Feb 10, 2021 | Employment Law
The term ‘consumer’ carries with it broad connotation of individuals who purchase goods and services, usually for a relatively low sum. However, with the new Australian Consumer Laws (‘ACL’) set to take effect from 1 July 2021, the definition of a ‘consumer’ could affect a greater number of transactions as they will be covered by the ACL consumer guarantees. In this blog, we provide an overview of the Australian Consumer Law (‘ACL’) and the changes set to take place this year.
What is the Australian Consumer Law?
The ACL is the primary area of law that regulate the sale of goods and services. The ACL applies nationally and in all States and Territories, and to all Australian businesses. The ACL is administered by the ACCC and state and territory consumer protection agencies and is enforced by all Australian courts and tribunals.
Under the ACL, products and services must meet strict requirements. For example, products must be safe, long lasting, lack faults, look acceptable, carry full ownership, be fit for purpose, match descriptions, have spare parts and repair facilities available and do everything someone would normally expect them to do. Likewise, services must be provided with acceptable skill and care or technical knowledge and taking all necessary steps to avoid loss and damage, be fit for purpose and be delivered within a reasonable time when there is no agreed end date.
The ACL provides consumers protection in the areas of:
- Unfair contract terms
- Consumer rights when buying goods and services
- Product safety
- Unsolicited consumer agreements covering door-to-door sales and telephone sales
- lay-by agreements
What’s changing?
The ACL has previously defined a ‘consumer’ as someone who purchases goods or services for under $40,000 or the purchase of goods and services greater than $40,000 if they are acquired for personal, domestic or household use or consumption. However, the recent changes to the law will increase this threshold to capture all goods and services under $100,000.
The changes will also see the amendment of the definition of “consumer” under the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).
These changes come in response to a review conducted by Consumer Affairs Australia and New Zealand into the effectiveness of the ACL in protected the modern consumer. It found that inflation and the rising cost of goods and services meant that purchases that were previously covered by the ACL are no longer, leaving consumers unprotected.
In essence, this change in definition will operate to expand consumer protections afforded by the ACL to a greater number of consumers. Whilst this gives purchasers more rights and bargaining power, it increases the need of businesses to ensure that they are compliant with the new ACL requirements as more customers may be covered by its protections.
How do I prepare for these changes as a business?
These changes provide a good opportunity to assess your current goods or services and whether they are subject to the ACL. You should also conduct a thorough review of your current contracts, policies, terms and conditions and existing (and now new) obligations.
You should seek legal advice if you wish to find out more information about the changes, how they affect your business and to ensure your business is complying with its obligations under the ACL. The team at Etheringtons Solicitors are highly skilled in business law and are ready and willing to assist you with your enquiry. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles, please see our blog here.
Feb 10, 2021 | Blog, General Advice, Property Law
New infrastructure in Sydney is continuously being developed to keep up with the demands of a growing population. To build such infrastructure, a public authority – such as the New South Wales government or a local council – may compulsorily acquire some or all of your property to create the space necessary for new construction. Some recent examples include the WestConnex project and the Victoria Cross Metro Station in North Sydney.
Why should I get legal representation?
Compulsory acquisitions can leave property owners feeling frustrated and helpless, and it can be an upsetting and confusing time. However, it is important to know you may have more power than you may think. An experienced solicitor can work with you to ensure you obtain the best compensation for your loss of property. A solicitor’s reasonable legal fees for assisting you in the acquisition process will be covered by the acquiring authority so you will have peace of mind knowing that you will not have to pay for the work performed in receiving advice.
A solicitor can help you through:
1. Finding out what your property is really worth
A solicitor will help you engage experts who can accurately calculate your property’s financial value. The public authority acquiring your land will retain a valuer to estimate what they believe your property is worth, but is often skewed towards the acquiring authority, which may not reflect your property’s true worth. It is important that you engage a solicitor who can help you ascertain a value that is more favourable to you.
2. Ensuring you receive the maximum payment
There are a number of costs associated with the compulsory acquisition of your property including conveyancing fees and real estate agents’ commission (for the purchase of a new property) and removalist costs as well as legal fees (for the acquisition of your property). The purpose of the compensation provided by the acquiring authority is to leave you in the same financial position you would have been in but for the acquisition. A solicitor will ensure that compensation includes the hidden costs of acquisition that are often unrecovered.
3. Negotiating on your behalf
A solicitor can help you to prepare for negotiations with the acquiring authority. Even though the acquiring authority will send you an initial offer, your solicitor can assist you with your negotiations to ensure that you receive a fair dollar amount for the acquisition of your property. Your solicitor will act on your behalf throughout the discussions and negotiations with the acquiring authority to ensure you achieve the best result.
4. Putting together your claim
Your solicitor can assist you with putting together all aspects of your claim to present to the acquiring authority. They can also ensure that you will present a counter offer which is well-supported and well-documented so that you have the best chance of achieving a fair result.
