An Employment Agreement is an agreement between an employer and an employee that sets out terms and conditions of employment. An Employment Agreement can only be amended or varied by agreement between the employee and the employer.
Tuesday 11th of February is Safer Internet Day. The purpose of Safer Internet Day is to continue to raise awareness about online safety by encouraging everyone to help create a safer and better internet.
Pets can be an important part of people’s lives and an important member of your family. You may be thinking what would happen to your pets if you pass away before them. How can you make sure your pet is looked after when you pass away?
Grandparents often play a fundamental role in a child’s life from being their mentor, their friend, or even their main caregiver. During a family separation, there is usually a change in dynamics that occurs within the child’s extended family. In some cases, grandparents may become concerned about their grandchild’s wellbeing or safety or could be prevented from seeing their grandchildren.
The 3rd December is International Day of Disabled Persons. In honour of this, we have looked at the obligations of an employer to ensure they uphold the rights of a person with disabilities in the workplace.
It is estimated that while 80% of new start-ups exist for at least 12 months, more than half of them will fail in the subsequent 5 years. While the percentage of small businesses failing in the first 5 years is very high, it is comforting to know that most successful businessowners have one or more business failures to their names.
The 22nd of November 2019 is Australia’s White Ribbon Day. A day where Australia acknowledges the domestic violence and abuse that is perpetrated throughout our community and commits to change our community’s domestic violence prevalence.
Events in the past few months have drawn attention to the role of social media in our workplace. The Israel Folau case has again raised important questions such as: ‘to what extend can employees be disciplined and held accountable for comments made on social media sites?’ or ‘where is the line drawn between comments made in ‘personal time’ and comments made ‘in the workplace’?’ or ‘when is something written under the disguise of ‘personal opinion’ or ‘freedom of speech’ in reality bullying and harassment, slander or defamation?’
It is not uncommon, after going through a separation, for a party to consider moving interstate. This could be for family reasons, to pursue new job opportunities, or to lower the cost of living by moving out of a metropolitan area.
Separation or divorce mean big changes to family life, especially when you have children from the relationship. The way children react to separation will usually depend on a number of different factors, including the family relationship before separation, the age and personalities of the children and the degree of conflict between the parents.
If you die without a Will you are said to have died ‘intestate.’ This means that instead of your assets being distributed in a way that you have chosen, there is a formula that determines how your assets are to be distributed and in what proportions. This can mean that your family heirlooms, family pets, savings and property may end up in the hands of family members contrary to your wishes.
September has some great events to check out. This month features some local events showcasing family owned businesses and home-grown heroes, to world famous events with a global reach. With lots to see and do, our list has your September weekends sorted!
This month we spoke to financial planner Gail Gadd about starting your own business. Gail established her own business in 2002, and with so many years of experience, she has a lot of insight to offer. Read Gail's interview for helpful tips on how to start your own business, and have it lead to success.
If you have just bought a rental property and you have not been able to find a tenant to rent your property out, you might be thinking to yourself have you done the right thing by investing all your hard earned money into this property. To get tenants into the door and inspecting your property, you might want to think about renovating your rental.
Finding out that you are an Executor for the Estate of a loved one can be confusing. Not only are you and your family experiencing grief, but you have been given the responsibility of an Executor. So what does being an Executor entail?
- What led you to start the business?
Small business is the economic engine room of Australia, but more importantly, these businesses reflect the dreams and aspirations of so many Australians who deserve better outcomes for their hard work, dedication, and the risks they take every day. With over 30 years’ experience in building small businesses, we understand the challenges faced by business owners on a daily basis.
The term ‘workplace disputes’ is often associated with conflict between an employer and a group of employees (or unions), usually about pay rises, job security or some other work-related grievance. The reality however is that 90% of ‘workplace disputes’ involve individual employees (i.e. not unions) that have a grievance or problem with a manager or, more often, a co-employee. These types of conflicts are more prevalent in Australia than union or collective disputes.
George Calombaris, celebrity chef and famous judge on MasterChef Australia, through his Company, Made Establishment, has been found to have underpaid more than 500 staff to the tune of $7.8 million. Last week, under a court-enforceable undertaking with the Fair Work Ombudsman, the embattled chef and his company is required to pay $200,000.00 as a ‘contrition payment’. George has blamed ‘error’ in systems and processes.
Sitting around a barbie and reminiscing about your childhood adventures together, are the type of things friends do. Friends are friends because of shared passions, shared interests and shared histories.
Jim Davidson is a Managing Partner of Performance Culture Australia. He specialises as a Team Coach and Corporate Trainer. Founded in 2007, the business has expanded into new countries, new products and new areas of services. The core mission of Performance Culture is to transform workplaces into a community with shared values and a commitment to ongoing learning. They emphasis the importance of having emotionally intelligent leaders to guide organisations forward.
Winter has well and truly arrived. Enjoy these cool days by rugging up, and embracing winter traditions like ice skating, warm drinks and comfort food. Our list this month invites you to take advantage of the season and enjoy our city's great culture.
It is possible for a former partner to make a claim on your Estate, if there are factors that warrant that claim. The case of Lodin v Lodin; Estate of Dr Mohammad Masoud Lodin  NSWSC 10 demonstrates what can happen when a former partner makes an Estate claim.
Schalk Van Der Merwe is a Director of Omnisure Insurance and the winner of Elite Broker by Insurance Business in 2018. As an expert of insurance, Schalk explains the reality of cyber attacks, why we need to think about these sort of attacks, and how we can protect ourselves and our businesses.
As winter rolls around we are tempted to travel overseas to warmer climates. However, if you are separated and want to take your children this may not be possible.
This week the Fair Work Commission in their ‘wisdom’ decided to throw another curve ball at small business owners. From 1 July this year, the minimum rates in all Modern Awards will be increased by 3%. While this is less than last year’s increase of 3.5%, it is difficult to understand how the Commission, given the current economic climate, can rationalise the increase. With inflation at its all-time low, small business owners will have to fork out the additional costs straight from their pockets as the market conditions simply provide no real prospect of increasing prices to soften the blow.
If you have orders in place regarding parenting, but the other parent is not doing what they are supposed to do, you can bring a Contravention Application. It is important to bring the non-compliance to Court straight away. Otherwise the Court sees the delay in coming as you agreeing to the non-compliance.
Privacy in the home is one of those things we take for granted. But, do you have a legal right to privacy? Can you complain if a neighbour’s drone suddenly flies into your backyard? When is someone trespassing on your property? A right to privacy in the home isn’t as straight-forward as one might think.
The Imperial Hotel has been ordered tear down its rooftop Harry Potter installation and turn off the taps on its Buttah Beer after the multinational demanded the pub remove all wizard-themed decorations and references.
Rival snake catchers are locked in a venomous legal duel over Facebook posts that one says implied he was a dishonest reptile handler, trademark infringer and "a violent sex offending rapist".
It can be difficult to spot when a friend is in a relationship involving domestic violence. Especially when domestic violence often slowly escalates over a long period of time. However, there are some things to look out for if you are concerned for a friend. If you have a friend or family member who you believe may be a victim of a domestic violence relationship, they may show signs of the following:
When you are working from home, if you sustain an injury that arises out of or in the course of your employment or while performing any activity that is connected to your employment, you will be eligible for workers' compensation.
To get to the root of the problem, you have to ask yourself the question: “Why do my employees want to join a union?” Reasons for joining a union usual falls within these 5 categories (1) higher wages or benefits, (2) job security, (3) lack of recognition, (4) lack of participation or (5) social reasons including ‘peer pressure’.
