May 2, 2022 | General Advice
A Notary Public and Justice of the Peace are both individuals who offer services in order to verify identity and authenticate true copies of documents. To ensure that you are receiving the most appropriate service, however, it is essential to identify the differences between the two.
What is a Justice of the Peace?
Justices of the Peace (JPs) are volunteers appointed by the Governor of New South Wales and represent all sections of the community. As such, an Australian citizen over the age of 18, who is of good character, nominated by a New South Wales Member of Parliament and meets the other criteria stipulated by Service NSW, is eligible to apply to become a JP. The primary role of a JP involves acting as a witness to the signing of documents such as statutory declarations or affidavits, as well as certifying true copies of documents.
What is a Notary Public?
A Notary Public is a senior solicitor of at least five years, who has been appointed by the relevant Supreme Court of the State or Territory with respect to the Public Notaries Act 1997. A Notary must have completed the Notarial Practice Accreditation program. The role of a Notary Public (sometimes referred to as a Public Notary) has been in existence for approximately 800 years.
A Notary Public can provide a range of services including:
- Authenticating documents to certify their proper execution so they may be used within Australia or internationally
- Certifying legal documents such as Contracts, Deeds, Wills and Powers of Attorney which may be used within Australia or internationally
- Verifying documentation for use in Australia or overseas
- Administering oaths for the giving of evidence
- Witnessing statutory declarations
- Preparing and notarising ship protests.
What is the difference between a JP and a Notary Public?
The main difference between the two is that documents authenticated by a Notary Public may be recognised and accepted overseas. Documents verified by a Justice of the Peace may only be recognised in Australia.
It is also worth noting that JP services are free of charge whereas those of a Notary Public follow a recommended schedule of fees relevant to their State or Territory. Please visit the Society of Notaries of NSW website to learn more about the recommended fees for notary services in NSW.
Who should you go to?
You should go to a JP when you require an authorised person to witness you signing a statutory declaration or affidavit, or when you need to certify copies of original documents for use within Australia. It is important to note that JPs are prohibited from offering legal advice. If a JP provides legal advice and they are not an Australian Legal Practitioner, they will be in breach of the Code of Conduct for JPs in NSW and committing an offence under s14 of the Legal Profession Act 2004 No 112.
If your document needs to be authenticated with legal assistance or for use overseas, you must visit a Notary Public. Whilst Notaries do not always provide legal advice on the document being notarised, they do possess legal expertise which makes them invaluable to guiding clients.
Apostille for use of Notary documents overseas
If your documents need to be recognised and accepted by overseas businesses, governments or courts, you must have your documents legalised by a Notary Public and then apostilled by the Department of Foreign Affairs and Trade (DFAT). Documents certified by a JP will not be accepted by DFAT because JPs are not recognised under overseas law.
Examples of commercial documents that need to be notarised for use outside of Australia include:
- Overseas trade documents (letters of credit)
- Contractual arrangements between foreign businesses (transfers of foreign assets, property and land)
- Matters concerning international trademarks, copyright or patent applications.
Examples of personal documents that require a Notary Public’s action for use overseas may include:
- The certification of passports
- Academic transcripts and testamurs
- Citizenship certificates and consent to travel documentation
- Probate documents where overseas assets form part of an estate
- Overseas police checks.
Attending a Notary Public or JP appointment
When attending a Notary Public or JP appointment, the true identity of the person having their documents authenticated must be verified. This means that you will need sufficient identification documents such as your driver’s licence, passport, Medicare card or original birth certificate, to verify your identity.
Additionally, neither a JP nor Notary Public may witness a document that has already been signed. The act of signing must be witnessed by the JP or Notary Public at the time of signature.
A Notary Public must also make an informed decision that the signatory is not legally incapacitated and understands the nature and effect of the document being signed and/or attested. To learn more about Notary Public services, please refer to our website for more information.
How Etheringtons Solicitors can help?
Etheringtons Solicitors provides both Notary Public and Justice of the Peace services in their North Sydney office.
If you require either a Notary Public or JP service, please submit an enquiry using our online contact form or call our office on 02 9963 9800.