5. Guiding you through the process
One of the many benefits of engaging a solicitor through this process is that they will support you every step of the way and you can feel assured that you are in capable hands.
Etheringtons Solicitors has acted in numerous compulsory acquisitions cases for our clients, including for properties acquired for the Victoria Cross Metro Station in North Sydney, Martin Place and Pitt Street Metro Stations in Sydney CBD and Waterloo Metro Station in Waterloo. If you have been or think you will be affected by a compulsory acquisition and would like assistance in ensuring you are provided fair compensation, please contact us on 9963 9800 or via our contact page here.
Feb 9, 2021 | Business Law, Intellectual Property
The advantage of registering a trade mark is that it confers far more benefits than registering a business name, company name or domain name. Marketing is an important business tool, and a registered trade mark is crucial in allowing you to protect any value or credibility which you have built on your brand.
What is a trade mark?
A trade mark identifies a product or service, distinguishing it from the goods or services of other entities in the same sphere. A registered trade mark protects any branding element within a business including letters, numbers, words, phrases, sounds, smells, shapes, logos, pictures and aspects of packaging. Registration alone of a business name, company name or domain name does not give you that kind of protection.
Registering a trade mark allows the owner of the trade mark to commence legal action to stop others using it. Trade marks can be used to help build market position and stop others from imitating your brand. The registration of a trade mark is effective for 10 years and can be renewed for further 10 year periods thereafter.
Registration of a trade mark covers the entire Commonwealth of Australia. For worldwide protection, an application can be filed with each country in which the trade mark will be used, or a single international application can be filed through IP Australia nominating the countries in which protection is required.
Applying for a trade mark
Trade marks are registered in specific classes relevant to the description of the goods or services for which the mark will protect. The application for registration must nominate one or more classes of goods or services for which the mark is intended to be used and associated. If the mark applies to more than one class, the wider the protection that mark has once the trade mark is registered.
Before making an application to register your trade mark, the following should be considered:
- Identify the relevant class of goods or services for which the mark will apply. Schedule 1 of the Trade Marks Regulations 1995 prescribes the available classes and describes the types of goods of services specific to each class. A search should be carried out before applying to register a trade mark to check that a similar trade mark is not already registered in that class. An application to register your trade mark could be rejected if there is an identical or similar trade mark already registered which covers similar goods or services.
- Only minor changes can be made to a trade mark once an application has been filed and published.
- A trade mark registration is for the goods and services you actually trade in or intend to trade in in the near future. Once an application is filed and registered, goods and services cannot be added. Therefore, you should clearly define the marketplace you trade in to ensure the best possible protection.
- Your trade mark must be something that is capable of distinguishing your goods and services. Exclusive rights are difficult to register over everyday language, names and descriptions of products and services
Once you are happy with your trade mark, you can apply to register it through the IP Australia website. You can also request an assessment of the likelihood of your trade mark achieving registration through TM Headstart.
The cost of applying for a trade mark will vary depending on the scope of the application. Generally, the minimum cost to apply is $120 for each class of goods and services. In Australia there are 45 different classes of goods and services and each additional class costs an extra $300.
The application process
Once your trade mark is accepted, it will be advertised in the Australian Official Journal of Trade Marks and the application is open to opposition for a period of 3 months (which can be extended by an opponent for a further 3 month period where there has been an error or omission).
If your application is not challenged, your trade mark will be registered once the registration fee is paid (payment must be made within 6 months from the date acceptance is advertised or your application will lapse).The registration of a trade mark in Australia takes at least 7 months after an application is filed.
Seek legal advice
When applying for an Australian trade mark it is important to ensure your trade mark description and classes accurately reflects of the goods or services you intend to use your trade mark on. By investing in protecting your brand today, you can avoid the costly and uncertain exercise of preventing unauthorised use of your unregistered trade mark in the future. We are experienced in intellectual property matters and can work with you to ensure your trade mark is registered in the appropriate class or classes, and to respond to any opposition to the proposed registration. We are also able to assist with trade mark and copyright disputes.
If you or someone you know wants more information or needs help or advice regarding trade marks, please contact us on (02) 9963 9800 or via our contact form.
Feb 8, 2021 | Employment Law, Information Technology Law
Workplace surveillance and email monitoring have become the norm in organisations across Australia. However, many employees still do not understand their obligations or their rights when it comes to the use of computer technology in the workplace. Another issue arising out of the use of digital communication in the workplace is who owns correspondence that is sent from a work address?
The tension between an employee’s privacy and any potential restraint of trade conditions or copyright issues continue to be a source of contention in employment law, causing confusion for both parties. This blog will provide an overview regarding the law surrounding privacy and workplace surveillance, however if you are affected by this issue it is important to seek out legal advice.
