Electronic Conveyancing ( E-conveyancing) – If Applicable

  

What is Electronic Conveyancing (E-Conveyancing)?

Electronic Conveyancing (E-conveyancing) allows for an “electronic” settlement of a conveyancing transaction through an online exchange known as PEXA.  The system will operate across Australia and is supported by legislation in Queensland.

The system does not cover all aspects of the conveyancing process but does allow for the preparation and signing of documents and their lodgement in the Land Titles Office as well as the completion of financial transactions involved in a conveyance (such as settlement money transfer and transfer duty payment) to occur electronically.  Traditionally, each of these steps is handled by a paper process where printed documents would be signed by parties, and documents and cheques for settlement funds are physically exchanged at settlement.

The main advantage of an electronic settlement process is efficiency.  Not only does the process make it unnecessary to attend a physical settlement for the exchange of documents and funds, when the exchange occurs, cleared funds are credited to the recipient’s account within a very short time.  This has particular benefits for a Seller who will not be required to wait for cheque clearing procedures following a settlement.

• When Can Electronic Conveyancing (E-Conveyancing) be Used?

The electronic settlement process cannot be used for all conveyancing transactions and can also only be used if all parties agree to it.  The process is only available to financial institutions, and parties who engage a legal practitioner.

In our First Letter, we will tell you whether the Contract makes provision for Electronic Conveyancing (e-conveyancing) to be used for settlement.  Even if it does, the use of e-conveyancing for settlement will likely depend on the agreement of all parties (including financiers) to do so.

Client Authorisation and Verification of Identity

We require your authority to use e-conveyancing for the settlement of the transaction.  That authority must be provided in the form of a Client Authorisation.  A separate authorisation form must be signed by each Buyer. If Electronic Conveyancing (e-conveyancing) is to be used, we will contact you closer to settlement to discuss arrangements for the signing of a Client Authorisation.

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As a Client Authorisation allows us to undertake the settlement of the transaction on your behalf (and to sign documents for you), we are required to undertake a prescribed process to verify your identity.  This will require you to attend our office for a face-to-face meeting where you will need to produce identity documents and sign the Client Authorisation.  If a face-to-face meeting is not possible, an agent can undertake the verification of the identity process.

• Risks of Using Electronic Conveyancing (E-Conveyancing)

Although the system may have advantages for the parties in relation to the efficiency of arranging settlement and the transfer of funds, a party contemplating the use of e-conveyancing should be aware of the following risks:

1. The electronic settlement may be delayed by system failures.  If e-conveyancing is proposed, it will be important to consider
2. How the Contract deals with the issue of system failure to ensure that your rights are not adversely affected because a relevant computer system is inoperative.
3. A party to a transaction may, after having previously agreed to use the system, elect to withdraw from it.  Once again, it will be important to consider how the Contract deals with this issue. For example, if the Contract does allow parties to withdraw from the system, the parties may still need to prepare for a traditional (paper-based) settlement process to ensure that the other party is still able to satisfy its settlement obligations on time.  Having to prepare for both methods of settlement may erode any efficiencies and costs savings and even add to the work involved.
4. One of the main advantages of an electronic settlement is the transfer of funds to the recipients of the settlement proceeds within a very short time.  This will include not only the Seller and the Seller’s financial institution but also authorities to whom money is paid to discharge an outgoing.  Any arrangement that involves the transfer of funds to a nominated bank account carries with it the risk that an error may result in funds being credited to the wrong account.  The speedy transfer of funds may make any wrongfully transferred funds more difficult to track or recover.
5. A traditional settlement involves a physical exchange of documents and funds (provided by bank cheques) and, generally speaking, at any time until that exchange has taken place a party may refuse to settle.  An electronic settlement will require the respective parties to commit themselves to settlement at an agreed time (when the electronic workspace for the transaction will lock).  Unlike a traditional settlement where settlement may be aborted until final exchange, the parties will not be able to abort the settlement after the workspace locks and the settlement process has commenced. In limited circumstances, this may mean you discover issues with the Property and, while the Contract has not settled, you may be unable to exercise any rights.

Article Source: Electronic Conveyancing

How To Stay Safe From Property Fraud?

  

Particular issues of property fraud concern

If there are matters regarding the Property of particular concern or importance to you or your financier then you should contact us so that we can determine whether a special condition is required and appropriate investigations can be made.  For example:

1. Is the purchase subject to the sale of the Buyer’s existing property?
2. Is payment of deposit by insurance bond or bank guarantee?
3. Rights of termination if particular searches are adverse for example if an existing or proposed tunnel or abandoned mines are discovered beneath the Property.

Fraud, Identity Theft, and Hacking

There has been a recent increase in the number of attempted property fraud relating to real estate.

It is essential to the conveyancing process that you provide us with a range of private information.  Much of that information can be obtained by fraudsters and identity thieves from publicly available records or by hacking, phishing, or trolling through unsecured email transmissions.

Parties to a conveyance are targeted as the conveyancing process often requires the transfer of large quantities of money.

