance in establishing a house, in purchasing a car, in any number of areas. The more people that are loving and close to him and can help him, who feel an obligation towards him, the healthier it would be for the child.”

An order may enable you to have some visits, or communicate with your grandchild, perhaps by phone or email. It will be up to the court to decide what should happen, based on what it thinks is in the child’s best interests. Although you have a right to apply for parenting orders, this does not mean the courts will necessarily decide in your favour.

What is the process?

The law requires that families first attend family dispute resolution, or mediation, before going to court. An independent person trained in helping families discuss their differences will try to help everyone come to an agreement. You will need a certificate from an accredited dispute resolution practitioner to show you’ve attempted mediation before you can take court action.

If mediation fails, you will need legal advice before going to court. You need to find out how strong your case is, what forms and documents you will need to lodge with the court to support your case (these are called affidavits), what orders you should ask for, which court is better to start the case in, and the costs of taking legal action.

Even if you decide to represent yourself in court, it is recommended to get legal advice about how to prepare your case. You must remember that the child’s best interests are always the first priority. You will also need to consider the practicalities of being able to implement any arrangements you wish to make.

Grandparents can sometimes get involved and can apply to the Children’s Court to have the children placed in their care.

You can apply to court for your grandchildren to live or spend time with you whether their parents are together or separated. You will not need a certificate of dispute resolution if there is a fear of violence or the matter is urgent, or a party can’t take part in mediation because of a disability.

In cases where there is strong parental opposition to Court orders sought by grandparents, a Court appointed Family Consultant may be required to prepare a family report for submission to the court, to assist the court in deciding whether to grant a parenting order for the grandparent.

If you are concerned about you grandchildren’s welfare for any reason, or know people who are, please call us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Extension of the Unfair Contracts Regime to Small Businesses

Tue, 11 Apr 2017 05:07:00 GMT

Extension of the Unfair Contracts Regime to Small Businesses

The Federal Government has enacted legislation extending the unfair contract term protections of the Competition and Consumer Act 2010 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth) to the small business sector.

Under the new laws, a Court is able to declare that a term of a standard form small business contract is void if the term is unfair.

The laws are an extension of existing provisions which have been available to consumers since 1 July 2010.

The intent of the legislation is to level the playing field and prevent “take it or leave it” standard form contracts, which are commonly one-sided, from including unfair terms. The amendments are based on the assumption that small businesses, like consumers, often lack the resources or skills to understand and negotiate contract terms and are vulnerable to the inclusion of unfair terms.

Agreements which could be caught by the provisions include retail leases, supply agreements, franchise agreements and finance contracts.

In this article, we look at what the new regime means for your business.

What transactions are captured by the new regime?

The amendments extend the unfair contract term protection laws to contracts that are defined as a “small business contract”. A small business contract is one where:

the contract is for the supply of goods, services or a sale or grant of an interest in land;
at the time at which the contract is entered into, at least one party to the contract is a business that employs fewer than 20 persons; and
the upfront price payable on the contract is no more than $300,000 (or $1 million if the duration of the contract is more than 12 months).

The protections only apply to standard form contracts. Although there is no express definition of a standard form contract, a standard form contract generally includes situations where:

one party has all or most of the bargaining power relating to the transaction;
one party prepared the contract before discussions between the parties;
one party was required to either accept or reject the contract as presented;
one party was not given the opportunity to negotiate; or
the terms of the contract are not specific to one party or the particular transaction.

A contract will be presumed to be a standard form contract unless a party proves otherwise.

The regime will not only apply to new small business contracts, but also pre-existing small business contracts which are renewed and to the terms of pre-existing contracts which are varied.

What is an unfair contract term?

A term of a contract is unfair if it:

would cause a significant imbalance in the parties’ rights and obligations arising under the contract;

is not reasonably necessary to protect the legitimate interests of the party who would be advantaged by the term; and

would cause detriment (financial or otherwise) to a party if it were to be applied.

The legislation sets out some examples of unfair contract terms, including terms that:

allow one party to unilaterally vary, renew or terminate the contract;

penalise one party for a breach or termination of the contract;

allow one party to vary the upfront price under the contract without the right of the other party to terminate the contract; and

allow one party to unilaterally determine whether the contract has been breached.

Enforcement of the new provisions

If a party considers that a term of a small business contract is unfair, it can apply to the Federal Court seeking a declaration that the term is void and unenforceable. The remainder of the contract will bind the parties if it is capable of operating without the unfair term. Once a term is declared unfair, the party could also seek an injunction preventing the other party from relying on the unfair term.

There are no specific penalties or offences associated with a contract term being held to be “unfair”.

Applications to the Court can be made by a small business, the ACCC or by State regulators. The ACCC has been provided with $1.4 million in funding to assist in the implementation of and compliance with the new legislation.

What can your business do going forward?

The new laws apply to contracts entered into or varied from 12 November 2016, which means that any business that uses a standard form contract when dealing with a small business will have to comply with the new regime.

Companies which deal with small businesses should review their standard terms of trade to ensure that they do not include unfair terms. This might include:

examining whether the company utilises standard form contracts;
assessing the extent to which standard form contracts are entered into with businesses which employ less than 20 people and which fall within the upfront price thresholds;
identifying existing contracts which might be renewed after the commencement of the new regime; and
reviewing any standard form contracts to identify terms which might be deemed “unfair” and considering whether they should be amended.

The new legislation affects a large number of industries which rely on standard form contracts. Businesses should review their standard form contracts immediately to minimise the risk of key contractual terms being found unenforceable.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

E-Conveyancing the Way of the Future

Thu, 09 Mar 2017 06:08:00 GMT

E-Conveyancing the Way of the Future

For the past 150 years when completing a property settlement it has been necessary for lawyers and banks to meet up to check and swap documents and bank cheques.

The party that ended up with the documents then had to lodge them at the Land Registry and notify government authorities about the transaction.

Many of our readers would have been involved in a settlement where they were selling one property and buying another and the settlements had to occur simultaneously or where multiple simultaneous settlements had to be finalised before you were able to get the keys to your new home.

There are a lot of things that can go wrong with a manual process involving the physical signing and handling of documents.

The commencement of a new e-conveyancing system will change this and bring the whole conveyancing process into the 21 ^st century filling it with much needed speed, efficiency and accuracy.

What is e-conveyancing?

e-Conveyancing provides an electronic online business environment for completing property transactions including electronic lodgement with Land Registries and the electronic settlement of payment of funds.

This process is facilitated via a secure online environment to:

Lodge the Land Title documents needed to register changes in property ownership and interests;
Allow the various parties involved in the transaction to view and complete the documents online to conclude the property exchange or transaction; and
Allow for the electronic settlement of all financial transactions at a nominated date including settlement monies, duties, taxes and any other disbursements.

The Benefits:

Tangible time and cost efficiencies
No requirement for physical documentation at settlement;
No requirement to physically attend settlements
Use of technology to reduce human error and settlement failure
Aims to replace legacy paper-based approach.

This is a huge shift in the industry, similar to how share trading in the late 90s went from paper share certificates to online, revolutionising the stock broking industry and share trading generally.

Who provides the secure online environment?

An online property exchange known as PEXA has been established nationally to provide a standardised platform for the completion of online property transaction.

The PEXA platform has been rolled out gradually since December 2013 under an initiative lead by the Government backed National Electronic Conveyancing Development Limited.

The platform – developed by Accenture and hosted by Telstra – uses elements of electronic conveyancing systems developed in individual States.

PEXA removes the need to physically attend settlement. Basically, Land Registries, Financial Institutions and lawyers can access the platform and transact together online, performing lodgement right through to settlement from the comfort of their desk.

Through PEXA, the following transactions can be completed (subject to conditions):

Mortgage
Discharge Mortgage
Caveat
Withdrawal of Caveat
Transfer Title
Nomination
Withdrawal of Nomination
Consent
Notice of Acquisition
Notice of Sale

How does it work?

Lawyers open an online workspace where the Land Registry documents and settlement schedule are created and information is shared with all parties to the transaction.

Once preparation is complete and the settlement date and time is reached, PEXA will automatically:

Lodge documents with the Land Registry;
Exchange loan funds and pay stamp duty and other third party beneficiaries;
Remove the need for bank cheques and the wait that goes with them; and
Remove the need to physically attend settlement.

How does this improve the current system?

It dramatically improves the current situation where lawyers representing the buyer and seller as well as the incoming and outgoing Bank are required to meet up and exchange printed documents and bank cheques before a property is able to settle.

Simple errors like a misspelt or missing names, names that don’t match across documents or wrong cheque details can cause the settlement to fail.

Using PEXA the information is pre-populated in the system and verified against the land registry system, so it reduces error and gives certainty that the purchase will settle.

Full transfer functionality including online lodgement and financial settlement is now available to NSW property lawyers and conveyancers.

If you would like to know more about e-conveyancing or would like help with your property matter contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Do You Know When To Update Your Will?

Thu, 09 Mar 2017 05:50:00 GMT

Do You Know When To Update Your Will?

Most people know that a valid Will determines how their assets are dealt with after they are gone. Wills generally provide for the appointment of a trusted executor/s and the leaving of gifts to chosen beneficiaries. They may also appoint guardians for minor children and give direction for specific funeral and burial arrangements.

When to review your Will

Many people make a Will, arrange for it to be safely stored and then forget about it. However, in many situations reviewing your Will is just as important as preparing it, particularly when events occur and your Will no longer reflects your wishes.

Your Will should be reviewed when your personal or financial circumstances change.

The following events might prompt you to review your Will.

Marriage

The Succession Act 2006 (NSW) revokes a Will when the testator marries but does not revoke a gift to a person to whom the testator marries nor the appointment of that person as executor. Marriage however may void other parts of the Will.

Wills made ‘in contemplation of marriage’ remain effective when the marriage (to the person nominated in the Will) occurs. This avoids statutory provisions that might otherwise void certain parts of the Will because of marriage.

If you have married since preparing your Will then it may be time to review it. Even if the Will was made in contemplation of marriage to your present spouse, if some time has passed since preparing it, certain other terms of the Will may no longer be desired.

Separation

The Succession Act 2016 (NSW) provides that gifts to a former spouse upon divorce are revoked as well as the appointment of a former spouse as executor. A Will should always be reviewed on separation from your spouse or de facto partner to take account of new circumstances. Bear in mind also that many partners are separated for some time before finalising their divorce.

Birth of a child

Obviously the birth of a child will warrant revision of your Will to ensure that child is adequately provided for. Your Will can be drafted to distribute assets equally amongst your children, even those born after your Will is made.

