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How to Get a Divorce in Australia

By | Articles, Family Law

There’s no doubt about it. Ending a relationship is never easy. But in Australia, ending a marriage is relatively simple – at least in the eyes of the law. This is because, unlike the divorce process in the United States, divorce in Australia doesn’t address some of the most emotionally volatile issues such as child custody, child support, spousal maintenance and the division of marital assets in detail. In fact, the only issues addressed when you apply for divorce here are whether you are legally eligible to do so and whether or not you’ve followed all of the applicable rules.

To be eligible to file for divorce in Australia, the only requirement in most cases is that you and your spouse have separated for one year. The only exception to this rule is if you are filing for divorce less than two years after you got married (inclusive of the time when you were separated). In such cases, you must see a court-approved counsellor with your spouse and file a signed counselling certificate with the court upon completion. If you and your spouse are unable to fulfil this requirement for any reason, you must ask the court’s permission to get divorced.

If you were married abroad, you may still apply for divorce here if you or your spouse:

  • Regard Australia as your home and intend to live indefinitely in Australia and are an Australian citizen or resident, or
  • Are an Australia citizen by birth or descent
  • Are an Australia citizen by grant of Australian citizenship
  • Ordinarily live in Australia and have done so for 12 months immediately prior to filing for divorce

If you meet one of these criteria, you can go ahead and prepare your application for divorce. If you aren’t comfortable filling it out yourself, you can also do so with help from a lawyer. If you choose to consult a lawyer, be sure to bring the following to your appointment:

  • Marriage certificate
  • Identification
  • Information about any children under the age of 18
  • Any current or pervious orders associated with family law

Once you’ve completed the application you and/or your spouse must sign it so it can be filed with the appropriate court (along with any other applicable documents), and a hearing can be scheduled.  If only one of you does so, it is considered an individual application, and if you both do so, it is considered a joint application.  This is an important distinction, because it determines who must do what from now on.

For example, if you filed an individual application, you must serve a copy of the copy on your spouse. You must also file two documents related to the service with the court. The first of these is called an Affidavit of Service, and the second is the Acknowledgement of Service (when required).

Furthermore, if you file an individual application and you and your spouse have children age 17 or younger, you must attend the hearing. However, you need not do so in person, as long as you seek permission to participate by telephone.  If need be, you can also attend at the relevant court registry. In this case, you must still serve the application on your spouse and file the paperwork specified in the previous paragraph.

Finally, even if you file an individual application, your spouse has the right to file a response seeking changes to the application if he or she disputes any of the details, or if he or she simply opposes the application. Another thing to keep in mind is that even if your spouse pursues this option, he or she is not required to attend the hearing.

At the hearing, you will be asked about the application, and if you have minor children, the judge will also ask questions to ensure that they will have a chance to spend time with you and your spouse. If all of these questions are answered to his or her satisfaction an order will be granted accordingly.

On the other hand, if you file a joint application, the ensuing process is much easier. This is because neither one of you will be required to attend the hearing, whether you have any minor children or not. This also eliminates the need to serve the application on your spouse or file related documents with the court.

In either case, the divorce order will take effect, or become “final,” one month and one day after the hearing. At this point, the court will send a copy to each of you, and you’ll no longer be legally married.

Conversely, failing to take any of these steps can result in denial of your application. If this happens, the court will usually give you time to correct any deficiencies prior to another hearing. If you need help correcting a mistake that resulted in the denial of your initial application or to lessen the chances that your divorce application will be rejected due to a technicality, contact us today.

Are you left out of a will? Call us today.

What Can I do if I Have Been Left Out of a Will?

By | Articles, Wills and Estates

If you have been excluded from a will, it probably seems like a slap in the face. You may be feeling hurt and angry – especially if the person who passed away was a parent or another close relative. As a result, you may be wondering if there’s anything you can do. In Queensland, the answer is “yes.” In fact, there are a few ways in which you can challenge – or contest – a will.

One way to do so is by making a Family Provision Application – but only in certain circumstances.

You may qualify to make this type of application if you were:

  • The deceased person’s husband or wife
  • The deceased person’s child
  • Less than 18 years of age and legally classified as a dependant
  • The deceased person’s former husband or wife (as long as the two of you were the biological parents of child who is less than 18 years of age)

and your needs have not been properly addressed through his or her will, or because he or she died without making a valid will.

If you meet any of these criteria and wish to pursue this option, you have nine months from the time the person died to file this type of application. However, it is important that you notify the executor of the estate that you intend to do so as soon as possible. This is because he or she has the authority to make the allocations specified in the will and wrap up related matters six months after the person’s death as long as he or she has not been notified about any potential claims on the estate.

Missing this deadline does not automatically invalidate your ability to make a Family Provision Application. However, you’ll have to convince the court that you had a valid reason for missing the deadline before you can proceed.

It is also important to note that just because you feel you have been treated unfairly doesn’t mean the court will agree. Ultimately, it is up to the court to decide whether or not the will fully addresses your needs. It will make this determination based on:

  • Any provisions previously made to you by the estate
  • Your financial situation and other circumstances specific to your case
  • How much money the estate has on hand
  • Whether anyone else is contesting the will based on lack of adequate provision
  • Your relationship with the deceased

Courts will also consider challenges based on some other contentions. The first is that the person who created the will – and left you out of it – was bullied, intimidated or coerced into doing so. The second is if the person who made the will in question was mentally or intellectually capable of doing so. And lastly, the court will consider a contention that the person who made the will made a legally binding agreement to do craft the will in a certain way, a breach of the agreement ensued and you were adversely affected.

Keep in mind, however, that you can only challenge a will in Queensland if the person who died had land and/or a home in the state; or if he or she was a permanent resident of Queensland at the time of death, but held his her assets elsewhere.

Having said that, you do not have to live in Queensland in order to contest a will here. In fact, you can do so without leaving home. Before you initiate the process, however, it is important that you fully understand it – so if you do live somewhere else, be sure to consult a Queensland lawyer before pursuing this option.

Finally, you may be wondering how much all of this costs.  Generally, the Court decides who must pay the legal costs associated with the contention of the will.  In most cases, if he or she rules in your favor, the estate will pay for any legal costs you have incurred.  However, if the ruling goes against you, the Court may order you to pay the legal costs incurred by the executor.  This underlines the importance of seeking legal advice from a reputable law firm who have experience in this type of litigation.

Clearly coping with the death of a loved one is never easy – and discovering that you have been left out of his or her Will while you are grieving complicates matters even further. If you feel that you have been wrongfully excluded, it is important to consult a qualified lawyer about these and any other legal remedies that may be applicable to your case.

People Celebrating in House Party

Nuisance Communication – Rights of Body Corporate

By | Articles, Body Corporate

Ten phone calls, fifty voice messages and a disgruntled lot owner who wants answers yesterday – there is always one. But when does it constitute a nuisance communication and what can you do about it?

Let’s face it, whether your neighbor’s TV is turned up to the max, the teenager next door is hosting a party or there are children screaming in the park, there is generally always something that you could complain about – that’s the joys of community living. But sending voluminous, repetitive or abusive phone calls or communications to the Body Corporate or manager could end up doing more harm than sitting back and biting your lip every once in a while (As difficult as that may be).

The question which needs to be considered is when the lot owner or occupiers complaints become a nuisance in itself?

Section 167 of the Body Corporate and Community Management Act 1997 (the Act) deals with nuisance and provides that:

the occupier of a lot included … must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

The scope of this section is surprisingly narrow.

In its application, even where excessive communications or telephone calls are being made to the Body Corporate Manager which would naturally fall within the ordinary meaning of ‘nuisance’, this does not itself mean that the elements of section 167 of the Act have been satisfied.

If the communications were not made from within the scheme, then it would not make sense to say that the nuisance interferes with the use of a particular lot or area of common property.

When you’re faced with this issue, one can usually turn to a nuisance By-Laws (contained within the Community Management Statement) for enforcement.

However, where section 167 of the Act or a nuisance By-Law does not apply in your circumstances, i.e. the nuisance does not directly interfere with the use of lot or common property i.e. nuisance communication to the Body Corporate Manager, the recent decision of Deagon Village [2018] QBCCMCmr 208 (20 April 2018) may assist with filing the gap.

In that case, the Adjudicator had to determine:

  1. Whether it was appropriate to make orders that the respondent ceases to engage in conduct allegedly to be causing nuisance or unreasonable interference with others at the scheme? and,
  1. Whether it is appropriate to make an order restricting the ability of the respondent’s communication with the Body Corporate and its representatives?

On the first issue, the Adjudicator was tasked with applying the test of ‘reasonableness’. Generally, the Adjudicator has found that whilst what is reasonable to one may be unreasonable to another, most decisions on this point come down to the repetition, tone and frequency of the correspondence (as applied in the case of Tank Tower [2015] QBCCMCmr 322 (9 July 2015).