We will take steps, such as obtaining personal identification from you, to assist to minimise the risk of property fraud.

We recommend that you also take steps to minimise the risk that your personal information is fraudulently obtained by being cautious about all communication. This could include the following steps:

1. Double-check that all money transfer requests are legitimately requested by our law practice or your financier – despite how legitimate the request may appear;
2. Do not transfer any money to any account other than our trust account (at our request – details of which are in the To-Do List) or to your existing financier or mortgage accounts (at your financier’s request) – without first checking with us that the transfer is necessary for your transaction;
3. If you are contacted by someone you don’t immediately personally recognise representing themselves to be from our law practice, your financier, or somehow linked to the transaction, ask the representative some historical questions about the transaction that you can be certain will verify that they are who they say they are;
4. Avoid sending personal and sensitive information such as bank account numbers via email;
5. Where instructions are requested or advice is provided via email, check with another form of communication.

Promises Made By the Seller or the Agent

Please tell us of any promises or warranties made to you by the Seller or the agent which are not contained in the Contract as soon as possible, as we may not be aware of them. There may be no protection for you in the Contract in relation to such issues.  Your options may be limited to:

1. terminating under any applicable cooling-off period or some other contractual term (where applicable); or
2. a claim for compensation.

Court action is expensive and if you are aggrieved by the misrepresentation it may be more cost-effective to terminate, if possible using any contractual rights if you have the opportunity.

Other Professionals

We suggest you seek advice about the purchase from  other professionals, including:

1. an accountant – about the commercial viability, appropriate purchasing entity, tax considerations of the purchase, and (if applicable) compliance with your SMSF’s investment strategy;
2. a valuer – to assure yourself that the price represents the market value of the Property; and
3. a town planner – to assess planning compliance issues or give advice regarding proposed future development.

If the proposed lot includes vacant land, you might also consider seeking advice from:

1.a surveyor – to survey the property to check for a boundary, area, and encroachment issues;

2.a soil tester – if you are planning on building (particularly in a new estate) to assure yourself that the soil condition does not require any special construction requirements. 

Article Source: How To Stay Safe From Property Fraud?

Where Family Law and Estates Intersect

  

Introduction

In addition to the two legal estates inland, it is also possible to have an interest inland. This is a lesser right over the land which falls short of possession.

Anyone can own an interest in land.

It is not always necessary to own land to have an interest inland. For example, à privilege, or ‘profit a prendre’, allows the owner of that interest to enter a person’s land in order to take produce from it, such as crops or firewood, without actually being the owner of any land themselves.

Aim Higher

There are exceptions to this rule, as easement can only benefit an individual as the owner of the benefited land. This is discussed in further detail in Chapter 9.

As a property right, an interest in land can be sold by the owner of the interest or transferred to a third party in the same way as an estate in land can. The owner of an interest in land can also protect their interest against a third-party purchaser of the estate in which the interest is held.

Legal and equitable interests in land

Interests in land can be legal or equitable.

Legal interests

According to s 1(2) of the Law of Property Act 1925, there are five legal interests that can exist over land. These are:

1. an easement, right or privilege;
2. a rent charge;
3. a charge by way of a legal mortgage;
4. miscellaneous statutory charges;
5. rights of entry.

Family Law and Estates Intersect

The recent Canadian case of Carrigan v Carrigan’s Estate is a timely reminder of the need to ensure that we all keep our financial affairs in order, particularly when there have been changes in our family circumstances.

In this Canadian case, Mr. Carrigan passed away leaving a DeFacto partner with whom he had been living at the time of his death but also a wife from whom he had not been divorced. In that situation, the Canadian Courts were called upon to decide who should receive which elements of Mr. Carrigan’s Estate.

Whilst that decision was based on the relevant legislation in Canada, it is a timely reminder to all of us to keep our Life Insurance and Superannuation benefit nominations under review, as well as our Wills, and to amend them if family circumstances change. For advice in relation to Family Law and estates Matters or in relation to the preparation of Wills contact Ian Field on 07 3236 0001 or ifield@aylwardgame.com.au.

Article Source : Where Family Law and Estates Intersect

Domestic and Family Violence and Wills and Enduring Powers of Attorney and Superannuation Nominations

The definition of domestic and family violence is widely drawn in Queensland, and an increasing amount of attention is being paid to what is described as coercive control. It would not be uncommon for 2 people who are married or in a de facto relationship to write wills or EPOA’s appointing each other as attorneys and executors. These appointments do not change unless you take steps to implement changes. Therefore if your wishes change, you need to act to give effect to your new intentions and wishes. 

If you are making plans to leave a relationship, changing your will or your enduring power of attorney is a step that you can consider taking as part of your preparation. If you have already left your relationship, this is something not to forget to attend to. In most situations it should be straightforward and it will not be necessary to notify your former partner, but it would be preferable to take legal advice as there may be situations in which this may not be so straightforward. Your enduring power of attorney qld allows you to appoint someone you trust to make decisions for you during your lifetime.

