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FAQ

Business & Property
Commercial Litigation
Family Law
Residential Conveyancing
Wills

Business & Property

What is the best structure for my business? In what name should I buy the new property?

There are a number of issues to be considered including, who are the people who are going to be involved in the operation of the business. Is it the sort of business or venture which is likely to expose the owner to unusual and excessive risks? How long do you intend to retain the business or property? Will it be a quick turn around or a long term venture? Do you want to be able to pass the business or property on to your children or other family members at some time in the future in a cost effective manner? There are a number of different structures which are available including sole trader or partnership, trading company, discretionary trust, unit trust and in some rare instances limited partnerships. Each of these structures has particular taxation consequences which also should be considered. This is a good example of an issue which should be decided after consultation with your solicitors and taxation/accounting advisors.

I am already operating a business in partnership. Do we need a partnership agreement?

Most likely, yes. Even though you may have been operating a business for a lengthy time and things have been going well, it is often the case that partners have not considered all of the issues which could affect them in the future. The purpose of a partnership agreement is to help resolve issues in the event of a future dispute or in the event of some unfortunate circumstances (e.g. death of a partner). You should also consider what steps you wish to take in the event one of the partners wishes to retire or sell out. All of these things can and should be covered in a written partnership agreement.

I am starting up a new business and I want to make sure the premises will continue to be able to be used by me for several years into the future. What should I do?

It is important for all business operators to ensure they have secure tenure to the premises from which they operate. Unfortunately all business owners cannot be in the fortunate position of owning their own premises and most are tenants or lessees. A lease is a formal agreement between the owner of the premises and the tenant which sets out the terms and conditions of the occupancy. A lease is for a specific term and may contain options for renewal. There are also other forms of tenancy agreements of a periodic nature, however, some landlords (e.g. shopping centre owners and the like) insist on their tenants entering into formal leases.

I am buying an industrial building which is currently vacant and I intend to lease it out as income producing property. Is there anything I should look out for?

Purchasing industrial and commercial real estate has more pitfalls than purchasing some other types of land. In addition to the usual protections which should be built into a contract, enabling the buyer to conduct title searches and some other matters which may affect the property, a purchaser of a commercial or industrial building must also pay particular attention to local authority requirements, as often there are limitations on the use which may be made of those types of properties. This may impede your ability to lease the premises for particular purposes and thereby make it more difficult for you to find a suitable tenant. Prior to signing any contract any one of our solicitors in the team will be available to discuss your particular requirements and intentions to ensure appropriate protections and safe guards are included in your contract. Whilst there is a "standard contract" in use for such purchases that contract will not always cover all of the matters which you may need to have included.

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Commercial Litigation

An accident has occurred on a mine site and a worker is badly injured. What do you do?

You need to be made aware straight away about your potential liability to the injured worker and his dependants and what steps you need to take to manage that liability. Workplace Health & Safety might serve prohibition notices and mount a prosecution. Your company's performance of the contract might be interrupted which might mean a loss of profits claim against your company. Steps need to be taken to identify relevant insurers and possible negligent third parties so that your company can share the exposure rather than bear all of the responsibility.

An employee of your company has left your company and set up in competition to you. He/she is using your confidential information to entice customers away from your company. What do you do?

You need to be aware that in certain circumstances the Court may grant you an order restraining your new competitor from using your confidential information and may order the confidential information to be returned. You need to act straight away if your livelihood is at stake. Damages might not be an adequate remedy.

Some time ago you finished performing a contract for a commercial customer. You are served with Court proceedings alleging breach of the contract and claiming loss of profits. You do not understand what the claim is about and why the claim is being made. You try to contact the claimant or his/her solicitor but they are never available to speak to you. If they are available they never seem to give you a straight answer. The Court documents say that you have 28 days within which to file a defence. What do you do?

Stalling for time is a tactic sometimes used by plaintiffs to exhaust the 28 day period so that you then have to make an application to set aside a default judgment. It is very important that you use the 28 days wisely and file a sensible and considered defence within that time frame. Our experience is that claims to which a sensible and considered defence is filed are often discontinued or withdrawn.

A large corporate customer has offered you a lucrative long term contract subject to you signing the customer's "standard terms and conditions".The "standard terms and conditions" are very complicated to read and require you to obtain various insurances and give various indemnities. What do you do?

Look out! That light at the end of the tunnel might be the headlight of an oncoming train. Very often the large corporate customer knows that the insurances are prohibitively expensive and your potential liability under the indemnities impossible to insure against. If you are aware of these problems before signing the contract then very often the corporate customer will agree to the contract being varied to allow more commercially realistic terms.

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Family Law

How do I get a divorce?

Australia has a "no fault" divorce system. The only ground for divorce is the "irretrievable breakdown" of the marriage. You only need to show that you have been separated for 12 months and that there is no reasonable likelihood of cohabitation being resumed (i.e. no likelihood of the parties getting together again). It is possible for a couple to have lived "separately and apart" for 12 months even though they still live under the same roof. The Family Court will however examine such a claim very carefully, and usually require a statement from an independent person to confirm the separation in those circumstances. If you have children who are under the age of 18 years, you must also demonstrate to the court that suitable arrangements have been made for their welfare.

Following separation what responsibilities do I have with respect to a child?

The Family Law Act recognises the responsibilities of parents and that children have rights too, including:

  • The right to know and be cared for by both their parents; and
  • The right of contact on a regular basis with both their parents and with other people significant for their care, welfare and development.

The obligation of both parents is to share duties and responsibilities for the care, welfare and development of their children. The Family Law Act encourages parents to agree about the future parenting of their children, and requires parties to participate in mediation and counselling to assist in reaching an agreement.