In Deagon Village the orders restricting communication by a lot owner were sought as:

  1. The respondent made a number of phone calls to the Body Corporate Manager and committee members in which on any given day varied. In some cases, more than ten calls were received on particular days, often in quick succession and sometimes occurring late at night through to early in the morning.
  2. When the calls were not answered, the respondent left excessive numbers of voicemails, sometimes continuing until the voicemail box was full, with more than 50 voicemails reported in one particular day.
  3. The phone calls and voicemail message made by the respondent were seen as abusive and involved profanity and yelling, and in most cases, were not about matter the body corporate or the body corporate manager could assist with.
  4. It was also shown that the conduct of the respondent was negatively affecting the wellbeing of the persons receiving those calls as well as their employees.

Whilst the adjudicator was satisfied that the respondent’s conduct amounted to nuisance communication, given the calls were not made from within the scheme, there was difficulty in finding that the nuisance was in conjunction with the use of the lot or the common property, such that it would be in breach of section 167 of the Act.

Notwithstanding this, even without a breach of section 167 of the Act or the by-laws, there still remained the question of whether the Body Corporate could decide to impose restrictions on communications in the face of conduct such as that of the respondent within Deagon Village.

In considering the submissions from both parties, the Adjudicator considered that the Body Corporate should not be placed in a position where the resources of the Body Corporate are unfairly burdened by the lengthy, repetitive and offensive communications of a single lot owner.

In the circumstances, the Adjudicator was satisfied that the Body Corporate had the right to place some restrictions and protocols on how lot owners and occupiers communicate with its representatives irrespective of whether or not a nuisance by-law or section 167 of the Act could be applied.

The restrictions imposed included:

  • Telephone communication (including the leaving of voicemails or text messages) may only be made in the event of a genuine emergency or where the Body Corporate for Deagon Village has expressly invited it;
  • Telephone communication may only be made to telephone number expressly nominated for the purpose by the Body Corporate for Deagon Village;
  • Other than in the circumstances above, all communication with the Body Corporate for Deagon Village must be in written form and addressed only to the postal or email address nominated for that purpose by the Body Corporate; and
  • Written and verbal communication must be courteous and not abusive or offensive.

With all considered, the adjudicator ordered that the body corporate was not required to respond to any communications from the Respondent, and was permitted to disregard any communications that were unreasonable in the circumstances.

Do grandparents have rights

Do Grandparents Have Rights in Family Law Disputes?

By | Family Law, Podcasts

We know that family law disputes are often tumultuous with so many people, quite apart from the 2 spouses and children that are caught in the crossfire. One such group, is grandparents and they often ask, what about our rights in relation to the grandchildren? In this podcast, OMB Solicitors’ Gary Mallett answers the question.

TRANSCRIPT

Dan: Gary, do Grandparents have rights?

Gary: The short answer is YES, and equally the grandchildren have rights under the Family Law Act to communicate and spend time on a regular basis with any person concerned with their care, welfare or development, including grandparents and other relatives.

The law, therefore, recognises the rights of the children to continue to have a relationship with their grandparents after separation of their parents.
As a result, grandparents are given the specific ability to apply for a parenting order for their grandchildren under 65C of the Family Law Act.

The best interests of each child will be the most important consideration in any case about care arrangements for grandchildren. It is the needs of each child and their right to spend time with both parents and other significant adults such as grandparents that are considered.

All care arrangements for the grandchildren must also be practical and must keep them safe from family violence and child abuse.
A grandparent does not therefore automatically have the right to spend time with their grandchildren or have their grandchildren live with them, particularly if it is not in the best interests of the children for that to happen.

As a grandparent, you may find yourself concerned about the welfare of your grandchildren.

You may be concerned that your grandchildren are being exposed to domestic violence, or that they are being abused, in their household.
Alternatively, your grandchildren’s parents may have separated, and the parent with whom the children are living may be refusing to allow your grandchildren to spend time with you.
In a further scenario, you might find yourself caring for a grandchild, either on a short term or long term basis because neither of the parents of that child is able to do so, because for example:

1. One or both of child’s parents have drug, alcohol or mental health problems;
2. Both of the child’s parents are deceased;
3. The parents are in jail;
4. The parents are working or studying away from home; or
5. The child has been removed from the care of their parents by Department of Child Safety officers, and placed with you.

Dan: Why would a grandparent need a parenting order in a situation where they already have the care of a grandchild?

Gary: If you have a grandchild or grandchildren in your fulltime care, you may still need to have parenting orders made for you to have parental responsibility for your grandchild or grandchildren, and for an order that they live with you for the following reasons:
• to provide evidence of care for Centrelink purposes:
• to enroll a child at school or in kindy;
• to enable you to apply to the court for a recovery order if a child is taken from your care;
• to consent to medical treatment for a child.
• to apply for a passport for a child.

Dan: What can Grandparents do in situations where care arrangements for their grandchildren are in dispute?

Gary: The first step, if your grandchildren’s parents are still alive, is to attempt to reach an agreement with the parents about the grandchildren spending time with you, or for you to have parental responsibility for grandchildren and for the grandchildren live with you, whatever the case may be.

This agreement can be reached by engaging solicitors to act for you to attempt to negotiate an agreement with the children’s parents, or by attending a family dispute resolution conference with both parents through a mediation organised by your solicitors, or through a government or community funded centre such as a Family Relationships Centre, Relationships Australia or Centacare.

If the parents are already involved in contested litigation in a family court over the children, it may be necessary for you to apply to the court to become a party to those court proceedings.

If you have been able to reach an agreement with the parents of your grandchildren about your involvement in the children’s care arrangements, then that agreement can be formalised by incorporating it into a written parenting plan for the children.

However, a parenting plan is not enforceable by the Court.

A parenting plan, does not give a grandparent any enforceable right to be able to spend time with their grandchildren, or to have parental responsibility for them.
I always recommend that grandparents go one step further and consult a solicitor to draw up the parenting plan as consent orders, and file an application in the Family Court for consent orders to formalise the agreement in the parenting plan.

Consent orders can be enforced by the Court, and a grandparent will need these orders if there is any concern about one or both of the parents sticking to the agreement that you have reached with them about your grandchildren.

If you cannot reach an agreement with the parents of your grandchildren, or both parents are deceased, then you will need to apply to the court for a Parenting order for your grandchildren. You will need a solicitor for this application to give yourself the best prospects of success.

A parenting order can cover:

• Who is to have parental responsibility for the grandchildren;

• With whom the grandchildren children are to live;

• who the grandchildren spend time and communicate with and how often;

• What orders need to be made to safeguard the grandchildren from exposure to family violence and child abuse;

• schooling or childcare for the grandchildren;

• medical issues;

• religious or cultural practices;

• financial support for the children; and

• how those with parental responsibility will communicate with each other.

Family law is a unique and specialised field of law, and legal advice and assistance is always recommended.

In particlar, legal advice should be immediately sought in the following circumstances:

• If you or your grandchildren are at risk of harm;

• There is an existing parenting dispute over the grandchildren that is in Court, and you need to apply to become a party to the proceedings;
• You have a parenting plan that you wish to made into consent orders;

• You have been presented with Consent Orders and have been asked to sign them;

• You need to apply to the Court for a parenting order because you cannot reach agreement
with the parents of the grandchildren, or because those parents are deceased;

• Before you appear in court;

• If you have an existing court order and you want to make changes to the arrangements for your grandchildren;
• if you disagree about what’s in the best interests of the grandchildren;
• if you believe that you have been bullied, tricked, intimidated, coerced, threatened or forced into signing consent orders; or
• if you have a grandchild in your care and you wish to seek child support. Child support can be another complex part of family law, and it is important to get legal advice about child support issues before you apply.

how to choose an executor

What is an Executor and How Do I Choose One?

By | Podcasts, Wills and Estates

If you’re like many people when it comes to estate planning, you probably don’t give the attention that’s necessary in choosing who your executor will be but rather simply opting for your partner or adult child. But it’s an onerous job, and the choice is very important. In this podcast, OMB Solicitors’ Jessica Thomas helps you consider your choice.

TRANSCRIPT

Jessica: Well, Dan, the first step in choosing an executor is to choose someone that is honest, that is organised, and that is able to communicate with the beneficiaries in your will. So, suppose we can go back to basics, what is an executor? An executor is someone named in your will who is given the legal responsibility to take care of any remaining financial obligations that the deceased may have had. So what the executor, their job is to do is to bring in the estate, pay off any debts that there may be, and then distribute in accordance with the terms of the will.

Jessica: The key qualities, as I said before, are that you firstly need someone that you can trust. A lot of the times, people will appoint their spouse, their adult children, or sometimes their [inaudible 00:01:12]. It’s a big job. It’s very important that the executor is organised and able to communicate with those beneficiaries.

Dan: Jessica, I was just sort of thinking that not only is it challenging in the respect of trying to distribute the estate generally, but also there must be some family dynamics or relationships that can possibly be difficult to navigate for the executor, as well.

Jessica: That’s right, Dan, so we always say when there’s a will, there’s a family. The difficulty with appointing say, for example, one adult child as opposed to both of your adult children, is that the other adult child could potentially feel that they’re being left out of making the important decisions. So if you do appoint someone impartial to the estate, such as a solicitor, or an accountant, even for that matter, you’ve got someone there that they don’t actually have the emotion attached to actually distributing that estate. They can use their professional judgement as to how the matter needs to be essentially wrapped up as soon as possible for the benefit of those beneficiaries.

