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Body Corporate Feuds

Body Corporate Feuds

By Articles, Body Corporate

Body corporate disputes are nothing new but Juliette Nairn from OMB Solicitors has the ability to steer you through what can be a minefield of litigation.

Are you frustrated by your Body Corporate neighbour’s failing to pay their contributions, leaving you to pick up the difference? The good news is you can take steps to recover your money. The Court of Appeal of Queensland recently made a landmark decision in the area of Body Corporate Law regarding the ability of bodies corporate to recover contributions, penalty interest and all reasonable recovery costs from a lot owner who fails to pay their contributions on time.

The decision was made with respect to a Body Corporate feud which began in 2011 relating to a prestigious unit in Surfers Paradise worth over $1m. The unpaid amount in question was around $5,500 and the owners of the lot claimed they had no capacity to pay their debts, despite owning several other units in Surfers Paradise of similar value. This resulted in the remaining lot owners having to cover the shortfall in contributions to cover the daily expenditure of the body corporate.

When this matter was brought before the Queensland Court of Appeal, Gold Coast Lawyers at OMB Solicitors as legal representatives for the body corporate, successfully argued that if a single lot owner fails to pay their body corporate levies, this places an unfair burden on the other lot owners who have always abided by their responsibilities. As the saying goes, it only takes one bad apple to spoil the barrel.

In the lead up to this matter being brought before the Court of Appeal, over $400,000 in recovery costs were incurred due to the unreasonable pursuit of litigation through five different Courts over a number of years. The Body Corporate for The Wave has been forced to expend these costs as part of the lengthy proceedings, which resulted in each lot owner being forced to make further contributions to the body corporate administration fund. These costs were incurred as a result of the non-contributing lot owners continually pursuing the matter to a higher Court, despite them being unsuccessful at all five levels of the Court proceedings.

This ever-ballooning debt owed to the Body Corporate, and essentially the remaining contributing owners, resulted in the bank repossessing the property in mid-2013. It should be noted that the bank, Westpac, failed to take steps to protect its interest throughout the court proceedings. The Court agreed that ultimately it is the contributing lot owners who are meeting their share of the expenditures and who are disadvantaged by the non-payment of one lot owner. This cannot be, and was not, the intention of the legislation protecting everyday owners within a body corporate. The body corporate’s success in this matter ultimately resulted in a Court order that Westpac pay the body corporate debt including all contributions, interest and recovery costs.

The Court of Appeal is sending a very clear message to lot owners and mortgagees through this judgment to ensure they look carefully at non-payment of body corporate contributions. OMB Solicitors has handled over 2,000 body corporate levy recovery proceedings in the past five years, and the average costs incurred in recovering contributions from defaulting lot owners is less than $5,000. These types of matters also usually resolve with full payment being made to the body corporate within a period of about 3 months. However, this case highlights a rare example of just how expensive and time consuming body corporate matters can become if expert legal advice is not sought in the early stages of such matters to resolve them quickly.

If your body corporate requires expert legal advice on this type of matter, or any other Body Corporate matters, consider contacting the Body Corporate team at OMB Solicitors on 07 5555 0000.

Taxman Pays For Education

Taxman Pays For Education

By Articles, Wills and Estates

Save thousands of dollars on private education with savvy estate planning

You can take advantage of legal tax benefits and save on education costs with a trust. That statement comes from O’Keefe Mahoney Bennett estate planning manager Richard Dawson who says trusts are established in a will and funded by assets of a deceased estate or payments to an estate.

“A Testamentary Discretionary Trust (TDT) is otherwise known a lineal descendants trust,” he says. “The trust is controlled by a trustee. The trustee is usually the primary beneficiary and able to enjoy the benefits of the trust. TDTs often include other beneficiaries. These may be the children and grandchildren of the primary beneficiary because current tax legislation allows the proceeds of a trust to be distributed to beneficiaries.”

The benefit of correct estate planning is that tax savings result when the trustee distributes gains to the beneficiaries with the lowest marginal tax rate in a particular financial year. “These may be the mother, father, child, or grandchild of the deceased which means that the beneficiaries pay tax on trust proceeds at normal marginal tax rates.

