After nearly six years of consultation, the first of several draft regulations have finally been prepared and the last round of community involvement has commenced. In this video, OMB Solicitors, Partner Juliette Nairn discusses key features of the draft regulations.
A summary of the draft regulations can be accessed here.
Contact our team for more information here Body Corporate Enquiries.
One of the most frustrating aspects of running a business is not being paid on time for the goods and services you provide. Customers who don’t pay on time eventually cost your business time and money in chasing them to settle their bill, not to mention the impact on your cashflow.
While businesses in this situation certainly have legal rights that allow them to take action to collect from debtors, there are also many pre-emptive things a business can do to both reduce the prospect of indebted customers, and improve your internal processes for recovering debt. We’ve listed 10 essential points any business should consider when approaching the area of debt recovery.
Know who your customers are
Many of the problems with customers who struggle to pay stems from a lack of initial due diligence on the part of the business that extends them credit. By first checking publicly available company information and otherwise gathering as much information as possible about the business you’re lending to, you can effectively ‘screen’ those who are likely to be able to repay from those who are not… and hopefully reduce repayment problems.
Offer customers incentives for early or instant payment
A decision to offer a debtor a discount or some other incentive to pay you back early or on time obviously needs to be weighed against the costs of chasing them for payment. Many businesses will prefer to be paid back at a slight discount, maintaining cashflow, rather than spend time and effort chasing debts. If discounting payment is not an idea you wish to entertain, other incentives such as offering certain customers exclusive products or access can also encourage on-time payment
Have clear, transparent and accessible contracts and terms
While it seems obvious, many businesses use contracts that are either too vague on key details, or alternatively too heavy with legalese for those to whom they extend credit to understand. The guidance of a legal representative with experience in debt recovery is often essential in helping a business draft a succinct, clear and transparent document which sets out payment terms, methods of payment, time limits, manageable credit limits and penalties for non-payment by those they extend credit to. This can avoid any ‘they said-he said’ disputes later, and prove crucial if legal action for debt recovery is later required.
Provide different options for repayment
By diversifying the methods by which customers can pay, you can encourage them to honour their obligations rather than ignore or delay them. A payment plan or instalments might be better than not getting payment at all, but obviously this decision will depend on the size of your business and your cashflow position.
Make someone in the business a ‘debt recovery officer’
Many businesses make the mistake of having more than one person responsible for chasing up late or non-paying customers. This can lead to confusion and duplication, particularly in larger businesses with many clients. Ideally there is one person, or a dedicated team leader, responsible for debt collection, streamlining the interaction of the business with debtors. In smaller businesses, if this seems too big a job for one person, external experts can be employed. Many law firms now offer specialist debt recovery services.
Ensure there is a systematic invoicing process where you follow-up on late payments
Following on from point 5, a debt recovery officer should be managing a systemised process of invoicing and follow up of late payments. Whichever way this is done, the process should be accessible to all those involved in transactions between the business and clients. The process should also be clear and transparent for the customer, so they are aware of what the follow-up contact is in relation to.
Communicate verbally with the debtor
This point follows on from 5 and 6 but again, also applies to anyone in the business who deals with customers. In these days of email and online portals, it’s easier than ever for customers who owe money to ignore or put off requests for payment until it suits them to pay. Sometimes a good, old-fashioned chat on the phone between, say, the debt recovery officer and the client, can lead to quicker payment. There’s still no substitute for dealing with a real human.
Insist on a written payback commitment
While there may be a contract in place, and there have been polite requests for payment and even a friendly chat on the phone, you should also consider a written ‘payback’ commitment presented to the debtor when the debt becomes payable. Here the debtor acknowledges the debt, explains why it hasn’t been paid on time and promises to pay it back by a specific date in a return email or letter. This document, like a contract, will also assist if later legal action is required for non-payment.
Keep a record of all contact details and communication with the debtor
A comprehensive and accurate record of all the ways the business has contacted the debtor should be kept. These days, various software tools make this easy to do. A record of the contact made with the debtor will be vital if legal action needs to be commenced against the debtor.
Stop the account and take legal action
Obviously there comes a point where a business has tried everything to get a customer to pay, without success. At this stage the logical course of action for the business is to cut off service and/or credit to the client and consult a lawyer about the next steps to recover the debt/s.
OMB Solicitors has many years of experience in advising and guiding businesses on debt recovery actions. If any of the issues raised in this article provide you with questions or concerns, contact Gold Coast Lawyers today on (07) 5555 0000 or [email protected]
Smartphones have put a video camera in the pocket of nearly every person you see, with widespread and profound impacts for various sections of society, including security, surveillance and in particular, the law.