Dan: Now, here’s why it’s important, I suppose, to speak to your lawyer about this as opposed to going online and jumping in for a free will kit or going down to the newsagent and just filling in the details.

Jessica: Yes, it’s very important to speak to your solicitor when setting up a will, obviously. Post office will are better than nothing, but in saying that, if you don’t actually completely understand how the succession of Queensland or any state, for that matter, works, it’s very important to speak to a solicitor so they can set up your estate planning properly. Also, on the other hand, when someone does die and you are appointed the executor of that estate, to speak to your legal professional or your accountant as to what the process is. We handle these matters daily, assisting families with the administration of their loved ones’ estates. Being an executor, as I said before, it’s a very big job. You essentially are liable if you do anything wrong, so it is so important to have a solicitor there acting in your best interest as the executor of the estate and assisting you with the administration of that.

Dan: Jessica, thanks for joining me.

Jessica: Thanks, Dan.

What Happens if a Body Corporate Caretaker Wishes to Sell its Management Rights to a New Caretaker and Wants the Committee to Agree to it?

What Happens if a Body Corporate Caretaker Wishes to Sell its Management Rights to a New Caretaker and Wants the Committee to Agree to it?

By | Body Corporate, Podcasts

In the context of bodies corporate, one commonly asked question is, what happens in the event that a body corporate caretaker wishes to sell its management rights to a new caretaker, and consequently wants the committee to agree to it? In this podcast, OMB Solicitors’ Tom Robinson answers the question.

TRANSCRIPT

Dan: Tom, what are management rights, and what does it mean to sell them?

Tom: It’s always a big topic these days, these assignments of management rights. We refer to them as an assignment of management rights, because we’re transferring the ownership of those rights between essentially more than two parties.

Tom: I guess a good starting point, is just with some of the basics. When we refer to management rights, we consider them as that package deal, consisting usually of a care-taking agreement, a letting agreement, and then your caretaker letting agent’s lot. As part of the ownership of those management rights, the caretaker is therefore entitled to sell those rights to another person, or entity, to perform that role of caretaker, or letting agent.

Tom: The legislation regulates these assignments, and to a lesser extent, there will be terms and conditions within the agreements themselves, and that’s governed by the regulation that is contained within that legislation. Essentially, it describes the body corporate’s role in a simple way, which is essentially to provide its consent to the transaction, and that’s it.

Tom: In other words, the body corporate just needs to determine whether, or not it will approve the proposed purchaser as the new caretaker. But, it’s not all that simple to give that consent, and certainly part of a condition of considering that decision, the body corporate must not unreasonably withhold its consent to that transaction. So, there’s quite a bit involved, when a body corporate does need to consider that process, when those management rights are being requested to be transferred.

Dan: Tom, I was gonna say, does it cause much of an upheaval?

Tom: Look, it does these days, because the committees in our bodies corporates, including our lot owners, are much more educated, and this process isn’t that standard rubber stamp type process anymore. Management rights have changed a lot since our current legislation came into effect in 1997. So, gone are the days with that rubber stamp process, and now, it’s a much more due diligence process, that’s required for a committee to be able to make that type of decision.

Tom: I guess the important part to remember is the committee can actually make this decision, on behalf of all of its lot owners. So, you could have a 200 lot scheme. You’ve got your committee of seven, who are making that decision, whether or not to give that consent to that transaction.

Tom: It’s not a must. The committee may discharge, I guess, that obligation to a general meeting if it desired to do so, but it’s interesting that the committee actually has that power to do it. So, those committees, especially these days, are very mindful of that task, and obligation that’s put on them, and want to make sure that they do a proper due diligence of this proposed purchaser.

Dan: So Tom, what is the usual process of selling management rights?

Tom: Good question. From the body corporate’s perspective, usually what occurs initially to start a process is, a notification or a letter is sent to the body corporate, from the current caretaker, or usually their solicitors. Normally, that comes after their current caretaker has secured, and entered into, what essentially is an unconditional contract of sale with a purchaser. The only condition that remains, is the body corporate giving its consent to that transaction.

Tom: So, when that notification comes across, it’s from the current caretaker, to the body corporate, requesting that the body corporate give its consent to the transaction.

Tom: With that notification, you’ll find a number of documents. Usually, the standard documents will be the deed of assignment, the motion for the body corporate to resolve, and any resume, and references of the purchaser.

Tom: When those documents come across, the body corporate will then be required to review those documents, and then determine obviously, if there is any further information that it needs, to make that decision. Certainly these days, and very commonly, more information is almost certainly required.

Tom: That can even lead to obviously carrying out an interview of the purchaser, and I guess one of the main points to focus on at this time, when that notification comes across, requesting the body corporate’s consent, that’s when the legislative 30 day timeframe can be considered to start, because that’s when the information has been received.

Tom: Now, there are conservative views with when that 30 days actually starts, and it can sometimes be said, not until an interview’s occurred, but at that point, when that notification comes across, it’s very important for a body corporate to consider getting that legal representation on their behalf.

Tom: The reason that so important is, not only because the caretaker and the purchaser will both be represented by their respective lawyers, and the documents will be drafted by the purchaser’s lawyers, but the body corporate is entitled to recover its reasonable legal, and administrative costs, in considering this, the transaction.

Tom: So really, there’s no reason why a body corporate wouldn’t want to protect itself, and engage in legal representation to assist them throughout this process.

Dan: It’s a no-brainer, isn’t really, in many respects?

Tom: Yes, it is, and it’s all done on a reasonable basis, so there’s no prejudice to the other parties. It’s just the body corporate is only placed in the position to consider this transaction because the caretaker wants to sell.

Dan: So Tom, what are the main steps for the committee in that case, to then undertake when considering that agreement, or giving its consent?

Tom: I guess the first thing to start with for a committee is, obviously like we say, that they can make that decision. So, the legislation outlines a number of factors that the body corporate, or the committee can have regard to, when they consider that transaction.

Tom: It is quite limited. Whilst it’s limited, it does give some structure for the committee to use as a bit of a guide, though some of those examples of what those factors are, is for instance, the character of the purchaser, their financial standing, the terms of the transfer, and also potentially to competence, and experience of the purchaser.

Tom: The importance of those is, that they will basically form any of the additional documents that the body corporate, the committee might then need, in addition to what they initially received.

Tom: Just to give you some examples of those additional documents for those limited factors, when we think about character, and the character of the purchaser are very subjective, so the most objective way to look at it is obviously police checks. That’s quite a common request, and sometimes, we have been seeing those police checks automatically coming across now.

Tom: Financial standing, usually assets, and liabilities, or even to a lesser extent, a letter from the purchaser’s financier will be enough. If a bank’s going to lend to them, then usually, they must have some sort of financial standing.

Tom: In addition to that, the body corporate could undertake bankruptcy, so just to ensure, but if they haven’t got any disclosable outcomes under their police check, or they’re not bankrupt, and things like that, in those instances, their character, and financial standing are generally going to be satisfied, so the most important factor for the body corporate to consider, is whether or not this purchaser has backed the competence, and the experience to perform that caretaker’s role.

Tom: In that instance, we would share the view that a resume is just not gonna be enough for that, nor are the references, and this is why. And we’re usually that interview process has been implemented, to get that final bit of information, to understand whether or not this purchaser might be able to competently perform that role.

Tom: Just on that, I guess one of the important factors to remember is, it’s a balancing act. What I mean by that is, just because a potential purchaser might have zero experience operating management rights, does not mean that the body corporate can automatically withhold that consent.

Tom: Rather, it’s seeing if the purchaser has obtained, or is going to obtain external training. A longer handover period, where they’re going to be trained by the outgoing caretaker.

Tom: Are they members of industry bodies, who can assist them in bringing them up to speed with what the role is entailing?

Tom: Things like that I guess, they’re factors that the committee consider when they’re looking at competence and the experience attached to that type of role.

Dan: So, can the body corporate engage someone that’s qualified to carry out an interview?

Tom: Yes, certainly, and it’s become certainly a common occurrence these days, because a lot of the purchasers we do see, sometimes are changing their careers, and don’t have any experience, so it’s reasonable to assume that the committee might … who don’t have that expertise, delegate that task to an industry body, to perform that interview.

Tom: Again, it is a bit of a balancing act. There’s a number of companies that perform these interviews at a reasonable cost, and those costs ought to form part of the assignment cost.

Tom: But, the reason we say it’s a balancing act is, because if you have a purchaser who has say, 10 years of management rights operation, and experience, it probably might not be necessarily to actually go through that formal interview process, whereas their competence, and their experience is proven.

Tom: Whereas, someone who has no experience, then in that instance, it might be worthwhile, having an independent party do that interview, who’s there, and capable of asking the right questions of the purchaser. So, when they produce that report from the interview, the committee can see where there might be areas that the purchaser needs to attend to, to mitigate any concerns of lack of experience, for the committee, and the body corporate.

Dan: Now, what are the final steps?

Tom: Yes, the final steps, once all of that information’s considered, and like I said, it’s quite a hefty due diligence process, and usually, there is that 30 day timeframe that’s implemented, but once that part’s all done, and the interview’s occurred, and all that, the motion’s then basically determined. The deeds are signed, and we all get ready to go to settlement.