Almost two dozen threatened species and habitats have had their threat updates postponed by the federal government, in one case for three years, raising concerns about extinction risks and a lack of departmental funding.
When it comes to saving up for your retirement, nothing beats putting your money in real estate. You get a tangible asset that can’t disappear or crash in the market. The secret is to spread out the risk over several different investment properties so your eggs are never all in the same one basket.
A Canberra high school teacher says many staff members feel "powerless" to stop a "24/7 cycle" of cyberbullying and physical violence among their students.
Australia is set to become the first country in the world to introduce jail terms and multi-million-dollar fines for social media giants that don't quickly remove violent material.
Of the many issues faced by separated families, one that is often not discussed yet can cause the most conflict is the question of religion. When a child’s parents hold different religious or cultural views, there can be significant disagreement regarding the most appropriate way to raise the child and the religious and cultural practises they will be engaged in.
André Meyer has over 15 years experience in Intellectual Property law in both South Africa and Australia. His broad experience across multiple industries has given him a holistic understanding of IP law, and makes him an expert in the IP field.
When people refer to “Estate Planning” a Will is the document that usually comes to mind. While a Will is extremely important, it is not the only document that is necessary to prepare when planning for your future.
There has been a rush on gun shops, with people "panic buying", in the wake of the Christchurch terror attack and in anticipation of the Government tightening gun laws. Following Jacinda Ardern's comments on Saturday morning, gun shop owners - at bricks and mortar stores, and online - experienced a jump in sales.
Have you had an injury at work? Has a friend been a victim of medical negligence? Have your parents had issues with financial advice? Have you considered that if you have found yourself in a situation like this, you have a claim for personal injury?
All 28 members of the United States women's national team squad have begun legal action against the US Soccer Federation (USSF), just months before defending the Women's World Cup title.
If you fear violence or harassment from your spouse, partner or a work colleague, you should take steps to protect yourself by applying for an Apprehended Violence Order. It is a method of obtaining protection if you are fearful of future violence, including physical or sexual abuse, or threats to your safety, including harassment, intimidation or stalking.
Written by Sharon Melamed
Paul Betts is Chief Operations Officer of Integricare, an Early Learning Centre with eight locations across Sydney. Integricare's roots go back to 1882. Although the centre has changed and expanded over the years, Integricare is still striving for the same mission - "To be leaders in providing holistic, innovative and integrated services for children and families that achieve transformation in the communities we serve."
One of the first things that may come to mind if you receive a large sum of money from a relative or a friend is to treat yourself! You might spend big on a new car, book a luxurious holiday, or purchase that extravagant gift you have always dreamed about.
You have been a business owner for several years. You have started to employ several employees and you are finding yourself in a position where it is easier to let go of certain tasks and leave it up to your trusted employees to serve the clients. Your business is doing very well, your brand is established, you have a unique product or service – people know your business. Your business enables you to sufficiently provide for your family and in retirement you should be OK.
With 2019 rolling in, you may be one of many who are thinking about purchasing a new home this year. Whether it be an investment property, a bigger home for a growing family, your first place, or a downsize from the family home – it is the time to buy!
Christian Ronaldo, football superstar, has been fined for avoiding paying tax in Spain between 2010 and 2014. The five-time winner of the prestigious Ballon d'Or was playing for Real Madrid during that time. The prosecution say proceeds from image rights deals were channeled through foreign countries to avoid paying tax. Ronaldo accepted a deal in the court, paying an €18.8m ($29.9m) fine.
It’s that time of year again, where we dash through the shops picking up new stationary, new backpacks, and new school shoes. The start of school can be stressful enough, but it can be even trickier when we add in the pressures of a separated or blended family.
The Morrison Government has announced that it intends to amend the Fair Work Act to protect employers from casual employees ‘double-dipping’: where long-term casual employees are deemed to be ‘permanent employees’ for purposes of leave entitlements.
The holiday season can be an especially difficult time for separated families. Differing commitments, unusual work arrangements and stressful relatives can make this period feel like a minefield of potential battles. However tricky or tense this season may be for your family, here are some important questions to ask yourself as you prepare to manage the holidays in a separated family.
It is the silly season again! Workplaces are gearing up for Christmas and other End of Year functions. These functions are a great way to reward employees for another year that is now done and dusted. It is usually a very festive occasion but often functions such as these can lead to inappropriate and unwanted behaviour.
Employees have a right to make a claim for unfair dismissal if they believe that the dismissal was harsh, unjust or unreasonable. This right only arises, however, after a period of time and if the employee satisfies other criteria. Employees who are employed on a casual basis can only apply for unfair dismissal in certain circumstances. This article will discuss the threshold that casual employees need to meet to apply for unfair dismissal – namely the elements set out in the Fair Work Act 2009 (Cth).
Domestic violence is a form of violence that occurs within a relationship. There are a wide range of activities that fall within domestic violence and the effects are far reaching. As lawyers we see the real and deep impact that domestic violence has, especially on the mental health of our clients and their children. We encourage anyone who has gone through any type of violence to reach out to professional help and speak to a counsellor.
Separating from a partner may be one of the most difficult times you experience in your life. It is a time rife with intense emotions and lots of change. There will be many practical problems that require your attention, including new living and financial arrangements. If you have children with your former partner, you would also be concerned about the stability of their lives.
People often assume that men can push off any emotion and just soldier on, even during a divorce. This view of men only serves to make the problem worse. The breakdown of a relationship involves significant emotions and can feel like the grief of losing a loved one. Separation is not like repairing a car. It may not be able to be fixed quickly, and you may not be able to predict your emotions day-by-day. It’s important to acknowledge those feelings, keep your head above water and manage your mental health during this period.
Going through a divorce is a difficult and emotional time for the parents, and often your kids. Separation involves making several major family decisions, like where each partner will live, and the division of time with the children between parents. Although it can be a chaotic time with so many changes, it is essential to focus on your children’s wellbeing throughout the process of divorcing.
Since the 1st October 2018, casual employees now have a greater chance in becoming permanent employees. The Fair Work Commission has amended 98 Modern Awards to allow a mechanism by which casual employees of 12 months can request a transfer to be a permanent employee.
We live in a time where our social media accounts have an enormous place in our lives. Whether it’s where we holiday, what we wear, or what we cook, we are shaped by what we discover on social media. And vice versa, we leave our trace all over the Internet as we share our locations, connections and activities with the world.
When you think of wills your mind is probably filled with the image of a sweet elderly couple.
Divorce is most Australians’ reality. Whether it’s your own marriage, your parent’s marriage, a sibling’s or a good friend’s, we all have someone in our life who has gone through a divorce. Each experience of divorce is unique, with some finding peace in the decision to end their marriage, while others find themselves struggling to stay afloat in the messiness of breaking up.
Immigration law is a complex everchanging black letter area of law.
The requirements are strictly enforced and the number of immigrants looking to be granted a visa (permanent or temporary) are so high that the government easily increases both the difficulty and cost of visa applications.
As holidays come and go it is important to think about some of the things that you keep putting off doing.
Have you ever considered what will happen to your Facebook, Instagram, and other social media accounts once you pass away? Where will all of your photos go? Who will be able to access your information and cancel your accounts?
There are some common thoughts and ideas that come up frequently in Estate Planning that can be detrimental for future planning. Here are some myths about Estate Planning and reasons why they are not true.
If you plead guilty or are found guilty of a criminal or traffic offence, the Court will sentence you. This results in the Court imposing penalties, such as a fine, licence disqualification, or a bond. Further, the Magistrate will record a conviction, meaning you have a criminal record.