“These beneficiaries are usually children as they are unlikely to be earning an income. Therefore significant tax savings can be gained by distributing trust income to children because children aged under 18 years are taxed at marginal adult rates as opposed to adults on high incomes who pay significantly higher tax rates,” Richard says. “Those tax savings from the trust income can therefore be used to subsidise children’s education costs and living expenses. By effective use of estate planning, we can ensure that those savings via the taxman can pay for their education and lifestyle.”

For more information on tax-effective estate planning contact O’Keefe Mahoney Bennett Solicitors 5555 0000 at OMB Solicitors.

Need help in Managing Superannuation? Contact OMB Solicitors today.

Managing Superannuation

By Articles, Superannuation

As world markets continue to melt down and share markets plunge concerns about superannuation fund losses escalate.

Superannuation was designed as a savings plan for workers. The goal was to create an investment fund with capital growth to draw on during retirement.  Many people are disappointed in the performance of superannuation funds.

Gold Coast solicitor at Simon Bennett says Self Managed Super Funds are an alternative to industry managed super funds.

“People can create a self-managed super fund. This means individuals have control over their superannuation investment,” he says “Self-managed super funds can be set up with the help of a financial advisor, a solicitor, and accountant.

Self-management allows individuals to make decisions about their investments. “People can decide when and where to invest their funds within the legislative guidelines.

“Recent legislative changes enable people with self-managed super funds to borrow so they can buy investments when the time it right,” Simon says.

“This may allow people to capture an investment opportunity that is not available to a superannuation fund. “Self-managed funds are not for everyone but all wealth protection options are worth looking into.

“It is essential to discuss the investment options of self managed super with a financial advisor, account and legal advisor. “There are legal limitations relating to the use of funds and the type of investments that are made,” Simon says.

This article was featured in Label Magazine, by Simon Bennett

be the boss

Be The Boss

By Articles, Business Law

Check before you become the boss and sign the cheques.

So you want to be the boss and control your destiny? Owning your own business is not a simple task and with regulation and rules on top of the difficult financial climate you must be sure that all your ducks are in a row.

From a legal aspect you need to ensure that before you enter into a contract to purchase a business that you consult your Gold Coast Business solicitor. Before you even get to a contract there are extremely important issues of structuring that must be considered. Don’t for a moment think you should just be buying in your own name, serious consideration should be had to owning the business in a company, trust or combination of these vehicles. This type of structuring when done correctly will provide asset protection and may also allow your accountant more flexibility when planning your taxation matters.

The contract must be properly drafted to ensure that you are protected as this is the single most important stage of the purchase. A sensible business contract should allow you the opportunity to investigate all aspects of the business before you are committed to buy. You need to make sure the accounts of the business are accurate and you should ensure your accountant verifies the figures. A trial period can be negotiated where you work in the business and get to see not only the workings but also the customers and the income.

It is essential that the premises from which the business operates is secure as often there is a large amount of the goodwill attached to the position of the business. Therefore your solicitor must check the lease and ensure you have security of tenure. All licences and approvals must also be in place to guarantee that you will be able to operate the business. Issues with staff, ownership and transfer of assets, business names, websites and the like form an integral part of the process. Franchises are often part of business purchases these days and it is essential that you are properly advised on these agreements.

Your solicitor will be able to guide you through the process and you will soon learn being The Boss simply means that you have responsibility for not only yourself but the whole business. Simon Bennett is a Partner and Accredited Property Law Specialist with O’Keefe Mahoney Bennett Solicitors.

This article was featured in Label Magazine – Summer, December 2008, by Simon Bennett

Will Kit

Will Kit

By Articles, Wills and Estates

Do-it-yourself Will Kit – What you use before they come to see the lawyers to fix everything up…

Most of us work tirelessly over 30 or 40 years to accumulate our wealth with the intention that we pass that wealth on to the next generation after our death. In the interest of saving a few dollars people often resort to the use of Do-It-Yourself (DIY) Will kits, colloquially known as newsagency Wills. DIY Wills have a myriad of pitfalls for the unsuspecting user.

Respected Gold Coast Estate Planning Lawyer Richard Dawson says to avoid these DIY Wills at all costs. DIY Wills have many “fill in the blanks” sections which, if completed correctly, created a legally binding document. If not, then lawyers are usually engaged in a very expensive exercise of determining what the Will-maker intended before his or her death.