Tom: Usually at that time, the caretaker first, or the purchaser will generally act as the body corporate’s unpaid agent at settlement, just to collect those assignment dockets on behalf of the body corporate.

Tom: And basically in summary, that’s when the transaction will be finalised, and it’ll settle, just like any other type of transaction settlement. I guess like I said, the most important things are, to remember is just that balancing act of, what is the information that the committee needs, to reasonably consider giving its consent, from our perspective, and OMB, or we obviously act exclusively for bodies corporate, so we’re regular assisting the bodies corporate in these assignment process, so if there’s anyone out there who’d like to come down, and have a chat with OMB Solicitors, and the committees, we are happy to offer a no charge one hour consult, so we can have a discussion about these types of matters, and any other matters that might be affecting your body corporate.

Dan: Tom, thanks for joining me.

Tom: Thank you very much Dan.

business structures for tradies

What is the Best Business Structure for a Tradesman Wanting to Start their Own Business?

By | Articles, Business Law

If you’re a tradesman contemplating going out on your own, there’s probably a bunch of things going on in your mind, one which may be how do you legally set up your business?

Integral to that question is what business structure you should consider. Should it be a company, a partnership or a sole trader? Well, to find out more, Elisha Hodgson, a lawyer at OMB Solicitors discusses the topic.

TRANSCRIPT

Dan: Elisha, where does a tradesman start in their thinking about this structure?

Elisha: That’s a good question. Really, before you even start thinking about what business structure might be right for me, I think it’s important that you think about what are the traits of my business and what do I want to achieve in the next 5, 10, 15 years? Are you looking at employing more people? Are you looking at expanding the business quite rapidly? What is the size of your business and I guess what are similar businesses in the industry doing themselves?

Elisha: I think those sorts of questions you need to ask yourself just before you even think about the type of business structure because, really, there are a lot of options. It will come down to what is most suitable to your personal circumstances, whether that be reducing your tax is important to you, or if you’re looking at limiting liability. Those are the sorts of things that you need to start thinking about before implementing any business structure.

Dan: I’m assuming that most tradesmen would be thinking that, okay, sole trader is probably the easiest because it might not incur as much cost as perhaps setting up a company, etc. Is that your experience?

Elisha: Yes, definitely. It certainly is one of the most popular options amongst the tradies, especially those at the subcontractor level with not many staff.

Elisha: But as a sole trader, you are the business, so you have control of everything, which makes up that business. It’s quite quick and easy to set up, there’s not a lot of ongoing accounting obligations, as opposed to some of the other business structures. So, yes, certainly it is quite a popular option amongst the tradies.

Elisha: But, like all types of business structures, there are some advantages and disadvantages. I think that’s what each individual needs to weigh up in their own circumstances.

Dan: For a sole trader, what would be some of those risks? I’m thinking that are they protected should the business go bad, and they’ve got people that want to chase them for money?

Elisha: Yes.

Dan: Are they protected in that case?

Elisha: Well, certainly the other sort of business structures, such as a company, would provide a higher level of asset protection.

Elisha: As a sole trader, one of the key risks is that you are the business, so any loans, credit facilities, supply guarantees, and any other debts or liabilities that you incur in running that business could potentially and generally does become the personal responsibility of the individual sole trader. Really, if things start going pear shape, then you don’t have that extra level of asset protection that something like a company structure would provide, so there are risks.

Elisha: I think it’s important that, depending on the amount of staff that you have involved or the level of risk put in your individual business, I think that’s something that you have to weigh up in terms of whether or not to stay in the sole trader position, which is the most common, or if they want to transition to it something a little bit more sophisticated, like a company or a partnership or a trust sort of business structure.

Dan: Elisha, it probably makes sense for a tradie prior to making a move to get advice. Because I was just was thinking that whilst it’s okay for us to have a discussion around this, and we’ve got reasonable knowledge about what the structures are and the risks and opportunities, does it make sense to consider all those options in consultation with a lawyer?

Elisha: Yes, certainly. I also think seeking advice not only from your lawyer, but also an accountant would be appropriate as well. I think in consultation with all parties involved and having considered what you want to achieve with your business longterm, I think having a roundtable discussion will really seek to achieve great things for your individual business in terms of asset protection, even tax savings, and also just the general progression of your business, particularly if you want to expand with your business.

Elisha: This is certainly the case if you start talking about some of the other business structures like partnerships and companies and the like, and even trust, you certainly would want to be seeking legal advice quite early on, particularly when you start coming to drafting a trustee or shareholders agreements or partnership agreements.

Elisha: Those sorts of things might be quite foreign to a tradesman; however, that’s where our level of expertise can come in and really assist the business in achieving what they want to do.

Dan: Elisha, thanks for joining me.

Elisha: Not a problem. Thank you.

how to sell your business

What You Need to Know Before You Sell Your Business

By | Business Law, Podcasts

For many business owners, they’ve dedicated years and years of blood, sweat, and tears into their enterprise, hoping that one day, all their efforts will pay off when they sell the business. This, of course, is particularly the case for business owners who, perhaps, haven’t paid into a superannuation fund, who see the sale of the business as going towards funding their retirement. But, of course, when it comes to selling the business, there is a lot to it, and many smart people would say that your planning needs to start years before you hand over the keys.

In this podcast, OMB Solicitors Partner, Simon Bennett discusses the key things you need to consider for selling your business.

Transcript:

Dan: Well, today, I’m with Simon Bennett, a partner at OMB Solicitors. Simon, what is the starting point for a business owner contemplating all this?

Simon: I think, Dan, it comes down to organisation. A business owner who has put, as you said, years of effort and time into developing and growing their business, would like to maximise not only the price that they’re going to receive for the business, but the efficiency and speed with which that business will sell. Now, quite often, that process can be complicated by a seller not being organised. And what I mean by that is be organised in respect to all aspects that a buyer might want to look at. Any prudent buyer of a business will want to conduct a due diligence and those things will start with the information that I’m gonna talk about.

So some of the key items are your finances. You’ve got to have your books in order. You need to see a qualified and experienced accountant to make sure that your books and your financials are in order. Because no one’s going to buy a business and no one’s going to pay good money or top dollar for a business that can’t justify that purchase price or sale price with the returns. And a really prudent buyer will investigate those figures to determine the strengths and weaknesses of the business. So that’s the key number one. If they can’t finance the business through the figures, they won’t purchase it.

The second thing I’d say you need to look at is all the other bits. The ancillaries. So things like what licences do you need to run the business. If it’s a restaurant, have you got food licences in place? Is the business name in place? If those things aren’t in place necessary to run the business, you will fall foul of the purchaser, and potentially lose yourself the sale.

Then there are things like a business name. Are you operating under a business name? Is it registered and is it current? Because if someone is gonna buy value in a business, and that value includes the goodwill, which would include the name that the business is operating under, we want to make sure that that is current and up to date, and you’ve got the rights to it, not someone else.

We want to look at the equipment list. What do I get? A purchaser wants to know what does the purchase price include? Does it include stock? Does it include equipment? And with that equipment, is it owned outright, that is unencumbered? Is it leased? And if so, what are the terms? Or is it under a rental or some other form of agreement? And if so, again, what are the terms? Can they be assigned, or will a buyer take them over, or will you pay them out as part of the sale process?

So these are key elements that a seller can start to plan well prior to listing their business for sale.

Dan: Not to mention, Simon, even employees, as well. I’m assuming that there might be employment contracts that also need to be considered in the mix.

Simon: Yes, exactly. What’s going to happen? Are there key employees that must stay with the business? So if you put your shoes in the buyer’s position, if I’m buying a business, do I need that key employee, that key staff member business manager or what have you, to come over to enhance the goodwill of the business? If so, as a seller, I’d want to lock that employee in and make sure that I would be able to transfer them across to a new business owner and purchaser.

But it also leads into something else. Are they prepared, if the buyer wants them to, to stay in the business for a period? What would be the terms of that? Would it be documented? And if not, one of the key considerations for a purchaser, so therefore, the seller organising and thinking ahead will say, “Am I prepared to sign a restraint? So if I sell this business, am I then prepared to be restrained from competing against that business?” For example, again, in the food industry, if we were to own a restaurant, surely a purchaser will not allow us to compete within a certain area or radius because then we can erode their goodwill. So upfront consideration of these type of items is key to knowing what terms you’re gonna be listing your business on.

Dan: Simon, is it the case that for a person considering selling their business, that should happen, all the thinking should actually happen two years prior, three years, or five years? Is there any sort of recommended timeframe to do this work?

Simon: I think two or three years prior is too long. I think realistically, in the year you’re selling the business would be adequate. However, when you build your business, you should have consideration as to what will be valuable, not only in the continued operation but also valuable to a purchaser, and that might start a little bit further out. So the way you create and the way you grow your business should have some consideration as to what a reasonable purchaser for the value would pay for that. But I think in preparing for an actual sale, we’d want to be talking about the particular year that you were going to be selling it in, maybe a little bit earlier if you are really organised. But certainly, for something like your books, that should be a constant and an ongoing.