Workplace Surveillance
The Workplace Surveillance Act 2005 (NSW) provides that a policy must be in place for an employer to undertake workplace computer surveillance. Employees must be given notice of that policy. Commonly, employers include a notice of surveillance in a new employee’s contract. However, if employers are introducing computer surveillance into the workplace they must provide employees at least 14 days written notice.
Under the Act the notice must include:
- the kind of surveillance to be carried out (i.e. computer, camera or tracking surveillance)
- how the surveillance will be carried out
- when the surveillance will start
- whether the surveillance will be continuous or intermittent; and
- whether the surveillance will be for a specified limited period or ongoing.
What does the Privacy Act 1988 say?
The Privacy Act 1988 (Cth) is the national legislative body for regulating the handling of personal information by government agencies and organisations. The Australian Privacy Principles (APP) are enshrined in this Act, specially Principle 12, which states that if an APP entity (which includes Government agencies and private organizations) holds personal information about an individual, the entity must, on request, give the individual access to the information. It is worth noting that the Act itself does not distinctively cover surveillance in the workplace. The employee records exemption under this Act provides an exemption to adherence to the APP for employers in certain circumstances. This means that employers are allowed to collect and store employee’s personal information if it is directly related to the employee-employer relationship, or if it forms part of an employee record.
However, employers should not assume that all the information they hold that relates to an individual employee would constitute an employee record. For example, the Office of the Australian Information Commissioner (OAIC) have given the example of financial correspondence received into an employee’s work email account. Whilst an employee’s bank details may fall within the meaning of ‘employee record’, the specific emails and their contents that an employee receives from their financial institution that is sent to their work email account, may not necessarily be part of an ‘employee record’ as it may not relate to the employment of the employee. Whether or not the content of emails sent or received by an employee forms part of their ‘employee record’ will always depend on the circumstances and you should seek advice regarding your particular case.
How do I know if my employer can view emails sent from my company email address?
If an employer has given notice that workplace emails are or can be placed under surveillance, then it is quite likely that your employer can view emails sent from your company email address. Most organisations have privacy and workplace surveillance policies that stipulate when and why your emails might be viewed by an employer.
If you are disputing your right to access to your personal emails on your work email accounts, the OAIC may have the jurisdiction to hear your complaint if you are arguing that the emails fall out of the employee record exemption prescribed in the Privacy Act. However, as mentioned previously, this is determined on a case by case basis and the law surrounding this area remains somewhat ambiguous. If you are unsure, it is best to seek legal advice. The team at Etheringtons Solicitors are skilled in employment law and are ready and willing to assist you with your enquiry. If you would like further information, please do not hesitate to contact one of our experienced solicitors on 9963 9800 or via our contact form. For more articles, please see our blog here.
Feb 7, 2021 | Wills and Estates
An estate plan involves more than just preparing and signing a Will. Estate planning requires a holistic approach in considering a person’s present circumstances and foreseeable future. A plan needs to consider who matters, what you have now, what you may have in years to come, and what your final wishes will be. Your lawyer’s role is to document these wishes to ensure they are legally enforceable and can be carried out when you pass. This article considers what an effective estate plan involves and explores some key considerations you should contemplate when preparing an estate plan.
What is effective estate planning?
An ideal estate plan will:
- Appoint a trusted person or persons (attorney / guardian) to manage your affairs both financially and personally if you are incapacitated; and a legal personal representative (executor / trustee) to administer your estate (and associated trusts) after you pass.
- Nominate your intended beneficiaries with certainty or provide for a class of beneficiaries to ensure that your assets pass only to those you intend to benefit.
- Prevent uncertainty, undue stress and expense by reducing the likelihood of a family provision claim, which can undermine your wishes.
- Safeguard your assets from unintentional distribution to estranged partners or creditors of insolvent / bankrupt beneficiaries and protect vulnerable beneficiaries such as those with a disability, drug, alcohol or gambling problem.
- Provide flexibility in distributing assets in anticipation of the present and future needs of beneficiaries.
- Maximise the value of your estate through effective tax planning to minimise capital gains, and income tax payable by beneficiaries on their inheritance.
- If relevant, provide for effective business succession or the winding up of a business.
What are some considerations in estate planning?
Family structure
Every family is different and there is no one-fit solution for all. You should start with an overview of your family circumstances and a list of all family members whether or not you would like them to benefit from your estate.
Acknowledging where there is conflict between family members and identifying any eligible persons who might claim on your estate will assist in devising strategies to reduce the potential for future claims. Blended families are common and require special attention as there may be competing interests between past and present partners, and biological children and step-children.
Choosing your executor and trustee
The executor and trustee will be your personal legal representative who will administer your wishes when you have passed on so the person filling this role should be chosen with care. For simple estates, a spouse or child / children (or combination) are usually appropriate choices to oversee the administration and finalisation of the estate.
