The Pros and Cons of choosing a Self-Managed Super Fund

The Pros and Cons of choosing a Self-Managed Super Fund

Superannuation is a large component of building long-term wealth and retirement planning. Self-managed super funds are becoming increasingly popular as the investment structure for those who prefer greater autonomy and control over how their funds are being invested and accumulated. However, whilst self-managed super funds can be effective for building wealth and minimising tax burdens, they must be properly executed and managed in order to protect you and your family’s interests. Etheringtons Solicitors have a team of experienced solicitors who can assist you in a range of wealth management matters in a strategic and compassionate manner.

What is a self-managed super fund?

self-managed super fund (“SMSF”) is a private superannuation fund where the members are usually the trustees. Members of the SMSF run it for their benefit and are responsible for complying with the relevant laws. A SMSF can have up to four members, but it is quite common for there to be just one member.

A SMSF trustee is the person responsible for ensuring the SMSF is maintained for the purpose of providing retirement benefits. The trustee can be a company or an individual. For a single member SMSF, there must be two individual trustees, the other trustee must either be related to the member or be another person who is not an employer of the member.

Benefits in establishing a self-managed super fund?

1. Control and Choice of Investment

The primary benefit of a SMSF is the control and choice you have over how the funds are invested. For example, SMSF’s can invest in commercial properties, term deposits, shares and derivatives. SMSF’s are recommended for small business owners as the fund can receive steady income from the SMSF when the business property owned by the SMSF is leased back to the business.

2. Tax Minimisation

SMSFs grant greater flexibility than other superannuation structures to minimise overall tax payments. If you are a SMSF trustee, you are entitled to the reduced superannuation tax rate. Provided the SMSF complies with legislation, your investment return would therefore be taxed at a maximum of 15% in Australia.

The tax-free benefits are highly attractive. Benefits received after the age of 60 and pension payments received from the fund are tax-free. A SMSF with multiple members can also allocate earnings from members who are not retired to any retired members to realise additional tax advantages.

We highly recommend that you seek advice in relation to SMSFs as they may also be utilised for tax strategies around capital gains and franking credits.

3. Life Insurance

The following forms of personal insurance can be paid through a SMSF:

  • Life Insurance;
  • Total and Permanent Disability Insurance; and
  • Income Protection Insurance.

Life policies are often held in SMSFs because the funding of premiums can become tax deductible if certain contributions are allocated to fund the premiums. The level of cover and insurance needs are unique to each individual. Professional advice must be sought prior to taking out a life insurance policy through a SMSF.

Whilst there are clear benefits to having a SMSF, there are important factors to consider when deciding if it is the appropriate wealth building strategy for you.

Important Considerations

1. Time and effort of managing a SMSF

SMSFs require the trustee to take responsibility for all investment decisions, unlike an industry or retail fund. A sound understanding of investment options and markets is required to be a trustee of an SMSF. Poor decisions will impact the assets of the fund and the retirement savings of its members.

Furthermore, trustees are responsible for ensuring that their fund complies with legislation. If the ATO rules that there has been a breach of these obligations, it may impose high penalties on trustees who will be personally liable.

2. Cost of running a SMSF

The costs of running a SMSF are fixed and therefore can be disadvantageous when the assets held within the SMSF are low in value. The costs reduce in proportion to the value of the fund, and it is advised that the fund should contain at least $250,000 worth of assets to ensure the costs of running the SMSF are worthwhile.

3. Estate Planning

The superannuation benefits of a SMSF are not assets that automatically fall within the ownership of a person’s estate upon their passing. Allocation of benefits is decided by the trustee unless written direction is provided. Without careful consideration and planning, your superannuation funds may not end up where you want them to after your death.

You may properly document where superannuation benefits are to be directed upon the death of a beneficiary through a binding death nomination. A binding death nomination must be renewed every 3 years while a death benefit agreement is permanent until revoked, unless it is a non-lapsing nomination.

Contact Etheringtons Solicitors

Wealth management and estate planning takes careful contemplation. If you or someone you know requires more information or needs advice in relation to self-managed super funds, please contact us on (02) 9963 9800 or via our contact form.

The Consequences of Declaring Yourself Bankrupt

The Consequences of Declaring Yourself Bankrupt

Bankruptcy is a legal process which an individual can apply for if they are unable to pay their debts on time. Bankruptcy provides temporal relief to the bankrupt individual so they may address the majority of their debts and attempt to make a fresh start. Although the benefits of declaring bankruptcy seem appealing, this article will explore the numerous consequences that may arise when declaring bankruptcy.

NB: This blog will focus on exploring the consequences of declaring bankruptcy for an individual. If you have a company, we have discussed how to protect your business from insolvency in another article.

Bankruptcy Consequences are Not Short Term

Bankruptcy typically last three years and one day from the date which the Australian Financial Security Authority (AFSA) accepts a bankruptcy application. This alone is a substantial period of time in which all of the following consequences will continue to impact upon the bankrupt individual. This length of time can be extended to either five or eight years if an objection to discharge the bankruptcy is lodged by the trustee.

Bankruptcy does not release the bankrupt individual from all of their debts, generally just those which are unsecured. This means that even after declaring bankruptcy, the bankrupt party is still liable for payments including court imposed penalties, child support and maintenance, HECS/HELP debts or those debts incurred after bankruptcy commenced. Therefore, through the assistance of an appointed trustee, the bankrupt party will need to arrange payment options with creditors to resolve the persisting debts.