Dan: And getting legal advice as early as possible is obviously a no-brainer.

Simon: Well, I think it is essential. It is really so important. You wouldn’t certainly sign any documents associated with a business sale or purchase without consulting with an expert, someone who has substantial legal experience in these matters because the devil is in the detail, as with a lot of legal documents. The business contracts are no different, and they need to be specifically tailored to each business, each individual seller, and what that business entails. Without that, you can’t use any generic form of document because they’ve just got to be tailored to that specific business. What the buyer and seller have agreed between themselves regarding some of those items I’ve talked about. Really important. Get good legal advice to draught the document. So quite different to let’s say a residential or a basic property deal whereby agents in Queensland are commonly drafting documents. That would not be the case in businesses. You need to see your lawyer before documents are drafted to do the drafting for you.

 

how to change by laws

How Does a Body Corporate Change its By-Laws?

By | Body Corporate, Podcasts

With the sheer number of Bodies Corporate on the Gold Coast, it’s probably not surprising that the need to change a bylaw occurs quite regularly. But how is that change done?

In this podcast, Elisha Hodgson, a lawyer at OMB Solicitors, who specialises in both strata and dispute resolution discusses the topic.

Dan: Elisha, it’s probably an obvious question, but where are these bylaws located?

Elisha: Basically with the Body Corporate bylaws, they’re actually established when the first registered community management statement, which we called the CMS, is lodged with the department of human resources and mines. Now, this document is not only really important in that it records the bylaws of the Body Corporate, but it also records important details such as the legislation it’s governed under, the Body Corporate assets and the common property. And also the interest schedule lot entitlements. Now that probably sounds a little bit unfamiliar to most people but, if we use the analogy of I guess, say a company. A company is actually quite similar to the way a Body Corporate works, in that just like a company, it’s run by directors for the benefit of the shareholders. And similarly, a Body Corporate is run by its committee for the benefit of its lot owners. So when I start talking about interest schedule of lot entitlements, what I actually mean is, if we go back to that company analogy, it essentially means the shares which you own in the Body Corporate.

Elisha:  So the CMS is a really critical document, and given we’re talking about Body Corporate bylaws, I think it’s important to know where they come from, where you find them and why you need to know about them and how to change them.

Dan:  So Elisha, for those Body Corporates who are wanting to change the bylaws, is this a really quite problematic process? Is it difficult to do?

Elisha: Well look, it’s not too difficult to do. The first step really is that the Body Corporate has to first identify what do they wanna change, or what Body Corporate bylaw to they need to include into their scheme, into their Body Corporate. To do this, a Body Corporate has to pass a motion to record a new community management statement that includes those changes for the bylaws. Now usually a motion agreeing to change the bylaws is required to be made by a special resolution at a general meeting. But this can sometimes change, depending on the type of Body Corporate bylaw in which you are implementing or changing to the CMS. For example, some By-Laws require … Some By-Laws which are changing or amending an exclusive use will require a resolution. So really understanding what it is you’re changing and what motion is required to be presented at a general meeting is really a critical factor when changing those bylaws.

Dan:  Elisha, is there a typical example of why a By-Law would change?

Elisha:  Yeah definitely. So at the moment, if we look at this holistically. Technology is evolving and the way in which we live is really changing. And in that case, bylaws often need to be updated or amended to, put simply, get with the times. So perhaps a bylaw has been recently found by the commissioner to be invalid, perhaps the bylaw is considered to be discriminatory in nature or perhaps not consistent with the act. Or perhaps even a lot owner no longer wanting his exclusive use car parking space has decided to give it up. There’s a range of different ways in which a Body Corporate bylaw would need to be amended.

Dan:  Now what about those occasions where the bylaw that’s going to be changed, is a little bit of a challenge to do so? Is there a time that would necessitate the Body Corporate members seeking the help of a law firm?

Elisha:  Yes certainly. So just by reviewing your bylaws and keeping up to date with the current legislation is really important. If you aren’t aware of what is enforceable or the recent decisions of the adjudicator in the commissioner’s office of whether pets are allowed, or what’s the ruling on towing, that sort of thing. It’s always good to seek advice from a legal advisor who can point you in the right direction in that regard. And certainly at OMB we have the experience and knowledge to be able to point you in that right direction. At the moment, if you are looking at your bylaws thinking, “Are they actually valid or should they be amended, or do we need to squeaky these up a little bit?” OMB are willing to provide a free of charge initial phone call and also a review of your bylaws, just to make sure that you are on the right track.

 

buying off the plan risks

The Risks of Buying Off The Plan

By | Podcasts, Property Law

On face value, the notion of buying something you haven’t yet seen poses plenty of questions, but yet plenty of people will buy a property that hasn’t yet been built and the decision has been solely based on the planned construction. Is this approach riddled with legal risks? In this podcast, OMB Solicitors’ Cameron Marshall discusses the matter.

TRANSCRIPT

Dan:  Cameron, is this a risky business?

Cameron: It can be, but as long as you do your inquiries and at the end of the day when the building is constructed you are happy with what’s been built as opposed to what you thought you were going to buy, it can all work out very well and very happy for everybody.

Dan: So, where is the starting point for somebody that’s you know, considering one of these buy off the plan proposals?

Cameron: Well the first thing you’d need to do is have a look at the plan and make sure you’re happy with what’s going to be built and then when you get to the end of the road and when it is built and you’re about to settle, you need to make sure that was what built was what you thought you were buying, so I’ve seen a lot of examples where people have got to the end of the day, ready for settlement and what is built is not what they thought they were indeed going to get. Possibly one balcony might be missing I’ve seen before and other examples are where a lot owner doesn’t even have access to their own property across common property, so they’re the little things that can come up.

Dan: Cameron. In your experience are there things that you see that quite often occur?

Cameron:  The main things are the common property areas and their exclusive use of those areas. They’re often forgotten about or changed in the building process. It’s something that’s very important when you’re buying, especially a unit of the plan, so you need to make sure again what you’re buying at the end of the day is what you contracted to buy and if you haven’t, you need to speak to a solicitor about it.

Dan:  Yeah, I was just going to say that. Is getting advice even prior to signing the paperwork a smart step?

Cameron: Oh yes, very much. Especially when you’ve got a large amount of disclosure that’s required in an off the plan construction contract, so you need to be fully aware of what can change and what can legally change through the process because the builder is allowed to make certain minor adjustments in the process themselves.

Dan: Cameron, thanks for joining me.

Cameron: Thank you very much.

 

 

estate planning

A Ten Point Strategy to Make Sure Your Estate Planning is Up to Date

By | Articles, Wills and Estates

It’s one of those things that we all know we should do – but we don’t necessarily want to do it. As adults we’re all aware that it’s important to have a will – and other measures – in place to ensure that our affairs are handled properly if something horrible were to happen. So at some point, most of us bite the bullet and “put our affairs in order.” For those of you who are still procrastinating, however, here are some tips to help you create an effective estate plan, and manage it once you’ve done so.

Begin by taking stock of your personal circumstances. Do so by making a comprehensive list of all of your assets, including but not limited to your investment portfolio, and all personal and real property.

Then consider the following:

  • How do you want you assets to be distributed?
  • Have you nominated a beneficiary under your superannuation policy?
  • Who will look after your children if something happens to you and/or your spouse?
  • Who can you trust to ensure that your wishes are carried out as stipulated in your will?
  • Who will handle your financial matters if you are unable to do so?
  • Who will make medical decisions on your behalf if you can no longer make them yourself?

The next step is to draft your will. You can do this (and draft other legal documents in your estate plan as long as you are at least 18 and don’t have any physical or psychological issues that would render you legally incompetent) with the assistance of a qualified legal professional, or on your own using legal resources available online. Although choosing the latter may seem like a more affordable option, consulting a lawyer can save you time and money in long run. Specifically, he or she can help determine which assets you can automatically include in your will – and which ones (such as joint assets, superannuation and life insurance policies) you can’t and most importantly, the implementation of strategies to ensure your hard-earned assets go to the beneficiaries you have chosen, as opposed to those you have not.

Don’t forget to choose an executor. This is crucial because the executor is the person who will oversee the distribution of your assets and other matters as stipulated in your will. Make sure it is someone you trust and is equipped to cope with family squabbles and any unpleasant issues that may surface. He or she may be a friend, relative or a financial or legal practitioner.

Next, make sure you’ve assigned power of attorney. By doing this, you’re giving someone the legal authority to make decisions and/or take certain actions on your behalf in certain circumstances. You can designate power of attorney to someone for only a limited time; in the event that you are no longer able to make your own decisions; or to make decisions regarding your medical care if you are unable to do so.

You should also consider creating an advance health directive.  Creating this document is another way to ensure that your wishes about medical treatment and related matters are known in the event that a catastrophic illness or injury renders you incapable of making decisions about your care.

While you are at it, talk to your lawyer about the pros and cons of creating a testamentary trust. This is a trust that is included in your will, can be used to protect your assets, and will only take effect when you pass away.