For more complex estates, with business interests or which will have ongoing trusts, it may be preferable to appoint a professional with expertise in this area.
Similarly, if there is conflict within the family a neutral executor may be more appropriate to ensure that the role is carried out with impartiality.
Powers of attorney, guardianship and advance care directives
New South Wales allows for the appointment of an attorney, guardian or decision-maker to manage your financial, legal and / or personal affairs for a defined or ongoing period and to make health-related decisions if you are incapacitated. A power of attorney relates to financial decisions and a guardianship relates to health and lifestyle decisions.
These documents provide for flexibility in choosing the type of functions to be carried out, and the duration for which the authority is given. Powers of attorney can be made enduring so that a person can manage your affairs indefinitely if you lack decision-making capacity.
These documents form an important part of your overall estate plan by ensuring the ongoing management of your affairs by a trusted person if you are incapable.
Your assets
A detailed list of assets and liabilities will assist in determining the overall value of the estate, how and when assets should be distributed, the appropriate structure of the Will and whether a testamentary trust would be beneficial (see below).
You will need a precise description of the assets, their location, whether they are held individually or jointly and their value. Whether certain assets are encumbered will also be a relevant consideration.
If you are including specific gifts, such as items of sentimental value, antiques or artworks, these should be clearly identifiable and described in the Will.
Remember, your assets are likely to change over time and this needs to be factored into your estate plan. A gift of a specific asset of considerable value which is later disposed of will fail and may cause an unintentionally unequal distribution amongst beneficiaries.
Using a testamentary trust
In many cases, it will be advantageous for a Will to establish a testamentary discretionary trust. This is a trust that comes into effect after the Will-maker passes. Administration of the trust is carried on by a trustee pre-appointed by the Will-maker. The trustee determines how and when estate assets are managed and distributed.
If properly managed, the flexibility of a discretionary trust allows beneficiaries to access favourable taxation treatment with respect to their inheritance and provides protection for at-risk or vulnerable beneficiaries from claims by creditors or ex-partners. With careful planning, the timing of transferring estate assets can postpone or minimise capital gains tax liabilities.
Even modest estates may benefit from having a testamentary trust, particularly where the Will-maker is part of a blended family. The trust can allow the Will-maker to provide immediate benefits for a current partner (such as a right of residence and income), whilst preserving assets for residual beneficiaries, such as the children.
Trusts can also include separate suites of provisions to apply depending on whether the current partner survives or pre-deceases the Will-maker.
Your superannuation
Superannuation does not automatically form part of your estate assets. Death benefits, comprising the superannuation account balance and any life insurance payments, are paid to a ‘dependant’ determined by the fund trustee, or in accordance with a Binding Death Benefit Nomination (BDBN).
Most funds allow members to nominate their intended beneficiaries through a BDBN. This process forms an important part of estate planning – without a valid BDBN, the beneficiaries are decided by the trustee in accordance with the terms of the trust deed and the relevant legislation. This decision may not reflect what the Will-maker intended. A BDBN does not last and needs to be updated every few years to remain valid.
Consideration of the way death benefits are taxed in the hands of the recipients is also an important issue. Essentially, a spouse or partner will be considered a tax-dependant under taxation law and accordingly will receive death benefits tax free. Alternatively, whilst adult children are considered dependants under superannuation legislation, they are not ‘tax-dependants’ and will need to pay tax on any death benefits.
Business succession
If you are carrying on a business, whether as a sole trader, partnership or through a company, you will need to think about how you would like these interests dealt with after you pass. If you are a sole trader, you may include terms in the Will for the continuation of the business by your partner, children, friend or trustee. If you conduct the business as a sole director through a corporate entity, you will need to consider who will take your place as shareholder and managing director. Alternatively, you may wish for the business to be wound up.
Some partnerships will have buy-sell insurance in place. This is a policy allowing a surviving partner to acquire the deceased partner’s share so the business can continue. Generally, the surviving partner or partners receive lump sum funding to purchase the deceased partner’s share from the estate. Business succession planning requires consideration of the intended beneficiaries and whether they have the desire, skill and competence to continue managing the business.
Get legal advice
Effective estate planning takes time and careful contemplation. Your estate plan will usually comprise various documents to ensure the effective management and finalisation of your affairs so that your life’s efforts reward those you intend to benefit.
If you or someone you know wants more information or needs help or advice, please contact us on (02) 9963 9800 or via our contact form.
Feb 3, 2021 | Property Law
For a long time, the ‘Great Australian Dream’ has been to own property. It is usually the largest asset you will own and provides you with a sense of freedom. However, this could be more akin to a pipe dream for some of us due to the huge price tags associated with home ownership. If this is you, you may think an off-the-Plan (“OTP”) property may be the alternative you are looking for. However, OTPs can carry some significant and inherent risks.