Bankruptcy will likely inhibit the bankrupt individual’s ability to obtain future credit. Credit reporting agencies keep records of a bankruptcy for either, five years from its commencement, or two years from when it ends, depending on whichever is latest. This will be considered by future credit providers when they are deciding whether to accept your credit applications. Bankrupt individuals must disclose to their credit providers of their bankrupt status if they are applying for more than $5,934.00 in credit pursuant to the Bankruptcy Act 1966 (Cth) s 269.

Consequences of Appointing a Trustee for Bankruptcy

When an individual declares bankruptcy, a trustee is appointed to manage their affairs by working with the individual and their creditors to create a reasonable outcome for all parties. When the bankrupt party applies, they can either nominate a registered trustee of their choice or request that one be appointed from the AFSA. The bankrupt party is required to disclose all of their assets and any other relevant information to this trustee when they apply for bankruptcy.

The appointed trustee holds the power to make numerous discretionary decisions that will affect the bankrupt individual’s life, including:

  • A trustee may sell the assets of the bankrupt individual to cover or contribute towards paying their debts. There are only a few limited assets that the bankrupt party is entitled to keep, contrary to the discretionary powers of the trustee. These assets include: ordinary household goods, tools up to a certain value that are used for earning an income, and vehicles of up to a certain value.
  • Bankrupt individuals must request permission from their trustee to travel overseas. The trustee may ask for further details pertaining to the nature and reasons for travel, and may decide to decline their request accordingly.
  • Bankrupt parties must inform the trustee if they are involved in ongoing legal proceedings, as the trustee may determine whether the bankrupt individual’s involvement should be allowed to continue. This may involve contacting the court to determine if attendance is mandatory.

Consequences for your Employment throughout Bankruptcy

Bankruptcy may affect the employment of the bankrupt individual. Potential employment restrictions include those imposed by licencing bodies in some professions and certain limitations on operating as a sole trader. Furthermore, a bankrupt party cannot legally operate a trust account or hold public office.

Additionally, once a party has been declared bankrupt, their name will permanently appear on the National Personal Insolvency Index (NPII). The NPII publicly displays a bankrupt individual’s name, date of birth, address, occupation, the name and contact details of the trustee, and the proceeding administration and status. These details are accessible to the public and will only be suppressed in exceptional circumstances.

A bankrupt party cannot be a director of a company, following the Corporations Act 2001 (Cth) s 206B, unless they have been granted leave by a court to do so, or until the bankruptcy status has been discharged. This restriction on a company director also applies if the director is a party to a Personal Insolvency Agreement (PIA). A PIA is an alternative to bankruptcy which contains an agreement between directors and their creditors. This restriction applies to those subject to PIAs until all of the terms of that agreement have been complied with by the bankrupt individual.

If the bankrupt part earns over earns a certain amount of income, they will be required to make compulsory payments to their trustee. This amount is $59,559.50 (after tax) annually for a bankrupt party without dependencies under the Bankruptcy Act 1996 (Cth) s 139K.

How Etheringtons Solicitors can help

A solicitor at Etheringtons Solicitors can provide you with clarification on the relevant law and its application to your individual circumstances. Etheringtons Solicitors will assist in determining whether declaring bankruptcy or insolvency is in your best interests and will guide you through the best avenues for legal action.

If you require further advice or assistance with insolvency matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.

Fair Work Recognises Rights of Workers in Gig Economy

Fair Work Recognises Rights of Workers in Gig Economy

The Fair Work Commission (“FWC”) has made a landmark ruling that could see more drivers and delivery workers in gig economy being given rights as employees instead of independent contractors. Deliveroo is appealing the decision, and if upheld, this could see the restructure the business model of many platform companies.

The FWC ruled that a former Deliveroo driver was an employee of Deliveroo Australia Pty Ltd rather than an independent contractor. The decision in Diego Franco v Deliveroo Australia Pty Ltd (U2020/7066), if upheld on appeal, will be a momentous case with the potential to completely reform how gig-economy platforms operate. This decision comes in the wake of increasing scrutiny of gig-economy companies for their inconsistent treatment of workers, hindering the rights and protections available to them. Other countries have already made the move towards enforcing the classification of gig economy workers as employees.

What were the facts?

The Applicant (Mr Franco) entered into a supplier agreement in 2017 to become a Deliveroo driver. The Supplier Agreement, and all subsequent agreements, contained similar terms including that Mr Franco:

  • was a supplier in business of his own account;
  • could provide services personally or through a delegate;
  • was free to work for any third parties;
  • was required to provide his own vehicle and phone
  • was required to pay an administrative fee;
  • was required to complete the services safely and efficiently; and
  • must organise his own tax and insurance.

Mr Franco worked as a Deliveroo driver for three years and also performed services for Uber Eats and Door Dash during that period. In 2020, he received an email notifying him that the Supplier Agreement services were terminated by Deliveroo due to delays with his delivery times compared with other Deliveroo drivers on similar routes. Under the agreement, Deliveroo had the right to terminate at any time and for any reason with provision of one week of written notice. Mr Franco sought to challenge his termination in an unfair dismissal application.

The FWC Decision – Employee or Contractor?

Commissioner Cambridge of the FWC determined that Mr Franco, was an employee of Deliveroo and ordered Deliveroo to reinstate Mr Franco’s employment.