Our client was issued with an AVO after his wife alleged that he said “I’m going to get a gun.” He had gone to bed, so did not realise how upset his wife was and could not clear up the misheard statement. He woke up to the Police ordering him to get out of bed, very confused, and issued him an Apprehended Violence Order.
Our client was charged and plead guilty to Low Range PCA with a BAC of 0.068. She was driving with her 7-year-old daughter in the car, which is an aggravating factor. The automatic licence disqualification period is 6 months, and leads to a criminal conviction.
You probably imagine a criminal defense lawyer to be standing in court cross-examining a witness to prove their client’s innocence. What about if you have admitted that you committed the offence? What if there is very clear evidence against you? If you are entering a plea of guilty, where does a lawyer fit into the picture?
This post will explain the Court’s available decisions if a parenting order contravention application has been made. See here for our post on Parenting Orders – Part 1: What if the other parent doesn’t comply?
Estate & Succession Planning: Have you thought of everything? - Digital assets & social media accounts
In this series of blog posts we will look at some of the unique things to consider in addition to your Will. Important things to consider include your social media accounts, your bank accounts and pin numbers, your burial preferences, funeral wishes, and sentimental items such as jewellery, collections etc.
Typically a builder has a right to payment for work completed under a construction contract. However where a contractor cannot make a contractual claim they have the right to make a Quantum Meruit claim instead. Quantum meruit claims are grounded on the idea that where work has been completed for the benefit of one party, and that party subsequently does not pay for that work, then they have been unjustly enriched. This entitles the contractor to make a claim for the reasonable value of the construction work completed.
Another consideration to determine a child’s best interests is the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents or any other person or relative with whom they have been living: Family Law Act 1975 (Cth) s 60CC(3)(d). This is often seen as the ‘status quo’ principle.
The new First Home Buyers Assistance Scheme commenced 1 July 2017.
Changes were made to the Foreign Residential Capital Gains Withholding (FRCGW) from 1 July 2017.
Being clear and detailed in your Will is important to ensure your intentions and wishes are carried out after you pass away. Small details such as middle names and addresses of beneficiaries are crucial for distributing your Estate after you pass away.
In previous posts we have looked at what elder abuse is and how to spot it. Because of its significance in our ageing population, it is important to stress the awareness and prevention of elder abuse.
The legendary musician, Prince, passed away in April 2016 at the age of 57. He left behind an estate worth hundreds of millions of dollars. According to court documents filed by his sister, she ‘did not know of the existence of a Will.’ The law refers to this as dying intestate.
Jimi Hendrix may have a legendary music legacy, however he also has quite the legal legacy! Jimi died in 1970 without a Will in place, and 34 years following his death, his Estate was still in court.
This month we will look into some real life examples of Estate disputes and legal battles arising from unclear or invalid Estate Planning documents.
While it is good to know that court orders can be enforced, if you are a parent and have recently been through family law proceedings, it is especially important that you know that parenting orders can also be enforced. See here our blog post on Enforcement of Orders – Importance of Court Orders.
If you are having problems receiving your entitlements after a family law property settlement or parenting matter, you have clear remedies if Court Orders are in place. See here our blog post on the importance of Court Orders in this context.
The road down the family law property settlement path can be quite difficult and generally there is a sigh of relief once everyone has signed on the dotted line. However there is the issue of enforcement of Court Orders.
Superannuation laws provide specific rules called ‘conditions of release’ that determine when you can access your superannuation entitlements.
What is a subpoena?
A judgement debt is a debt that has essentially been ordered and approved by a court. If someone has obtained a judgement debt against you they are a judgement creditor and are at liberty to enforce the ordered amount.
What is liquidation?
Most commercial contracts will have a dispute resolution clause. This clause will outline the steps the parties are to take if a dispute arises.
Have you reviewed your superannuation fund rules and guidelines? Do you know if your fund offers life insurance?
When a loved one passes away, one of the last things that you want to be doing is looking for their superannuation paperwork and dealing with superannuation funds. It is important to keep your superannuation up to date and well documented to make it easier for your loved ones to deal with once you pass away.
Each superannuation fund has its own rules which determine whether death benefit nominations are allowed and the requirements for a valid death benefit nomination. Self-managed Superannuation Funds are also governed by the rules of the Deed which established the fund.
As discussed in the previous article, superannuation is an asset that does not automatically form part of your Estate according to your Will. Depending upon the rules of your particular superannuation fund, a ‘death benefit nomination’ may be necessary in order for you to control the distribution of your superannuation upon your death.
Continuing our review of matters that a court considers in a parenting dispute when determining what is in a child’s best interests, another additional consideration is the extent to which each parent has fulfilled, or failed to fulfil, their obligations to maintain the child.
When construction defects arise, owners must decide whether to allow the original builder to fix it. The primary concern is whether the recipient of the building work is acting unreasonably by not allowing the builder to remedy their defective work.
Indemnity clauses effectively allocate risk between the parties. The danger, however, is when the clause is more extensive than the party thought when they entered into the agreement.
A restraint of trade is a clause that restricts one party conducting business with another person or business not a party to the agreement. These restraints are commonly found in certain types of contract, for example, the sale of business or franchise agreements.
Business & Corporate: Your family trust is probably affected by the 'foreign persons' surcharge’. Your Trust deed should be reviewed
Family trusts are often created for the purpose of protecting assets and minimising tax liabilities. However, the Office of State Revenue (OSR) has recently made a ruling which will have the opposite effect, namely increasing potential tax liabilities for the beneficiaries of a Family Trust. Family Trust Deeds which include ‘foreign persons’ in the list of beneficiaries are now liable for a Land Tax and Stamp Duty surcharge on sales or purchases of NSW residential land.
In all aspects of business, preparation is key. This extends to selling your business. When thinking of selling your business, it is important to prepare before you seek a potential buyer. This creates the best chance of reaching a profitable outcome.
Retail leases are governed by the Retail Leases Act 1994 ('RLA'). This Act promotes fair and effective leasing relationships between tenants and landlords.
Superannuation is a complex, misunderstood, and often valuable asset. This month we will look at how superannuation is dealt with under Estate Planning law and what you can do to control what will happen to your entitlements if you were to pass away.
For a Binding Financial Agreement(or ‘BFA’) to be legal and binding, the couple must enter into the agreement of their own free will and be fully informed.
A Binding Financial Agreement (or ‘BFA’) is a written agreement between two or more people, setting out how property, financial resources and spousal maintenance will be dealt with in the event of a relationship breakdown.
A Binding Financial Agreement (or ‘BFA’) is sometimes considered the same as a ‘pre-nup’. ‘Pre-nup’ implies that a couple must enter into an agreement before they get married. This term is commonly used in Hollywood TV shows and movies but has no real application in Australia.
A Binding Financial Agreement (or ‘BFA’) is a written agreement between two or more people, made either before, during or after their marriage or de facto relationship. It sets out how property, financial resources and spousal maintenance will be dealt with in the event of a relationship breakdown.
In this series of blog posts we have explored what elder abuse is, what some of the risk factors are, what the signs to look out for are, and a case example of Edna Pearson. This article will provide a more practical example of elder abuse using a theoretical example of a client in our office.
Edna Pearson passed away in 2008 at the age of 82 after suffering from dementia. To the shock of her brother who had lived next door for decades, Edna left her entire estate to a stranger. This begs the question – why?
The first two blog posts in this series have shown the importance of recognizing elder abuse in our aging population.
Our previous article explored what elder abuse is and how it is categorized. This article will explore some of the signs and key characteristics that are often associated with elder abuse.
Divorce is the dissolution of marriage. This legal phrase essentially means that the law recognises that you are no longer married, and therefore do not have the corresponding rights and obligations associated with marriage.