What Does Buying off-the-Plan Mean?
When you buy off-the-plan you commit to buying a property before it has been built. In general, prices are cheaper than buying an existing unit. One other benefit is that you will move into a brand new property. Most developers will have mock-up displays or presentations to show you what it will look like once built. However, you can’t be sure exactly what you’ll end up with.
Flexible Contracts
The interests of developers can be quite different to your interests as a buyer. Developers want as much freedom as possible in the terms and conditions of the contract. This is so they can make changes to the plans later. For example, their display model of the building might have parking allocated in a certain way. If this is not specified in the contract’s terms and conditions they can change this at a later date.
Restrictions of Use
When buying off-the-plan units they often come with restrictions on their appearance (covenants) and use (easements). For example, the external colours might be mandated. Make sure you check the contract for these restrictions.
Risk of Delays
When looking at buying off-the-plan you will be given an estimated time of completion. This could change due to unexpected circumstances. For example, suppliers could be out of stock or renting equipment delayed. Prepare for delays; make sure you have somewhere to live until your unit is complete.
Risk of Non-Completion
With OTPs there is also a risk that the building will not be completed and your contract becomes terminated. Lenders such as banks might provide developers with a preliminary loan approval before construction starts. The loan is likely to have conditions, such as selling a minimum number of units. If the developers can’t meet the conditions the loan won’t be granted and construction can’t continue. There are several reasons a contract might be terminated, which you should discuss with a solicitor.
Get legal advice
If you are looking to purchase an off-the-plan apartment we recommend you discuss the risks with a solicitor. We can provide advice and help negotiate the terms of the contract in your favour. For more information, please contact us on (02) 9963 9800 or send a message via our contact form.
Feb 2, 2021 | Property Law
Conveyancing is the process involving the transfer of legal title of real estate from one person to another. The conveyancing process is designed to ensure that the buyer obtains good and marketable title to the property together with all the rights that run with the property and is notified of any restrictions or rights in advance of their purchase.
For most people buying a property is the most significant transaction they will enter into in their lifetime, both from an emotional and financial point of view. There can be significant consequences if it is not done properly.
Why do searches and enquiries?
When buying a property there are some statutory obligations on the seller to make certain disclosures to the buyer about the property before the contract is signed.
However, there is no obligation on the seller to tell you everything about the defects in a property and many enquiries about the property are not done until after the contract is signed or becomes unconditional.
The onus is on the buyer to undertake searches and enquiries to satisfy itself in relation to the property. The old saying caveat emptor, or, “Buyer Beware” applies as the contract may not protect against adverse search results in all circumstances. Searches will help you to find out if the property is affected by any current or known future plans or licenses issued by government which affect the property directly such as by inclusion on any registers such as heritage listing or environmental management.
Mortgages or encumbrances registered on title
A review of the searches attached to the contract is necessary to confirm that the seller actually owns the property and has the right to sell it to you.
Searches will also provide information about any encumbrances on the title.
Examples include:
- Mortgages registered against the property: mortgages must be removed from the title before settlement.
- Easements to the local council or utility company who may have the right to use a portion of your property (possibly above or below ground) for things such as sewage, electricity, telephones or gas.
- Restrictive covenants which affect how the property can be used: for example, a neighbourhood may have building size and design requirements.
Special Conditions – avoiding conveyancing traps
Your lawyer can include special conditions in the contract, before it is signed, to deal with specific issues, not covered by the standard form contract, which may arise from searches or the property that you are purchasing.
A special condition can provide a buyer with additional protection or rights in relation to adverse search results. For example the contract could be made subject to satisfactory searches, work to be completed or can oblige the seller to compensate the buyer as a result of adverse search results.
Where the contract has already been signed there is generally no opportunity to add special conditions. In some limited circumstances it may be possible to negotiate amendments to the terms of the contract if there is a cooling off period or while the contract is still conditional.
Examples of useful special conditions
If a buyer signs a standard contract unaware of building or pest issues with the property there may be no protection if subsequently find out that, for example, the foundations are sinking or the property is infested with termites. If a building and pest inspection has been carried out before the contract is entered into and problems are discovered then there may be a possibility of addressing those problems in the contract.
If you are buying a property that requires repairs or maintenance then you may wish to make the settlement conditional upon the completion of specified work and a satisfactory inspection before you are ready to settle the purchase.
If there is a special condition in the contract a buyer may be able to delay or refuse to settle if the issues are not rectified.
Get legal advice
We can help you navigate the process and will ensure that you are able to obtain good title on any prospective property and that there are no unknown restrictions on the property before you buy. If you need assistance with a conveyancing matter (either buying or selling) or would like more information please call us on (02) 9963 9800 or email law@etheringtons.com.au.