As an employee, different rights attach to termination of the relationship and the FWC held that the dismissal was harsh, unjust and unreasonable. To be protected from unfair dismissal, the question turns on whether the person is an employee and has completed the minimum employment period as required in section 382 of the Fair Work Act 2009 (Cth).

Important Factors to Consider

The definition of ‘employee’ is given meaning by the common law, which involves the consideration of various factors examining the holistic nature of the relationship between the parties. The Commissioner considered the following factors in reaching its conclusion that Mr Franco was an employee:

  • although Mr Franco could determine when and where he felt like working, the practical reality was that an automated system directed him to work at particular times and to regularly make himself available;
  • the supplier agreement contained provisions which are similar in form and substance to ordinarily found in an employment contract;
  • Mr Franco had no capacity in any real sense to negotiate any of the terms of the supplier agreement; and
  • Mr Franco was not carrying on a trade or business of his own but was carrying on the business of Deliveroo. This finding is interesting given Mr Franco had the ability to work for competitors, and will be challenged in the appeal that has been confirmed by Deliveroo.

Unfair Dismissal

In the opinion of the FWC, Deliveroo did not provide Mr Franco with a valid reason for dismissal or an opportunity to respond to the complaints prior to terminating the contract, as required under the Fair Work Act. The failure to deliver food within a reasonable time was not a valid reason for dismissal, given that he was not informed by Deliveroo on the delivery times it expected.

In making the reinstatement order, the FWC noted: “irrespective of whether Mr Franco was a contractor or an employee, it was plainly unconscionable to terminate what would be well understood to be his primary source of income, without first hearing from him.”

Conclusion

The increasingly digital employment landscape and the rise of gig economies will test the balances between existing common law concepts of employment and lived realities of working relationships.

We represent both employers and employees, so if you or your organisation needs further advice or assistance in relation to redundancies or dismissals, please call Etheringtons Solicitors on (02) 9963 9800 or via our contact form.

How to Choose a Divorce Lawyer

How to Choose a Divorce Lawyer

A divorce recognises, by law, the termination of a relationship and the end of legal responsibilities partners owe to one another. It often involves making arrangements in relation to property, children and spousal maintenance. Divorcing a partner is a major life event and can be a stressful and emotional time for you and your family. It is therefore pertinent to choose the right divorce lawyer to represent you and guide you through this process.

1. Assess your Needs

Every divorce lawyer has strengths in different areas. When choosing a divorce lawyer, you should always ask yourself – what is it that you require the lawyer to do for you? Obtaining a divorce order does not automatically determine issues relating to property, maintenance or children, therefore it is important to consider the impact your divorce may have on these aspects of your relationship.

Where there are many legal facets to your separation, you will benefit from good legal representation with experience in Family Law. It is also important to consider how you want the process resolved. There are collaborative alternatives to litigation, such as mediation, in which you have more autonomy to determine the outcome and the lawyer plays a different role. Such options are available and can be applied depending on the facts and circumstances of your matter. However, if an amicable agreement between the parties cannot be reached, you may need to consider engaging a lawyer to assist you in court proceedings.

2. Do your Research

Understanding the advice you are provided with is essential and key. Understanding the core principles of advice can be a good start and the Family Court of Australia has an online resource that provides an essential guide, however there is no substitute for good legal advice.

Once you have a basic understanding of divorce law, you will be better equipped to start researching different lawyers. Factors to consider when assessing whether a lawyer is right for you include:

  • Level of skill and experience (divorce is a specialised area of law so choosing someone with the right skills is essential);
  • Recommendations from trusted people;
  • The values of the firm they work within; and
  • Any initial information regarding their approach and communication style.

Your research should assist you in compiling a modest list of lawyers you can contact. It is recommended you do not limit yourself to just researching one law firm in the event that they are not available or are not a good fit for helping you to achieve your desired outcomes.

3. Initial consultation

The next step is to arrange an initial consultation with the lawyers on your short list. This will enable you to gauge the attributes of each lawyer. At Etheringtons Solicitors, we offer a discounted rate for an initial consultation, during which you will receive preliminary advice and you will have the opportunity to better understand who your lawyer is and how they can assist you.

It is important that you feel comfortable with your lawyer as they will be assisting you through a vulnerable stage of your life and your decision may greatly impact other parties, such as grandparents and children. Therefore, personality and ease of communication is also a factor to consider.

How Etheringtons Solicitors can help

Etheringtons Solicitors can assist with your separation and divorce. If you need further advice or assistance with Family Law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.

Getting it Right the First Time in Family Law Matters

Getting it Right the First Time in Family Law Matters

The ancient doctrine of res judicata still resonates in Australian courts today. Res judicata is a Latin phrase that translates to “a matter decided” and refers to the preclusion of claims from being litigated when they have already been decided with finality and merit. The doctrine protects the court system from being overrun by litigants retrying cases until a favourable outcome is achieved, which is essential in the context of an overrun and under resourced Family Court system. It also protects other parties from having to respond to repeated claims at their expense.

However, it also increases the stakes when pursuing litigation, since once a matter is res judicata, it cannot be heard again. Therefore, it is critical if you are considering pursuing a matter in court, that you place yourself in the best possible position to achieve a favourable outcome.

Clayton v Bant [2020] HCA 44

The Facts

A significant case heard in the High Court of Australia considered the operation of res judicata in relation to whether the decision of a foreign court could preclude a party from pursuing property and spousal maintenance orders.