Death or ill health of an executor

You may have appointed an executor/trustee of your estate who is no longer alive, aging, mentally or physically unwell, or who has moved away. In these circumstances you might consider appointing a new executor. Your Will can provide for a substitute executor if your appointed executor is unable or unwilling to act. There is no limit to the number of executors you may appoint. Your executors should be capable of administering your estate in accordance with your wishes, which is often carried out under the guidance of a solicitor.

Death of a beneficiary

A gift to a beneficiary who dies before, or within 30 days of the testator, may fail unless a contrary intention is stated in the Will.

If the beneficiary was a child of the deceased then the Succession Act 2006 (NSW) provides that the deceased child’s children will instead take the gift. If the testator has no children and a substitute beneficiary is not nominated the gift falls to the residuary estate. This can have unintended effects.

A Will that nominates a beneficiary who has passed on should be reviewed to ensure that it still has the desired effect.

Disposal of a specific gift

A specific gift is clearly identified and separate to other property of the estate; such as a prestige motor vehicle. If you sell or dispose of such an asset after you make your Will then that gift will fail.

The result is that the intended recipient of the gift may receive nothing at all or a much lesser share of the estate than what you intended. This may have a significant effect, particularly if the asset is of substantial value.

Acquisition of interests in a company or partnership

Property owned by a company cannot generally be disposed of by Will, however the shares in a company may be gifted. If you acquire an interest in a partnership you should consider what happens to that interest when you die. Most partnership agreements set out what happens when one partner dies and how that partner’s share of the partnership is distributed. New business interests should always prompt reviewing your Will.

Increased wealth, potential challenges to a Will, vulnerable beneficiaries

Your Will may incorporate a testamentary trust to provide for minors, protect beneficiaries under legal incapacity, safeguard beneficiaries’ assets from creditors or family provision claims and provide certain income tax advantages.

If you would like these protective measures incorporated in your estate planning and the value of your assets warrant the administrative and accounting costs of a testamentary trust then it is worthwhile discussing this option with your solicitor.

Life is unpredictable and change inevitable. For better or worse life changes are likely to impact upon your estate planning. For good measure, you could diarise to review your Will each time your tax return is prepared. Remember that your superannuation, binding death benefit nominations, appointments of power of attorney and enduring guardians also form part of effective life and estate planning. These should also be regularly reviewed.

If you or someone you know wants more information or needs help or advice, please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Important Things To Consider When Buying A Business

Thu, 09 Mar 2017 05:44:00 GMT

Important Things To Consider When Buying A Business

If you are considering buying a business there are many things you need to do from a legal, financial and general business perspective. Getting the right advice from the start is important. The structure of and issues involved in the sale are quite different if you are buying the business assets only, compared with the shares in the company that owns the business.

In this article we will highlight some of the key issues to be considered.

Making sure you follow the right process before signing any documents is a key component of a successful business purchase.

The main things to do before signing a contract are:

Research
Get professional advice
Review and understand all documentation

Research

Proper research involves checking the records of the business and other information to ensure:

Sales are as good as the owner says they are;
The business systems are sound and documented;
The business does not have any problematic legal obligations or liabilities;
All necessary information, rights and assets will be included in the sale;
Cash flow is sustainable;
Employees will be happy with a new owner;
Customers will remain loyal once you take over;
You understand the operation of and opportunities in the market/industry.

Research should, where possible, be carried out before you sign any contracts.

Professional advice

You should always consider briefing and engaging legal and accounting advisers to assist you in conducting due diligence and documenting the transaction, to avoid legal and financial (including tax-related) “surprises” and arguments down the track.

You might also consider whether there are any industry specific experts that may be useful.

Review and understand the documentation

When purchasing a business there is a lot of documentation to be gathered, read and understood.

The seller may require you to sign a confidentiality agreement to stop you from using confidential information for any purpose other than buying the business. You should make sure you fully understand the agreement before you sign it.

Some of the information you should gather and review is outlined below.

Financial statements

It is sensible to obtain current and historical financial records for the business, including:

Profit and loss statements;
Balance sheets to identify assets and liabilities;
Lists of debtors and creditors;
Copies of any BAS’s lodged by the business.

List of plant, equipment, assets and stock

You should obtain a list of all plant, equipment, assets (including fixtures and fittings) being sold along with current valuations, proof of ownership and information on applicable warranties and guarantees.

Details of any stock sold with the business and how it will be counted and valued at settlement should be discussed and agreed with the seller.

You should also undertake thorough searches of the Personal Property Securities Register to, for example, ensure that security interests necessary for the business have been registered (such as over sale equipment leased to third parties) and to check whether any relevant security interests are held by third parties.

Lists of customers and suppliers

Customer and supplier relationships form part of the goodwill of the business and a list of all available contact details should be supplied so that you can make contact and ensure an ongoing relationship.

Employees

If the business is being purchased as a going concern and the buyer is assuming liabilities for employees then a list should be provided – setting out the employees, their job descriptions, salaries, years of service, any disciplinary issues and accrued entitlements like holidays and long service leave.

Important Contracts

Any major contracts necessary for the operation of the business should be provided and reviewed, including copies of the lease of the premises and any plant & equipment leases. Term, assignment, change of control and termination provisions, in particular, should be checked.

If any sale assets are financed the financier’s consent will be necessary.

If the business is a franchise the seller is required to provide a franchisor’s disclosure statement.

Documenting the transaction

After completing your due diligence you will need to have the transaction documented with a legally binding contract. There are many issues to consider.

Structure

You will need to decide on the structure of the transaction and it is crucial to get advice on the legal, financial and taxation consequences of the structure you adopt.

The types of things that need to be considered include:

Whether you are buying the assets of the business or the shares in the company that owns the assets.
The price to be paid and when it is to be paid.
Who will the buyer be – an individual, company, trust or partnership?

Deciding on whether to buy the assets or the company is a critical issue when buying a business. There is no simple or right or wrong answer to this question as it will usually depend on the business being purchased and the individual circumstances of both the buyer and the seller.

Things to consider when making a decision include:

The amount of flexibility and control you want over what you are buying.
Do you require all of the assets of the business, or all of the employees?
Do you want to be responsible for past liabilities (known and unknown) of the business which might relate to employees, suppliers or customers?

Price and Terms of Payment

Once the price is agreed you will need to determine how and when the price will be paid.

For additional protection you may want a portion of the price to be held back for a certain period to ensure that information given by the seller is accurate or that profit projections are achieved.

You may not want to pay the price in a lump sum and may be able to negotiate to pay in monthly or annual instalments.

You will need to take into account that the business will probably be continuing right up to the sale date, which means stock, accounts receivable and other items will need to be finalised at a certain time and in an agreed manner.

Legal Contract

The main legal document is a contract for sale of business. The sale contract sets out the various terms agreed to by the parties, including for example:

the rights of the parties if things go wrong;
the seller’s representations and warranties, which are designed to ensure that:
the seller remains responsible for the information given to you about the business; and
you get what you pay for;
a non-competition provision which prevents the seller from creating a competing business after the sale; and
(if a lease or franchise is involved) the consent of the landlord or franchisor.

Buying a business can be a complex transaction. You need to make sure you have done adequate research, understand the risks and have received the right advice.

If you are considering buying a business and would like some help please contact us on 02 6542 5566 or email michaelobrien@equilaw.com.au .

Quad bike inquest could lead to law changes

Fri, 27 Feb 2015 05:50:00 GMT

Equilaw Solicitors and its WHS advisory service Safe Industries Australia are keenly waiting the outcome of a NSW coroner’s inquest into quad bike accidents which could lead to changes in the law around their use.

The inquest, held before Deputy State Coroner Sharon Freund at Glebe Coroner’s Court, has been told that quad bikes were the leading cause of death and injury on Australian farms.

More than 200 people, including children as young as 7 years old, have been killed using quad bikes in the past 14 years.

The inquest will examine the findings and recommendations of a report released by the University of NSW and the causes of eight fatal accidents in NSW.

The coroner is being asked to consider whether:

children should be prevented from riding adult quad bikes;
helmets should be compulsory;
training and licensing should be mandatory;
personal locator beacons should be fitted to the vehicles, and
an Australian standard for the bikes are required

Safe Industries Australia consultant, Daniel Bowcock, said that employers were responsible for providing training and helmets to their workers required to ride quad bikes.

“Just this week during an on-property training for a client, I was told the use of two-wheel bikes was not an option because they (the employer) would have to provide training to their workers,” Daniel said.

“That really sent the message to me that there is a misconception out there that anyone can just hop on and ride a quad bike.

“When the case is, quad bikes need just as much training, if not more due to their massive weight, as riding a two-wheel motorbike.”

The inquest is due to finish in August.

Why you need a Conveyancer

Wed, 11 Jun 2014 23:18:00 GMT

Thinking you can perform your own conveyancing could cost you more headaches and money than engaging a licensed conveyancer or solicitor to handle your property transaction.

It is possible to do your own conveyancing however you could be left with a hefty bill or disappointment of not being able to develop your new property.

Conveyancers know the catches

Conveyancers and solicitors know the catches and loopholes to look for, from making financial adjustments leading up to settlement to understanding the legal jargon within a contract.

“Make sure that any outstanding money is paid because if the council rates and any bills aren’t paid at settlement that falls on the purchaser,” Equilaw’s licensed conveyancer, Renee Allen, says.

“So if you’re doing your own and you don’t adjust everything properly at settlement you’re going to get a whopping bill. “It can easily cost you a lot more than paying a conveyancer to do it in the first place.”

Conyenancers understand the contract

Ms Allen explains another advantage of a conveyancer is they can ensure the terms of the contract are explained to you in basic terms rather than legal jargon often sprinkled throughout a contract.

“You need to make sure the titles are right or there isn’t anything in the contract that will restrict your plans in the future such as ensuring there is not a big sewer that runs straight through the middle of your block of land and you can’t build on it.

“It often happens that people buy a large block thinking they can just build an extra shed and they can’t,” she says. “A lot of the time they want to put the shed in the back corner and discover they can’t because there’s an easement (for service drains such as storm and sewer or access right-of-way).

“Or the (property) developer or real estate agent has told them they can do x, y and z but a review of the contract specifies they can’t. A contract will stipulate what you can and can’t do on that block or how big your shed can be, how big you can build your house or what type or colour fence or mailbox you have to have.

“So if you don’t read and understand those big thick documents page by page, you’re going to have trouble following through on your ideas. It could affect building a shed, granny flat, pergola or the pitch of your roof,” Ms Allen says.

Conveyancers have relationships with key contacts

Similarly conveyancers have close business relationships with critical contacts, such as banks, helping save headaches leading up to settlement. When it comes to bank finance, property settlements are not handled at branch level instead through specialist settlement teams where the regular public could find it difficult to follow up on their case or find the right person to answer their questions.