This may be a viable option for you if:

  • Your beneficiaries are not yet legal adults
  • Your beneficiaries are mentally incapable of handling certain responsibilities
  • You want to keep your beneficiary/ies from squandering their inheritances
  • You do not want family assets to be divided in a divorce settlement
  • You want to protect family assets in the event of bankruptcy

The trustee, or person who administers the trust, will also be appointed in your will. He or she is in charge of the assets set aside for the beneficiaries until the trust is no longer in effect. How long the trust remains in place is up to you. Usually, it will be effective until a minor becomes an adult, gets married or successfully completes their education.

Once you’ve conferred with your lawyer and drafted all of the legal documents you’d like to include in your estate plan, let your executor and relatives know what they are and where you keep them. You should also keep and let them know where to find any other significant legal and financial paperwork including your:

  • Birth certificate
  • Marriage certificate
  • Personal insurance policies
  • Documents pertaining to real estate holdings
  • Financial and retirement information
  • Superannuation papers
  • Investment documents (securities, share certificates, bonds)
  • Health insurance documents
  • Pensioner concession card
  • Any deposits for funeral investments

You should also get into the habit of going through all of the paperwork in your estate plan at least once or twice per year. Doing so will allow you to be proactive when it comes to making any changes. This is especially important when it comes to your will, which should be amended in the event of:

  • The sale of important assets
  • The creation of a family trust
  • The acquisition of new assets
  • Additional financial obligations
  • Changes to your personal affairs
  • Changes to your super or SMSF

Whenever you make changes to your will, you should also ensure that any beneficiary designations on insurance policies and so forth also reflect the changes. 

Finally, it is important to keep the lines of communication with relatives open throughout the estate planning process. By being candid about your wishes from the outset, you’ll reduce the likelihood any misunderstandings and hurt feelings in the long run.

Could an unsent text message be a valid will?

Will Shock: Could an unsent text message be a valid will?

By | Articles, Wills and Estates

In Queensland, a valid will is written and signed by either the person making the will (the Testator) or directed by the Testator in their presence.

The testator must sign or acknowledge the signature in the presence of two or more witnesses and the Testator must sign with the intention of executing the will.

The Queensland Supreme Court Case of Nichol v Nichol[1] recently delivered, saw the Court validate an unsent text message as a will.

A man died in October 2016 and was survived by his wife Julie of one year, who had left him days before. The deceased had a very close relationship with his brother David and nephew Jack. His death was sudden and unexpected.

No formal will was ever found, but when the body was discovered, his mobile phone was nearby.

There was an unsent text message saved to drafts which read:

“Dave Nic you and Jack keep all that I have house and superannuation, put my ashes in the back garden with Trish Julie will take her stuff only she’s ok gone back to her ex AGAIN I’m beaten. A bit of cash behind TV and a bit in the bank Cash card pin 3636 MRN190162Q 10/10/2016 My will”

The Nichol’s case is one of many cases all over Australia where a suicide note, draft will, unexecuted will and electronic wills, such as a Facebook status or Tweet on twitter, have been valid wills. Without the intent, the application for the informal will to be validated won’t proceed.

The judge held[1] that four elements constituted the text being a valid will.

  1. Was there a document?
  2. If so, did the document purport to reflect testamentary intentions?
  3. When the document was created, did the deceased demonstrate that it was his intention that the document operate as his will?
  4. Did the deceased have testamentary capacity?

 

[1] [2017] QSC 220.

Having a valid will is the only reliable way to ensure that your estate goes to family or friends of your choice after you pass away. A valid up-to-date will can help reduce stress for your family and friends, limit the costs to administer your estate and lessen the possibility of disputes over your possessions.

Please call OMB Solicitors to plan your estate.

When Mediation Fails

When Mediation Fails and an Agreement Cannot be Reached

By | Articles, Family Law

When alternative dispute resolution processes do not resolve the property or parenting issues in dispute with your ex-partner (taking into account that these processes require the co-operation of your ex-partner) you will need the assistance of the Family Court or Federal Circuit Court process to resolve your matter.

Are there time limits?

Unless you bring proceedings in the Family Court of Federal Circuit Court for a property settlement or spouse maintenance within 1 year from the date of your divorce being finalised, you lose the right to bring such proceedings without leave of the Court (which is not readily given).

What Happens During the Court Process

The process in both the Family Court and the Federal Circuit Court of Australia follow the basic procedures below, with some minor variations, namely:

  1. An Initiating Application and an Affidavit by you in Support of the Application and a Financial Statement if a property matter, or a Notice of Risk if a parenting matter, is filed in the Court and served on the other party. A Court filing fee is payable;
  2. The other party must file and serve a Response, Affidavit and Financial Statement (or Notice of Risk) within fourteen (14) days of the first Court return date;
  3. The matter comes before the Court for the first time for a case assessment conference (Family Court) or for a “first return date” (Federal Circuit Court) and interim hearing if necessary (both Courts);
  4. The Court will make any orders by consent on the first return date, and will normally order that the parties attend a conciliation conference or a private mediation (for property matters) or that a Family Report be prepared and/or an Independent Children’s Lawyer (“ICL”) be appointed for the children (parenting matters);
  5. If the matter does not resolve at the conciliation conference or private mediation (property matters) or in line with the recommendations of the Family Report Writer and/or ICL (children’s matters), the matter is returned to Court for trial directions;
  6. The matter is prepared for a hearing, and a barrister is appointed to prepare for attend the hearing.
  7. The matter is heard by a Judge for a final decision.
  8. The Judge will hand down his or her decision, and this decision can only be appealed on certain grounds within twenty eight (28) days.

If there are any urgent matters which need to be determined by the Court prior to a final hearing, either party can bring an interim or urgent application in which case the matter will be dealt with depending on the urgency of the matter.

On the return date of an interim or urgent application, the Court will make a determination of the matter on an urgent basis and the matter is determined on the affidavit material filed and the submissions of both parties.  Normally oral evidence is not given at such a hearing. Affidavits must not be more than ten (10) pages in length, and the number of exhibits which can be attached is limited.

Important Considerations

During the Court proceedings, it is important to remember that:

  • Your personal appearance is required on all Court dates, including mentions and callovers, unless excused by the Judge beforehand;
  • You will need our assistance to prepared affidavit material (which may need to be settled by counsel) and this can be time consuming and costly;
  • Barristers will be required to be engaged for all defended interim hearings and for the final hearing of the matter. Whilst solicitors will generally appear on mentions, callovers, and where consent orders are being made, solicitors are not generally experts in Court advocacy and will engage counsel to provide the best possible representation of you and presentation of your case at defended and final hearings, particularly where cross-examination is required.
  • Every Court appearance carries with it an opportunity to resolve the matter or particular issues in dispute by consent with the other party, and therefore the most should be made of these opportunities.
  • Judges in the family court arena have a very wide discretion when it comes to making property adjustment orders, and this wide discretion gives limited rights to appeal a seemingly unfavourable decision towards a party.
gold coast estate lawyers

Why Simple Wills Rarely Work Anymore

By | Podcasts, Wills and Estates

The fabric of the traditional family unit has changed and continues to change! Once, Mum, Dad and the 3 kids, were locked into family bliss, or maybe not, but nevertheless they stuck together and consequently from an estate planning perspective, all was relatively easy. But now throw into the mix, second and third marriages, blended families and children that are now adults, who similarly may have broken relationships or other issues, culminating in the once simple estate plan, not being so simple after all.

In this podcast, Estate Planning expert, Richard Dawson of OMB Solicitors discusses the matter.

TRANSCRIPT:

Dan:     Richard, how complex are families today?

Richard:    Very complex, in a word. We have about half of our families are blended families, as you mentioned second and third marriages. Those blended families have children. There’s a number of ways that we can approach estate planning, and there are some common denominators that I always look for in my estate planning with clients so that they can avoid the traps and the pitfalls that may follow. Some of those can avoid family disasters.

Richard:  I think one of the most important things that a person can do as part of their estate planning is to discuss the affairs with the family so that the family members have a realistic expectation of what they can expect to receive by way of an inheritance and so that avoids surprises. It’s really important to discuss your intentions about how you plan to divide your estate, before you go, with your children and other loved ones. You should have open and frank discussions with family members so that you can manage their expectations and flush out any areas of conflict that may be unsettled between siblings for many and varied reasons. Adult children have their own expectations and beliefs. They also have their own investment strategies and their own family dynamics. We’re all human; we’ve all got issues. Quite often adult children have predispositions about what they should receive in the form of an inheritance, but more so some of them even expect to receive an inheritance in a certain way.

Richard:     What we’re trying to do as part of estate planning is to avoid a conflict in a family after death. Because poor estate, or no planning at all, is a recipe for a family disaster. It can also be an extremely expensive exercise if there is no will in place when someone dies.

Dan:  What you’ve just mentioned there … It does certainly deconstruct that whole idea that simply going down to the newsagent and grabbing a will kit isn’t going to cut the mustard.

Richard:  The $20 will kit is what you use before you spend thousands and thousands and thousands of dollars on your lawyer fixing up the problem.

Dan:  Mm-hmm (affirmative).

Richard:  I’ve seen will kits used time and time again, and very few of them are prepared properly and some of them are often invalid and a waste of money and time in the first place.