Another consideration is your Super fund, and whether you have made a Binding Nomination to your Super fund. If you are in a de facto relationship that ends then an entitlement to receive a payment on death will cease when the relationship ceases, but for people who are married the entitlement only ceases on divorce, so again make sure you consider this. Also don’t overlook that Super Fund nominations usually need to be renewed every 3 years, or they will lapse.

For Family Law Advice with a practical focus or need an Enduring Power of Attorney QLD, Call Aylward Game Solicitors on 1800 217 217

Learn more here: Family Lawyer Brisbane & Estate Lawyers QLD

Husbands Should Be Nice To Their Mother-In-Law?

  

If the Comedians are to be believed, the chances of a husband getting on well with his mother-in-law are nearly zero.

But if the psychologists are to be believed, he really should try.

According to researchers in the USA at the University of Michigan Institute for Social Research, Husbands who get on well with their in-laws have a 20% higher chance of avoiding divorce than the average.

In contrast to the Husbands, the research found that women who enjoy a good relationship with their in-laws have a 20% greater chance of separating.

The researchers suggested that wives who like their in-laws may find it hard to set boundaries at the start and in the following years they may feel the in-laws are meddling.

The study found that husbands who made the effort to get on with their mother-in-law were the ones most likely to stay married. These studies were based on couples between the age of 25-37 and in their first year of marriage when the study began in 1986. The researchers have followed the progress of this group ever since.

According to the lead researcher Dr. Terri Orbuch, wives should be careful about sharing details of their marriages, so that everyone respects each other’s boundaries, and husbands should make sure they treat their in-laws as “special and important”.

We don’t know if the same findings would arise in Australia, but if you find that you need some legal advice about family law matters, please speak to our partner Ian Field.

Article Source: Family Law

How Much Does It Cost To Get A Divorce in Australia?

  

The million-dollar question How much does it cost to get a divorce in Australia is determined by about a million factors, but mainly depends on the actions of you and your partner.

We can however advise of your family law costs in relation to a property settlement, custody, and time spent with children in stages. These could be stages such as how much to get to know your rights and entitlements, how much to make an offer or how much to prepare for Court.

How Much Does It Cost To Get A Divorce in Australia?

We can also advise clients of what their costs would be if the matter is ‘straight forward’. This means minimal if any negotiation of how matters are to be finalised whether it be in regard to assets and liabilities or care of children. The one major factor that will definitely increase your family law costs is not being able to communicate with your partner.

Of course, it is always advisable to find out what your rights and entitlements are before agreeing on a settlement and we are able to give you a fixed fee for this work. Armed with this information you are then able to negotiate and hopefully agree on how your issues will be dealt with and once again we can advise of costs for implementing the agreement reached.

For some people, this is just too difficult and that is why there are other avenues available for couples to seek assistance and guidance on how to come to an agreement and settle matters.

These are outlined on our Family Law website:

• Negotiation
• Collaborative Practice
• Mediation
• Mediation without Lawyers
• Family Law Litigation

Family Law has developed packages to enable us to minimise client’s legal costs.

We work with our clients to, in many cases, “help them help themselves” and save on legal costs.

We have available our online advice for $275, our client instructions pack $1,650, and our fixed fee policy detailing further options. To find out more about how we can help you please contact our office at 3255 3200 and take the opportunity of our 20-minute free consultation to talk with one of our lawyers.

Article source: divorce in australia

Altruistic Surrogacy in Queensland

  

Since July 2010 Altruistic Surrogacy has been a possibility in Queensland. Whilst the Surrogacy Act allows Altruistic Surrogacy, a Commercial Surrogacy arrangement remains illegal in Queensland. It is also illegal for a Queensland resident to enter a Commercial Surrogacy arrangement even if they do so outside of Queensland.

 This point was highlighted in 2011 when a Family Court judge referred more than one case to the Director of Public Prosecutions in Queensland because Queensland residents had entered into commercial surrogacy arrangements outside of Australia. This underlines the importance of ensuring that if you wish to enter into an Altruistic Surrogacy arrangement that you ensure that you comply with all of the requirements of the legislation. If you do not properly comply with these requirements it is possible that the Court may not grant the Parentage Orders, and you may also face Prosecution. The Surrogacy Act requires both the birth parents and the intending parents to strictly comply with a number of procedural requirements which include obtaining specific legal advice and counselling at certain stages in the process.

If you are contemplating and Surrogacy Arrangement as either a birth parent or intending parent, it is important to know that you can rely on your Lawyer to ensure that the legal work is undertaken promptly and professionally.

Our partner Ian Field advised on one of the first Altruistic Surrogacy Arrangements and Applications to be made to Court for approval for Parentage Orders. The application was successful and the intending parents were granted the Parentage Orders that they sought.

Ian also believes that the Collaborative Law approach is ideally suited to the issue of Altruistic Surrogacy and together with Mr. Randal Binnie, another Family Lawyer in Brisbane he has created this. For legal advice regarding Altruistic Surrogacy Arrangements please contact our partner Mr. Ian Field on 07 3236 0001 or by email at ifield@aylwardgame.com.au

Article Source: Altruistic Surrogacy in Queensland

A SUREFIRE METHOD HELPING FAMILIES STREAMLINE THE DIVORCE PROCESS

 

For the sake of your family and children put away your hatred and animosity and endeavour to talk to your former partner in a reasonable manner only if for a short period of time to reach a resolution that best suits your children, yourself and your former partner.