In recent years the prevalence of mobile recording has resulted in a number of court cases debating whether a ‘video will’ made by someone who later passes away can be valid and enforceable. In Australia, for a document to be recognised as the will of a deceased person it must be in writing and signed by the testator (the will-maker) in the presence of two or more witnesses present at the same time. How then, can a video recording of a will be valid?
While the law is often slow to adapt to the legal impacts and implications of new technology, the courts have set down a number of important principles when it comes to video recording your will and more generally, what are termed ‘informal’ wills.
A recent case example
The case of Radford v White decided in the Queensland Supreme Court in 2018 provides a good recent example of this specific issue.
In this case, Radford was the de facto partner of Jay, a 39-year-old man who bought a new motorcycle. Before he picked up the motorcycle, Radford encouraged Jay to record a video in which he directed what he wanted to happen with his assets should he pass away. In the recording, Jay said the majority of his assets should go to Radford and that nothing should go to his “soon to be ex-wife”, White.
Later that day, Jay had a road accident on his new bike, sustaining serious injuries including a severe head injury. Although later discharged from hospital, 14 months later he passed away from an overdose of prescribed painkillers. Radford made an application to the court seeking an order that the video recording Jay had made be considered a valid will, while Jay’s ex-wife, White, opposed Radford’s application.
The court decided in Radford’s favour that the video recording did form Jay’s will. It found that:
- the video recording was a ‘document’;
- the document purported to state the testamentary intentions of Jay; and
- Jay demonstrated an intention to complete the formalities of a will at a later date by stating in the video that he’d “fill out the damn forms later”.
The decision in Radford v White joined a number of other cases where it was found a document other than a written, signed and witnessed will can operate in that capacity for the deceased, including:
- notes on a mobile phone (Re Yu );
- Microsoft Word documents (Yazbek v Yazbek );
- handwritten documents not signed or dated (Public Trustee v New South Wales Cancer Council );
- letters to solicitors (Permanent Trustee Co Ltd v Milton (1996));
- instructions to solicitors (Saltmer v Renrick Lawyers Pty Ltd );
- audio recordings (Re Estate of Carrigan (dec’d) ).
What are the risks of video recording your will?
Despite the decision in the court cases above, it’s not advised you rely on a video recording of your will or other informal means in order to have your wishes carried out after your death. A properly executed written will remains the surest way to ensure your instructions are adhered to when you’re no longer here.
By making a video will, you leave it in the hands of the courts to determine whether it is a valid expression of your wishes. If the court decides the recording is not valid (and there is no other will), you could be declared intestate and your assets and belongings be distributed by the state without taking account of your wishes.
In determining the validity of an informal will such as a video recording, a court will take into account:
- That the video is an actual record of the testamentary wishes of the testator and must clearly address the disposal of their property and assets, in contemplation of death.
- That the video shows an intention, without anything more, to operate as a will. This means it will be likely invalid if it is referred to in the recording as a draft or a letter of instruction, for example. It’s wording cannot also consist of mere wishes or requests.
- That the video be a ‘document’. This is the easiest element to establish given courts have previously found that any disk, tape, soundtrack or other device in which sounds are embodied and also film, are considered a document.
It should be noted that the onus of proof that the video is the will of a ‘capable’ testator lies with the person (usually one of the beneficiaries) claiming it is the deceased person’s will. The court may read direct statements and notes by the deceased, and evidence about when and how the video was recorded, to make its decision.
Also note that if a statement in a video recording which purports to be the final will of the deceased conflicts with the terms of a written will in their name, the written version will prevail.
While there are judgments in Queensland and some other states which have supported the validity of informal wills in the form of video recordings, preferring this format to that of a written, properly executed will remains ‘Russian roulette’ in the eyes of legal experts in estates and wills. There is no guarantee a court will come to the same conclusion about a video will in a case based on similar facts.
In the end, to guarantee your instructions are carried out as you want them to be after your death, it’s best to make a proper will with the advice of legal experts experienced in estates and wills, such as OMB Solicitors. This way you don’t leave it to chance that your will is legally enforceable, avoiding a potentially costly mess for your beneficiaries. If any of the issues raised in this article provide you with questions or concerns, contact Gold Coast Lawyers today on (07) 5555 0000 or [email protected]
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Contact our team for more information here Family Law Enquiries.
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Contact our team for more information here Propery Law Enquiries.