Farm worker fined $15,000

Wed, 04 Jun 2014 06:06:00 GMT

A $15,000 fine for a New Zealand farm worker for not wearing a quad helmet could set a precedent in Australia due to the similarity in legislation.There could be possible flow-on affects to WHS on Australian farms due to similar wording in legislation.

Marlborough farmhand Rangi Holmes was fined $15,000 following an appearance at Nelson District Court last month for not wearing a helmet while riding a quad bike at work and carrying a helmetless child as a passenger.

It is believed to be the first time someone has been convicted for carrying a passenger on a work quad bike. The child, aged under 10, was also not wearing a helmet.

A herd manager on a dairy farm, Holmes, was charged under New Zealand’s Health and Safety in Employment Act for failing to take all practicable steps to ensure his own safety and that of his passenger, which echoes Australian legislation in the Work Health and Safety Act 2011 .

Workplace safety regulator WorkSafe New Zealand prosecuted Holmes after five incidents of riding a quad bike in the Rai Valley while carrying children, without a helmet, were observed over the course of 20 months from February 2012.

Equilaw celebrates champion 3yo colt Dissident at HTBA Awards

Thu, 15 May 2014 05:25:00 GMT

Equilaw partner, Daniel Morgan, presented the Hunter Thoroughbred Breeders Association award for champion three-year-old colt, Dissident, to his breeders Widden Stud, Mr R Hamer and Mr T Burnett at the 23rd annual HTBA awards night held on 14 May 2014 at the Scone Race Club.

Randwick Guineas (G1) winner, Dissident, has won the Hunter Thoroughbred Breeders Association (HTBA) champion 3-year-old colt, sponsored by Equilaw Solicitors.

Equilaw partner, Daniel Morgan, presented the award to Dissident’s breeders Widden Stud ( pictured with Daniel Morgan are Widden’s Antony Thompson and Ryan McEvoy) , Mr R Hamer and Mr T Burnett at the 23rd annual HTBA Awards night held on 14 May 2014 at the Scone Race Club.

He took the opportunity to update the crowd of some of the legal issues that have affected the industry including the McHugh v Australian Jockey Club Limited appeal which found there was no restraint of trade in banning A.I. and in veterinary surgeons that work with race horses were unsuccessful when they appealed Racing NSW requirement they be licensed in Pedrana v Racing NSW .

“Our industry continues to throw up many interesting questions for Equilaw to address,” Mr Morgan said.

The night, hosted by Sky Racing presenter Matt Browning, gets together leaders of the thoroughbred industry to celebrate the achievements of the horses and breeders based in the Hunter Valley as part of the Scone and Upper Hunter Horse Festival and Scone Cup racing carnival.

The HTBA Awards was an important night for the firm, said Ross Cole, also an Equilaw partner.

“Supporting the HTBA is a wonderful way for Equilaw to support the local thoroughbred industry, and honours and acknowledges how significant the Hunter thoroughbred breeding industry is not only in Australia but worldwide,” he said.

“Our sponsorship is also another way we can be return the support to the breeders who form a strong part of our client base.”

The Hunter Valley’s thoroughbred breeding industry contributes over $5 billion to the national economy and $2.4 billion to the NSW economy and the competition is stiff to win an HTBA award as every nominee boasted a Group 1 win.

Other winners

The HTBA Champion 2 year-old colt category, sponsored by International Animal Health was awarded to VRC Sires Produce winner, Zululand, bred by Kia Ora Stud.

Unbeaten Darley Exceed and Excel-filly, Earthquake, winner of the G1 Blue Diamond, took out the HTBA Champion 2 year-old filly category sponsored by the Scone Race Club. Darley’s four times Group 1 winner, Guelph, daughter of champion stallion Exceed and Excel took out HTBA Champion 3-year-old filly category, sponsored by Pages Event Equipment.

The category of HTBA Champion Racehorse, sponsored by JG Goldner Pty Ltd, was hotly contested. Lankan Rupee, bred and raced by Teeley Assets Ltd, winner of the TJ Stakes, Newmarket Handicap, Oakleigh Plate and Coolmore Stud Stakes took out this category inching out multiple Group 1 winners Atlantic Jewel, bred by GJ Perry, and Appearance bred by Darley.

The HTBA Champion Sire category was also strongly contested. Sire of 100 stakes winners, 24 Group 1 winners, two new classics winners, earning prize money of over $10 million, Champion Sire Redoute’s Choice, standing at Arrowfield, took out the category of HTBA Champion Sire sponsored by the HTBA’s major sponsor Inglis. Darley’s 2012-13 Champion Sire Exceed And Excel and Coolmore’s 2011-12 Champion Sire Fastnet Rock, both sires of multiple Group 1 champions earning prize money of $9.3m and $9.2m respectively, came a close second and third.

The category of HTBA Champion First Season Sire, sponsored by Kentucky Equine Research, was awarded to brilliant sprinter I Am Invincible standing at Yarraman Park. By Group 1 winning sprinter and champion European sire Invincible Spirit, five time winner I Am Invincible has sired Group and Stakes winners Vinnie Eagle, Fuld’s Bet, Brazen Beau and Bassillique.

The title of HTBA Champion Broodmare was awarded to the well-bred Zabeel mare, Regard, dam of 10-time winner Atlantic Jewel and Group 1 and multiple Stakes winner Commanding Jewel. Regard was owned by Mr GJ Perry. The HTBA Champion Broodmare award was sponsored by the Scone Equine Hospital.

President’s Award for Life Time Achievement

Forty years of dedication and achievement, across two hemispheres, advising the best thoroughbred breeding operations in Australia, the UAE and Asia, the Hon. Henry Plumptre, Managing Director of HH Sheikh Mohammed bin Rashid Al Maktoum’s Darley operations in Australia was awarded the 2014 HTBA President’s Award for Life Time Achievement.

Murray Bain Service to the Industry Award

And following every Irish person being asked to stand in the room – that being nearly half the people in the room – only one Irish man was asked to remain standing and that was Martin Byrne, as winner of the 2014 Murray Bain Service to the Industry Award. For over thirty years Martin’s service to the industry extended far beyond his ability to influence and shape the nature of the breeding and racing industry to the development and growth of industry leaders including Peter O’Brien (former manager of Coolmore and now manager of the Segenhoe Stud); Craig Anderson (owner of Amarina Stud Farm); Andrew Baddock (current manager of Gooree Stud); Scott Holcombe (former manager of the Woodland’s farm); and the presenter of the award, Brian Nutt (owner of Attunga Stud).

Protect your confidential business information before your employee starts

Thu, 27 Mar 2014 22:54:00 GMT

To reduce the risk of confidential information being flaunted by a terminated employee, employers need to place a greater emphasis on the pre-contractual phases of employment negotiations. Equilaw partner, Daniel Morgan , investigates a problem that often frustrates employers .

A number of cases here at Equilaw suggest that employers are becoming more wisened to safe guarding themselves from ex-employees who may divulge confidential, or obtain employment, with a rival business.

This is an issue that needs to be raised by employers during the pre-contractual phase of negotiation with prospective employees.

Many employers do not pay enough attention to confidentiality clauses (and also restraint clauses) in pre-contractual negotiations and contracts of employment.

Employers often find themselves insufficiently protected when former employees disclose valuable information, use client lists or knowledge that was garnered during their employment.

It is not sufficient when dealing with professional employees, who you intend to be a vital “cog in the wheel” of your organisation, to simply “cut and paste” generic confidentiality clauses into Letters of Employment or Contracts. Such contracts give little protection against future breaches of confidentiality and cannot be relied upon if the former employee ends up working in opposition to their previous employer.

The case of Digital Products Group v Opferkuch (June 2008) is a prime example where a former employee used his former employer’s prices and sales volume information when working for a competitor. While Digital Products was protected by the Trade Practices Act in regards to the divulging of “trade secrets”, the company had no further legal recall to restrain the former employee from using the knowledge gained during the course of his employment because the wording of the employment contract did not match its intended meaning.

The slandered common law principles of Employment Law are:

An employee is expected to act in “good faith” towards their employer;
There is an obligation for the employee not to divulge confidential information;
There is a further obligation for the employee not to release confidential information that is detrimental to their employer.

However, when an employee moves onto a new job, it is imperative that a strong contract has been put in place to protect the employer’s interest and confidential information.

Confidential information does not only apply to paper and actual documents, it also applies to knowledge that an employee may have gained about the business during the course of their employment.

I am often asked by disgruntled employers “what is the likelihood of successfully preventing the use of confidential information by restraining former employees?” My answer is usually somewhat negative due to the fact that proper attention was not paid to negotiations with the employee prior to them commencing their position and the drafting of their employment letter or contract.

Employers wishing to protect their position from ex-employees should as a matter of course:

Conduct pre-employment contract discussions specifying the information that they consider to be confidential and noting these discussions in a prospective file note and confirm them in a pre-employment letter with the employee;
Ensure employees know that they are dealing with confidential information;
Develop in-house protections;
Conduct a de-brief with employees prior to their termination of their employment explaining their obligations to confidentiality and also explaining their obligations in relation to any restraint of trade;
Review any unsatisfactory conduct by former employees and develop pre-employment strategies and appropriate contractual clause;
Review current contracts of employment.

Paying proper attention to pre-contractual communication with prospective employees and ensuring that the contracts of employment are properly drafted will then give a dissatisfied employer confidence to take the necessary legal steps to protect their business.

You can be a bloodstock agent too!

Thu, 27 Mar 2014 05:30:00 GMT

Whether it’s millions of dollars of Thoroughbred horseflesh or a $500 weekend hack, be aware of your responsibilities when buying a horse for somebody else. George Fraser takes us through your legal obligations when acting as an agent in the sale of a horse.

If you buy or sell horses for others, or advise on the purchase or sale of stallion nominations, the scary news is, it could be you, and you will have some legal responsibilities to fulfill.

If you go to nearly any sale at either William Inglis or Magic Millions you will see the usual cast of characters that are the professional bloodstock agents. These gentlemen (most are men) are learned in the dark art of pedigrees and have ‘the eye’ for a good horse, and most, if not all, will be gushingly called ‘a good judge’ by the auctioneer, when said agent gives the imperceptible wink for a bid.

To become an agent is not difficult.

Have you ever been asked to buy a horse for a friend or a client? If you have, then you are an agent, and now let me tell you just what legal nightmares this will open up for you.

An agent, in its simplest formulation, acts on behalf of someone else. That someone else is called ‘the principal’.

The principal is usually the chap with the cash, and the agent is the poor broke fellow that has the knowledge.