Feb 1, 2021 | Property Law
When you purchase off-the-plan you are buying an apartment before it is built. Off-the-plan properties come with significant risks that you should consider before committing to buy. One of these risks is the sunset clause.
Off-the-plan contracts specify the time by which the project must be completed. This is called the sunset clause or sunset date. If the project is not completed by the sunset date, the contract can be rescinded and your deposit returned to you. In the event of delays outside of the developers’ control – such as weather conditions, strikes and issues with council – the sunset clause can be extended.
What is the Purpose of a Sunset Clause?
A sunset clause provides a timeframe for when the project must be completed. The ability to extend the sunset clause provides developers with more time to deal with any issue that arises beyond their control. As a result, off-the-plan contracts are usually completed before the sunset clause.
What are the Risks of a Sunset Clause?
As the sunset date is typically a few years after the exchange of contracts, the price of the property is locked in. This is irrespective of any changes in the market. This means that if you buy a property for $300,000, by the time of completion it could be worth $500,000 due to an increase in property values. Upon completion, you could end up with a property worth much more than you paid for.
Although this can be a good thing, it presents a risk of developers getting greedy. Developers need your initial deposit for loan approval and to start construction, but once complete they know they can sell the apartment for a higher price than originally agreed upon some developers try to rescind (cancel) contracts, return your deposit and then re-sell the apartment at current market prices. While this is uncommon there are still come instances of this occurring. Effectively, they have taken advantage of you as property values rise.
Legislation on Sunset Clauses
This issue has led to new legislative changes for sunset clauses. Now, a developer that wants to rescind your contract on the sunset clause must have your permission to do so. This means that developers need to provide an explanation for why they are seeking rescission. They need to specify why completion of the project cannot be fulfilled as per the sunset clause.
If you do not agree with the developer’s reasons the developer must obtain an order from the Supreme Court to rescind the contract. This precaution is designed to protect you when buying an off-the-plan property.
Seek legal advice
If you are interested in purchasing an off-the-plan property it is important that you seek the advice of a solicitor. We can advise you of your rights and obligations and the protection provided to you. This is by the contract itself and the law. Please contact Etheringtons Solicitors if you have any questions by using the contact form or calling us on (02) 9963 9800.
Jan 31, 2021 | Wills and Estates
Making a Will is important for everyone over the age of 18, to make ensure their wishes are followed and their assets are distributed as they would want after they die.
If you don’t have a Will your assets will be divided according to how the law dictates in the rules of intestacy, that is, when you have not made a Will. If you die intestate it is very likely that your estate will not be distributed as you would have desired.
A Will is also the place where you can indicate to your family and friends your wishes on other important matters, such as who you want to be the guardians of your children.
Making a Will shows a level of care in not wanting to give loved ones any more stress to deal with than they will already face when you pass away. In many ways it is one of the most selfless and considerate things you can do.
Regularly review your Will
Preparing a Will is not a once-off event. It is sensible to review your Will regularly, and we suggest that this be done a minimum of every three to five years.
Changes in your life may create problems for others in interpreting your wishes in any Will you have already made and may undo all the good work you have done to protect those close to you by making one. It can make your Will ineffective or even invalid.
It could be that a Will made many years ago is still appropriate, just as it may be that a recently made Will is now out of date.
Ideally you should review your Will every five years or more frequently if necessary. It is likely that your needs and circumstances will change many times in the course of your life and with those changes it is prudent to consider your Will.
Healthy Will checklist
There are a number of life events that can impact on your Will and which mean you need to revisit and update it.
Here is a checklist of life changes which can impact on the validity of your Will and which you need to consider in examining the legal health of your existing Will.
- Have you married? Or separated from your partner?
- Have you had any children?
- Is the person you named as executor, to carry out the wishes in your Will, still alive and well enough to do the job?
- Have the circumstances of any beneficiaries changed to make you reconsider your wishes, or have any of them died?
- Have you nominated any specific gifts that are no longer valid or don’t exist, for example, have you sold a property that you had left to someone in the Will?
- Have you acquired any new assets that you would want to make specific plans for in your Will?
Superannuation
At the same time as you check the health of your Will, you need to check your super and life insurance, which is often now a part of your super policy.
Many people assume their superannuation will be divided up in accordance with the wishes in their Will, but that is not necessarily the case. You need to look at your super policy to check how you have nominated that your super should be allocated, and that it is still allocated in the way you want. Sometimes, a nominated beneficiary direction will lapse after three years.
At the same time, check the division of any life insurance you have in your policy, and update it if necessary.
Conclusion
The important thing is to consider your circumstances at every major personal milestone in your life.
Any Will you have made is likely to become out of date and no longer accurately represent your wishes in some way following changes in your life, possibly within a few years of drawing it up. It will depend on circumstances that are unique to you.