In Clayton v Bant, the couple was married in 2007 in a Sharia Court. The wife was an Australian citizen who visited frequently and the husband was a citizen of the United Arab Emirates and the couple had property both in Australia, UAE and around the world. They also had children.

In 2013, the wife commenced proceedings in the Family Court of Australia seeking spousal maintenance and property settlement orders. Subsequently, the husband commenced proceedings in Dubai, seeking a divorce and the extinguishment of all the wife’s rights to alimony. The wife elected not to participate in the proceeding in this jurisdiction. The Dubai Court granted the husband an “irrevocable fault-based divorce” and ordered the wife to pay AED 100,000 plus costs.

The husband then applied to the Family Court to permanently stay the Australian family law proceeding on the basis that the wife should be prevented from pursuing her claim in Australia as the wife could have sought a division of assets or maintenance in the Dubai proceeding. His application to stop the proceedings was rejected by the Family Court. He appealed and the appeal went to the High Court.

The Decision of the High Court

The High Court unanimously allowed the appeal, finding that the legal right to seek orders for property settlement and spousal maintenance could only be extinguished by a court making orders pursuant to the Australian Family Law Act. This clarified the stance that res judicata would only operate with respect to matters decided in the relevant jurisdiction. In this case, the court in Dubai did not have legislative jurisdiction to make orders in relation to property settlement matters outside of the UAE.

The High Court in Clayton v Bant distinguished the case In the Marriage of Caddy & Miller (1986) 84 FLR 169, where it was held that the wife was prevented from asserting her rights in an Australian Court. This was due to prior orders had been made by the Supreme Court of California which had the jurisdiction to give final orders on property settlement matters regarding real property in Australia.

Final Thoughts on Res Judicata

In Clayton v Band the High Court found against the husband’s application to permanently stay proceedings in the Family Court. The case is a timely reminder of the complexity of litigation and the importance of ‘giving it your best’ the first time around as you may be barred from a second chance.

Notably this case also highlights the need to seek legal advice where relationships exist in multiple countries. Complexities arise when matters can be heard, or are being heard in multiple jurisdictions, and this will determine the operation of res judicata.

Conclusion

Recent clarification of the res judicata doctrine is an important reminder of how necessary obtaining quality legal representation is. At Etheringtons Solicitors, we have a highly experienced and strategic team who will work with you to achieve a desirable outcome in Family Law matters. If you are concerned about your property settlement or divorce, please do not hesitate to get in touch with our office by calling 02 9963 9800 or via our contact page.

Interim orders and interim proceedings in Family Law

Interim orders and interim proceedings in Family Law

Court orders are the legally binding declarations made by judges which fulfil the purpose of resolving a dispute and outlining the obligations which each party must perform. Family Law proceedings are often quite lengthy, with most parties waiting at years for a final hearing, so interim orders ensure that the needs of all the parties are met in a timely manner. These delays make it essential that parties seek legal assistance when applying for interim orders so that the appropriate care and diligence can be taken in preparing and presenting their case.

What are Interim Orders?

Interim orders are temporary orders which are put into place until final orders are made by the Court, which brings the matter to an end. Judges determine interim applications based on the facts and circumstances of each case which is derived from the material filed by each party.

In Family Law matters, interim orders may relate to issues such as parenting or financial matters in separation. In relation to parenting orders, the court must consider the best interests of the child. An interim order may provide families with a sense of stability. In relation to financial orders, an interim order may provide the basis as to which of their properties they are permitted to use or sell while the matter is ongoing. Other common terms pertaining to interim orders in family law include:

  • Allocation of parental responsibility,
  • Living and communication arrangements for children,
  • Instructions to attend upon a family consultant to obtain a family report
  • Instructions for a party to undergo drug or alcohol testing, or
  • The appointment of an independent children’s lawyer (ICL), as necessary.

Interim orders differ from final orders which conclude the proceedings, as well as consent orders which arise out of an agreement between the parties. Final orders are not necessarily irrevocable, as both parties in family law proceedings may have the right to set aside those orders or apply for a change to the orders in the event of a substantial change in circumstances.

Applying for Interim Orders

Each Family Law proceeding commences with the filing of an initiating application. One party must file that initiating application and the other party files a response to that application. This will set out the interim and final orders you are asking the court to make. Generally you will be unable to file for interim orders until you have filed an application for final orders. These applications all need to make it clear to the court what orders you are seeking and the evidence to support them. Any person who is concerned with the care, welfare and development of children can apply for interim parenting orders.

For financial matters in a divorce, either party to the marriage can apply within 12 months of the divorce order taking effect and for financial matters when a de facto relationship breaks down, either party to the relationship may apply within 2 years of the breakdown of the relationship. There are various exceptions in filing out of time, and we strongly advise that you seek legal advice in the event you are faced with this issue.

Case Study: Relocation of Children

Many family law matters that appear in interim hearings involve the relocation of children by one parent before divorce or settlement proceedings are finalised. As reinforced in the recent case of Brant v Brant [2021] FamCA 91, interim orders can be made to undo a parent’s attempt to relocate children before a final hearing and enforce the best interests of the child and shared parental responsibility. In that case, the mother had relocated her two children and enrolled one child in a new school without consultation or consent from the father. The father then sought an interim order for the mother and children to return to the area, offering exclusive occupancy of the matrimonial home and payment of child support to facilitate this arrangement. The Court found that the relocation may have had an adverse impact on the meaningful relationship the children have with their father, and that the relocation should be temporarily reversed until final orders could be made. It is important to note however that where there is an interim hearing regarding children, the overriding consideration of the Family Court is determining what is in the best interests of the children.