Do this with the assistance of people who have the professional experience to help you through this highly

emotional period of your life.

Ian Field has more than 40 years’ experience as a solicitor practising in Family Law and over 26 years of involvement in alternative dispute resolution. James has been instrumental in developing Collaborative Law in Brisbane. Collaborative practice is one of the best ways to resolve family and relationship issues. It offers an amicable, speedy and cost-effective way to reach an agreement.

Collaborative practice depends on two things; the skill of the collaborative lawyers and the general willingness of the parties to participate openly.

Collaborative practice will assist you to identify the issues you face, come up with realistic options that suit both you, your former partner and your children, solutions that will work.

Do this with the assistance of people who have the professional expertise to enable you to move on with

James has had extensive training in the mediation process and collaborative practice. He, with the assistance of a similarly trained specialist can assist you to reach the resolutions you are seeking.

How Can I Avoid Family Court?

James was trained in mediation with Marriage Guidance Queensland (now Relationships Australia).

He and the other professionals undertook training for an extensive 8 months period and conducted mediations with similarly trained professionals.

Did you know that the training mediator’s received at Marriage Guidance Queensland was at the forefront of what is now Collaborative Practice?

The mediation involved two professionals, a solicitor and either a Social Worker or a Psychologist. Both were trained in the collaborative process. The male/female combination matched the male/female relationship of the parties who had the advantage of this mediation experience.

Both Mediators were attentive to the needs and wishes of the parties.

The parties were encouraged to express their needs and wishes and to explain to the other party why such needs and wishes were important to them. Importantly, parties were encouraged to listen and appreciate why such needs and wishes were so important.

No outside lawyers were involved. No court fees, no detailed preparation of affidavits and court documents.

The parties were able to reach their own agreements and resolutions in an amicable and cost-effective way.

The resolutions reached were detailed in an agreement and if the parties so wished the agreement was formalised in the family court. No attendance at Court was required.

Is this process still available to me?

YES – Collaborative mediation by James with similarly trained female professionals is readily available to you. It is a voluntary process only you, your former partner and the two professional mediators will be part of this process. Issues will be identified, options will be generated to resolve such issues.

The collaborative mediators will not favour either party and will work with both you and your former partner to help negotiate your own decisions together.

All decisions in collaborative mediation will be made by you and your former partner, not by a Court or anyone else.

Your wishes and desires will be fully expressed and listened to by all who participate in the negotiations. It is readily available and is fast and efficient. It is a three-step process:

• Isolating the wishes and desires of both parties;
• Creating options and alternatives in reaching a resolution; and
• Being attentive and making genuine decisions to resolve the issues that have arisen.

Collaborative mediation is readily available to you and your former partner.

Article Source: Divorce Lawyer 

IMPORTANT INFORMATION – OWNERSHIP AND PAYMENTS

  

Please advise in the Questionnaire whether you intend to purchase the property as joint tenants or tenants in common (and, if so, in what proportions) as we will need to specify this on the transfer documents.

The effect of joint tenancy ownership is that on the death of one owner their share in the property passes to the surviving joint tenants despite any provision in a will.

If you purchase as tenants in common then on the death of a co-owner the share in the Property of that co-owner will pass in accordance with their will or in accordance with the laws of intestacy if they do not have a valid will.

Joint tenants can, at any time, give a notice to their co-owners that severs their interest from the joint tenancy.  A joint tenant who gives such notice will then hold their share as a tenant in common with any other co-owners remaining as joint tenants between them (if more than one).

A joint tenancy is not appropriate where parties wish to hold interests in the Property in unequal shares.  If you wish to hold the Property other than equally (for example, a 99% and 1% split or some other unequal percentage ownership) for taxation or asset protection reasons then you must hold the property as tenants in common.  You will need to advise us of the percentage of ownership each owner is to have as this needs to be set out on the Property transfer.  Any later change to ownership proportions will result in transfer duty being imposed.

• You are purchasing the property for investment purposes and the Contract has not yet been entered into:

We recommend you seek advice from an accountant or financial advisor on the best purchasing and borrowing entity for you taking into account your financial circumstances and financial planning requirements (for example:

1. Whether to purchase (and borrow) as an individual, company, trustee, or other entity such as an SMSF;
2. Tax implications and structuring; and
3. Land tax and other holding costs.

If you enter into the contract as trustee of a trust, you are still personally liable under the Contract for the performance of all the Buyer’s obligations unless provision is included in the Contract to limit that liability.  If you have any concerns about this issue, please contact us.

• Foreign ownership (if applicable)

If you are a foreign person or are a trustee of a foreign trust, you may need to:

1. Obtain a notification from the Foreign Investment Review Board under the Foreign Acquisition and Takeovers Act 1975 (Cth) that it has no objection to your acquisition of the Property; and
2. Notify the Department of Natural Resources and Mines under the Foreign Ownership of Land Register Act 1988 (Qld).