If you would like to discuss a new Will or changes in your circumstances and a review of your current Will please call us on (02) 9963 9800 or via our contact form.
Jan 31, 2021 | Blog, Business Law
If you are considering buying a business there are many things you need to do from a legal, financial and general business perspective. Getting the right advice from the start is important. The structure of and issues involved in the sale are quite different if you are buying the business assets only, compared with the shares in the company that owns the business.
Making sure you follow the right process before signing any documents is a key component of a successful business purchase.
The main things to do before signing a contract are:
- Research
- Get professional advice
- Review & understand all documentation
In this article we will highlight some of the key issues to be considered.
Research
Proper research involves checking the records of the business and other information to ensure:
- Sales are as good as the owner says they are
- The business systems are sound and documented
- The business does not have any problematic legal obligations or liabilities
- All necessary information, rights and assets will be included in the sale
- Cash flow is sustainable
- Employees will be happy with a new owner
- Customers will remain loyal once you take over
- You understand the operation of and opportunities in the market/industry
Research should, where possible, be carried out before you sign any contracts.
Professional advice
You should always consider briefing and engaging legal and accounting advisers to assist you in conducting due diligence and documenting the transaction, to avoid legal and financial (including tax-related) “surprises” and arguments down the track.
You might also consider whether there are any industry specific experts that may be useful.
Review and understand the documentation
When purchasing a business there is a lot of documentation to be gathered, read and understood.
The seller may require you to sign a confidentiality agreement to stop you from using confidential information for any purpose other than buying the business. You should make sure you fully understand the agreement before you sign it.
Some of the information you should gather and review is outlined below.
Financial statements
It is sensible to obtain current and historical financial records for the business, including:
- Profit & loss statements
- Balance sheets to identify assets and liabilities
- Lists of debtors and creditors
- Copies of any BASs lodged by the business
List of plant, equipment, assets and stock
You should obtain a list of all plant, equipment, assets (including fixtures and fittings) being sold along with current valuations, proof of ownership and information on applicable warranties and guarantees.
Details of any stock sold with the business and how it will be counted and valued at settlement should be discussed and agreed with the seller.
You should also undertake thorough searches of the Personal Property Securities Register to, for example, ensure that security interests necessary for the business have been registered (such as over sale equipment leased to third parties) and to check whether any relevant security interests are held by third parties.
Lists of customers and suppliers
Customer and supplier relationships form part of the goodwill of the business and a list of all available contact details should be supplied so that you can make contact and ensure an ongoing relationship.
Employees
If the business is being purchased as a going concern and the buyer is assuming liabilities for employees then a list should be provided – setting out the employees, their job descriptions, salaries, years of service, any disciplinary issues and accrued entitlements like holidays and long service leave.
Important Contracts
Any major contracts necessary for the operation of the business should be provided and reviewed, including copies of the lease of the premises and any plant & equipment leases. Term, assignment, change of control and termination provisions, in particular, should be checked.
If any sale assets are financed the financier’s consent will be necessary.
If the business is a franchise the seller is required to provide a franchisor’s disclosure statement.
Documenting the transaction
After completing your due diligence you will need to have the transaction documented with a legally binding contract. There are many issues to consider.
Structure
You will need to decide on the structure of the transaction and it is crucial to get advice on the legal, financial and taxation consequences of the structure you adopt.
The types of things that need to be considered include:
- Whether you are buying the assets of the business or the shares in the company that owns the assets.
- The price to be paid and when it is to be paid.
- Who will the buyer be – an individual, company, trust or partnership?
Deciding on whether to buy the assets or the company is a critical issue when buying a business. There is no simple or right or wrong answer to this question as it will usually depend on the business being purchased and the individual circumstances of both the buyer and the seller.
Things to consider when making a decision include:
- The amount of flexibility and control you want over what you are buying.
- Do you require all of the assets of the business, or all of the employees?
- Do you want to be responsible for past liabilities (known and unknown) of the business which might relate to employees, suppliers or customers?
Price and Terms of Payment
Once the price is agreed you will need to determine how and when the price will be paid.
For additional protection you may want a portion of the price to be held back for a certain period to ensure that information given by the seller is accurate or that profit projections are achieved.
You may not want to pay the price in a lump sum and may be able to negotiate to pay in monthly or annual instalments.
You will need to take into account that the business will probably be continuing right up to the sale date, which means stock, accounts receivable and other items will need to be finalised at a certain time and in an agreed manner.
Legal Contract
The main legal document is a contract for sale of business. The sale contract sets out the various terms agreed to by the parties, including for example:
- the rights of the parties if things go wrong;
- the seller’s representations and warranties, which are designed to ensure that:
- the seller remains responsible for the information given to you about the business; and
- you get what you pay for;
- a non-competition provision which prevents the seller from creating a competing business after the sale; and
- (if a lease or franchise is involved) the consent of the landlord or franchisor.