Navigating a separation or divorce can be a highly stressful and emotional time for you and your family. At Etheringtons we provide a compassionate and skilled approach to family law matters. If you need further advice or assistance regarding interim orders or other family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.

Why Binding Financial Agreements are not DIY

Why Binding Financial Agreements are not DIY

The courts have reaffirmed the importance of seeking independent legal advice and assistance regarding the execution of Binding Financial Agreements (BFA) or other property arrangements when planning for you and your family. The Family Law Act 1975 (Cth) sets out very strict requirements for a BFA to be valid and enforceable, and it is often the case that informal agreements and one’s executed overseas will not be recognised by Australian courts.

A BFA when executed correctly, can allow for certainty, trust, and peace of mind in a relationship. If you are wanting to enter into a financial agreement with your partner, or to understand if your current agreement is valid, it is crucial that you take appropriate caution and seek suitable legal advice.

What is a Binding Financial Agreement (BFA)?

A BFA is a legally binding document which sets out what would happen to the couple’s finances and property, should the marriage or de facto relationship break down resulting in separation or divorce. It allows a couple to plan their future rights and responsibilities, before entering a marriage or even after, in the event of a substantial financial change. A BFA is not lodged with a court, but rather acts as a private contract between the parties.

Importantly, a BFA can protect assets including cash, property, superannuation or inheritances and are predominantly used for setting out the financial arrangements of the couple. However, a BFA does not cover child custody arrangements, nor child support payments. A more extensive discussion of which matters can be dealt with in a BFA can be found in our previous blog article about constructing, obtaining and setting aside Prenuptial Agreements.

BFAs can be set aside where:

  • There have been instances of non-disclosure of assets or financial resources.
  • The BFA does not make any provision for children or if there was an adverse change in the welfare of the children so the agreement would cause hardship.
  • The contents of the agreement were not just and equitable.
  • Additionally, as discussed in a previous blog article, the High Court will not enforce any BFAs which have been entered into arising from unconscionable conduct, especially where this conduct is a consequence of a significant power imbalance between the parties.

The Family Law Act 1975 (Cth)

The Family Law Act is the legislation which governs BFAs. It allows parties to enter into these agreements before or during a marriage, or after a divorce. Under this Act, a BFA must be in writing, have been signed by both parties, and make specific reference to the section of the Act it is made under.

Recent case: Akhtar & Gaber (No. 2) [2021] FamCAFC 28

An important recent case demonstrated that marriage agreements which do not comply with the Family Law Act’s requirements for a financial agreement are not binding. In the case of Akhtar & Gaber (No. 2), the Appeal Division of the Family Court of Australia dismissed the appeal which aimed to oust the jurisdiction of the court to make orders relating to property interests and to uphold the terms of the marriage agreement between the parties made in another country (or jurisdiction).

The marriage agreement between Akhtar and Gaber was not a recognised BFA as it did not comply with the strict requirements of the Act. It was therefore not enforceable and did not oust the jurisdiction of the court for determining proprietary interests. This means that, even if the marriage agreement was binding in another country, it does not effectively operate as a BFA in Australia. The division of property between the parties was therefore to be determined in accordance with s 79 of the Family Law Act.

Why obtain our legal assistance regarding your Binding Financial Agreement?

As demonstrated in Akhtar & Gaber (No. 2), it is very important that your BFA meets the requirements set out in the Family Law Act. BFAs which are incorrectly drafted may be deemed invalid or set aside, but engaging an experienced solicitor will assist in this process.

Additionally, for a financial agreement to be binding, before it can be signed by both parties:

  • Each party must have received independent legal advice regarding the effect of the agreement on the rights of that party and the advantages and disadvantages of the agreement, at the time that the advice was provided to the party,
  • Each party must have received a signed statement from a legal practitioner as authority that this advice has been provided, and
  • Each party must have received a copy of the equivalent signed statement of their spouse or intended spouse.

If you need further advice or assistance regarding BFAs or other family law matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact page.

Legal Considerations for Heritage-Listed Home Ownership

Legal Considerations for Heritage-Listed Home Ownership

Heritage-listed homes offer a unique glimpse into Australian history and are often filled with beauty and character. Despite the antiquity and romantic features of these homes being a point of value for some, it is important that current or potential owners are aware of the legal hurdles involved when owning or selling a heritage-listed property.

What is Heritage Protection?

If a home is listed on the State Heritage Register, it is recognized as being of historical significance to the state of NSW. Many council areas in Sydney, such as Ku-ring-gai and Hunters Hill, are abundant with heritage listed homes owing to their architectural or cultural value. To find out whether your home or homes near you are heritage listed, you can search the NSW Heritage database here.

A Heritage Conservation Area (HCA) protects an entire area, group of buildings or streetscape with values and characteristics that give it a distinct historical identity. These can include the original purpose or use of the buildings, integrity of the building materials or subdivision patterns. For example ‘The Spot’ in Randwick is a HCA due to its strong sense of identity dating back to its origins as “Irishtown” within the small commercial hub with buildings of character such as the Ritz Theatre.