Please call us if you think this applies to you.

Failure to obtain a required no objection notification may result in a forced sale and substantial penalties being imposed.

• Withholding payments (if applicable)

Under laws designed to ensure that foreign residents meet their liability for CGT when selling land in Australia, a Buyer may be required to pay 10% of the purchase price to the Australian Taxation Office (“ATO“).

The withholding laws apply to contracts entered into on or after 1 July 2016 where the Property sold has a market value of $2 million or more.  If the withholding laws apply, the Buyer must pay the required amount to the ATO promptly after settlement unless the Seller produces a valid clearance certificate issued by the ATO or a notice from the ATO varying the withholding amount to nil.

The issuing of a clearance certificate by the ATO to the Seller is confirmation that the Buyer is not required to pay any part of the purchase price to the ATO at settlement.

It is important to note that, payment of any required withholding amount is the Buyer’s responsibility.  A failure to pay the withholding amount to the ATO may have serious consequences.  In addition to liability for the withholding amount, a penalty (equal to the amount required to be withheld) may apply where a Buyer fails to comply with the withholding laws.

In most cases, market value will be determined by the purchase price payable under the Contract. If the transaction involves a purchase price of $2 million or more but includes personal property (such as moveable equipment or furniture) with a material value and the market value of the land and improvements may be less than $2 million, it may be appropriate to obtain an independent valuation of the Property for the purpose of specifying an apportionment of the purchase price.

Similarly, an independent valuation of the Property should be considered if the transaction is between related parties and the Property may have a market value of $2 million or more.

If the market value of the property is $2 million or more but the purchase price is less than the amount to be paid to the ATO, you should consider options for the payment of this amount or amendment of the Contract to require payment by the Seller of an amount to cover this payment.

• Land Tax

Land tax is potentially payable if the unimproved value of all land owned by you as at midnight on 30 June in each year meets the statutory threshold amount.  Generally, there are exemptions for your private residence.  If the Seller has any outstanding land tax liability in respect of the Property then this will need to be taken into account in determining the settlement figures.  There may need to be settlement retention for unpaid land tax although in off the plan contracts, this right is not often given, and instead, you must rely on the Seller’s undertaking to pay land tax for the current land tax year.

After settlement, you will be responsible for dealing with any rates and land tax assessments, checking their accuracy (including whether the correct category has been applied for any assessments and your entitlement to any deduction or concession), and attending to payment.

• Transfer Duty

Transfer duty is a state tax that is payable on dutiable transactions in Queensland. It is calculated on the Property’s dutiable value which is generally the higher of the consideration payable under the Contract and the Property’s unencumbered market value.

As transfer duty is applicable to each transaction, you must ensure that the Buyer named in the Contract is the person or entity that you intend to own the property. Otherwise, you risk two or more assessments of transfer duty, which can increase the amount payable.

If you are seeking to purchase property for your SMSF and are planning to buy the Property using a bare trustee as a purchaser with a loan then you risk paying transfer duty again when the Property is transferred to your SMSF on repayment of the loan. It is outside our normal retainer to advise you on a strategy to avoid that additional duty.

You also need to carefully consider your current and ongoing eligibility for any concession or exemption that you obtain.

If you do not pay the duty or advise the Office of State Revenue of changes to your eligibility for concessions or exemptions then they may identify this (as they actively cross-check data held by other government agencies) and can seek to recover any shortfall directly from you including penalties and interest.  Recovery of incorrect or unpaid duty may occur years after settlement and could compound into substantial amounts.

Article Source: Property Law

WHY A BUSINESS LAWYER CAN BE YOUR BEST FRIEND

  

Whether you want to start a business or are already operating one, having a Brisbane law firm you can count on could prove to be your business’s best friend. It doesn’t matter whether you’re a sole trader, a partnership or a company, every business has legalities to deal with and will often require advice and mediation from a business law specialist.

Without a Plan You Plan To Fail

We’re not talking about a regular business plan here, although you should definitely have that in place as well, but rather the legal side of the business and helping to establish your business entity.

Your Brisbane legal advisor can help you get started, as well as plan for your success and avoid the many common legal pitfalls that can ultimately bring a new or established business undone.

Also, things can become increasingly more complicated when your business expands and you need to hire employees, or even change your business structure. Obtaining capital to finance the expansion of your business is also vital to success and it’s wise to consult your business lawyers when planning any major changes. This way you can be assured of doing everything correctly and on the right side of the law.

Businesses vary, as do business owners, so you need to engage with a law firm that not only specializes in business law but are also flexible in their approach and understanding of the different needs and requirements of their clients.

Give Yourself Peace of Mind

Starting or running a business can be hard enough without having to try and navigate your way through all the legal requirements associated with it. That’s why it’s best to take that load off your mind and delegate it to professionals, leaving you free to do what you do best – Focus on running and growing your business.