Usually in exchange for a percentage of the purchase price, or a fixed fee, the agent will trade the knowledge for some of the principal’s cash. Once the agent agrees to act for the principal, a contract is formed, and a fiduciary relationship and duty to exercise care comes into existence. ‘Fiduciary’ really sounds like something you should call the loud ugly bloke at the end of the bar who keeps spilling beer on you. However, it is a legal term of art, that is, an ancient word used to confuse non-lawyers.

A fiduciary relationship means that you, as the agent, must behave in a certain way toward your principal. You must follow the principal’s instructions, act in person, act in good faith, honestly and in the best interests of our principal; you must disclose any personal interest you may have in the horse you are buying; you must not make any secret profit – so no kick backs from the vendor; and finally, you must exercise reasonable care and skill in selecting your prospective purchases, and in what you say on behalf of your principal to the vendor.

So basically you have to be up front and honest, and you have to exercise reasonable skill. “What is reasonable skill?”, I hear you ask. Reasonable skill is exactly what it sounds like. It is the skill, and expertise that you could reasonably expect an agent to employ when they act on your behalf. It is what lawyers call an ‘objective’ test. You look at what happened and ask, ‘would a reasonably competent agent (yes a faceless, blank one with no name and less personality) have acted in this way?’.

Now the perennial whispered innuendo and scuttlebutt is that some unscrupulous agents take commissions from vendors at sales. Of course, no respectable vendor or agent would be a party to these shenanigans, but if they were, then they are in trouble.

Not only is the taking of a secret commission a criminal offence, it also leaves the agent open for a claim by their principal to recover the dodgy commissions. So while you are in prison, you also get to be sued by your principal.

It is also a criminal offence for a vendor to offer a secret commission to an agent. So the amusing hypothetical situation arises where dodgy vendor and dodgy agent get to do a bit of team sunbaking in stripy sunlight at one Her Majesty’s Resorts for the Morally Indigent.

Now, if you do find yourself acting as an agent for someone, please shout that fact aloud to the auction company, or the vendor.

If you tell the bloke selling the horse that you are an agent for someone else, then you won’t get stuck with the bill if your principal does the dodgy on you. There is no worse place to find yourself than being hunted by some bloodthirsty lawyer for a bill for a horse that you don’t have and, let’s face it, is probably broken down, or otherwise good only for pulling a bakery cart. If you disclose that you are acting for a principal, you will avoid a lot of trouble.

Those “appointment of agent” forms in the sales catalogue – fill one out and drop it into the office. Thirty seconds work might save you the price of half a house.

So the next time you are asked to look at a horse, or bid on a horse for someone, keep the pitfalls of being an agent in the forefront of your mind. Act honestly and disclose that you are only acting as agent, and your troubles will be few. We can only hope.

Protect your Intellectual Property

Thu, 27 Mar 2014 05:04:00 GMT

One way to protect your intellectual property is to register your trade mark. In today’s world of the internet and free-access to global resources, it is the only way to protect your brand.

What is a trade mark?

A trade mark is a valuable marketing tool used to identify the products and/or services provided by the trader, and to distinguish those products and services from those of competitors. It can be either one of, or a combination of, a word, phrase, letter, symbol, number, sound, smell, design, image, shape, logo, picture or aspect of packaging.

Why register a trade mark?

Registering a trade mark is important when creating and protecting a brand. It will eliminate the possibility of others using that brand and damaging its’ reputation. The trader will have the exclusive rights to use the trade mark for a period of 10 years, which then may be renewed.

How we can help.

We can provide high quality, practical advice to our clients in relation to the process involved with protecting trade marks. Our staff members are experienced and always available to answer clients’ queries. We make the application process and registration of trademarks as worry-free and cost effective as possible.

Beware the 'do-it-yourself' financial agreement

Thu, 27 Mar 2014 04:53:00 GMT

Equilaw Solicitors is often reinforcing the message to any couple entering into a Financial Agreement that they must ensure it is legally binding. Even with a ‘do it yourself’ kit, they still need a solicitor.

“Do it yourself kits” may be appealing from a cost saving point of view, however, you still need to seek a Family Law solicitor. Financial Agreements are only binding, even the “do it yourself” ones, if it can be established that independent legal advice was sought by each party prior to executing the Agreement.

A Certificate pursuant to the Family Law Act must be attached to an Agreement confirming that independent legal advice was obtained.

In short, couples coming to their own arrangements in relation to the division of property, particularly after separation, must still seek out a solicitor for legal advice.

Financial Agreements can be entered into either prior to, during, or after a marriage. Provided such agreements are executed correctly and pursuant to the terms of the Family Law Act , they will be considered legally binding.

Vieira v O'Shea – a Jolt for the Thoroughbred industry

Thu, 27 Mar 2014 04:08:00 GMT

A look at the March 2012 judgement in the District Court and the subsequent decision in the Court of Appeal when an owner sued his trainer for buying him a slow horse with soundness issues. By George Fraser , Solicitor and Thoroughbred stud breeder.

The New South Wales Court of Appeal handed down judgment in Vieira v O’Shea on 5 March 2012. The case was an appeal from the decision of the District Court relating to the purchase of a yearling at the Magic Millions sale in January 2007.

The decision of the Court of Appeal has generated widespread discussion and left participants in the wider thoroughbred industry wondering just where they stand. The important thing to note is that the decision of the Court is not a novel interpretation of the law as far as contractual liability is concerned.

Rather it is the application of the law to what is usually a fairly informal, unwritten and usually a handshake agreement between a trainer and a prospective purchaser. In fairness, this type of case rarely comes before the court, which we assume is more from a prevalent industry attitude of ‘win some, lose some’, rather than the novelty of Mr Vieira’s claim.

Background

The judgment reports that Humberto Vieira (“Vieira”) was introduced to John O’Shea (“O’Shea”) in January 2006. At that time Mr Vieira was a newcomer to the world of thoroughbred ownership. He soon remedied that situation with the purchase of six yearlings at that year’s Magic Millions, including a half share in 2007 Magic Millions hopeful, and subsequent stakes winner, Espurante.

Mr Vieira returned to the Magic Millions sales in 2007 and spent up again, purchasing a 70% interest in the Dehere yearling colt soon to be known as ‘Dashere’. Dashere was bought by John O’Shea , with whom Mr Vieira by now had a successful racing relationship.

The court records that Mr Vieira had given O’Shea a brief to buy him a horse with no issues or problems, not a risky one, suitable to be trained as a stallion. This conversation took place prior to John O’Shea purchasing the horse. The evidence shows that O’Shea was careful and methodical in his yearling pre-purchase checks. Not only did he inspect the prospective purchases himself, he had them inspected by Randwick Equine Centre veterinarians, and had their x-rays inspected.

There was no judicial criticism of O’Shea’s methods of pre-purchase due diligence. In the case of Dashere, the horse was presumably inspected by O’Shea, and was then checked for conformational faults by Dr Humberstone of Randwick Equine Centre. Having passed the visual checks, Dr Humberstone then examined the x-rays provided for the purpose of selling the horse, and presumably lodged at the x-ray repository at Magic Millions. The x-rays may have shown other items, but the telling item was a pre-cystic lucency in the left stifle. Dr Humberstone identified this OCD and reported it to O’Shea, that the horse had had a stifle injected, and identified the lucency as being “low risk with time 6 months”.

O’Shea then held a conversation with Vieira in which Vieira asked if everything was OK with the horse, and if the vet said the horse was OK O’Shea advised Vieira that “There is nothing wrong with him. The horse is good.”

O’Shea admitted in cross examination that he knew the horse had issues, and was not free from issues.

Dashere went on to a career marred by surgery and eventually ended up winning a maiden race at Quambone.

The District Court Proceedings

Vieira, presumably less than pleased with his purchase commenced proceedings in the District Court alleging negligence on the part of O’Shea, misleading and deceptive conduct under the Fair Trading Act 1987 (NSW), breach of fiduciary duty, and breach of contract. Judge Rolfe in the District Court proceedings dismissed Vieira’s claim against O’Shea, but went on to assess damages in case he was wrong on the question of liability.

Vieira appealed this decision to the Court of Appeal, where the only grounds of appeal ultimately pursued was for breach of contract.

By agreeing to conduct pre-purchase inspections of horses that Mr Vieira may ultimately purchase, O’Shea entered into a contract with Vieira. O’Shea would receive $1000 for the costs of inspecting any horse subsequently purchased. Vieira had set a term of the contract when he said to O’Shea that he wanted a horse free from issues, not a risky one.

The evidence was that Dr Humberstone had advised O’Shea that there was an issue with the horse’s x-rays and that he had had a stifle injected, but that the horse was low risk, with time, 6 months. The evidence showed that O’Shea was familiar with the term “with time 6 months” that it meant the horse should not be broken in or ridden for six months, and thereafter should be a low risk horse.

In plain English, the dispute in the District Court was whether:

1. Vieira had accepted that O’Shea would obtain veterinary advice and make a decision if the horse fit the purchase requirements of Vieira, or

2. O’Shea was permitted to purchase the horse even though it did not meet Vieira’s requirements, on the basis that Mr O’Shea thought the horse’s x-ray issues were not enough to prevent the purchase.

Judge Rolfe in the District Court trial found that the agreement between Vieira and O’Shea fell into the second category, on the basis that Vieira was not interested in the steps O’Shea took in arriving at a purchase recommendation. Accordingly Judge Rolfe found for O’Shea.

The Court of Appeal Proceedings

On appeal, the Court of Appeal found that the basis of the contractual arrangement between Vieira and O’Shea was that O’Shea ‘“would not recommend for purchase any horse which was not “free of any veterinary problems which will inhibit its capacity to race” and not “free of any issues”‘ (Vieira v O’Shea at [28])

This is a significantly different basis for the agreement to that as was found by the District Court Judge.

The Judges in the Court of Appeal rejected the District Court Judge’s formulation of the contract on four grounds:

1. “Mr O’Shea stated he would not recommend for purchase any horse which was not “free of any veterinary problems which will inhibit its capacity to race” and not “free of any issues”. (Vieira v O’Shea at [28])

2. “It may be true that no horse is risk free, but it does not follow that all horses classified as “low risk” are free of any veterinary problems which would inhibit their capacity to race. Dashere, in particular, was not such a horse. Nor was his category merely “low risk”: it was low risk with time, six months. According to the finding made by the primary judge at [106], O’Shea knew that that classification meant that the horse could not be broken in nor given any ridden exercise for the nominated period. There was no suggestion that a six month period was so brief as to be insignificant in terms of capacity to race (which was thereby postponed). Nor could it be said that the horse was free of any relevant veterinary problems, or “free of any issues” in more colloquial language” (Vieira v O’Shea at [30])

3. “The proper inference to be drawn from this material was that the contractual arrangement did not extend to a recommendation for purchase in respect of Dashere.” (Vieira v O’Shea at [31])

4. “ [I]t follows that the recommendation to purchase constituted a breach of contract.” (Vieira v O’Shea at [32]) In the circumstances O’Shea was found liable because he had breached his contract with Vieira, because pursuant to the terms of the contract, it was not possible for O’Shea to make a purchase recommendation for the horse Dashere, without being in breach of his agreement.