The Benefits of Heritage Protection

The historical significance and notable architectural structure, which includes unique details and craftsmanship, is what draws many buyers to heritage-listed homes. Depending on the type of home, people may also pay more for the particular, protected style. For example, devotees of modernist classics and Victorian architecture actively pursue these homes and are willing to pay a high price.

Heritage listed property owners can take assurance in the knowledge that a large apartment block or multi-story carpark will not be freely permitted to be built next door, as the neighbourhood and privacy of these property owners are protected. Further, to compensate for some of the maintenance costs involved with heritage properties, homeowners may be eligible for reduced rates for council and land tax. This requires an application through Heritage NSW.

Renovating a Heritage-Listed Property

Despite their sound structural integrity and historical value, heritage protection and HCAs can be problematic if an owner wishes to renovate their property. Heritage protection can be restrictive and owners find themselves facing limitations that wouldn’t exist if their property wasn’t listed. Restrictions contained in the Heritage Act 1977 (NSW) include the following provisions:

  • You can make a heritage-listed property ‘liveable’ by making installations or repairs: You are allowed to make installations or similar adjustments to make the home suitable for modern living, provided that they do not detract from the property’s original appearance. Heritage property owners are obligated to ensure that the Minimum Standards of Maintenance and Repair are being met. Other changes will require an Integrated Development Application to be lodged with the local council or directly with the Heritage Council. Generally, upon lodging an application home owners may install contemporary kitchens or bathrooms but the structure of the home and the street façade must be preserved.
  • Emergency Fund: Older homes do come with the risk of hidden structural damages or other unpleasant discoveries. It is recommended that you keep an emergency maintenance fund in order to make necessary repairs. Home owners can apply for Emergency Works Grants through Heritage NSW for an amount up to $10 000 to address damage incurred during a natural disaster or emergency event, or for work directly related to a heritage benefit.

Valuing Heritage-Listed Properties

Owing to the above restrictions/provisions, there is a concern that a heritage listing will result in lower land values, as potential buyers will not be able to extend or modify their home. Heritage listings can also prevent existing home owners from making alterations or renovations that may markedly increase the value of the property.

Heritage listed homes can often attract more expensive insurance premiums due to the higher risk and cost of restoration and repair. Specialist insurance policies may be required to insure your home is not underinsured.

It is also important to note that a heritage valuation is based on the existing use of the land rather than its zoned development potential. For example, a house would be valued as a dwelling house, even if that property is located in a commercial or residential flat zone. However, a Productivity Commission study recently found that a heritage listing in the North Shore of Sydney can add 12% to a home’s market value.

Contact Etheringtons Solicitors

It is crucial to properly assess the potential benefits and consequences of a heritage listed property before making a financial commitment. As a property owner it is important that you are well informed about factors that may affect the value or structure of your home. At Etheringtons, we can assist you with your property law needs to ensure the best outcome for you and your family. Should you have any further questions, please do not hesitate to call (02) 9963 9800 or via our contact form.

Correcting your credit history for victims of fraudulent activities

Correcting your credit history for victims of fraudulent activities

Fraudulent activities, including identity theft or credit card theft are some of Australia’s most common crimes. As a victim of fraud, you may experience an unexpected dip in credit score as a result of subsequent late payments and high credit utilisation. The repercussions to your financial welfare may be overwhelming. Thankfully, there are various steps which can be taken to both prevent fraudulent activities from occurring and to correct your credit history if you have been a victim.

Fraudulent activities to watch out for

The two most common fraudulent activities are:

  1. Identity theft: when someone illegally obtains and uses your personal information and account details to use existing credit, or to complete fraudulent applications to open new credit in your name. Scammers can do this through electronic viruses or malware which collect your name, birthday, Medicare number or bank details.
  2. Credit card fraud: when someone steals and/or uses your credit card to engage in unauthorised transactions. This can also be done when someone skims your account details to use in card-not-present transactions or to create a duplicate counterfeit credit card, or even when someone intercepts a mailed out card.

Regulations that apply

The relevant laws which regulate the handling of personal information for consumer credit reporting in Australia are the Privacy Act 1988 (Cth) Part IIIA, the Privacy (Credit Reporting) Code 2014 (Version 2.1) and the Privacy Regulation 2013. These form a regulatory framework which aims to create a comprehensive credit reporting system which protects individuals from fraudulent activities. We have discussed the Privacy Act 1988 (Cth) in another article in relation to business obligations.

Protecting your credit history from fraudulent activities

It is important that while it is not your responsibility to pay back any credit used in fraudulent activities, you should act quickly to resolve the issue of fraud with your bank or financier first. There are a number of ways you can actively protect your credit history and minimise the damage caused by fraudulent activities:

  • Monitor your accounts, bank statements and credit reports regularly. If you discover any errors or unauthorised charges, immediately contact your credit providers and establish a fraud alert on your credit report so that other credit agencies are warned about the activity.
  • Apply a security alert on all of your accounts so that you can be quickly notified.
  • Change your online passwords and PINs regularly to protect your personal information. These passwords and personal information should also be kept in a secure location.

Further, if you discover that your credit card has been lost or potentially stolen, immediately notify the credit card issuer so they can put a block on the card. You should also report the crime to the police and document any communications you make with relevant credit providers or authorities regarding the matter.