Apr 29, 2022 | Family Law, General Advice
It is becoming increasingly common that couples receive financial assistance from their parents. This can be through the transfer of property, the giving of money or both. Although helpful for major financial decisions such as the purchase of property, this assistance can cause issues if the couple separates, as there can be a dispute as to whether the money provided was provided by way of a gift or a loan.
In a property settlement, the family law court can treat payments made by a parent to their child in two ways:
- The court may find that the payment was a gift to the child which is not expected to be repaid.
- The court may find that the payment is a loan from the parents that is to be repayable in full.
How does the family law court treat gifts?
In general, a court treats gifts from a parent as being for the benefit of their child alone. Because of this, when assessing entitlements, the court will apply such gifts towards that spouse’s side of the ledger when determining their entitlement. This would result in that spouse receiving an extra contribution as a result of the gift applied towards the relationship. However, if the intention was that the gift was to be provided to both parties to the relationship then it would be open for a spouse to contend that the gift is to be taken as an equal contribution of both parties.
How does the family law court treat loans?
If the money is determined to be a loan from the parents, the court must then determine whether the loan is legally repayable and in doing so, they must consider whether the loan is likely to be repaid in the foreseeable future. If the loan is unsecured, the court has discretion to either deduct the loan from the pool of assets or not. If the terms of the loan are vague or uncertain, the court is less likely to enforce the loan. Evidence about the loan determines how the loan is treated. If there is any oral or written evidence of the loan, and the parties have complied with the terms of the loan through actions such as making repayments, the court may be likely to uphold the existence of a loan. However, if there is little or no evidence that supports the claim that it was a loan, and there have been no repayments made, the court would be less likely to uphold the existence of the loan.
Considerations for parents
If you are considering lending money to your child who is married or in a de facto relationship, it is important that there is documentation which adequately establishes that the money provided is to be treated as a loan.
The documentation can include:
- A loan agreement that sets out the terms of the loan which is signed by all the parties involved
- A mortgage over the property that secures the loan
Further to the documentation, it is important that the parties to the loan comply with its terms and obtain any appropriate legal advice. Repayments must be made if necessary, and if the payment of the loan is reliant on an event or time period which has passed, a new loan agreement should be entered into.
Contact Us
If you have separated from your partner and your parents have lent you money and you are not sure whether it will be treated as a gift or a loan in court or you are wishing to lend money to your child who is in a relationship and you would like more information, please contact Etheringtons Family Lawyers in North Sydney on 9963 9800 or message us here.
Apr 9, 2022 | General Advice
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 your 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:
- 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 Scammers can do this through electronic viruses or malware which collect your name, birthday, Medicare number or bank details.
- 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
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 the credit reporting bodies (Equifax, Illion (formerly Dun and Bradstreet) and Experian) do 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). 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.
Mar 15, 2022 | General Advice
Many people enjoy the adrenaline rush from extreme sports and thrill seeking activities. However it is essential that before you take the plunge, metaphorically or literally, you understand your position and the duties owed to you by providers should you injure yourself during a dangerous recreational activity.
The tort of negligence and personal injury
An action for negligence requires the defendant’s failure to exercise due care and skill which then results in a personal injury or damage to the plaintiff.
To claim an action for negligence under the Civil Liability Act 2002 (NSW), the plaintiff must establish on the balance of probabilities that:
- The defendant owed the plaintiff a duty to take reasonable care;
- The defendant breached that duty by failing to take reasonable care;
- The defendant’s breach caused the injury or damage suffered by the plaintiff; and
- The injury or damage suffered was not too remote a consequence of the breach of duty.
To learn more about how breach of duty is established in negligence cases, please read one of our previous articles.
It is important to note that an action for negligence will not succeed if the defendant can establish a defence, such as the dangerous recreational activity defence.
Dangerous recreational activity defence
Under the Civil Liability Act 2002 (NSW), the defendant cannot be held liable for personal injury or damage suffered where the harm results from the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. This will be true even if the plaintiff was not aware of the risk when they engaged in the dangerous recreational activity.