This month we will be focusing on an important issue in Estate Planning – elder abuse. As our population ages it is becoming more and more important to protect the interests of older age groups not just physically, but financially and emotionally.
Without prejudice save as to costs (phrase): the communication in question cannot be used against the writer except for the purposes of ascertaining whether costs should be awarded (for our blog post about ‘costs’, click here).
When a parenting order is made, the guiding principle is the best interests of the child. In determining what is in the child’s best interests, the Family Court takes into account primary and additional considerations found in the Family Law Act. The first additional consideration is any views expressed by the child. The child’s views are weighed by reference to any relevant factors such as their age, maturity or level of understanding. Other factors that will affect the weight given to a child’s views include the need to protect the child or the benefits of keeping them with their siblings.
The law is fluid and often only changes when situations arise forcing an otherwise unanticipated outcome. This is a case study on parental responsibility in Family Law compiled from a number of matters our firm has handled.
In the case of Ffinch v Combe a Will had been amended after it had been executed by pieces of paper being pasted over certain words.
When applying to the court for a Grant of Probate, the original Will of the deceased person is required in order to identify the executor and the beneficiaries of the Will.
Just as you may think crossing something out on your Will revokes it, you may think that simply writing and adding something to your Will makes it valid.
There is a common misconception that just crossing something out on your Will and re-writing it reflects the intention of a Will-maker and will therefore be valid.
To protect your position and properly define the relationship, it is important that your invoice contains the following:
What is the law here in Australia?
In most civil cases in NSW evidence is presented to the Court in the form of a written document called an Affidavit. Whilst we often associate giving evidence in Court with witnesses being cross-examined in court, if this does occur in a court case it is usually not as it appears on the television.
The law is fluid and often only changes when situations arise forcing an otherwise unanticipated outcome. This is a case study on financing in Family Law compiled from a number of matters our firm has handled.
Amending your Will for something that might be as small as changing the spelling of a name isn’t actually as small of a task as you may think. There are strict requirements for how to amend your Will in a legally binding way. This usually means that you need to seek legal advice to ensure that the amendments are made correctly.
A partnership will be dissolved if the following events occur:
Employees have long enjoyed the basic legal protection of the ‘corporate veil’. This principle, also known as vicarious liability, means that company or employer will be held legally responsible for the wrongful actions of the company’s employees carried out in the course of their employment. In practice this means that even when an employee botches a job due to their own negligence or lack of skill and diligence, the person directly affected nor anyone else can sue that employee personally. This principle has long been recognised as fundamental to our legal system.
An all-account guarantee is a broad guarantee that you, or the prospective guarantor will pay all money owing from the borrower to the lender. Crucially, an “all-accounts” guarantee is not limited to the original loan, but can include:
Just and Equitable (adjective): to suitably reflect the relevant circumstances of the parties, including the current division of assets, contributions and future needs, when determining how the assets of a relationship are to be divided upon its breakdown.
Relocation is a significant concern in Family Law. After a separation, it is quite common for a parent to decide to move away and begin their new chapter in a new location. However, it becomes messy when parenting arrangements have not been formalised.
We can’t emphasise enough how important it is to regularly review your Estate Planning documentation.
Changes in laws such as succession law, superannuation law or trust law can mean that you will need to review your Estate Planning documents to ensure that the strategies that you have implemented are still applicable and relevant.
Estate & Succession Planning: Why do I Need to Review my Estate Planning? - Changes in Financial Circumstances
Changes in your financial circumstances should be another trigger for you to review your Estate Planning documents.
In a case involving the Sellak family in the Supreme Court the deceased, Tom, had three children Bradley, Scott and Tracy. When Tom passed he left the bulk of his estate to the executrix, his daughter Tracy. The residue of the estate was to be distributed between Bradley and Scott and Tom’s three grandchildren by Scott - Aleisha, Jeremy and Bianca. Tom left most of his estate to his Tracy – here is why.
Estate & Succession Planning: Why do I Need to Review my Estate Planning? - Changes in the Circumstances of Others
We previously looked at why you need to update your Estate Planning documents when changes occur in your life. This article will look at how changes in other people’s circumstances, such as your executor, may trigger a reconsideration of your documents.
Estate & Succession Planning: Why do I Need to Review my Estate Planning? - Changes in Relationships
This month we will be starting a series on ‘Reviewing Your Estate Planning Documents.’ We will be looking at different circumstances that might trigger the need for reconsideration of your Will, Enduring Power of Attorney or Enduring Guardianship Instrument.
The law is fluid and often only changes when situations arise forcing an otherwise unanticipated outcome. This is a case study on grooming in Family Law compiled from a number of matters our firm has handled.
The law is fluid and often only changes when situations arise forcing an otherwise unanticipated outcome. This is a case study on partnerships in Family Law compiled from a number of matters our firm has handled.
The law is fluid and often only changes when situations arise forcing an otherwise unanticipated outcome. This is a case study on businesses in Family Law compiled from a number of matters our firm has handled.
Mediation (noun): a non-binding process parties may elect to partake in aimed at working through issues and disputes in a family law matter.
Ever since the Dallas Buyers Club debacle last year, Australia has watched carefully how movie piracy laws will develop. That development recently came to a head when the Federal Court of Australia handed down a landmark decision on movie piracy/copyright law.
Often we tend to assume that a Will is the most important Estate Planning document. However, our ageing population goes to show just how important the other Estate Planning documents are.
A recent matter of ours involved a woman who attended our office to discuss the recent passing of her husband. She was the sole executor and sole beneficiary of the Estate. She was grieving and struggling to discuss the Estate and to understand the process required to obtain legal authority to deal with the deceased’s assets (by obtaining a Grant of Probate).
The law is fluid and often only changes when situations arise forcing an otherwise unanticipated outcome. This is a case study on transferring property to loved ones which our firm has dealt with in the past.
So you know you made a Will, but you have no idea where it is.
If you need to go through old drawers, push past scrap paper and old receipts, then wipe away a layer of dust - all to find your Will - then chances are that it needs updating.
Have you ever wondered whose responsibility it is to bury your body when you pass away?You might think that it is automatically your next of kin. However, it is actually your executor that has the right to custody and possession of a deceased person’s body for the purposes of burial and/or disposal. This person may or may not be your next of kin.
The law is fluid and often only changes when situations arise forcing an otherwise unanticipated outcome. This is a case study on service in family law divorce that our firm has dealt with.
Parties to a commercial transaction, particularly trade suppliers and credit providers often include an equitable charging clause in their contractual agreements.
In Court litigation the first step to obtaining monies owed to you is to obtain a judgement. This is essentially the Court acknowledging your right to those monies and ordering the other side to pay. However, situations can occur when the person you have the judgment against is unable to, or still refuses to pay. In these situations there are several mechanisms for enforcing your judgment.
In April 2016 the ACCC obtained a judgement in the Federal Court against Nurofen producer Reckitt Benckiser (‘RB’) for misleading labelling regarding various product ranges of Nurofen. RB had been advertising these product ranges as targeting specific types of pain, and charging more for that range when in fact there was no difference between the active ingredients in the specific product ranges and the general pain range. Initially the ACCC obtained a judgement against RB for $1.7 million.
Best interests of the child (adjective): legally, the need to protect a child from harm, maintain a meaningful relationship with both parents and other secondary considerations.
In the recent family provision case of Stollery v Stollery heard in the Supreme Court, Garry Stollery failed to demonstrate what his true financial position was to the Court. This had the effect of drastically decreasing the Court’s willingness to award him provision from the Estate which he was making a claim on.
Estate & Succession Planning: Why is an Enduring Power of Attorney and Enduring Guardianship Instrument important for Single People?