Responding to fraudulent activities to correct your credit history

Request a ban

Under the National Consumer Credit Protection Act 2009 and Regulations, if you believe you are a victim of fraudulent activities, you may request that each of your credit reporting bodies (Equifax, Illion (formerly Dun and Bradstreet) and Experian) does not disclose your information in your consumer credit report. Each of these bodies will then place a 21 day ban period on your credit report, which may be extended if further investigation is needed.

Requesting and implementing this ban period will incur no charges. During this period, your information will not be disclosed unless you offer written consent or an Australian law, court or tribunal requires it. Credit providers who contact the reporting body seeking your credit history and information, will be informed of the ban and alerted to the potential fraud.

Make a credit report complaint

If you have been the victim of fraud, you may file a complaint about the information in your credit report with the relevant credit provider or credit reporting body. They should respond to the complaint within 30 days but if they don’t respond, or you are not satisfied with their response, then you may take the complaint to the relevant external dispute resolution (EDR) scheme.

If you are still not satisfied, or if you would prefer to complain directly to the regulator, you can lodge a written complaint to the Office of Australian Information Commissioner (OAIC), although, you should be made aware that the OAIC may refuse to investigate a complaint made more than 12 months after you became aware of the act or practice. Dispute mechanisms can be complex, and it is important to seek legal advice to fully understand your options when dealing with EDR schemes or formal complaints.

Contact Etheringtons Solicitors

With advancements in technology, identity theft and instances of fraud are becoming more sophisticated and are often difficult to trace. A solicitor at Etheringtons Solicitors can provide clarification of the relevant law and its relation to your individual circumstances. Furthermore, Etheringtons Solicitors can assist with contacting the relevant credit reporting bodies, your credit providers and assist with court preparations.

If you need further advice or assistance with an instance of fraud or other litigious matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form here.

Genuine Redundancy and the Importance of Consultation

Genuine Redundancy and the Importance of Consultation

The Fair Work Commission has reaffirmed the importance of employers complying with consultation requirements when making employees redundant, even during Covid-19. Failure to consult with an employee about the significant changes to their employment means employers cannot rely on the genuine redundancy exception to unfair dismissal enquiries.

Legislative Requirements of Genuine Redundancies

The requirements to establish a genuine redundancy are set out under s 389 of the Fair Work Act 2009 (NSW):

  1. The employer no longer requires the job to be performed by anyone because of changes in the operational requirements of the employer’s enterprise;
  2. The employer has complied with any consultation obligation in a modern award or enterprise agreement;
  3. It is not reasonable in the circumstances for the person to be redeployed within the employer’s enterprise of an associated entity.

Findings of the Fair Work Commission

The consultation requirement of genuine redundancies has been highlighted in two recent cases heard by the Fair Work Commission.

In Browne v MySharedServices [2020] FWC 4445, the employee (Browne) was dismissed over the phone without prior consultation by his employer (MySharedServices). The employer relied on genuine redundancy grounds for dismissal. The Fair Work Commission found that whilst operational changes to the business had occurred as a result of Covid-19, the consultation requirement had not been met. Under the relevant modern award (Clerks Award 2009), MySharedServices were required to consult employees on any change that may have significant effect on their employment, including termination. As the consultation did not occur and there were no issues with the employees’ performance, the Fair Work Commission found the termination was an unfair dismissal.

A similar situation arose in the case Freebairn v TLJ Advisors and Accountants (2020) FWC 3915, where the employer failed to consult the employee (Freebairn) about the termination of her employment as a result of firm restructuring post Covid-19. Freebairn filed for unfair dismissal on grounds that no consultation had taken place and that if consultation had occurred she could have arranged to work reduced hours until the JobKeeper scheme kicked in shortly after. As a result, the Fair Work Commission agreed the dismissal was not a genuine redundancy because of the failure to comply with consultation requirement.

Employers must comply with the consultation requirements

Employers must remain vigilant in upholding consultation requirements when implementing redundancies, even in the wake of mass organisational shifts as a result of the Covid-19 pandemic. Consultations must be genuine discussions about the changes to employment and explain how the employer intends to mitigate such changes. In particular, consideration must also be given to how JobKeeper and other Covid-19 relief schemes impact relationships between employers and employees in relation to organizational restructuring.

We represent both employers and employees, so if you or your organisation needs further advice or assistance in relation to redundancies or dismissals, please call Etheringtons Solicitors on (02) 9963 9800 or via our contact form.

I am My Ex-Partner’s Employer. Can I Terminate Their Employment?

I am My Ex-Partner’s Employer. Can I Terminate Their Employment?

It is not uncommon for people to meet their partner in the workplace or employ their spouse or partner in their small business to provide additional support and reduce labour costs. What would happen to their employment if your relationship were to break down? Disputes may arise if your ex-partner starts causing problems in the workplace through improper behavior or dishonesty. In this blog, we review whether you can terminate your ex-partner’s employment and some considerations for the future.

Can I terminate my ex-partner’s employment?

You can terminate your ex-partner’s employment on the condition that the termination is lawful and would be for the same reasons as any other employee in your workplace, regardless of their relationship to you. There must a valid reason for their dismissal and this will vary depending on your individual circumstances.