Living in a Body Corporate is unlike owning your own freehold land. As a member of a Body Corporate you are required to follow the rules and regulations applying to your Scheme. Consequently, any maintenance or improvements you wish to make to your unit or townhouse ought to be well thought out and planned to keep the Body Corporate, Committee, owners and occupiers happy – after all it is ‘community living’.
To assist you with dealing with your Body Corporate, we recommend that you implement the following five quick tips in your next project:
Obtaining Body Corporate approval
Be proactive! In almost all cases, you will require Body Corporate approval before ripping out your kitchen or bathroom. Approvals can be sought from the Committee or at a General Meeting depending on the extent of the renovation. If the total renovation cost is under $3,000 and the renovation will not detract from the appearance of the building or will result in a breach of your duties as an owner or occupier (i.e. cause nuisance), then approval can be granted by your Committee.
In the event your unit renovation will exceed $3,000, you will need to submit a motion at the next general meeting where all owners can decide by ordinary resolution to approve the works. It is best to get this step completed early as your general meeting only comes around once a year.
Prepare a Scope of Works
Speak with your Contractors and prepare a summary of the works which are going to be undertaken. Provide the Scope of Works together with your request for Body Corporate approval.
This will save you time when seeking Body Corporate approval i.e. it will avoid the “to-ing and fro-ing” and questions from the Committee.
Check your By-Laws
We like to say “the By-Laws is your Bible” – don’t allow it to collect dust! The By-Laws may identify conditions required to be met in order to undertake the renovation. You can obtain a copy of your By-Laws from your Body Corporate Manager.
It is likely that some of the conditions in which the Committee impose on you to grant approval, will already be contained within the By-Laws (i.e. where Contractors can park, whether padding is required for the elevators etc).
Engage Appropriate Contractors
It is important that you engage the appropriate licensed Contractors to ensure that the works comply with current building standards. It is likely that the renovation will not be approved in circumstances where you are recommending that the works are carried out by a lay person or the classic ‘handy man’.
Communicate, Communicate, Communicate
It is always good practice to keep the Committee or on-site manager informed throughout your project. This is, of course, unless you want a battle on your hands.
It is also prudent to explain to the Contractors the requirements/conditions of the By-Laws in completing renovations at the scheme.
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In this video, Body Corporate Solicitor, Elisha Hodgson discusses the differences between a Standard Format Plan and a Building Format Plan in a Body Corporate and how the obligations of maintenance differ between these two types of registered plans.
Contact our team for more information here Body Corporate Enquiries.
Many people have a desire to start their own business, chasing the dream of independence, control of their own destiny and, hopefully, riches.
But for many the risks associated with launching a new business are too great. This is where running a business as a franchisee is often seen as a viable alternative. By operating within a franchise you can avoid many of the issues which cause start-up businesses to fail, such as establishing a brand name and identity, forming new work practices, training and staffing.
There are also, however, risks and pitfalls involved in becoming a franchisee. Some of these are outlined below but in any event, before embarking on any franchise agreement, you should consult a legal professional with experience in this area to help clarify the best way forward.
What are the advantages of running a franchise?
A franchise arrangement involves a contractual agreement between a franchisor (the owner of the franchising business) and the franchisee – the person given permission to use the business’ name, procedures, business model, branding and marketing for an agreed period of time. Under the agreement the franchisee is given the right to offer, supply and distribute goods and services under conditions set out by the franchisor.
There are a number of advantages to running a business as a franchisee compared with starting a business yourself, including:
- The franchise business will generally have an established reputation and image, proven management and work practices, access to national advertising and ongoing support. It’s often portrayed as running a small business inside a big business network. Poolwerx, Boost Juice and Coffee Club are some examples of successful Australian franchises.
- Training in set-up and operation of the business will often be part of the agreement with the franchisor.
- Securing finance from a lender may be easier if you’re setting up a franchise as the amount sought will often be less than if you start a business yourself.
What are the risks of taking on a franchise?
While there are some clear upsides to taking on a franchise agreement, there are some equally clear downsides which any prospective franchisee should very carefully consider. Consulting a lawyer with franchise experience is highly advisable in light of some of the concerns touched upon below.
Some of the disadvantages include:
- The franchise agreement brings with it restrictions on where you operate, the products you sell and the suppliers you use.
- The agreement will set out some fairly prescriptive terms on how you run the business, from staff uniforms to use of logos and design of a store, so be aware this leaves little room for the ideas and creativity you might bring to a business you personally own.
- Bad performances by other franchisees in the network may affect your franchise’s reputation. This is a genuine and well documented problem that has occurred in some well known ‘chains’.