Are you single? You need Estate Planning documents!
If you are single and think that a Will is not necessary for you, think again! It is a common perception that Wills are for people with families and children, however they are just as important for you.
Superannuation is a complex area of Estate Planning that a lot of people don’t really understand. It is important to think about your super when considering your Estate Planning as it can be a significant asset in your Estate.
As seen in the previous post on Trusts in general, we saw the different roles played by the Settlor, the Trustee and the Beneficiary. We also saw that a Trust is governed by a fiduciary relationship between the Settlor and the Trustee wherein the Settlor relies on the good faith of the Trustee.
Disclosure (noun): a process whereby both parties to a family law property settlement are required to exchange all information and documentation relevant to their financial circumstances.
Have you ever watched a medical drama on television and been in awe of the complicated medical diagnoses the actors have to not only remember, but deliver convincingly without tripping over their words? Or, more worryingly, have you yourself ever attended an appointment and left feeling more confused than when you arrived because it felt like they were speaking another language?
Doctor Lodin died in June 2014 leaving behind an estate valued at approximately $5 million. Dr Lodin had died intestate as he did not have a Will. Under the rules of intestacy, Dr Lodin’s sole daughter was entitled to the whole of the estate. Dr Lodin’s ex-wife, Magdalena, subsequently brought an application for family provision against the intestate estate.
The Fair Work Ombudsman has been taking an increasing interest in the area of advisor liability and illegal phoenix activity. Illegal phoenix activity refers to the transferring of assets from a company nearing insolvency to a new company to protect those assets from creditors when the company goes into liquidation.
A Traditional Will outlines the intentions of the testator and how they would like their Estate to be distributed amongst their beneficiaries. Once the testator passes away, the funds will be distributed to the beneficiaries directly according to these instructions.
In this article, we'll go into detail regarding what is perhaps the most common challenge to a statutory demand: the 'genuine dispute'.
Previously, we published a two part series on Testamentary Trust Wills; what they are and their benefits (see Part 1 and Part 2). This series is going to dig a bit deeper and give you greater insight into the different aspects of Testamentary Trust Wills.
The final step in the process of administering an Estate is the actual distribution of the Estate. This can occur once 6 months has passed since the date of death of the testator and also once the appropriate Notices have been published. This allows creditors a final chance to make a claim on the Estate and also provides the executor or administrator with protection against such claims.
Now that Probate has been granted the assets need to be obtained from all of the relevant asset holders. This process can seem cumbersome and timely as many different asset holders need to be contacted and the release of assets may take some time.
After going through the process of obtaining a Grant of Probate, you might be wondering why you have to publish another notice on the Supreme Court website.
As a shareholder of a company, you have access to a number of remedies should other shareholders or the officers of the company (i.e. directors) abuse their position or act contrary to the interests of the company. One of these powers is to apply for relief from oppression in order to defend your interests in a company. You may have to exercise your rights if the majority of shareholders are acting in their own benefit to the company’s disadvantage or in a way which 'unfairly prejudices or discriminates' against a minority of shareholders.
This series of blog posts has walked you through the process of applying for a Grant of Probate. However, if your loved one has passed away without a Will (the law calls this dying ‘intestate’), a Grant of Probate is not available to you to distribute the Estate.
The ‘Grant of Probate’ is the fourth document required in an application for a Grant of Probate.
Estate & Succession Planning: On the twelfth day of Christmas my true love gave to me...the best gift of all - Estate Planning!
As you’ve followed us through the 12 days of Estate Planning Christmas, you will have seen how important it is to have planned out what will happen to your assets in the future, and who will take care of you and your finances should you lost capacity.
Estate & Succession Planning: On the eleventh day of Christmas my true love gave to me...a review of our company!
Over the Christmas break you may have a bit more time to step back from the craziness of work, and instead of having to juggle all the day-to-day matters, you may decide to review your company.
Estate & Succession Planning: On the tenth day of Christmas my true love gave to me...a heart full of generosity
Have you ever thought of including a charity in your Will? This Christmas, as we think about those less fortunate than us, we may be inspired to do just this!
Estate & Succession Planning: On the ninth day of Christmas my true love gave to me...an update to my twenty-year-old Power of Attorney!
When was the last time you sat down and thought about who you appointed as your Executor, Power of Attorney or Enduring Guardian? If it is so long in the past that you can’t remember, it may be time to update those documents!
When pursuing a Family Law property settlement, we need to get an idea of the total property pool and the value of the assets within this pool. Some assets are much easier to value than others. For example, a bank account is very easy to value – just log onto online banking!
If your Family Law property settlement is either in Court, being negotiated or in mediation, it is likely that you will encounter a ‘balance sheet’. A balance sheet is a list of assets and liabilities held by the separated parties. The balance sheet also includes add backs, financial resources and superannuation. The purpose of a balance sheet is to calculate the net asset pool of the shared parties and to ensure all assets and liabilities are fully disclosed.
When it comes to children, Family Law has one big rule – whatever is in the best interests of the children is priority no. 1. In saying that, often it is in the best interests of the children to have a set routine. This means having comprehensive parenting consent orders so neither parent is ever in any doubt as to their obligations (as this is when the children really get caught in the middle).
Estate & Succession Planning: On the eighth day of Christmas my true love gave to me…the wisdom of someone who is eighty
There are some unwritten rules about what you should not bring up at dinner parties… Fortunately, Estate Planning is acceptable!
Estate & Succession Planning: On the seventh day of Christmas my true love gave to me…new members of our family
Perhaps 2016 was a year that you or someone in your family had a baby (congratulations!), and you are now experiencing that childlike excitement about Christmas alongside them!
Estate & Succession Planning: On the sixth day of Christmas my true love gave to me…spare time to clean out the study!
While you have free time, think about reviewing your bank accounts, superannuation, and other assets. It’s a good idea to avoid any nasty surprises such as having no money left in your estate after Christmas shopping.
Estate & Succession Planning: On the fifth day of Christmas my true love gave to me...an opportunity to see my family
If the family is going to all come together at one point in the year, it’s probably at Christmas. Loved ones travel interstate (and perhaps even overseas) to catch up on the year that has been and to celebrate Christmas.
Estate & Succession Planning: On the fourth day of Christmas my true love gave to me...time off work to do as I please!
As Christmas approaches so do the holidays. School is out, university is on break, and offices close for some time off! Take advantage of that time and catch up on some much needed planning for the future.
Court should be an avenue of last resort. Unfortunately, sometimes, you will have no choice but to engage with Court proceedings if the other side has become unresponsive or a resolution cannot be reached. This blog post looks at how to respond if someone else has put on an Initiating Application or started Court proceedings against you in family law.
An Initiating Application is a document you file with the Court if you want to start court proceedings. Whilst Court should be an avenue of last resort, sometimes it is necessary to bring proceedings into the Court. This blog post examines how to file an initiating application in parenting matters. If you want more information regarding parenting matters before reading this post, please see our blog post ‘The What and Why of Family Law Parenting Matters’.
An Initiating Application is the document you file if you want to start Court proceedings. Whilst Court should be an avenue of last resort, it is sometimes necessary to bring proceedings to Court where a resolution cannot be reached, communication has broken down or there are concerns with disclosure. This blog post looks at how to put on an initiating application for property matters.
Estate & Succession Planning: On the third day of Christmas my true love gave to me…a new toy like a Mercedes
Maybe this Christmas you’ll get something great from your wish list. Christmas is a time of year where the spirit of giving takes over and we tend to acquire some new assets.