If you try to be a master of everything and do everything yourself, you’ll simply burn out and risk losing your business altogether, and that’s not a result anybody wants.

Aylward Game Solicitors – Your Business Law Experts – Business Lawyers

Whether you are planning to start a business or company, looking to franchise, need contracts drawn up, need a lease negotiated, commercial litigation or a whole host of other business-related legal services,

you can count on the business law professionals at Aylward Game Solicitors in Brisbane, Gold Coast and Sunshine Coast. So get in touch today. Find a business lawyers near me.

Article Source: Business Lawyers

RESERVE BANK OF AUSTRALIA (RBA) RATE STILL AT AN INCREDIBLE HELD AT 0.10%

  

The world knows all too well about how your interest rates can dramatically change from one month to the next and if you get yourself in a good position, you lock that RBA interest rate in for a few years to protect yourself from being knocked out by a rise in the RBA interest rate (RBA cash rate).

For 3 years the RBA rate remained at 1.50%, which for some was great as no rise in an otherwise ever-changing world meant that homeowners could keep their properties. For others, the cost of living was still too high to save a deposit for a house. Then in mid-2019, we saw a drop of 0.25% bringing the rate down to 1.25% which for anyone struggling to pay their mortgage meant this was a big stress relief or for some of us, helped to apply for a home loan to be more achievable.

The rate continued on this downward trend dropping by 0.25% again and again which brings us to today at an incredible low of 0.10%. On top of that, the Government is currently offering $15,000 to First Home Owners for contracts entered into from the 1st of July 2018.

What does this mean for you? It means anyone who has been looking to buy a property, can now get a home loan with an extremely low-interest rate making it more affordable for the average income earner.

But do your research. Check out the different offers from the banks and get one that suits your needs. We suggest you do your calculations before applying for a loan. Get advice on your contract before signing it.

Does your property lie in a flood zone? There are so many possible questions with buying a property that you may not know what are the correct questions to ask.

Contact Aylward Game Solicitors for a 20minute free consultation or for $440 for up to 90minute consultation before you sign a contract.

Article Source: RBA Interest Rate

5 Common Family Law Myths

Our family lawyers chime in on their top 5 family law myths that you may not know about…

1. A Couple needs to live together for 6 months to qualify as a de facto relationship.

We hear this one a lot, and we don’t know where it comes from! The Family Law Act says that in order to commence proceedings for a property settlement, a de facto relationship must have lasted for at least 2 years, or the couple must have a child or the party to the de facto relationship who applies for the order or declaration made substantial contributions and a failure to make the order or declaration would result in serious injustice to the applicant.

2. As soon as you “hit the threshold” of a de facto relationship, all of your property and assets will be divided equally with the other person in the event of a split.

Whilst, in theory, this is a possibility, there are a number of factors that the Family Law Act specifies a Court must take into account when deciding a property settlement division, and there is no automatic assumption of an equal split.

3. If 2 parents who have separated have children and those children spend equal amounts of time with each parent, then no child support is payable.

Whilst on the face of it we can see why this is a common assumption, in practice, this is not the way it works. If either parent applies to the Child Support Agency they will use a formula set out in the legislation to work out if child support is payable, and if so, how much. The amount of nights a child spends with each parent is one factor, but there are others, including how much each parent earns.

4. If you didn’t get married in Australia you can’t get divorced in Australia.

Again we can understand why this seems possible, but in fact, it is not the case. If one spouse is an Australian Citizen, or regards Australia as their home and intends to live here permanently, or ordinarily lives in Australia and has done so for 12 months prior to filing an application, then an Australian Court has the power to grant a divorce. That is of course provided that the couple was validly married in another country.

5. The Court will “punish” the person who is at fault for the breakdown of the relationship.

When we meet with clients for the first time, we are often asked about the consequences of behaviour and whether behaviour is relevant – in effect will the Court decide who is at fault for the relationship breaking down, and will that affect the property settlement outcome. Whether you think that is a good or a bad thing perhaps depends on your perspective, but the legal position in Australia is that the Court will not investigate the reasons behind the relationship ending.

What do you think? Check out some of our other blog posts:

• Mental Illness In The Workplace

• Discrimination on Public Transport

• Is Surrogacy Legal In Australia?

Contact
United Service Club
Level 4, 183 Wickham Terrace, Brisbane QLD 4001

Free: 1800 217 217
Phone: 07 3236 0001
Fax: 07 3236 0005

Email: mail@aylwardgame.com.au 

Article Source: Family Law Myths 

Was Your Redundancy Genuine or Disingenuous? – An Employee’s Perspective

Got some bad news at work recently? Made redundant or sacked?

Can you as an employee be made redundant, and in what circumstances?

What is Redundancy under the Fair Work Act 2009?

Section 389 of the Fair Work Act 2009 defines “redundancy” as either:

• When the employer either no longer needs the job of the redundant employee to be performed by anyone.
• When the employer becomes insolvent or bankrupt.