Damages

In assessing damages for the breach of contract the Court looked at the circumstances where the horse underwent surgery in July 2007, and Vieira apparently became aware of the issue with the stifle. The court found that following surgery, Vieira was effectively “locked in” to the horse until it was subsequently sold in March 2009 for $20,000.

Because of that circumstance, Vieira was relieved of the usual duty to mitigate his loss, and was awarded damages for his losses up to March 2009.

The Consequences

This case, while causing concern to the wider thoroughbred industry is not a novel case and does not create ground breaking law. O’Shea made an agreement with Vieira, which O’Shea broke.

It was found by the court that Mr O’Shea was not found to be negligent, or dishonest, or in breach of his duty to Vieira as an agent. There was no adverse finding against O’Shea on any of these grounds either in the District Court or the Court of Appeal.

The evidence showed that O’Shea employed a rigorous yearling selection process, based on his own hard work, and on veterinary advice. However in this instance, it was found that he and Vieila had a contract where he would recommend only a very specific category of horse for Vieira to purchase. It was found by the court that O’Shea breached his promise, by recommending a horse to Vieira that was not what he had promised to recommend.

For Trainers and Agents Trainers, stud master’s, agents and anyone inspecting horses that will be bought by others on their recommendation ought to be especially careful to comply with any directions given to them by the buyer, as to what they specifically wish to purchase.

To this end it is suggested that written instructions be taken and kept on file.

Specific instructions ought to be taken as to whether the agent is empowered to use their own judgment in purchasing a horse, or whether a veterinary examination is required proper to purchase.

If a veterinary examination is required prior to purchase it should be specifically noted whether a written report is to be provided to the agent and/or the buyer.

We suggest that in all instances a written report should be prepared, and forwarded on to the prospective buyer with the disclaimer that the buyer is obliged to seek their own advice on any possible clinical significance of findings.

The buyer should be directed to obtain a second opinion, or otherwise waive that right and proceed regardless. Any waiver should be obtained in writing.

While it was not a feature of Mr O’Shea’s case, it ought to be pointed out that an agent has a duty to put all relevant information before their principal in relation to a horse it is proposed to purchase. Therefore, any vet reports, or even representations made by stud staff should be carefully noted and passed on to the principal.

Equilaw Solicitors has prepared a written agency agreement covering these areas. Contact us to find out more or provide one for your thoroughbred business.

For Studs

It is strongly suggested that studs ought to be extremely careful when discussing a yearling’s x-ray results with potential buyers.

It is not uncommon for a looker to ask the stud-hand holding the yearling if there are x-rays and if those x-rays are clear.

The looker should on all occasions be directed to have their vet examine the x-rays in the repository and form their own opinion.

If a staff member of the stud gives any advice on the findings on x-rays, the stud is vicariously liable for the act of its employee, and may end up as a defendant in a claim for negligent misrepresentation or misleading and deceptive conduct. A stud ought to be careful when using x-rays as a part of the process of determining reserve prices when selling as agent.

A consigning vendor ought to be fully advised as to any x-ray pathology revealed and the possible effect on the selling price of the yearling. It would be a dangerous area for a stud to find itself, if an unrealistic reserve was recommended.

Conclusion

While we would, as an industry, prefer to see no more of these types of matter come before the court, no doubt there will be others in the future. It is heartening to note that no finding of negligence, or dishonesty was made against O’Shea. His conduct was otherwise acceptable, save for the specific instance where he promised to recommend a specific category of horse to a client purchase, and failed to deliver on that promise given the wide ranging allegations made against O’Shea in the District Court proceedings. Eventually, it was only a very narrow ground on which Vieira had his success in the Court of Appeal.

Industry participants will need to be on their guard against possible future claims, but the usual attention to instructions and proper record keeping ought to provide a good general level of protection to the honest dealer.

Bless You! And let me introduce you to my Lawyer

Thu, 27 Mar 2014 03:44:00 GMT

Equilaw solicitor and Thoroughbred stud owner, George Fraser, takes a look at the legal liability for the negligent spread of infectious disease in livestock.

It is just what every stud owner dreads. The mare and foal arrive on your property looking fine, but soon after the foal goes flat and listless, and then the dreaded cough sounds. Like a nail being driven into a coffin lid, and each cough brings a fresh pang of anguish. The stud owner instantly fears for every other foal on the property. Every foal that has gone home has to be monitored. Every foal on the stud has to be monitored, and the fervent prayer goes up that the cough does not spread. You don’t want to blame anyone, but you would love to wring the neck of the idiot that sent you a rattly foal.

With the advent of Equine Influenza in Australia, and the present concern surrounding the spread of Hendra virus in New South Wales and Queensland, and the normal round of rattles and strangles, we thought we might look at the troubling subject of the spread of infectious disease . It does not ever cross our minds that there can be a legal liability for the negligent spread of infectious disease.

While each jurisdiction in Australia has a version of the Stock Diseases Act that imposes reporting requirements on land owners or occupiers to report infectious disease on their property, there is also a common-law duty and liability that affects land owners and owners of livestock.

The Common Law Duty

If you send a horse that has an infectious disease to another property, and horses on that property get sick, you have breached your duty of care. But where did that duty of care come from? I didn’t order it, take it back! A duty of care arises where a person is so closely and directly affected by your act that you ought reasonably to have had them in your contemplation when doing the act.

Let us un-lawyer that sentence.

Simply put, if you throw a cricket ball into a crowd at the supermarket, you owe a duty of care to all the people in the crowd not to cause them injury. If you hit someone, you have breached your duty of care because you should have had the common sense to realise what you were doing could cause an injury.

Typhoid Mary…(or Marey?)

Let us take that a step closer to the horse industry.

If you have a mare going off to stud, and she shows signs of infectious disease, she is the cricket ball. The horses at the stud are the crowd at the supermarket. When you hit the poor old lady at the supermarket you became liable to compensate her for her injuries and expenses, in lawyerish, “loss and damage”.

The principle applies equally to sending ‘Typhoid Marey’ to the stud. If she then infects the other horses at the stud, and they are hurt or die from the disease, you ought to be liable to their owners for the loss. There is no settled law in Australia on the point of negligent spread of disease in animal populations, but there seems little reason why a court could not find that a duty of care exists. It will simply be a logical extension of the existing law of negligence. What will limit the extent of liability will be proof of the actual knowledge that the person sending the disease carrier had of the disease status of the horse.

I didn’t know she had the….(add euphemism)

We turn to the good old U.S. of A. for guidance here. Americans, being noted supporters of the lifestyles of lawyers, are the leaders when it comes to suing for transmission of infectious disease. Admittedly, what law there is on the subject refers to humans, or at least a version thereof, and revolves around ancient cases of smallpox, or modern cases of HIV or Genital Warts. In one particularly charming example a husband was sued by his wife for transmitting genital warts to her, and the Court said (no doubt through clenched teeth and watering eyes): “We can conceive of no principled reason to distinguish the consequence suffered here by Nancy’s [the wife], infection with a disease, from any other physical harm that could befall a person because of the negligence of another, and for which we would recognise a cause of action in negligence.”

The Court then went on to say that even though the wife had a claim, the husband was not negligent in inflicting the dread disease on her because he “did not know or have reason to know” he had the genital wart virus at the time he infected her.

Do I hear a crescendo of gnashing feminine teeth right now…? The point is, knowledge of the disease status is the key to whether there is a liability in negligence.

What about the E.I. affair?

Let us look back into the not so distant past of the Equine Influenza outbreak and apply what we have discovered so far. Remember at the time there was a group of Don Quixote types determined to sue someone, anyone, for the EI outbreak. The attention was all on the Quarantine Service, and they were the ones that were going to cop it, never mind that the Quarantine Act precludes civil actions being brought against the Service or the Minister.

I am approaching this in a very simplistic manner, which you will appreciate if you have read the Callinan Report. We know that a stallion brought the bug in from overseas. We know that the bug escaped, and spread like crazy in New South Wales and Southern Queensland, the commercial breeding industry largely shuddered to a halt for a period.

A thoroughbred stallion arrived from Japan who carried the infection, though was without symptoms on arrival. Some other stallions that travelled with him probably became carriers. About nine days later a stallion who came from Europe showed symptoms and the H3N8 Equine Influenza was diagnosed subsequently. Who is liable in this limited fact set? The horse from Japan brought the bug in. There were outbreaks of E.I. in Japan around the time or a little later, but this horse showed no symptoms. He showed no symptoms when he got to Australia. It was only after other horses became symptomatic that the bug was detected. So if we say that Japan Stallion was “the husband” and Europe Stallion was “Nancy” (she with the genital warts from America, above), we can draw the conclusion that the owner of Japan Stallion will not be liable in negligence for infecting the Eastern Seaboard of Australia, because he did not know the horse had a disease.

The true situation was far more complex, and there were many people who did not do what they were supposed to as far as quarantine was concerned, but that gives an example we can all be familiar with. Conclusion So we are able to draw the conclusion (arguable, I know) that if you send an obviously sick horse to stud, and it infects other horses, and their owners suffer loss because of it, you will probably be liable to those owners for their losses.

If you run a farm, and an obviously sick horse arrives and you do not quarantine it according to industry practice, you will probably be liable for losses to other owners. This is not a settled area of law. To my knowledge there is no authoritative case law on the subject. But, it could happen, so be aware. The inclusion of suitable communicable disease procedures in your farm WHS Manual is highly advisable. For those who do not have a farm WHS Manual, it is highly advisable that you obtain one. Equilaw in conjunction with Safe Industries Australia can assist in this regard.

The basics when buying a house

Mon, 24 Mar 2014 04:45:00 GMT

For many who spot their dream home, the process to actually getting the keys and moving in can be a daunting prospect, particularly when buying your first home. But it doesn’t have to be overwhelming with this brief overview.

Make sure you have finance

Equilaw’s licensed conveyancer, Renee Allen, recommends the first and most important element when purchasing a house is to get pre-approval for finance from the bank or lending institution before putting an offer to the real estate agent or bidding to win at auction.

“Make sure you’ve got enough cash.”

Once your finance is arranged, an offer can be made to the real estate agent. Following its acceptance you would then engage a licenced conveyancer or solicitor to act for you and pass these details onto the real estate agent so they can send your conveyancer a sales advice.

A sales advice sets out the Vendor and Vendor’s solicitor, the Purchaser and Purchaser’s solicitor, a list of inclusions in the sale, an outline of any special conditions on the sale and the sale price.