Dan: There are sort of other examples, I suppose isn’t there … Of organisation, big publicly owned organisations who may offer free wills or whatever the case might be, where you can actually have a lawyer not involved in the construction of these really important documents.

Richard: That’s right. The most commonly used service for free wills is the Public Trustee of Queensland. They promote the free will service, which is a great idea for the community. They do about … From memory, about 35,000 free wills a year. That’s great, but what happens is there a government body and they charge a percentage on your estate administration regardless of how easy or complex it is. With no disrespect to the Public Trustee because there are some very good people who work in there, but they are a government body and we all know that the wheels of the government machine roll very slowly. Whereas, if you’ve got a lawyer engaged in commercial practice, they’re very experienced and they’re usually specialised in estate administration, as am I. We have a lot of systems in place, we’ve got a lot of precedents in place which make estate administration as pain-free as we possibly can. It’s also important the quicker you work and the more experienced you are at it, generally means we can resolve estate administrations and finalise them for the beneficiaries and the executors in a time and cost-effective manner.

Dan:  Now some of the practicalities I suppose Richard, in terms of constructing a good estate plan, fundamental today is choosing the right executor?

Richard: Absolutely. The executor is the person, or persons, who are appointed in the will to administer a deceased person’s estate. They’ve got a number of roles and responsibilities; in particular, they’ve got to identify assets and liabilities of the estate. They’ve got to pay out any debts. They’ve got to pay for the funeral. They’ve got to pay out any estate administration costs. They would have to apply for probate if the estate warranted it. That’s all done before any of the beneficiaries receive their inheritances.

Richard:  There can be more than one executor, but there can be no more than four. I find four is a very impractical number. A sole executor has autonomy, so if you’re choosing a sole executor then it’s important to choose the right person because they will be stepping into the deceased’s shoes, identifying the assets, paying out liabilities, and in a word upholding the terms of the will. So that person must be experienced and have the necessary acumen to be able to administer an estate.

Dan:  Richard I’m assuming that key to this is trying to make the life of an executor as simple as possible. So is there something that can be practically done in terms of making sure that banking details and superannuation details, insurance, et cetera are readily apparent and available to the executor?

Richard:  Yeah, very much so. That’s a good point. I say to clients that estate administration shouldn’t be a game of Sherlock Holmes. The executor has a difficult enough job as it is, and the will-maker should really get their banking, superannuation, insurance, and other investments in order. This greatly assists the executor in managing the estate, and it also saves a lot of time and cost. All too often do I see executors asking for advice as to where they should be searching for a deceased’s assets or investments. The lawyer is not going to know. It should have been the will maker who told the executor, “When I pass away, I’ve got this bank account, I’ve got that superannuation, I’ve got that life insurance. Here’s all my details.” It makes the executor’s job very easy.

Richard: What I try and encourage people when they come in to do their wills … And there are times when I don’t know those person’s assets because they’re closely guarded or they might be new clients, I ask them to put all their bank details and 30 June statements in a sealed envelope, sign across the back of it, and then we keep that with the will. I ask them to update their details, and replace that envelope as time goes by. So that when the time comes for the estate to be administered, we can go to that envelope, open it, and it’s all there. It makes that so much easier than to be digging through all old, outdated paperwork, writing to banks, and … Basically going on a fishing expedition for stuff that may not be there.

Dan: Now we know that there has been this exponential increase in estate litigation, and I’m assuming that it’s front of mind for many people that are considering estate planning. Is there things that people can do to minimise the possibility of their estate being contested or disputed by someone within the midst that’s not happy?

Richard: Most definitely. Every time I take instructions for a will I consider who is an eligible person to contest an estate. A will maker must consider spouses, children, and dependents. Where somebody for whatever reason leaves out a spouse, a child, or a dependent, or leaves them a minimal amount, up goes the red flag. I talk to the client and I explain to them the pros and cons of leaving out or minimising an inheritance for those category of people. Because at the end of the day, a disgruntled beneficiary has the rights in all Australian law to contest an estate and apply to a court for what we call Further and Better Provision from the estate. To get that Further and Better Provision from the estate, lawyers are involved and it’s expensive. It’s very expensive. 99.9% of the time it comes out of the estate. There are exceptions, and there’s a Judge’s discretion as to whether or not if someone’s being vexatious or frivolous in their claim that they can personally have costs awarded against them. But in most cases it is commercially the option that the estate pays. Which means there’s less for everyone to go around. And the lawyers get paid.

Richard:   It’s just not necessary because of improper estate planning or no estate planning at all.

Dan:   Mm-hmm (affirmative). Look, it’s an area of law isn’t there where there are lots of myths, and unfortunately, a lot of these myths do inform the wrongful practices of people who are considering estate planning.

Richard:   That’s exactly right, yes.

Dan:  I’m thinking fundamentally just going through what you’ve discussed, having that open discussion with the family and others that may well be a beneficiary is really important. Secondly choosing the right executor, thirdly getting the legal paperwork in order. Also approaching this piece of very important work through the lens of what can I do to ensure that the estate is safe and not going to be disputed? They seem to be the take-home messages.

Richard: Absolutely. That’s for sure. Probably to add to that is keep everything up to date. If we have a look at where we were 10 years ago, our lives were completely different. We didn’t have iPhones, we didn’t have large superannuation accounts. We were building; property values in some places have doubled or tripled. We’ve had children, we’ve had grandchildren. They’re all the things why you would keep a will up to date and why you would review your estate plan, I recommend, every say three to five years depending on your circumstances. It’s really important to have an up to date will so that it reflects your current wishes, and it also meets your family’s expectations.

Dan:  Great advice. Richard, thanks for joining me.

Richard:  Lovely to have you. Thank you. Bye for now.

resolving construction disputes

How Builders Can Resolve Disputes Quickly

By | Ligitation, Podcasts

The building and construction space is the source of many legal disputes that arise out of complicated contract arrangements. This will often lead to the parties enforcing their legal rights, which can lead to costly and protracted legal battles. To better understand the issues, and what you can do about them, in this podcast, Commercial Litigation expert, Cameron Marshall of OMB Solicitors discusses the matter.

TRANSCRIPT:

Dan: Cameron, is there one intrinsic thing in these matters that tends to be the problem?

Cameron:   Yes, I find that it’s probably, it sounds pretty simple but the thing that can be done is for the parties just to read and understand the contract that they’ve signed, that’s probably the first place to start to try and avoid any disputes.

Dan:   Is it the case that most people don’t, is that common?

Cameron:  I’d say quite a lot unfortunately, it sounds very basic but I see it quite a lot from in my field of work all the time, that disputes could’ve been quite easily avoided by the parties understanding what they had to do, and knowing which way to go when a dispute arises, yeah.

Dan:  Is there something about the contract or particular clauses that you think that are typically the drama?

Cameron:  Yeah, well, not … Yeah, typically they come from a whole range of problems, because I’ve been doing this job for 20 years odd, so I see a lot of different ones. So when I see things such as something as simple as just the parties, or how they may be named in the contract, they need to make sure that the exact legal entity is named. That comes a real problem if we ever have to enforce payment for work being done if we haven’t even got the contractual parties correct, because it gives wriggle room to a party trying to avoid payment, possibly.

Cameron:  Other things like that come up is often when contracts have been negotiated, that’ll take a little bit of time and a start date for the commencement of the work might be included. But, often when the actual contract’s signed, that start date’s passed. So if we’re working on a practical completion date, we’re already halfway through that, we could be halfway through that period and the contractor will be facing some problems down the track, when the completion date’s quickly coming up and he might be getting pressed for completion, etcetera, etcetera. So it’s just those things that need to be sorted out beforehand.

Cameron: The construction schedule’s one that also comes up a lot. It’s one of those things that sometimes gets overlooked in the contractual negotiations, the contractors and the owners and the builders need to just make sure that the construction schedule is one that they can keep, and one that’s realistic. We don’t wanna, again, get into disputes with someone falling behind when the contract, construction schedule itself was just not able to be done.

Cameron: There are even situations where I’ve seen contracts not signed. So-

Dan:  Wow.

Cameron: We get a couple of hundred thousand dollars worth of work and the dispute arises and then one contractor says that they haven’t signed the contract. There’s legal ways of getting around that, but you don’t really wanna have to go there if you just check the contract and make sure it’s being signed by the proper party. So there are some of the examples that I see quite often.

Dan:  Now, Cameron, when things go wrong, where’s a starting point for people to sort of consider how to resolve this, is it typically the case that they don’t do anything at all, they let these things linger, or what’s the best way around it?

Cameron:  Well, again, let’s go back to the contract, let’s see what the contract might say. So let’s talk about a breach of the contract. Normal construction contract if someone’s noncompliant, maybe they haven’t paid a bill, maybe some bit of work is being delayed, then it’s something that can be addressed in the contract by simply providing a notice to the other party. Usually it has to be in writing, but once again, it clears the air and provides certainty as what the other party alleges isn’t done, and it gives time for the other party to do it, and if it’s not done then you can have a look at your legal rights, but again, you go back to the contract, see what it says, and it will guide you through a lot of the problems.