A typical example would be when the employer brings onboard new technology and replaces humans with robots, or when due to an economic downturn the company either slows down its activity or closes down. Redundancy can also happen for example, when an employer:

• Relocates interstate or overseas.
• Restructures itself due to a merger or takeover by a new owner.

How do you know if your employer’s action of redundancy is genuine?

This is a question of fact. The fact can be found from the employer’s conduct which is likely to become known after your redundancy is affected and you left the employer. An example of this could be a scenario whereby the employer told you that your role is no longer needed only to find out later that they hired someone else for the same role they claimed was discontinued. Other examples can include; the employer ignoring or failing to consult with you under an award or registered agreement. The redundancy could also be perceived as disingenuous if the employer was able to provide the employee with another job within the employer’s business, but it chose not to.

If you are terminated under a genuine redundancy what are your entitlements?

Section 119 of the Fair Work Act 2009 spells out your rights upon a genuine redundancy. There is a table with a defined schedule and rate to calculate your redundancy payment. There are exclusions too. For instance, if you did not have continuous employment with the employer for 12 full months, or if the employer is a small business employer, you may not be entitled to a redundancy payment.

Another example is where on the sale of a business, the incoming employer (i.e. the buyer) makes an offer of employment to the employees of the business and an employee rejects that offer.

If you are faced with a redundancy you are advised to obtain qualified legal advice to assist you to determine whether the redundancy is genuine and whether the amounts you are being paid are correct. The redundancy rights mentioned here are in addition to any of your entitlements, such as annual leave and long service leave, accrued with your employer prior to the redundancy notice.

What if your redundancy is disingenuous?

If you have proof that your redundancy is disingenuous you may be entitled to lodge an unfair dismissal claim with the Fair Work Commission. You have 21 days after the day you are notified of the redundancy/dismissal to apply to the Fair Work Commission for unfair dismissal. If the facts support your claim that you have been unfairly dismissed, you may be entitled to reinstatement and when appropriate receive your lost pay. Again you are advised to seek qualified legal advice to assist you to determine your legal position and if necessary enforce your rights. This can benefit you by, amongst other things, saving your time trying to navigate through complex rules, making sure that you have a reasonable claim to pursue, and more importantly, that your claim is lodged within the prescribed time.

If you or a loved one has recently lost their job, it is worth speaking with an experienced employment lawyer to ensure your rights are enforced on 1800 217 217. 

Article Source: Disingenuous  

What Every Employee Needs To Know About Unfair Dismissal

 There are many versions of what people may conceive as “unfair dismissal”, or commonly known as unfairly being fired from their job, depending on what side of the fence they are on.

What is employee unfair dismissal?

In general, it refers to a situation when an employee has been fired or been pushed to the edge unlawfully, so as to force him/her to resign from their position for no valid reason recognized by the current laws.

How do you know if your employer fired you unfairly?

The rule of thumb is to look at your own employment agreement first. Look for the following four specific things, although the list is not exhaustive, it should pretty much give you some idea of what unfair dismissal is:

• How long you have been working for your employer and whether your employer was a small business with fewer than 15 employees;
• Look to see if the reason for your dismissal accords with your agreement under its termination clause;
• Look to see if the dismissal was proportionate with the act or omission you may have done (that is: whether the dismissal was harsh or unjust); and
• Look to see if your employer followed a fair process to have you dismissed.

Does the termination clause in the employment agreement means that you cannot fight your unfair dismissal?

No. But the answer here is subject to a couple of variables. For instance, an employer might deem that they have acted upon the termination clause fairly and that they were right in firing the employee in the first place and nothing was harsh, but it may well be the opposite. It is a matter of right interpretation of the termination clause, the laws, and the advice that an HR manager or the decision-maker may receive or give at the time in question.

What laws in Queensland protect you against employee unfair dismissal?

The provision of unfair dismissal is covered by the Fair Work Act 2009. Section 385 of the Act defines “unfairly dismissed” as a dismissal of harsh or unreasonable nature, not consistent with the Small Business Fair Dismissal Code, and that the dismissal was not a case of genuine redundancy.

What rights do you have at the workplace and can you get fired for exercising those rights?

You cannot get fired for exercising the rights detailed below (That is: your employer cannot take adverse action against you just because you have exercised those rights). Please note that the list here is not an exhaustive one, but should shed some lights on your workplace rights:

• You cannot be bullied or discriminated against at your workplace and if you reasonably confront that and you are fired, your employer may have taken adverse action against you;
• Because you are a member or not a member of a union;
• Taking or not taking part in industrial activity;
• Having a protective attribute;
• Wearing any religious requirement or symbol such as wearing Hijab, or other religious headgears or symbols
• Forcing you to do something against your will; and
• If you are subject to undue influence or pressure

If you are fired, how long do you have to lodge your claim and where?

If you deem you have been unfairly dismissed, you have 21 days after the day you are notified of the dismissal to apply to the Fair Work Commission for unfair dismissal. It, of course, is best to seek legal advice immediately. This can benefit you among others, saving your time trying to navigate through complex rules, making sure that you have a reasonable claim to pursue and more importantly if your claim is lodged within the prescribed time.