“We would then write to the Vendor’s solicitor and advise we’re acting for the Purchaser and to send us the contract,” Ms Allen says.

The contract

“Once the contract comes in we usually write you a letter or telephone you to say we’ve got the contract, make an appointment to come in and go through its contents.

“When you come in we would go through the contract together, page by page discussing the terms and conditions.

“Once you are clear on the contents of the contract you can sign it.”

Inspections and searches

Ms Allen says it is the Purchaser’s representative’s responsibility to order any pest and building inspections and all other searches including a title search to make sure the titles matched the contract.

Title searches could reveal a caveat where a third party has claimed an interest on the property, or there has been refinance made and the mortgage has changed between banks.

Other relevant searches include a rates search with the local council to determine what rates were payable and a meter reading to ensure the water was paid up-to-date. For rural properties, livestock and pest authority searches should also be undertaken.

“Some people don’t do a title search but I really like to check there’s nothing that’s going to stop registration at the end,” Ms Allen says.

“Once we get the reports back and make sure they are all okay, and you’ve paid your deposit [to the real estate agent] we can send it to the other side to exchange the contract.”

Cooling-off and settlement

In most property transactions, contracts are settled 42 days from the exchange date. Buyers are granted a five-day cooling off period where they can pull out of buying the property, however, they will be penalised by having to pay 0.25% of the sale price. Rural properties are an exception to the rule, or if you have chosen to waive your right to the cooling off period on exchange of the contract.

Even greater penalties apply should you choose to withdraw from buying a property after the cooling-off period when you will be required to pay 10% of the purchase price.

“So it’s expensive if you went in spontaneously and then you couldn’t get your finance. You’ve got to pay that money.

“On a $500,000 sale price that is $50,000 you would need to come up with to back out of a contract,” Ms Allen says.

The Purchaser initiates settlement by providing the figures however the Vendor may dictate the date and time of settlement. Settlement is simply the exchange of money for the Deeds of the property.

Reduce your farm's risk under WHS legislation

Mon, 24 Mar 2014 04:14:00 GMT

Equilaw Solicitors in conjunction with Safe Industries Australia has designed a series of on-farm Toolbox Talks to ensure your farm meets new Work Health and Safety (WHS) legislation.

They include:

We can induct your staff through the relevant hazards and associated risks with each operation throughout the year. All staff will be signed off and a record kept for your files as part of your legislative requirements.

New uniform Australia-wide WHS legislation has led to harsher penalties for businesses and individuals which fail to implement and meet safety management requirements.

Our services are not limited to the equine industry with a range of Toolbox Talks for all other livestock and broadacre cropping operations, as well as, a range of WHS systems for the mining industry.

Call us to inquire on the first of the Toolbox sessions, Four Wheel Motorbikes.

Are you buying or selling property?

Sun, 01 Dec 2013 04:13:00 GMT

Equilaw Solicitors has a team of Conveyancing experts who have been serving the Upper Hunter for over thirty years. Download the Conveyancing booklet .

Changes to Super guarantee payments

Sat, 30 Nov 2013 07:53:00 GMT

To help grow Australian workers’ savings for retirement, the compulsory super guarantee rate will gradually increase from 9% to 12%

An an employer, your super obligations are changing. Rate increases will gradually increase over seven years until the percentage increases to 12%.

Read this article from the ATO for details.

Are you moving to the Upper Hunter from a metropolitan region?

Sat, 30 Nov 2013 07:00:00 GMT

You may be eligible to apply for the NSW Government’s Regional Relocation Grant.

The Regional Relocation Grant (the Grant) provides a one-off $7,000 payment to approved applicants to assist with the cost of relocating from a metropolitan area to a regional area.

From January 2014 the following amendments to this grant apply:

expanding eligibility for the $7,000 Regional Relocation Grant to include long-term renters (2 continuous years in one or more homes) in metropolitan Sydney, Newcastle and Wollongong
introduction of a new Skilled Regional Relocation Incentive – worth $10,000 – to encourage people to relocate for jobs unfilled by the local workforce. The grant will be paid in two instalments. The grant will be linked to secured employment, rather than home ownership
both grants to be capped with that year’s Budget allocation – $10.4 million in 2013-14

Call us to discuss, or visit the Office of State Revenue website for full details.

Traffic Offenders Intervention Program at Muswellbrook PCYC

Sat, 30 Nov 2013 06:52:00 GMT

The Magistrate may refer offenders to this program because it may benefit the participant in teaching them their responsibilities as a driver in the community and the possible consequences of not obeying the law.

If you have been referred to this program please read this fact sheet for details.

NSW Alcohol Interlock Program for drink drive offenders

Sat, 30 Nov 2013 06:13:00 GMT

On 8 September 2003 the NSW Alcohol Interlock Program commenced as a new penalty for certain drink drive offenders. The program incorporates a rehabilitation component. Discuss your eligability to take part in this program with one of Equilaw’s Solicitors. Background information on the NSW Alcohol Interlock Program can be found in this NSW Alcohol Interlock Program document .

Equilaw Solicitors Inaugural Lawn Bowls Evening 2011

Mon, 05 Sep 2011 10:07:00 GMT

The Equilaw Solicitors Inaugural Lawn Bowls Evening was held on Friday, 18th March 2011 at the Muswellbrook RSL Club.

The day was well attended by the following local business houses from Muswellbrook and Scone and was filled with good fun, laughter and some very close games.

Professionals Boyles Estate Agents
Safe Industries
Rose & Partners
John Flood Estate Agents
Darley Stud
L J Hooker
JTS Realty
R B S Morgans
Scone First National
Edwards Higgins Parkinson
Subzero
Muswellbrook Court

There were many first-timers on the night but, with the wonderful help of a few club members in attendance, their confidence grew. The final was played out between Darley and Edwards Higgins Parkinson First National – Darley coming out the overall winner for the day. They are now the holders of the “Equilaw Solicitors Lawn Bowls Day” perpetual trophy.

The Best Dressed award was presented to the Muswellbrook Court House team whose good nature and cheer helped to create a fun atmosphere.

We would like to thank the Muswellbrook RSL for providing a wonderful service, regularly delivering drinks and delicious finger food to the players. The day could not have been as successful without their wonderful support. Equilaw would also like to thank the local businesses that showed their support by attending the evening and making it so successful.

A fantastic day on the green was had by all and Equilaw looks forward to hosting the event next year.

Hunter Thoroughbred Breeders Association Annual Awards Night 2011

Mon, 05 Sep 2011 10:05:00 GMT

Wednesday night saw the 2011 Hunter Thoroughbred Breeders Association Annual Awards held at Scone Racecourse.

Freezing weather welcomed guest early in the evening but the marquee was warm and toasty inside.

Hosted again by Sky Channel’s Jo McKinnon, the awards were all richly deserved. There are strict conditions applying to eligibility for award winners with racehorse awards reserved for horses foaled and raised in the Hunter, champion broodmare must be a Hunter resident for a minimum 8 months of the year, Champion 2YO, Champion 3YO and First Season Sire are based on Season To Date results, while the Champion Broodmare and Champion Sire are judged on their most recent rolling 12 months results, from after the end of the previous year’s Sydney Autumn Carnival to the end of this year’s.

The International Animal Health Champion 2YO award was given by IAHP’s Chris Lawlor to the dual Group 1 winning Helmet with the award accepted by Trevor Lobb on behalf of Darley. The Equilaw Solicitors Champion 3YO went to Anacheeva. Antony Thompson, deputising for breeder Tim Bodle of Cambridge NZ, accepted the award from Equilaw’s Daniel Morgan. Xavier Franklin of Goldner’s Horse transport presented the Champion Racehorse award to the breeder of the winner Shocking, Ilala Stud’s George Fraser.
The Scone Equine Hospital Champion Broodmare was awarded to Darley’s dam of Helmet and Bullbars, Accessories. Cameron Collins made the presentation (complete with the now mandatory long green glove) to Darley’s John Sunderland.

Champion First Season Sire, sponsored by Kentucky Equine research and Barastoc in partnership, went to Darley’s Nadeem. Dr Peter Huntington of KER and Brendan Hunt of Barastoc presented this, the third for Darley on the night, to Alastair Pulford.
The Inglis Champion Sire went to Redoute’s Choice. Inglis’ Peter Heagney, all the way from Melbourne, presented this most coveted trophy to Arrowfield’s John Messara.

A special presentation was made by Inglis and HTBA to the breeder of the ill-fated Hot Danish, long a darling of Australian racegoers and a real Sydney favourite. Hot Danish has been the greatest success story of the Inglis HTBA Scone Yearling Sale and her breeder David Parker was thrilled to accept a memento presentation for the wonderful racemare. Joining him in the acceptance was Julie Harris of Holbrook Thoroughbreds, where Hot Danish spent her early years.

Then it was the turn of the “people” awards and Peter O’Brien of Coolmore delivered a most heart warming dedication to the recipient of the Murray Bain Service to Industry Award, Nickie Cramsie. It was a wonderful dedication speech and the acceptance from Nickie was a delightful mixture of dignity, disbelief and humility. Most deserved.

The final award was the prestigious President’s Award. Andrew Reichard of Bluebloods was tasked with the dedication speech – and an entertaining one at that. His dear friend, Emirates Park’s Dr Shalabh Sahu has now joined an illustrious roll of honour and the best part was that he just didn’t see it coming. An emotional and humble acceptance speech followed. Well deserved and long overdue.

Nickie Cramsie collected the main prize in the Lucky Door tickets so what a great night for her and the Arrowfield team won the Bluebloods/Bloodhound Table Quiz and took home 10 X $100 Bloodhound vouchers for their efforts.

Wayne Bedggood closed out the formal proceedings with thanks to Jo McKinnon for a fantastic job of hosting and also Mel Sunderland Executive Officer and the HTBA committee who all did their part to make the evening a great success.

Most in attendance will almost certainly be fronting up for the two days of great racing at Scone this Friday and Saturday while in the meantime the Inglis HTBA Scone Yearling Sale kicks off at 10.30 on Thursday.

Warren Wruck

Secretary HTBA.

2011 Muswellbrook Hospital Auxiliary Charity Bowls Day

Mon, 05 Sep 2011 10:04:00 GMT

The Muswellbrook Hospital Auxiliary, for the 5th year running, arranged a Charity Bowls Day at the Muswellbrook RSL Club to raise money for much needed hospital equipment. Equilaw Solicitors have donated to that charity each year and also provided a team to participate in the Bowls day.

2011 Muswellbrook Hospital Auxiliary Charity Bowls Day

Muswellbrook RSL Club

Sunday, 19th June 2011

Representing Equilaw this year were Michael O’Brien, a Partner at Equilaw, and staff members Sue, Libby, Renee and Charmaine. Equilaw’s first game was a very close win over the fun-spirited PCYC team.