If you wish to avoid having an unfair dismissal claim lodged with the Fair Work Commission against you, it is vitally important that the employment termination is:

  1. For a valid purpose
  2. Was not harsh, unjust or unreasonable; and
  3. Was not made for an unlawful reason.

Meaning of Unlawful Termination

The Fair Work Act 2009 states that an employer must not terminate an employee’s employment for an unlawful reason. Simply disliking your ex-partner and no longer wishing to see them in the workplace is not a valid reason to dismiss them. Examples of ‘unlawful reasons’ include dismissals based on:

  • race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
  • temporary absence from work because of illness or injury;
  • trade union membership or participation in trade union activities outside working hours;
  • the filing of a complaint, or the participation in proceedings, against the employer involving alleged violation of laws or regulations or recourse to competent administrative authorities; and
  • absence from work during maternity leave or other parental leave.

Valid Reasons for Dismissal

A lawful and valid reason for dismissal will vary and it is advised that you seek legal advice before terminating an employee. In most cases, you may have a valid reason to terminate employment if your ex displays some of the following behavior:

  • Inappropriate conduct such as harassment
  • Creating conflict for clients or other employees
  • Improper use of the company’s monies
  • Not abiding by workplace policies

Other considerations

If you are satisfied that a valid reason for dismissal exists, you must ensure that you provide adequate notice, an opportunity to respond, and the reasons for dismissal. You should consider providing ‘warnings’ or offer mediation conferences to your ex before considering dismissal, as often their behaviour or performance may improve and you may be less likely to face an unfair dismissal claim.

You should also consider whether terminating your ex-partner’s employment may leave you vulnerable to a spousal maintenance claim. Spousal maintenance is where one partner provides financial support to the other partner upon the relationship breaking down. To learn more about spousal maintenance, see our blog here.

Contact Etheringtons Solicitors

Various employment and family law problems that stem from workplace relationships can lead to complicated legal repercussions. The team at Etheringtons solicitors are highly skilled in navigating both employment law and family law matters and are able to assist you every step of the way during your legal proceedings.

If you or someone you know needs help and would like to have a confidential no-obligation discussion, please call Etheringtons Solicitors on (02) 9963 9800 or send us a message via our contact form.

Deceptive Similarity in a Craft Beer Trade Mark Dispute

Deceptive Similarity in a Craft Beer Trade Mark Dispute

A trade mark that distinguishes one trader’s goods from another is a valuable asset, however a recent Federal Court case concerning craft beer has demonstrated that registered trade marks are not always protected from cancellation in a trade mark dispute.

In the case of Urban Alley Brewery Pty Ltd v La Siréne Pty Ltd [2020] FCAFC 186, Urban Alley Brewery Pty Ltd’s (Urban Alley) appeal was dismissed and their trade mark “Urban Ale” was cancelled under section 88(1)(a) of the Trade Marks Act 1995 (Cth). This was an important case which determined that a trade mark registration must be cancelled or rejected if it is deceptively similar to another registered trade mark.

Facts

  • Urban Alley was a craft brewery in Melbourne which produced a beer product called “Urban Ale”.
  • La Siréne also operated as a craft brewery in Melbourne and produced a beer product under a similar name “Urban Pale”.
  • La Siréne first sought orders to cancel the Urban Alley’s registered trade mark under the Trade Marks Act 1995 (Cth) s 88(1)(a).

Significance of the Case

This case demonstrated the importance of adopting a trade mark which is sufficiently distinctive from other existing trade marks and ahead of prevailing trends. Further, difficulties may arise when descriptive words are used. It was concluded that the terms “urban” and “ale” were too descriptive of beer to be distinctive from other goods or services. Therefore, the key terms of Urban Alley’s trade mark had become descriptive as a result of prevailing trends, causing Urban Alley’s trade mark to be deemed invalid for lack of distinctiveness and deceptive similarity.

As there was no factual distinctiveness, they upheld the primary judge’s finding that Urban Alley’s trademark should not have been registered, and thus it was cancelled.

Trade Marks Distinguishing Goods or Services

The key point is that a trade mark must be capable of distinguishing an applicant’s goods or services. It was found that Urban Ale was not “inherently adapted” to be capable of distinguishing its beers from those of other producers. This decision was based on evidence that the term “urban” was commonly associated within the industry with beer products and breweries.

The court considered the following factors:

  • The term “urban” is not significant regarding the beer style or flavour, and has been used by numerous Australian businesses, including in La Siréne’s “urban pale” without improper motive. Instead it is used to describe the location of the brewery, as used by many other traders and journalists.
  • On Appeal, it was found that the terms “urban” and “ale” were descriptive of the goods (beer) and should be interpreted with their common meaning.
  • Urban Alley could not produce sufficient evidence that they had established a reputation based on the “urban ale” trade mark.

The Test for Deceptive Similarity

The relevant test for deceptive similarity is to compare between a trade mark and the recollected impression retained of another previously registered trade mark. A side by side comparison of trade marks may not convey the same meaning or idea, however, they may when imperfectly recalled under this test. Furthermore, the trademark must be viewed in its entirety, unlike the substantially identical which requires the examination of individual trade mark elements.

Etheringtons Solicitors can assist you with enforcing your trade mark

Etheringtons Solicitors can advise you throughout the development and adoption of your trade mark to ensure that it is distinguishable from other goods and services and to avoid future trade mark disputes.

We can assist you with registering a trade mark in Australia and advise on whether your trade mark includes any descriptive qualities which could affect its validity. We may advise you to consider securing other versions of trade marks which have the potential to cause a challenge risk.

If you need further advice or assistance regarding trademarks or other intellectual property matters, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.