The Family Court will make parenting orders where the parents cannot agree what is best for their children. Parenting orders made by the Courts include orders about where the children live (residence), contact and orders about health, education, transport and other matters affecting children's welfare (specific issues orders). A parent, a child or any person concerned with the care, welfare and development of the child can apply for a parenting order. Any orders must reflect "the best interests of the child".

Both parents are also responsible for maintaining their children financially, and may elect to have their child support assessed through the Child Support Agency, or to enter into a private agreement. There are some restrictions which apply to private agreements and you should seek advice as to which of those restrictions may apply in your case.

What is spouse maintenance and who is entitled to it?

Spousal maintenance is an amount of money which one party to a marriage may be required to pay to the other party after separation. Child maintenance is an amount of money which is paid by one parent to another parent for the support of the child. Child maintenance is also called child support.

A spouse may have a right to obtain maintenance for themselves from the other party to the marriage after separation. A party to a marriage may be liable to maintain the other party after they separate to the extent that they are reasonably able to do so if the person seeking maintenance is unable to support themselves adequately because of:-

  • Their care of a child of the marriage under the age of 18 years;
  • Their inability to be gainfully employed by reason of age, physical or mental illness; or
  • Any other adequate reason.

In Queensland when two people are living as husband and wife without being married, neither party has a legal obligation to support the other on separation. However maintenance or child support for a child whose parents are not married is treated in the same way as maintenance or child support for children of a marriage. Children of a defacto relationship are entitled to the support of both parents. Similarly, children of people who have never lived together are also entitled to the support of both parents.

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Residential Conveyancing

Should I have my solicitor read my house sale/purchase contract before I sign?

We strongly recommend that we read any contract before you sign it. While there is a standard form of contract, your circumstances may not be standard! We can quickly advise you on seeing the contract as to the matter that are important to you - cost, timing, conditions as to finance and your right to check things that may not be covered by our searches (such as building and pest issues). If you have special circumstances (such as wanting to sell a property before you are committed to buying the new property), we can assist with drafting a special condition to make sure that your rights are protected and practical issues are covered.

To sign a contract which you do not fully understand or which may not reflect your requirements may prove to be costly to you in a number of ways. Better to be safe than sorry.

Once I have signed a contract, can I change my mind?

This all depends. With residential real estate, a buyer ordinarily has the benefit of a five business day cooling off period. However, if a buyer chooses to "cool off", a penalty may be payable. A buyer may also be able to withdraw from a contract if the conditions allow the buyer to do so - for example, where a contract is subject to finance and the buyer's finance is not approved. Otherwise, it may not be possible without the agreement of the seller to end a contract or change its terms.

From a seller's point of view, there is usually no automatic avenue to withdraw from a contract, unless the buyer is at fault.

The golden rule is - never sign anything thinking you can change your mind. It may not be that easy!

I have sold my property but pre paid rates and other expenses. Do I get reimbursed?

There are some expenses that if pre paid, will be reimbursed. A calculation is made so that at the time of settlement, the seller receives that portion of the pre paid expense which relates to the period from settlement until the date of pre payment.

Some pre paid expenses may not however be recovered under a standard contract. For example, if a rural property is involved with an electricity guarantee, a seller may remain liable for the whole of the term of the guarantee (which may extend for years past settlement) if the buyer is not obliged to take over the guarantee.

Matters therefore need to be considered on a case-by-case basis.

Why do I need to get a building and pest inspection report?

Although we carry out searches with various authorities to make sure that you will get a clear title to the property you are buying, most of the searches and enquiries we undertake do not relate to the quality of the property. If you are interested in finding out how structurally sound a house is, if there is a potential or existing termite problem, you should take steps to engage a properly qualified building inspector and pest inspector to provide you with a report. There may be other professional advice sought - for example with an older home, perhaps it is wise to have the electrical wiring checked.

Again, this may be seen by some buyers as simply a further expense at a time when the buyer is facing many other expenses. If you do not obtain the reports, you are essentially buying the property "as is" and generally you will have no right to claim any type of compensation if you later discover there are problems with the property you have bought.

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Wills

Should I make my own Will?

When preparing a Will, a number of legal requirements must be followed. Failure to follow those requirements can invalidate the Will. If this occurs, the law may consider that you have no Will and the laws of intestacy will apply unless the invalidity is rectified by a Court process which can be expensive.

If your Will is considered valid but your Will fails to accurately express your wishes, your Will may need to be interpreted by the Court.

Can I change my Will?

You are free to alter your Will at any time and as often as you wish. Your circumstances can change significantly over time so it is advisable to review your Will regularly.

Various changes and events in your life may necessitate the need to review your Will. In certain circumstances your Will is automatically revoked if certain events occur. We therefore recommend that you seek the guidance of one of our team members and undertake a regular review of your Will.

What information to I need to supply to enable you to make my Will?

Generally is it not necessary to supply details or values of actual assets. It is usually more important to know how those assets are held (eg. in a company name, a trust or by the individual). The ownership of an asset often has a significant bearing on the way your assets will be distributed on your death. For example. if a house property is held jointly by husband and wife, the deceased's share may automatically pass to the survivor rather than be distributed accordingly to that person's will. It is important that the will correctly states your intention and that all assets are properly dealt with in the will. Some of the details it will be necessary for your to supply are:-

  • the full names of proposed executors;
  • whether you are married and have children and whether they are from your current or any previous marriage or any other relationship;
  • the full names of your beneficiaries;
  • whether you wish to appoint guardians of your children and, if so, the names of those guardians;
  • whether you have any particular issues which need to be addressed, for example, making provision for a handicapped beneficiary or a person who has a gambling, drug or alcohol problem.

Obviously, everyone's circumstances are different and any fact which pertains to your particular circumstances should be drawn to our attention to ensure it is properly covered in preparing your will.

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