- The franchise agreement will mean you share profits with the franchisor in an ongoing manner. There are also a number of other ongoing costs to be aware of, which might include franchise renewal fees, advertising and transfer fees, employee and management training fees, and other royalties.
- At the end of the franchise agreement, the franchisor is generally under no obligation to renew the agreement… which can leave your business high and dry.
Set-up fees can also be a significant downside for a franchisee. Depending on factors such as the prominence of the franchisor’s brand and the location of the business, initial fees to set up can start as low as $5000 and go as high as $1 million in Australia. There is the risk, obviously, that this money will never be recouped if the franchise then underperforms.
The points above demonstrate that a process of due diligence before taking on a franchise agreement is strongly advised.
Beyond those risks, franchising arrangements are governed by an industry code of conduct within the Competition and Consumer Act and regulated by the Australian Competition and Consumer Commission, which can be found here. It sets out standards for disclosure, procedures for dispute resolution, good faith obligations, cooling off periods and procedures for ending franchise arrangements. Failing to comply with franchising industry codes could incur up to 300 civil penalty units (approximately $63,000).
It’s common for people who decide to take on a franchise arrangement to be changing careers, or running a business for the first time. This lack of experience makes it even more important to seek the advice and guidance of someone qualified in identifying both the risks and rewards of franchise agreements. Many firms retain experienced franchise lawyers who can help guide you through the process so get in touch today if you’re considering taking on a franchise business.
The cost, complexity and confrontation involved in going to court after the break up of a family unit is something most people would really like to avoid.
The whole process can add another level of trauma and stress on everyone involved, particularly children. The courts, as well, are struggling under the weight of the number of family matters coming before them for resolution.
This is why alternative methods of resolving disputes such as mediation have become more and more popular when it comes to family breakdown, making the process – when done in the proper way – quicker and less fractious.
There are some essential things to take into account before embarking on mediation of a family law dispute, set out in general terms below.
Achieving a successful outcome – whether it’s mediation about parenting arrangements or finances – hinges on how well you’ve prepared before the discussion.
This includes issues ranging from working out who will pick up the kids from school and look after them on the day of mediation, to coming up with a list of your key priorities for discussion on the day and a firm idea of what you will regard as a successful outcome.
Preparing properly will be greatly aided by consulting a legal professional experienced in family mediation. Many lawyers these days are also qualified in conducting mediations and can help clarify and guide the process for you so that the discussion is not considered wasted time.
The key to successful mediation is finding common ground between the parties, not emphasising or heightening areas where you both disagree. This involves a degree of empathy on the part of both parties, requiring you to think about what your ex-partner, for example, will want to achieve from the mediation process.
Both of you need to be well aware of what you can and can’t live with, in terms of resolving the issues at hand. This will require negotiation, compromise and probably some imagination in order to overcome obstacles and areas of difference. Without the appropriate mindset, however, you’re unlikely to reach mediated settlement.
Check your emotions
There are few things in life that can arouse high emotions like matters involving your family. And while it’s natural to feel stress and emotion in any attempt to seek resolution of all the issues surrounding a family breakdown, it’s equally important to control these feelings in the mediation process. Anger and anxiety can impair your thinking and the negotiations needed to achieve a result.
There are many ways to deal with such strong emotions, from writing down your feelings and reactions to try and externalise them, to talking to trusted family members or – on the day or days of mediations – asking to take a break if the discussions are becoming overwhelming.
Most importantly remember to approach mediation with a constructive mindset. Saying things designed to ‘destroy’ or assassinate the character of the other party is a sure path to failure of the process.
Make sure you have support
Whether it’s your trusted legal advocate or someone closer such as a long-time friend that you choose as a support person, consider whether you need an extra hand at a family law mediation. If it’s a friend or family member, it’s important that they be someone who won’t express strong opinions or influence your decisions in the matter at hand. They are there as emotional reinforcement. Be aware this person may not be able to be present in the room during the mediation discussion due to the need for confidentiality.
The combination of an experienced family law mediator and parties who are prepared for mediation after consulting legal professionals with experience in this area can ensure a family break up doesn’t necessarily end up in court. If you have any questions about the issues raised above, contact our family lawyers Gold Coast today.
Section 163 of the Body Corporate and Community Management Act 1997
Contact our team for more information here Body Corporate Enquiries.
In this video, Tom Robinson, Associate at OMB Solicitors within the Body Corporate team talks about the different types of resolutions that may be considered at General Meetings including how they are calculated and when do they apply.