The law states in New South Wales that you cannot make a claim for family provision one year after the deceased’s date of death without leave (permission) of the court. Therefore when you do bring a family provision claim out of time the court will consider relevant factors such as:
One of the primary benefits of using a corporate structure is that a company is a separate legal entity in the eyes of the law. This protection is known as the corporate veil and means that in all but limited circumstances the Director cannot be held liable for the debts of the company.
Estate & Succession Planning: On the second day of Christmas my true love gave to me...the Sydney dream of owning property!
If you’ve ever had renovations or a new house built, you’d be familiar with the wish… “To be moved in before Christmas!” It means you can share the excitement of Christmas with your family by welcoming them into your new home.If you have been able to move in on time, it’s important to update your Estate Planning documents to reflect the new property that you’ve acquired. Property can significantly change the value of your estate, and therefore may change the way you would like your estate distributed.
So, you and your former partner have reached an agreement about your family law property settlement. Part of the agreement is that you receive some of your former partner’s superannuation. But…how do you go about executing this?
If you are separating and looking to obtain legal advice for a family law property settlement, you may be a bit shocked at the costs. After all, no one budgets for family law.
An Affidavit is your sworn version of events. Even if your solicitor is drafting the affidavit with you, this ‘how to’ will give you some insight into the process of preparing an affidavit.
An affidavit is basically your sworn version of events. An affidavit sets out the facts and reasoning upon which you are making in your submission to the Court.
There are many unfamiliar processes and documents involved in preparing for a family law matter. Some of these things are quite straight forward. However, some family law processes are quite complex and may leave you feeling a little out of your depth.
What happens when you find yourself subject of your employee’s successful unfair dismissal claim? The court’s powers include:
Business & Corporate: Is your non-compete not complete? Don’t let your competitors poach your employees
It is very common for employment contracts to have a ‘restraint’ or ‘non-compete’ clause. However, if these are not properly drafted they will be unenforceable and useless.
While you may be confident that your workplace has good processes in place to mitigate the chances of an unfair dismissal claim, it is important that you understand the general worker protections contained in the Fair Work Act 2009.
Estate & Succession Planning: On the first day of Christmas my true love gave to me…a holiday that is carefree!
Over Christmas many of us are rewarded with a holiday. Perhaps you are going overseas, or travelling to see family, or taking a well-deserved couple’s retreat.
Lawyers are very good at writing very complex documents that are difficult to understand. A lot of the complexity in these documents is vital to your security because it reflects an extensive body of case law which dictates what particular words create the strongest document. However, that doesn’t make them any easier to understand! So here are some tips for reading parenting orders…
Business & Corporate: The difference between terminating employment and making an employee redundant
It is important that you understand the difference between terminating an employee and making their role redundant, as this can have significant consequences.
An inventory of property is another document that is required when filing an application for Probate with the Supreme Court. An inventory of property is exactly what it sounds like – it is a list of all the property owned by the deceased.
An Affidavit of Executor is a legal document by which the executor of an Estate swears that they will administer the Estate according to the law and according to the wishes of the deceased (as specifically stated in the will).
One of the documents required in an application for a Grant of Probate is a ‘Summons’.
When a loved one passes away and holds significant assets, it is most likely that the executor(s) will need to obtain a Grant of Probate from the Supreme Court before they can deal with those assets
As a general rule, the law presumes that a person who has signed a contract has read the contract. This is often called the “incorporation of terms by signature”. In most normal commercial situations, the terms of the contract become binding upon signature. This situation had significant potential for exploitation, particularly with the employment of “fine print” and other methods to hide or bury the true nature of contractual obligations.
Many employers will be happy to know that an employment contract does not have to be written! Both employees and employers should be aware that a valid agreement can take the form of:
Not only can a trust decrease your tax but it can cover your assets against losses from divorce, bankruptcy or the claims of creditors. If drafted properly, it can act like a wall that comes down to protects the individuals’ property.
You may structure your family trust around either a discretionary trust or a unit trust. Although a discretionary trust has traditionally been known as a ‘family trust’, the Trustee is given freedom to decide whether the beneficiaries receive any benefits, and if so, how much.
Trust structures can offer certain benefits to family businesses. In this article, we examine how a ‘discretionary trust’ can benefit your business.
A trust structure has certain advantages for your business, including the ability to split income and protect assets. Many businesses, however, fail to appoint a corporate trustee and instead may rely on ‘natural persons’.
Filing an application for a Grant of Probate with the Supreme Court can be a complex and tricky process. If not done properly to the standards of the Supreme Court, the application can be dragged out and require more work.
As explored in our last post, the Notice of Intended Application for Probate is published on the Supreme Court website so that anyone wanting to make a claim on an Estate are given the opportunity to do so. Some people may question how it is fair for people to make a claim on an Estate when they are not mentioned in the testator’s Will.
Your partnership may have come to an end because:
To begin the process of obtaining a Grant of Probate, you must publish a Notice of your intention to apply for a Grant of Probate. There is a requirement in legislation that a Notice must be published at least fourteen days before an application can be made to the Court.
A partner can often be responsible for the debts and liabilities accrued by other partners.
You should consider a formal partnership agreement because it can define your business agreements and prevent future disputes.
Whether you are just starting out or considering moving on, it is vital to prepare your business succession plan early.
Last month Justice Hallen of the Supreme Court handed down Judgement in the case of Page v Page. The matter involved a Family Provision claim brought by the brother of the deceased person. Frank Legal represented the Defendant who was the Executor of the deceased’s Estate. We are pleased to confirm that Justice Hallen found in favour of our client, the Defendant, in dismissing the Plaintiff’s case.
To simplify hundreds of years of legal development - law can be divided into three main categories - the common law (ie decisions made by the Court), statutory law (ie legislation made by Parliament) and equity.
Contracts exist at every juncture of society from international mergers to buying an ice cream. The rules of forming a contract are firmly established and relatively well-known:
You’ve received a statutory demand, but you don’t believe there is a proper basis for it. If you decide to contest a statutory demand, then you should be aware that the legal avenues for doing so are limited and strict. This article sets out the most commonly recognised bases for setting aside statutory demands.
The court system for Family Law is very complex, with its jurisdiction split between state and federal courts (jurisdiction just means who has the authority to hear your case).
It is a fact of life that pursuing a legal claim will be expensive. Just like when you renovate your home, there are a lot of ‘trades’ who work to provide you with a resolution. Your lawyer is one of them but the court system is another.
Why not just say money? The simple answer is that the term “assets” includes more than just money. Your “assets” includes all useful and valuable things including money, property and intangible assets like shares or investments.
It is always a difficult time when a loved one passes away. Amidst the emotional grief, there can also be confusion about what is needed to be done about their assets.
So, here’s the situation: you have managed to negotiate a family law property settlement with your ex-partner. Or maybe, negotiations failed but the Court has just handed down final orders setting out the division of property. The next step in the process is executing orders. Keep reading for our top 6 tips in executing orders.
If you have lodged an application with the court to initiate family law proceedings, it is likely that you will soon be faced with the terms ‘interim orders’ and ‘final orders’.
What is an affidavit?
As much as possible, we like to think that legal eagles are just normal people plus a slight addiction to coffee. However, if you are attending Court for the first time, you will probably see some of the more unusual elements of the legal profession.
Television has a lot to answer for when it comes to misconceptions about the law. To be fair, courtroom dramas would not be nearly as exciting if they reflected the truth – 95% of family law matters settle outside the court system.
Being a single parent can be very busy! From taking the kids to school to helping them do their homework and simply keeping them occupied - where is the time to sleep and think!? Amidst all of that it may not have crossed your mind to think about your Estate Planning needs.
Many business owners use the simple sole trading structure. However, this is rarely the best fit for your business.