Conclusion
Buying a business can be a complex transaction. You need to make sure you have done adequate research, understand the risks and have received the right advice.
If you are considering buying a business and would like some help please contact us on (02) 9963 9800 or get in touch via our contact form.
Jan 29, 2021 | Property Law
Homeowners are required to attach a certificate of compliance or non-compliance to the Contract of Sale when they sell their property. The owner of a property must register their swimming pool and/or spa on the NSW Swimming Pool Register. In this blog we review how to register a swimming pool and what the requirements are.
How Do You Register a Swimming Pool?
Swimming pool registration is a straightforward process. It is performed online using the NSW Swimming Pool Register website. A Registration Certificate is obtained after entering the required details about the pool or spa.
How Do You Obtain a Certificate of Compliance?
You can seek a Certificate of Compliance from either a private certifier or from their local council. This involves the certifier or local authority inspecting the barrier around a pool or spa. They are checking that it is compliant with the legislative regulations. If it is compliant, you will receive a Certificate of Compliance which is valid for three years. If you are selling the property or leasing it out, you will need the certificates. The Registration Certificate and the Certificate of Compliance must be attached to the sale Contract or to the Residential Tenancy Agreement. This does not apply to strata properties (with more than two lots), or in a community scheme.
What Is a Certificate of Non-Compliance?
If the pool or spa does not follow to the regulations, the certifier or local authority will provide a Certificate of Non-Compliance. They will also provide a written notice on why it is non-compliant and the steps that can be taken to ensure conformity. A Certificate of Non-Compliance can be attached to a Contract for Sale or Residential Tenancy Agreement in lieu of a Certificate of Compliance. It can only be attached if the notice received by the inspector does not deem the pool to be a hazard to public safety. If it is deemed to be a hazard the seller will have to rectify the problem.
If a Certificate of Non-Compliance is attached the responsibility will transfer to the Purchaser. They will become responsible for bringing the pool or spa into compliance within 90 days after settlement. Unlike the Certificate of Compliance, the Certificate of Non-Compliance is only valid for one (1) year; if it lapses the owner will have to apply for a new certificate.
Purchasing a Property with a Swimming Pool
When purchasing a property with a swimming pool it is important for your solicitor to check the compliance status of the swimming pool. They can check if the swimming pool registration is missing, or the pool is non-compliant. Your solicitor will do this by requesting the notice provided by the certifier or the council from the seller’s solicitor. This can be useful in negotiating the price of the property, and it will let you know what steps you need to perform post-settlement, on bringing the pool into compliance.
Seek Legal Advice
Should you require any assistance in relation to swimming pool registration or compliance, get in touch with our expert team by calling us on (02) 9963 9800 or via our contact page.
Jan 29, 2021 | Wills and Estates
The loss of a family member is always a difficult time, but it can become even more distressing to learn that you have not been included in the family member’s Will. Generally, a person may leave their assets to whomever they wish. However, the law recognises that there are those who relied on the deceased for support who can sometimes be unfairly left out of the deceased’s Will. Such people are able to make a claim so that their needs are adequately provided for.
How do I challenge the deceased’s Will?
There are two main ways that you can challenging the deceased’s Will or contest the Estate. These are:
- Challenging the validity of the Will – this may be on the basis that the Will maker did not have the legal capacity to make the Will, or didn’t understand what they were signing; or
- A claim can be made under the Succession Act on the basis that the Will maker failed to provide for a family member where they had a moral obligation to do so.
Can anyone challenge a Will?
Under the Succession Act, only persons who qualify as eligible persons under the Act may apply to the Court. There are seven categories of eligible persons, namely:
- The wife or husband of the deceased when they died;
- A person in a de facto relationship with the deceased when they died (including same sex partners);
- A child of the deceased;
- Former wives and husbands of the deceased or former de facto partners of the deceased, who were receiving or entitled to receive maintenance from the deceased when they died;
- A grandchild of the deceased, in certain circumstances;
- A step-child of the deceased in certain circumstances; and
- A parent of the deceased.
To show that you are entitled to receive some benefit from the estate you must show that the deceased had an obligation to provide for you and that you have been left without adequate provision for your proper maintenance, education or advancement in life. It is important to note that inheritance claims are subject to a strict time limit, which is 12 months after the date of death.
You may not need to go to court as most parties encourage mediation to avoid unnecessary legal costs or any lengthy delays.
Get legal advice
If you are concerned, please be sure to contact us as soon as possible or you may be prevented from making a claim. It is usually a good idea to try and get a copy of the last Will of the deceased so that you can discuss the details with us more accurately. If you or someone you know wants more information or needs help or advice, please contact us on (02) 9963 9800 or contact us via our form, here. If you would like to prepare your Will with us, please fill out the Will Instruction Form and we will contact you.