DIY Wills usually cost between $20-$40 and then the Will-maker has to spend time completing the DIY Will with the hope that it reflects accurately their wishes. On the flip side, a simple and straightforward Will prepared by a lawyer can cost but a little more. Knowing you have peace of mind it is a very small price to pay. The Succession Act stipulates very strict requirements regarding the preparation of, signing and administration of Wills. One tiny error could render the Will entirely invalid. If this occurs then the deceased person is said to have died ‘intestate’, that is, without a valid Will.

When a person dies intestate an application must be made to the Supreme Court before a deceased person’s estate can be properly and legally administered. Depending on the circumstances, the person who has the right to apply to the Court may be very different from the person the Will-maker original intended. Richard says that any person contemplating making their Will should always use a qualified, experienced, estate planning lawyer so as to avoid the costly expense and anguish associated with Supreme Court applications.

Newsagencies should be seen only as a place to purchase your newspapers, magazines and lotto tickets, not a one-stop-shop for your legal documents. Having a lawyer prepare your Will is not only sound estate planning advice but highly recommended if you want to protect your family assets. He says the cost of professional legally prepared Wills is insignificant in comparison to the costs of a Supreme Court application.

This article was featured in Label Magazine, by Simon Bennett & Richard Dawson

All in the Family

All in the family

By Articles, Wills and Estates

Let the tax man pay for your children’s and grandchildren’s education.

Ever wondered how you could save tens of thousands of dollars on your children’s or grandchildren’s private education? Well the answer is quite simple, completely legal, and better still the tax man pays it for you!

The tax savings are achieved through a Testamentary Discretionary Trust or TDT. A TDT is a trust set up in a person’s Will and establishes on their death. TDT’s are funded by deceased estate assets, such as real estate, life insurance payouts or superannuation benefits.

A TDT is controlled by the trustee who is usually also the primary beneficiary. That is, the person who controls the trust also enjoys its benefits. TDT’s generally include children and grandchildren of the Will maker as beneficiaries.
TDT’s have a wide range of benefits and are designed to protect a beneficiary’s creditors and predators. A beneficiary’s creditor can include the ATO.

Proceeds of a TDT must be distributed to the nominated beneficiaries such as the Will maker’s children or grandchildren. The relevant tax law applying to TDT’s means children under 18 years are taxed as adults. This is different tax treatment under a
family trust where children taxed at extremely high rates.

The potential tax savings when income from a TDT is distributed to benefit a child or grandchild under 18 is significant. If the child’s parent is a high income earner and pays a high rate of tax, then TDT income paid to children under 18 years is very tax effective.

For example; Fred Smith’s mother died leaving him an inheritance of $1.5M and a TDT was setup in her Will. Fred is a doctor. Heearns $250,000.00 a year and pays the highest marginal rate of tax of 49%*. Fred has 3 children, Peter, Paul and Mary all under the age of 18 years.

The TDT receives income of $75,000 per annum from its investments. Fred, as the TDT trustee, distributes $25,000.00 to each of Peter, Paul and Mary. The first $18,200.00 is tax free. The other $6,800.00 is taxed at 19% or about $1,300.00 per child. Had this $75,000.00 been added to Fred’s $250,000.00 annual income, Fred would have paid $36,750.00 in extra tax. The total tax saving to the Smith family is $32,850.00 per year. Multiplying this tax saving by the average 15 years of private education (including university) potentially saves the Smith family nearly $500,000.00.

The moral of the story is through proper estate planning, setting upa TDT can create a completely legitimate tax-effective way to pay for your children’s and grandchildren’s education and lifestyle instead of seeing your hard earned dollars end up in the tax man’s pocket. To find out more on TDT’s and other estate planning strategies, speak with Richard Dawson, Partner and Estate Planning Manager at O’Keefe Mahoney Bennett Solicitors, phone 07 5555 0000 at OMB Solicitors.

*As at 1/7/2015 including Temporary Budget Repair Levy of 2% andMedicare Levy of 2%. Tax rates are subject to change and may be varied by the Income Tax Assessment Act.

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