Here at Aylward Game Solicitors out the team is ready to assist you with any employment or workplace-related legal situations on 1800 217 217.

 

https://aylwardgame.com.au/which-of-the-following-statements-best-describes-your-right-to-work-in-australia-employment-law-lawyers/

Article Source: Unfair Dismissal

BREAKING NEWS: VENDOR FINANCE CONTRACT ARE NOT ILLEGAL

 

That’s correct Vendor Finance Contract is NOT illegal. If you haven’t done so already, take a look at our previous article “What is Vendor Finance and Is It Worth It?”.

With obtaining finance from banks and other traditional lenders becoming increasingly more difficult to obtain, we are receiving a growing number of inquiries about vendor finance.

The most common comment clients make when enquiring about vendor finance is that they have spoken to their regular solicitor and they have said this type of transaction is illegal. This comment generally stems from a lack of knowledge and understanding of vendor finance and the fact that these types of transactions are not commonplace in Queensland. However, these types of transactions are in fact legal, and here at Aylward Game Solicitors we have been successfully drafting and producing vendor finance contracts for Buyers and Sellers for more than 20 years.  

What is Vendor Finance?

Vendor finance is a form of lending in which a company lends money to be used by the borrower to buy the vendor’s products or property. Vendor finance is usually in the form of deferred loans from, or shares subscribed by, the vendor. The vendor often takes shares in the borrowing company. This category of finance is generally used where the vendor’s expectation of the value of the business is higher than that of the borrower’s bankers, and usually at a higher interest rate than would be offered elsewhere.

Vendor Finance contract Bridges The Valuation Gap:

Vendor finance bridges the valuation gap due to the time value of money. If the buyer of a business doesn’t have to repay the vendor for the vendor loan for a few years, then the value of that portion of the purchase price is worthless. In some cases, there is an interest charge on a vendor loan, but in other cases, it is simply a deferred payment. Vendor finance is different from an Earnout because it is not contingent on performance. Since there is no contingency, vendor finance is riskier for the buyer than an earn-out.

Vendor finance can also be used when the buyer does not have the funds to purchase the entire business. In this case, the vendor creates a loan with an interest charge to help the buyer complete the purchase and help the seller complete the sale, usually on better terms for the seller. 

Article Source: Vendor Finance

  

Two of Australia’s most dynamic legal firms are merging to form a powerhouse team of Brisbane solicitors that are committed to the traditionally practiced values of the legal profession.

The joining of these established Brisbane law firms and their collective practices will harness nearly 80 cumulative years of experience in the fields of family law, employment law, and commercial business law; with expertise in divorce and dispute resolution as well as vendor finance and the full range of business, banking and finance law.

This merger brings Aylward Game Solicitors to the forefront of solicitors who are there to provide you the best advice and representation in the legal matters your face.

Aylward Game Solicitors has been diligently servicing the legal needs of clients throughout Queensland and around Australia for 17 years. Our partners, Mark Game and Ian Field have more than 40 years of experience in legal practice.

Experience, education, and solid support staff are the foundations of a solid law firm.

Mark Game is experienced in all aspects of banking and finance law and is one of only a small group of solicitors in Queensland with expertise in vendor finance. He also holds a Queen’s Commission as an officer in the Australian Army. He went inactive in 2001 after over 20 years of service to the Army Reserve as an Infantry Corp Officer.

Ian Field is a member of the Family Law Practitioners Association of Queensland and is trained as a Collaborative Lawyer. He is experienced in employment law, as well as preparation of wills and enduring powers of attorney, and the administration of deceased estates.

James Noble, formerly of James Noble Family Law, Brisbane, is a Queensland Law Society accredited family law specialist. He comes to Aylward Game Solicitors with more than 38 years of experience in family law. He is a member of the Family Law Practitioners’ Association, the Family Law Council of Australia, and the Family Law Section of the Law Council of Australia. He is also a Notary Public and a member of Queensland Collaborative Law. James and his team of professionals offer expert legal representation, support, and advice on options available to foster a resolution to your family disputes in a timely and cost-effective manner.

Charles Noble is an experienced divorce lawyer who will work with you to get the best long-term resolution to your legal affairs. He will steadfastly guard your interests and assist you to understand all of your available options and possible courses of action.

Experience, education, and solid support staff are the foundations of a solid law firm. At Aylward Game Solicitors, the incorporation of James Noble Family Law brings to bear an impressive array of solicitors who can serve your legal needs across a broad spectrum.

Our support teams include Libby Decaux, with over seven years of experience as our Conveyancing Manager. Allyce Ardern is our Legal Secretary and been with Aylward for more than five years.

At Aylward Game Solicitors, the incorporation of James Noble Family Law brings to bear an impressive array of solicitors who can serve your legal needs across a broad spectrum.

Together, we are all Aylward Game Solicitors, a formidable legal team waiting to serve you. You can engage our experts and book a case evaluation using our website at Aylward Game Solicitors.

Article Source: BRISBANE’S BEST LAWYERS, JUST GOT BETTER