Are you ready to move onto your next stage in your business life? Have you come to the realization that the current business you are running just isn’t workout out? No matter why a person sells, there are certain things to consider when getting ready to sell your business.
Over the last month, we have discussed a number of different financial considerations which you may not have considered in relation to your family law property settlement. Now, we have one more topic to discuss which will hopefully round out your understanding as to how all these financial puzzle pieces fit together!
It is the word no one wants to hear – bankruptcy. With economic security being a priority in the present day, bankruptcy is the worst case scenario few expect. However, the implications of bankruptcy influence multiple areas of law, including Family Law property settlements.
When a couple separates, the financial implications can be widespread. For this reason, it is important that you are equipped with knowledge about all the possible implications of your separation. We have already discussed property settlements, gifts, windfalls and child support as possible financial implications of your separation. However, a lesser known financial implication is spousal maintenance.
A binding financial agreement is a contract between two people in a marriage or de facto relationship (or intending to be in such a relationship) which sets out how property, financial resources and spousal maintenance will be dealt with in the event of a relationship breakdown. Due to the plethora of US legal dramas which grace our screens, you might better know this document as a pre-nuptial agreement or pre-nup. For many people with significant asset pools, this may seem like the perfect solution to the inherent risk attached to combining your life, financial and otherwise, with another person. As such, it may come as a surprise to you that we do not do binding financial agreements at Frank Legal. Why? Because the law on binding financial agreements is not as clear cut as it may seem.
So, you’ve just received an inheritance. Or perhaps, you’ve won the lottery! When you are involved with a family law matter, these sorts of windfalls can greatly impact your circumstances. A windfall is a sum of money which you have received but not worked for per se. The impact of a windfall will depend on when it is received.
Buying an existing business can help you avoid the hard work and intense stress needed to establish one. There are two ways to buy a business:
Company officers are the directors and secretaries of the company. As an officer of the company, you have a number of obligations imposed under the Corporations Act. We have listed a few below.
Litigation: What exactly is ‘maintenance, education and advancement in life’ in a Family Provision Claim?
When the Court makes an order in a family provision claim it does so by considering the ‘maintenance, education or advancement in life’ of the applicant bringing the claim. These terms have been found to mean:
Generally legal costs lie within the discretion of the Court. This means that when the Court delivers Judgment, it can stipulate who has to pay what in accordance with established principles.
It is quite common in a relationship for the people around the two parties (family, friends, business partners etc.) to contribute financially to the either the individual parties or to the relationship as a whole.
A company structure can be a great way to own assets, including your business.
The ability of a partner to ‘bind’ the other partner(s) is extremely important if you are currently in, or are thinking about entering into a partnership agreement. This means you will be taken to have entered into contracts or legal agreements that your partner enters into. Even if you didn’t know about them! Your assets could be at the mercy of the other partner’s liability.
Franchising is a particular relationship in which the franchisor (the owner of the business providing the product or service) allows others (franchisees) the right to use the franchisor’s names, systems and processes to sell goods or services.
A company is a common form of business structure. Under law it is considered a separate legal entity, entitled to sue and be sued, enter into contracts and own property. This offers a level of legal protection not available to other business structures.
In Family Law, the Court has the power to order the transfer of property between separated parties by way of consent orders. In such circumstances, the parties may be exempted from the stamp duty which is normally required upon the transfer of property. This also applies to binding financial agreements (Read more in our article “Signed, Sealed, Delivered and Stamp Duty”).
Peter Reid was the director of Consolidated Press Holdings from 1960 to 1993. Consolidated Press Holdings was the Packer family company that owned the Nine Television Network and assorted other media outlets. Over his career Mr Reid amassed a $52 million fortune.
A case in early 2016 involved a family provision claim brought by Mr Sadiq alleging that he was in a de facto relationship and living with Ms Coombes at the time of her death. This would have made Mr Sadiq an eligible person for the purpose of the Succession Act and therefore able to claim provision from the late Ms Coombes’ estate.
In many ways, family law can be a serious burden on your finances: unexpected legal costs, filing fees with the Courts, the costs of the property settlement itself, the costs of a conveyancer… and now you have to pay stamp duty too!
Any parent will know that having children transforms your life. Suddenly, your first priority is caring for your children and ensuring they have everything they need. And while you would never begrudge the money spent on your child’s education or passion for sport, any parent will also know that children are expensive!
If there is one thing the legal profession is (sadly!) renowned for, it is lots of complicated jargon. Words which describe slightly different principles and situations in a way which is often confusing. Well, we would like to break down an example of this for you today: child support vs child maintenance. Are they the same thing? If not, how are they different and which one is best for my circumstances? All these questions are answered below to ensure that you are equipped to fully understand the financial implications of your family law separation in the context of children and child support.
There are a range of flexible options for the payment of child support which allow parents to choose a format which best suits their particular circumstances. When determining the best configuration of child support for you, consider the following three questions:
When it comes to child support, we often advise that clients seek assessment and management of payments through the Child Support Agency. Why? Because this service was established by the Government to solely handle child support payments. Consequently, it often provides parties with the simplest, cheapest and most hassle-free system to make child support payments. However, a question we are often asked it ‘How are these payments calculated?’
In the mid-1800s, the law developed principles according to what is now called “freedom of contract”; that is, that people and businesses should be able to reach any agreement they like, within the bounds of the law.
In our recent article regarding misleading and deceptive conduct, we explored the factors a Court will consider in determining whether such conduct has occurred. As we saw there, there’s more to it than simply lying. Here though, we look at what you can do once misleading and deceptive conduct has been established.
You were smart - you and your partner thought long and hard in your youth and invested for your retirement. It was a great decision at the time. Sure, a ten year investment seemed a little long but think of the returns! In 10 years, you would be reaping what you had so carefully sown.
If you are separated or separating, it is important to consider how third parties may impact your family law matter. In this blog post, we will consider how your property settlement might be impacted if you are being supported by a third party.
If you are separated or separating, it is important to consider how third parties may impact your family law matter. In this blog post, we will consider how your property settlement might be impacted if you are supporting a third party.
While a trust might sound like a technical term, trust us, it’s not. A trust is simply a legal relationship in which an individual (or a company), called a trustee, runs the business for the benefit of other people (beneficiaries).
A partnership is a relationship between at least two parties that carry on a business in common with an aim to make a profit.
‘Misleading or deceptive conduct’ is when a party induces another to enter a contract upon false impressions. This conduct is prohibited under the Australian Consumer Law (“ACL”). In order to establish that this conduct has occurred it is necessary to prove that:
- The plaintiff (the disadvantaged party) was induced into believing an “erroneous assumption” as a result of the conduct in question;
- The plaintiff relied upon the misleading or deceptive representations when entering the contract (this conduct need only form one such factor);
- The representation must be positive. This means it must be a statement and not merely silence. There are a number of relevant exceptions to this rule where there is a duty to disclose information.
To be found to be misleading or deceptive conduct a transaction has to have occurred in the course of business, or under “trade or commerce”. In your case, purchasing a share in the business which conducted trade does fall under the relevant definition.
In order to determine whether conduct was misleading, the Court considers what the precise effect of the conduct would be on the disadvantaged individual. The Court would likely analyse the following:
- Nature of the parties;
- Nature of the transaction;
- Any level of familiarity between the parties; and
- The exact nature of the conduct itself.
If you have been disadvantaged by misleading and deceptive conduct, there are a number of remedies available, which are discussed in “Misleading and Deceptive Conduct Part II”.
Mediation refers to a process of non-adversarial negotiation between conflicting parties with the aid of an impartial intermediary (a mediator).