Cameron: There are dispute resolution clauses often in building contracts, now these can be used, I’ve seen one recently where we had a latent defect come up because of soil testing. And it needed to be, there was a dispute between the builder and the contractor, and it needed to be resolved so the parties went through their conciliation process and the arbitration process in the contract which required eventually an independent expert to decide whether it was a latent defect, latent condition sorry, and that resolved that issue so the contract could proceed. It’s not always the case the parties are happy with those rights, but it’s a lot better than going down the legal course if it can be done prior to incurring legal costs, yeah.

Dan:  From a practise perspective Cameron, is sort of traits that you see of builders who may sort of sit on these things longer than they should in terms of bringing the issue to a resolution, sort of practical issues that sort of emanate?

Cameron:   Well, the building site is, I’ve been on them before in my younger days, it’s a different world there, there’s a lot of trust between the parties and a lot of things spoken orally, which is the normal way to do it and good, but it’s not the good legal way to do it. So, what may be said by one party and understood, thought to be understood between the parties that things may be okay, may not be the situation and when a dispute does arise and the lawyers get involved, then again the contract will be the document that we all look at and will be the one that we’ll be trying to enforce. So, it’s one of those situations where on the building site you don’t wanna rest on your belief and understanding of what the other party thinks is the case, or what you think is the case, rather, let’s get it clarified, let’s go back to the contract, make sure what the parties are doing is understood, and then you can go forward. You don’t want, you thought it was the case, ’cause you’ll just end up in problems down the track.

Dan:  So, undeniably, the real take-home message for people listening to this podcast, those that work within, in the industry, is to get advice and make sure these contracts are watertight.

Cameron: Yes, it’s just really … They’re a daunting document when you look at them, but once you’ve had a little bit of experience with them, and you read them, it’s, they’re pretty straightforward and they all have the general similar tone and vein to them, so just understand what you need to do, and if something does go wrong, how do you address it? There are ways to go enforce your legal rights through the courts and the different tribunals, but a lot of that can be avoided simply by knowing what you need to do under the contract and doing that.

Dan: Cameron, thanks for joining me.

levies unpaid body corporate

What Happens When Body Corporate Levies Go Unpaid?

By | Body Corporate, Podcasts

If you own a lot within a community title scheme, then it’s likely that you may be aware that they are required to pay Body Corporate levies. However, it can be a conundrum for many of them, in particular, understanding what Body Corporate levies are, what they are used for, and what happens if you do not pay them, and how Body Corporates encourage the payment of these levies.

In this podcast, Body Corporate Law expert, Juliette Nairn discusses the matter.

TRANSCRIPT:

Dan:  Juliette, what are these Body Corporate levies?

Juliette: That’s actually a very good question, because we often come across it a lot within a Body Corporate. We have the commission members, who obviously know very well what Body Corporate levies are, but for those individual lot owners who live in a strata scheme, they might necessarily not know that they have Administration Fund levies, which is for daily repair and maintenance of the Body Corporate, a Sinking Fund levy, which is for capital work that a Body Corporate undertakes, and also insurance, which is very important to pay on behalf of a Body Corporate.

Juliette: What happens is, the Body Corporate, usually through a Body Corporate management company, will send out a notice and agenda for an annual general meeting, and it’s actually at that time that the lot owners need to read that documentation and look at what is the budget for the Body Corporate in terms of how much money does the Body Corporate need to raise to cover its day-to-day expenses.

Juliette:  We often talk about Body Corporates being a bit like a not-for-profit organisation because a Body Corporate has to get in exactly the amount of money that it needs to pay its expenses throughout a 12-month period. So it’s not a business that actually raises money, or has any revenue.

Dan: So Juliette, where is all this information enshrined? Is there a contract? Is there a document of some sort that somebody can go to and go, “Ah, that’s what my Body Corporate levies are,” or whatever the case might be?

Juliette: Unfortunately there’s not, because the only place it exists is in the legislation, which is called the Body Corporate Community Management Act, and an appropriate module that applies to each strata scheme.

Juliette: So, for example, that information about levies is not contained in your bylaws, it’s not contained in a community management statement. What happens is when I’m a purchaser and I might be looking into purchasing into a strata scheme, I would do what is called a Section 205 search, and that’s actually a letter that gets written to the Body Corporate management company on behalf of the Body Corporate, and the solicitors usually do that on behalf of an individual lot owner who might be buying into a Body Corporate.

Juliette:  What they get back is a little snapshot which says, “Oh, this is the budget for the Body Corporate, and this is what your contribution is, and this is how we pay it in quarterly instalments.” So, that’s the only information, really, that individual lot owners get. So often what happens is a Body Corporate management company might send out a welcome packet to its lot owners that actually explains in a little bit more detail what levies are. We also have a really good website which is the BCCM office website, being the commissioner for Body Corporate in Queensland, and they give a summary of what levies are and what is a Body Corporate debt.

Dan: Can there be a great divergence in what those levies are across Body Corporates?

Juliette: Yes. Definitely, Dan. It depends on the size of the building that you live in, actually, and even the type of plan that’s being recorded. A lot of the high-rise buildings are what we call building unit plans, and those building unit plans, you know, you’ve got one level stacked on top of the other. You’ve got charges for lifts and all sorts of other costs, and maybe even care taking costs or letting fees associated with that Body Corporate, as well as its normal admin.

Juliette: But if you live out, say Ribena or Matriba you might live in a duplex-style complex, or where there are actually individual homes under what we call a standard format plan, and those levies are very different, because they can be much lower from a Body Corporate perspective.

Dan:  So, what happens if people don’t pay these levies?

Juliette: Usually what happens is that the Body Corporate then can’t afford to pay its bills. We often have Body Corporates approach us, or committee members or individual lot owners within a Body Corporate, where they may have run out of money and can’t afford to pay the insurance for their building.

Juliette:  If a Body Corporate gets to that situation where it can’t pay its bills, it then looks very carefully at which individual lot owners haven’t been paying their levies on a regular basis, and will look at implementing processes or steps to recover those levies, which usually include receiving reminder letters. So the people, the lot owners, might receive a reminder letter from the Body Corporate management company, and then maybe a second reminder letter, then a final letter of demand, and also often the Body Corporate manager might make a phone call as well to try and get an understanding as to why that individual lot owner is not paying its levies.

Dan:  So, in contrast, if the lot owner doesn’t pay their levy, what are the penalties? Is there any sort of ramifications on them?

Juliette:   Yes. So in terms of the penalty which will apply to the individual lot owner, because the lot owner and the levies that they pay are basically the lifeblood to the Body Corporate, because there’s no way the Body Corporate receives other money, the penalties are actually very high. So one, not only are your levies outstanding, but the legislation specifically allows the Body Corporate to charge a 30% simple interest per anum charge to each and every levy that’s outstanding.

Juliette:   Now 30% simple interest adds up very quickly when you have outstanding levies, and it’s applied on a monthly basis. It’s actually far higher than what you would pay on a VISA card. It’s far higher than what you might pay, definitely, on your mortgage, and it’s certainly far higher than what you might pay on a loan if you got a personal loan if you’re in some hardship to pay your levies.

Juliette: The reason why the legislators made the 30% simple interest a general rule that applies across the board to all Body Corporates in Queensland is because they wanted lot owners to be penalised, because there’s no other way in which a Body Corporate can raise revenue. It can only come from those individual lot owners.

Juliette:  In addition to that, Dan, if you actually have, and the Body Corporate engages legal representation, being a Body Corporate solicitor to institute legal proceedings against that lot owner, that individual lot owner will become responsible for all the costs. So, the Body Corporate manager’s cost being expenses and outlays, and any expenses and outlays of the Body Corporate, including any legal fees that it incurs as well.

Dan: Is there Body Corporates out there that don’t pay their levies. Does that typically happen?

Juliette:   Unfortunately there are a lot of lot owners out there who don’t pay their levies. Because of the amount of information that we’re seeing these days, particularly through our Queensland Commissioner’s Office, we find that individual lot owners are better educated, particularly if they live in Australia.

Juliette: Fortunately we do have a lot of overseas investment, but some of those individuals who live in Bodies Corporate may not have Australian agents, and so, for example, if Chinese is their first language, or they’re in a country like Japan where the levy notices are being posted to them, one, it’s very difficult for them to understand the reason behind paying levies to the Body Corporate. They’re just aware that they’ve purchased the lot and paid that purchase price, but didn’t realise that there were individual, ongoing costs associated with the Body Corporate. So we do see much more foreign investment in that form.

Dan:  So what can they do to become more aware and make sure that they pay their levy?

Juliette: The best thing to do is that most of these buildings do have a Body Corporate manager appointed, and just contacting that Body Corporate management company and having a good conversation or an email conversation with the Body Corporate manager will enable you to get all of your information. They keep their roll up to date, and the best way is to have a role address by way of not only a postal address, but also an email address, so that they receive newsletters on behalf of the Body Corporate as well as any relevant information from the Body Corporate regarding their levies and their notices of contribution by receiving that information and understanding what levies are for, the Body Corporate manager, through their welcoming packets that they send to individual lot owners, that’s how people are encouraged to pay their levies.

 

 

 

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