The Muswellbrook RSL provided great service to the players by way of cold beverages throughout the day. They also served a tasty lunch which was enjoyed by all. Equilaw’s second game resulted in a loss to a very consistent and talented RSL team.

It was a beautiful warm day on the greens filled with good fun and laughter. After the bowling was completed, all teams ventured inside to partake in the raffles and purchase lovely scarves and beanies, hand-knitted by the Auxiliary ladies themselves.

The Muswellbrook Hospital Auxiliary had raised $13,500 by the end of the day.

Equilaw would like to thank their staff members for participating in the day and representing our firm. The Equilaw team would also like to thank their opponents, the Muswellbrook Hospital Auxiliary and the Muswellbrook RSL for putting on such a wonderful day.

We look forward to participating in next year’s Charity Day!

What's New in 1.5?

Sat, 01 Jan 2011 00:00:00 GMT

As with previous releases, Joomla! provides a unified and easy-to-use framework for delivering content for Web sites of all kinds. To support the changing nature of the Internet and emerging Web technologies, Joomla! required substantial restructuring of its core functionality and we also used this effort to simplify many challenges within the current user interface. Joomla! 1.5 has many new features.

In Joomla! 1.5, you”ll notice:

Substantially improved usability, manageability, and scalability far beyond the original Mambo foundations
Expanded accessibility to support internationalisation, double-byte characters and right-to-left support for Arabic, Farsi, and Hebrew languages among others
Extended integration of external applications through Web services
Enhanced content delivery, template and presentation capabilities to support accessibility standards and content delivery to any destination
A more sustainable and flexible framework for Component and Extension developers
Backward compatibility with previous releases of Components, Templates, Modules, and other Extensions

Fair Work Legislation

Tue, 02 Nov 2010 04:07:00 GMT

From the 1st of January 2010 there have been several important changes made in Australia’s workplace laws that affect all employers and employees in the national workplace relations system.

The National Employment Standards now applies to all employees who have been previously employed under the Pastoral Award. Equilaw Solicitors can assist you to understand your obligations and comply with the new Fair Work Legislation.Daniel Morgan & Ross Cole are visiting clients on farm to discuss how you should deal with and implement these changes, FREE of charge.

If you would like to arrange a no cost consultation please click the link below and we will contact you to arrange a time that suits you.

suepowell@equilaw.com.au

Thoroughbred Industry Contracts and Collections Seminar

Tue, 02 Nov 2010 04:04:00 GMT

The recent Global Financial Crises (G.F.C.) has given rise to a spate of participants in the thoroughbred industry being unable to meet their financial obligations.

This seminar will provide an intense review of debt recovery procedures, in order to improve cashflow and identify the risks in providing credit.

1. Business Structure, who are you contracting with?
2. Terms and Conditions
3. Record Keeping Systems
4. Monitoring Debtors
5. The Debt Recovery Procedure
6. Liens – Selling clients horses, the pit falls

Venue: Scone Equine Centre
Date: 11 February 2010
Time: 2.00pm – 4.30pm
Followed by Drinks and Nibbles

RSVP: by 8 February 2010 to dallas@equilaw.com.au

Our Next Big Step Forward

Tue, 02 Nov 2010 04:02:00 GMT

We would like to announce a couple of bold steps forward for our firm. As you know we have been operating for 21 years and are proud to have as clients some of the finest people and prestigious companies in the Hunter Valley and throughout New South Wales.

The partners Daniel Morgan, Ross Cole, Kate Mailer, and Michael O’Brien along with our fine team of staff are all proud of our achievements over the years: building upon a solid base of knowledge and experience, a growing track record of successful outcomes for our clients, while holding true to our core values and retaining a sense of positivity and humour.

We can tell you about one of the exciting new developments now, but you’ll need to wait a few more weeks to see the other!

In June 2010 we will be moving out of the old Loxton House building on Bridge St and into our new premises at 4 Market Street, Muswellbrook.

We are looking forward to operating out of our new, modern office environment, tastefully decorated, and better equipped to allow us to run a more streamlined practice.

The other announcement… well it’s a big one but you’ll have to wait a few more weeks. Expect something soon – we think you’ll be pleased!

Yours sincerely,

The partners and staff at Halletts Solicitors.

City to Surf 2010

Tue, 02 Nov 2010 04:00:00 GMT

Equilaw Solicitors had four of their staff members volunteer to participate in this year’s Sun Herald City to Surf which was held in Sydney on Sunday, 8th August 2010.

This year’s race was the 40th anniversary of the event which saw a record number of 80,000 people participate. At the top of “Heartbreak Hill” the team, which consisted of Kirsty Mell, Renee Allen, Sue Powell and Minna Cannon, knew that they were half way there and the hard part was over.

The team finished the race in less than two and a half hours and look forward to participating in the race again next year and improving their time.

Relay for Life Charity Bowls Day

Tue, 02 Nov 2010 03:58:00 GMT

Following on from our success in the Muswellbrook Hospital Auxiliary Charity Bowls Day earlier this year, Equilaw Solicitors participated in the 2010 Relay for Life Charity Bowls day on Sunday, 22nd August 2010.

This year’s team consisted of Sue Powell, Libby Bartholomew, Minna Cannon and Renee Allen. The Muswellbrook RSL Club were fantastic hosts, again providing great service and keeping the players hydrated throughout the day. After a great day of bowls the girls ventured inside to the monster auction where Equilaw made the successful bid on an item for their new premises. The girls would like to thank their opponents throughout the day, Muswellbrook Relay for Life and the Muswellbrook RSL Club for putting on such a wonderful day.

We look forward to participating in next year’s Charity Day!

Equilaw Sponsors Canter Farmers’ Markets

Tue, 02 Nov 2010 03:50:00 GMT

Equilaw Solicitors have sponsored the Canter Farmers’ Markets in Scone for August and September this year.

These markets are held at Canter, Scone on the 3rd Saturday of each month from 8.00 am until 12 noon. They are proving to be very popular with locals and visitors to the area. Kate Mailer, a Partner at Equilaw’s Scone office regularly attends the markets and was delighted to attend in August and September as Equilaw’s representative.

Kate says:- “It was so enjoyable to be a part of what has become such an important date on Scone’s calendar each month. The markets remind us of the importance of sourcing as much as we can from local producers and suppliers and in doing so, spend a morning with clients and friends enjoying a coffee in lovely surrounds.”

Equilaw will be contributing again to the proposed Christmas markets to be held in December and encourages everyone to attend the Canter Markets each month.

Lawyers Weekly Firm Profile

Tue, 02 Nov 2010 03:48:00 GMT

Please CLICK HERE to view the Lawyers Weekly magazine Firm Profile on Equilaw.

Equilaw supports Adopt-a-Class

Tue, 02 Nov 2010 03:46:00 GMT

Equilaw has provided financial support to the Hunter Life Education Adopt-a-Class initiative to ensure that every child in the Hunter is eligible to receive the Life Education program.

Hunter Life Education delivers preventative drug education and promotes healthy lifestyles to the children and young people in the Hunter. Their vision is to ensure that every child and young person in the Hunter has the skills and knowledge to make healthy lifestyle choices. Equilaw’s support ensures that every child is eligible to attend the Life Education program regardless of financial or family circumstance.

Click on the link below to find out more about this wonderful program:- www.hunterlifeeducation.org.au

Scone U12 Inter-District Football Team

Tue, 02 Nov 2010 03:43:00 GMT

Partners at Equilaw, Daniel Morgan and Michael O’Brien, coached the Scone U12 Football team to achieve the title of “Undefeated Minor Premiers” of the Hunter Region Inter-District Competition.

The team was made up of 14 girls, under the age of 12, from Scone Grammar, Scone Primary, St Marys and Aberdeen Public schools. Participating in the Hunter Region Inter-District Competition, the team came up against teams from Maitland, New Lambton, Merewether, including teams as far away as Swansea and Nelson Bay.

The team defeated Swansea in the final 5 – 0 and thoroughly deserved, and enjoyed, their win.

Equilaw Supports Denman Children's Centre

Sun, 05 Sep 2010 10:07:00 GMT

Each year Two Rivers supports the Denman Children’s Centre by allowing them to host a music event in the vineyard. This year Equilaw sponsored the event which raised much needed funds to build a new centre.

Held on 24th October 2010, renowned country singer Beccy Cole performed, supported by the very talented young local singer Jacob Woodruff. All plans for the day were seriously tested by the rain but, instead of “putting a damper” on proceedings, it in fact made for a very memorable event. The Denman community rallied and, in no time at all, provided enough marquees to allow most people shelter from the persistent rain. Equilaw is very proud to have supported such a tremendous day and an extremely worthy cause.

Equilaw continues to support Canter Farmers’ Markets

Sun, 05 Sep 2010 10:06:00 GMT

Kate Mailer has once again showed her support to the Scone community. Kate attended the very popular Canter Christmas Farmers’ Markets which were held in Scone on 18th December 2010. Commencing at 3.00pm, the markets continued through to the early evening.

Daniel Morgan was represented by his children, Emily and Jemima Morgan, who also assisted on the day. At the conclusion of the markets, food stalls were set up. Then patrons made themselves comfortable, in the grounds next door to Canter Restaurant, and watched the two outdoor movies being shown. It was a great night and hopefully the movie concept can continue in to the new year.

Equilaw Solicitors Participates in Arion Systems Bowls Day

Sun, 05 Sep 2010 10:05:00 GMT

This year Arion Systems invited Equilaw to compete in their Annual Customer Bowls Afternoon.

On 19th November 2010, the Equilaw team travelled to Bar Beach Bowling Club for an afternoon of Bowls and fun. The team was made up of Michael O’Brien, Sue Powell, Libby Bartholomew, Renee Allen and Minna Cannon. Equilaw performed well, coming equal second until the final round where they lost to Newcastle University. They finished the day by coming in third on the table. Equilaw thank Arion Systems for allowing them to be part of this wonderful day.

Equilaw Welcomes New Faces

Sun, 05 Sep 2010 10:03:00 GMT

Equilaw has welcomed two new Solicitors to its firm, George Fraser and Melissa Small.

George has an Honours Degree in Law, a Graduate Diploma in Legal Practice and was admitted to the Supreme Court of NSW in 2001 and the NSW Bar in 2004. He grew up in Scone and specialises in litigation, both criminal and civil. He has a special interest in the law as it relates to horses, horse sports and breeding.

Melissa started working in the legal industry in 2003 where she moved through the ranks, before deciding to commence studying through the Legal Practitioners Admission Board. She graduated with a Diploma in Legal Practice and was admitted as a solicitor on 9th July 2010.