A Will is open to be found invalid by the Court in situations where the deceased was not mentally capable of understanding the implications of their actions. Additionally, where the deceased had been pressured into altering their Will by another are also grounds for finding the Will invalid.
A partnership can form either explicitly (through a formal document), or implicitly (through the informal actions of the parties).
In our last article, we canvassed the core options when choosing a business structure. Today, we will consider one of the most common and simplest business structures: the Sole Trader.
Estate & Succession Planning: How does the Guardianship Act 1987 (NSW) affect my appointment of an Enduring Guardian?
You have decided that you need to put in place an Enduring Guardianship instrument so that you can nominate who is authorised to make medical and health related decisions for you in the event that you lose capacity. Who should you appoint?
Attorneys and Guardians – you may be familiar with both of these terms. An attorney is your lawyer, a guardian is who you’ve appointed to look after your children if something happens to you... right?
The first decision when starting your business is which structure you should use. This is one of the most important decisions you will make in business. Although if you already operate a business, now is not the time to tune out! Depending on your situation, you can change and update your structure to better suit your circumstances.
It’s easy to think that once you’ve made a Will, you have covered all bases to plan for the future. But what will happen if you’re unable to make decisions for yourself while you’re still alive? Who makes those important health related decisions for you? This is where an Enduring Guardianship instrument is important.
Appointing your attorneys or enduring guardians requires more thought than simply who you will appoint. You should also carefully consider how you would like your attorneys and guardians to act they are to act when they are making decisions on your behalf.
Family law connects with all areas of life. In particular, however, family law is intimately connected with your finances and your financial security.
As your circumstances change, updating your Will is important. A second marriage is just one of the many situations in which it is imperative that you update your Will as soon as possible.
For a Will to be valid, the will-maker must have capacity. Capacity is a legal test that ensures the will-maker is aware of the content and effects of their Will. With the prevalence of dementia and other cognitive impairment diseases today, capacity is an important aspect of Estate Planning.
Finding out you that are an Executor for a loved one might be confusing. Not only are you and your family experiencing grief over your lost loved one, but you have been given the role of Executor. What does that even mean?
In previous articles, we have shown you how your BA lawyer will add value to your business, whatever the size.
Business Advisory: Size doesn’t matter – Why your business isn’t too small for a Business Advisory Lawyer
It’s not just publically listed, multinational companies that need legal advice!
In many respects, the value of a BA lawyer is directly linked to the value you place on your business.
Once you’ve signed your Will, you’re done, right?
In our experience, the biggest stumbling blocks in family law property settlements is not deciding which party gets the business or how the business should be divided. The biggest stumbling blocks are deciding who should value the business and, by extension, what the business is actually worth.
When two people separate, they must unravel more than just their personal lives – they must also unravel their financial, social and even professional lives. But how does that work with family businesses? This article is part two of a two-part series which discusses property settlements and family owned businesses. This article addresses the situation where you brought a family business owned by your parents to the relationship.
In the context of Wills there is a rule of forfeiture. This simply states that people should not be able to profit from their crimes. For example children cannot murder their parents and expect to receive their inheritance.
We are all aware of the success and wealth of Donald Trump, Chairman and President of the Trump Organisation and US Presidential candidate. What has been quietly relegated however, is the fate of Donald’s elder brother, Fred Trump. Lacking the business acumen of his younger brother Donald, Fred became a pilot. However Fred has been described as a struggling alcoholic and died of his alcoholism in 1981. Fred Jr. left behind a son, Fred III whose son has cerebral palsy, which the Trump family promised to support.
When two people separate, they must unravel more than just their personal lives – they also must unravel their financial, social and sometimes their professional lives. But how does that work with family businesses? This article is part one of a two-part series which examines two circumstances to do with property settlements and family owned businesses. Our first topic of conversation? Where you and your partner co-own a business.
Here are five things we think any BA lawyer ought to be doing in your business:
Considering a business as an asset has been discussed previously on this blog. But what if your business isn’t an asset? What if your business is not making any money and has a sizeable amount of liabilities attached to its name? Do the liabilities under the name of the business mean you (or your partner) will have to pay for them in the property settlement?
The time limit in which to bring a family provision claim in NSW is twelve (12) months from the date of death.
After finding out how often you should consult your BA lawyer, it is extremely useful to know how to use your BA lawyer to make sure your business meets compliance regulations and is on track to meet its goals.
When is the ‘right time’ to get started with Estate Planning?
Starting a business requires a lot of time and effort. Often, businesses will require an injection of cash to get them up and running. Frequently, someone will loan money to the new business. Sometimes this is the bank and sometimes this is the partner to the relationship.
The main purpose of preparing a Will is to control how your assets are to be distributed when you pass away. One thing you may wish to do is to include a charity in your Will so that you can continue to contribute to causes that you care about.
Following our discussion of what you can expect from your Business Advisory Lawyer, it’s especially important to discuss the risks of not having a BA lawyer.
You have thought through your estate planning and signed your Will; what more could there be to do?
It is common in many relationships that partners divide up responsibilities and roles, sharing the burden of duties like managing finances. However, as partners separate, all the parties’ assets and liabilities are brought to light. It may come to your attention that your partner has an interest in a business of which you were unaware. Or, you may know that your former partner has business interests, but are unsure of what interests they have.
Your Business Advisory lawyer must be knowledgeable and skillful if they are to strengthen the legal health of your business. Today, we examine what you can expect from your BA lawyer.
All of the following attributes are bound together by one overarching theme which underpins our entire BA team: we are client focused.
Your BA lawyer cannot be a stranger to your business who simply provides you with documents from time to time without taking the time to get to know you, your business and its needs. You are entitled to a BA lawyer that is familiar with your business and is diligent in delivering the legal services essential to its health.
The following attributes are outworks of our client-focused nature:
In short, you should consult your BA lawyer all the time! Now before you think we’re saying this because of self-interest, hear us out.
A Testamentary Trust is a Trust created by a Will that does not come into effect until after your death. Because the trust forms out of the formation of the Will, the Will must be valid for the trust to take effect.
Most of us will be asked to be a guarantor at some point during our lives. Whether it is a loan taken out for business purposes, or for a family member who is seeking to borrow money for the purchase of their first property. As a guarantor, you will be called on to pay the outstanding loan or debt if the person responsible is unable to do so. Despite the prevalence of guarantees, most people are not aware of their rights and obligations.
So, picture this scenario – you and your partner have just separated. You haven’t dealt with all the legal stuff yet but you knew you needed to leave and now you are looking for a new outlet, a way to start afresh. How about a new business?
Frank45 - a free legal health check for your business.
The Frank45 is a complimentary 45-minute business health check. We’ll analyse the legal resilience and compliance of your business and provide you with a frank and candid written report about:
Good legal advice can help protect your business
Whatever the size of your business, Frank Legal’s Business Advisory team can help you improve its health and resilience. A legally resilient business framework works to protect your bottom line so you can continue to be profitable for years to come.
My business is going well – why involve a lawyer?
Waiting until things go wrong to engage a lawyer is usually the most expensive way to get legal advice. A Business Advisory lawyer can help you prevent problems – a much smarter way to run your business.
From a small family owned bakery to a Trump-style multi-holding corporate empire, businesses come in all shapes and sizes. As such, family law settlements also come in all shapes and sizes. This article considers more complex business holdings which may have multiple holding companies and/or trusts.
Last month, the world was rocked by the United Kingdom’s decision to leave the European Union. The legal ramifications of this decision are extensive and we will certainly be watching them unfold with interest. In family law, this decision will have numerous consequences for families living spread across Europe. But what does this have to do with Australia?