Equilaw is fortunate that Melissa made the decision in February to relocate from Newcastle to the Hunter Valley.

Australia Day Swim 2009 – Glenbawn Dam

Mon, 02 Nov 2009 04:26:00 GMT

Once again, Halletts Solicitors were involved in the Australia Day Swim held at Glenbawn Dam this year. This popular event was held for the third time and attracted a large number of both participants and onlookers.

Partners Daniel Morgan and Ross Cole participated in the swim and performed well in their respective categories. Kate Mailer was also on hand to provide assistance to the organisers during the day.

Daniel was involved in the organising of the swim, both prior to the event and on the day. He has been an enthusiastic supporter of the event from its inception. The partners recognise the importance of not only participating in such events as a way of maintaining fitness levels but also of supporting community based events, such as the swim, through the donation of resources and time.

Photo : Daniel Morgan presiding over proceedings at the Australia Day Swim at Glenbawn Dam this year.

Scone Junior Soccer Sponsored by Halletts Solicitors

Mon, 02 Nov 2009 04:24:00 GMT

Scone Junior Soccer had a very successful 2009 season with both the town and intertown teams having record numbers of children playing.

The Scone Junior Soccer Club are proud of the fact that they have more players than any other sporting body in the Scone area. Halletts Solicitors are proud to have been part of this by sponsoring the “Halletts Solicitors” team.

Muswellbrook Rugby Union Club sponsored by Halletts Solicitors

Mon, 02 Nov 2009 04:22:00 GMT

Each year Halletts Solicitors organise a sponsors’ day for Muswellbrook Rugby Union Club.

A day was organised on 15th August 2009, at Highbrook Park Muswellbrook, to provide the opportunity for sponsors and supporters to cheer on the local Rugby teams and for the Muswellbrook Rugby Union Club to show their appreciation to all of their sponsors for 2009.

On the day our local Rugby teams faced off against Pokolbin in two great, well fought matches.

In Reserve Grade the Heelers lost to Pokolbin 19 – 5.

And in First Grade the Heelers lost to Pokolbin 33 – 12.

Thank you to the Pokolbin teams who were such great sports on the day.

Along with some great commentating by Michael O’Brien, a Partner at Halletts Solicitors, the crowd was kept entertained all afternoon.

Having Mick at the microphone certainly kept Simon Clift at Cellarbrations on his toes. Mick announced several bogus advertisements for cheap beer at Clifty’s store, which resulted in many customers turning up in the hope of purchasing a bargain. This eventually prompted the staff at Cellarbrations to make a phone call to the ground asking for Mick to be removed from the microphone.

But, for those of you who know Mick, that was not going to happen.

At the end of a great day, all in attendance gathered for the presentation. Pokolbin took this opportunity to thank the Heelers and their sponsors for putting on such an awesome day, and for the hospitability that they received. They commented that this does not happen at any other game.

Halletts Solicitors would like to thank all of Muswellbrook Rugby Union Club’s sponsors who showed up on the day to support the team.

Special thanks to the following people:-

* Tracey and our own Kerrie Everingham for their time spent preparing and serving so much wonderful food,

* Noelene and the many others for their hard work throughout the day helping to keep the food circulating,

* and Kylie for her great service behind the bar and for keeping the drinks flowing.

After such a successful day this season, we now hope to have an even greater Sponsors’ Day next year. Hopefully we will see you there!

Bunnan Polocrosse Annual Carnival

Mon, 02 Nov 2009 04:20:00 GMT

Each year Equilaw supports the Bunnan Polocrosse Annual Carnival held in mid July. The Club recently celebrated its 25th anniversary.

Pictured here with Kate Mailer, Partner at Equilaw, are Maddison George and her horse Kit. Maddison and Kit were previous winners of the Champion sub-junior Horse and Rider.

Scone Horse Festival Business Relay Winners

Mon, 02 Nov 2009 04:19:00 GMT

This year, the end of the Horse Festival was marked by the running of the annual Business Relay. After working hard on fitness and training, our mighty Halletts team were rewarded by winning the Business House Section of the relay.

SCADs enjoyed by Equilaw team

Mon, 02 Nov 2009 04:17:00 GMT

In addition to sporting events, the partners at Equilaw are involved in other numerous and diverse community based organisations. One such example is the Scone Community Amateur Dramatic Society (SCADS) of which Kate Mailer is secretary.

Once again, the donation of time and resources to such organisations is a way in which Equilaw can contribute to the community and, at the same time, allow the partners and staff to enjoy interests outside the office.

SCADS recently launched a fundraising campaign to restore the Old Court Theatre in Scone and has been overwhelmed by the support received to date from the local community.

Kate Mailer recently accepted a generous donation from the Scone Lions Club, which is to be put towards the restoration project currently being undertaken by the local dramatic society.

Home Buyer/Investor Information Tour

Mon, 02 Nov 2009 04:15:00 GMT

HALLETTS GOT ON BOARD THE PROPERTY BUS!

Halletts Solicitors co-hosted a Home Buyer/Investor Information Tour which was held on Saturday, 19th September 2009. The tour provided information about how to get a head start in the current economic climate. Ross Cole from our firm attended this very successful day and the feedback that we have received has been extremely positive.

2009 Hunter Valley Stud Manager Seminar

Mon, 02 Nov 2009 04:12:00 GMT

The Hunter Valley Stud Manager Seminar was held on 22nd October 2009 at the Research Centre Scone Race Club.

It included a diverse program of lectures presented by industry leaders and experts in their field. Daniel Morgan, a Senior Partner of Halletts Solicitors, presented a paper entitled “Legal Liability – OHS & Contractual Issues”.

The seminar, conducted by Parnell, included a diverse program of lectures presented by industry leaders and experts in their field. Angus Adkins of the Scone Equine Hospital spoke on the existing developments in stem cell research and application. Peter McGauran, CEO of the Thoroughbred Breeders Australia, tackled the controversial “Thoroughbred v Coal” debate, amongst other issues.

If you would like further information in relation to Mr Morgan’s presentation please email your request to:- suepowell@equilaw.com.au

Scone Horse Festival Awards Night

Mon, 02 Nov 2009 04:10:00 GMT

The Hunter Thoroughbred Breeders Association held their annual awards night on Wednesday, May 13, 2009 at the Scone Racecourse. Hosted by TVN’s Caroline Searcy, more than 300 guests representing the Who’s Who of Hunter Valley breeding, were treated to a glittering evening which saw the best horses in the country honoured for their deeds, and recognition given to people who have made notable contributions to the thoroughbred industry.

The Inglis Champion Sire went to Coolmore’s Encosta de Lago, ahead of Redoute’s Choice and More Than Ready. Mark Webster CEO of Inglis spoke of Inglis’ long association with Hunter Breeders and presented the award to Tom Magnier of Coolmore who remarked that it was on “this night seven years ago we lost Danehill.” In Encosta de Lago, Coolmore look to have a stallion worthy of such comparison.

The President’s Award for outstanding contribution at the highest level was given to the Ingham Family of Woodlands and Crown Lodge fame. John Ingham represented the Ingham family and accepted the award from President Wayne Bedggood and former Woodlands manager Peter Flynn. As John Ingham was making his way to the stage, footage of Lonhro’s astounding last stride win in the Australian Cup was played – to the delight of the audience and John.

Helen Sinclair CEO of Scone Race Club was named as the recipient of the Murray Bain Service to Industry Award for her tireless contribution to the Hunter thoroughbred industry. Daniel Morgan, President of Scone Race Club made the presentation speech in which Helen’s contributions to the industry were outlined. A most deserving winner, Helen said she was so pleased to receive the honour that she would “throw a big party this Friday at the racecourse”. Friday of course meaning Scone Cup Day!

The International Animal Health 2YO of the Year went to Phelan Ready, bred at Kitchwin Hills Scone, by Carl Holt, and the presentation was made by Peta Johnson representing IAH. Other contenders were Manhattan Rain and Onemorenomore. Samantha Miss won the Ladd Hudson Architects 3YO of the Year. Samantha Miss was bred by New Zealanders Gary and Lynn Witters at Willow Park Stud, Scone. John Ladd Hudson, whose architectural work includes Darley Kelvinside and Darley Victoria as well as Brooklyn Lodge, presented Witters and Glenn Burrows of Willow Park with the trophy. Gary made reference to how much he enjoyed his association with Willow Park – and Australians generally – in an entertaining acceptance speech. Other contenders were Northern Meteor and Whobegotyou.

The Goldner’s Horse Transport Champion Racehorse went to Theseo. Xavier Franklin of Goldners made the presentation to Dr Sahu of Emirates Park Stud, the breeders of Theseo who is by the Emirates stallion Danewin. Sahu thanked Gai Waterhouse and Star Thoroughbreds for the marvellous way in which they have guided Theseo through his career and also thanked the staff at Emirates. Other contenders were All Silent and Samantha Miss.

Tracy’s Element took out the Scone Veterinary Hospital Broodmare of the Year. The dam of Typhoon Tracy and Red Element, Tracy’s Element is owned by Hutchins Thoroughbreds and Peter Orton of Vinery accepted on their behalf from Scone Vet partner and HTBA Committeeman Cameron Collins. Peter said that he was particularly pleased to receive an award from Scone Veterinary Hospital considering the amount of work they send their way! Other contenders in a stunning field of candidates were Palia, dam of Onemorenomore; Shantha’s Choice dam of Manhattan Rain, Redoute’s Choice, Platinum Scissors and Sliding Cube; and Staging, dam of Duporth, Excites and Tickets. The Champion First Season Sire Award went to Arrowfield’s Charge Forward. The amusing acceptance speech for Charge Forward was made by Arrowfield’s Sam Fairgray. Other contenders were Coolmore’s Fastnet Rock and Kitchwin Hills’ Dane Shadow.

As each award was made TVN footage of the contenders and each winner was played on multiple monitors around the marquee. Guest Speaker for the evening was a very entertaining James Bester. His stories of characters in the industry meant that in many cases the names had to be omitted to protect the guilty. As he remarked early in his address, “many of these characters are in the room tonight so anonymity is essential”.

Winners of the Bluebloods Trivia Quiz this year went to “Coolmore Table 2” chaired by Tony O’Driscoll. TVN’s host for the evening Caroline Searcy also presented a highlights package from the awards in the following week’s edition of Thoroughbreds – a gesture greatly appreciated. The HTBA now has a new website produced by Ardex. Go to www.htba.com.au and have a look.

Daniel's Winning Choice

Mon, 02 Nov 2009 03:47:00 GMT

Please CLICK HERE to view the From the Track magazine article “Daniel’s Winning Choice” written about one of our partners, Daniel Morgan.