1. Dangerous recreational activity
A recreational activity includes any activity pursued for enjoyment, relaxation, or leisure; any activity pursued at a place such as a beach, park, or other public space; and any sport. A dangerous recreational activity is one that involves a significant risk of physical harm.
Whether an activity is considered a dangerous recreational activity must be determined with consideration of all of the relevant circumstances. For example, riding a bike with training wheels on an even surface may not amount to undertaking a dangerous recreational activity, but an inexperienced rider on difficult mountain trails without proper supervision or safety equipment may meet these requirements. Factors including the time, place, competence, age, sobriety, equipment and weather have all been considered by courts to determine this question of fact.
2. Obvious risk materialisation
An obvious risk to the plaintiff is one that, in the circumstances, would have been obvious to a reasonable person in the plaintiff’s position. Obvious risks include those which are matters of common knowledge, even if they have a low probability of actually occurring. A person need only be aware of the type or kind of risk for it to be considered obvious, not necessarily its precise manifestation in their particular circumstances.
An injured person is presumed to have been aware of obvious risks for engaging in the dangerous recreational activity, and as such there is no proactive duty to warn individuals of these obvious risks except if a relevant exception applies. This presumption exists unless the plaintiff can establish on the balance of probabilities that they were not aware of the type or kind of obvious risk that caused their damage or personal injury.
Case Study: Lynch v Cavallo [2021] NSWSC 704
The Supreme Court of NSW recently approved a settlement in a personal injury matter in which a jockey (Lynch) was injured when he fell from his racehorse and was injured by another jockey (Cavallo) during the Mudgee Cup.
Justice Adamson upheld the proposed settlement, deciding that the settlement in favour of Cavallo with no order as to costs was in Lynch’s best interests. Lynch had previously been involved in the case of Singh bhnf Ambu Kanwar v Lynch [2020] NSWCA 152, in which he had been the defendant, and the Court had upheld the defence of an obvious risk materialisation in a dangerous recreational activity in similar circumstances. The obvious risk in this previous case was held to be that the conduct of another rider could cause a fall resulting in personal injury or damage in the inherently dangerous recreational activity of horse racing. Relying on this authority, Justice Adamson upheld the proposed settlement as she believed Lynch’s negligence claim would be unsuccessful at trial.
How Etheringtons Solicitors can help
A solicitor at Etheringtons Solicitors can provide you with clarification of the relevant law and its relation to your individual circumstances. If you need further advice in relation to a negligence and personal injury matter, please contact one of our experienced solicitors on (02) 9963 9800 or via our contact form.
Jun 17, 2020 | Family Law, General Advice
With the recent announcement of SpaceX CEO Elon Musk and Canadian singer ‘Grimes’ naming their son “X Æ A-12”, many people are left confused regarding the legal constraints for naming children. It is common for celebrities and public figures to push societal bounds by naming their children unconventional names, but how far can one go until the name is rejected by the law?
Elon Musk and Grimes have changed ‘X Æ A-12’ to ‘X Æ A-Xii’ in an attempt to comply with Californian laws. However, despite the slight change, it is likely the name will still face issues in California as you can only utilise the 26 characters of the alphabet in a child’s name (excluding apostrophes for names such as O’Neil). Such restrictions call into question what would happen if such a situation were to occur in NSW. This article will address what you can and cannot name a child pursuant to NSW naming laws.
Child Naming Laws in NSW
Once a child is born, the parents must register within 60 days the child’s name with the NSW Registrar. Under the Births, Deaths and Marriages Registration Act (‘the Act’), it is prohibited to give a child a name that:
- is obscene or offensive;
- is too long;
- includes symbols without phonetic significance;
- resembles an official title or rank, such as judge, saint, king, prince; or
- is contrary to the public interest for some other reason.
Specific naming restrictions include:
- The maximum length of a name, including spaces that can be registered is 50 characters each for the family name, first name and any other middle names.
- Names cannot contain numbers or symbols, which includes roman numerals, prefixes or suffixes, such as the name “Anne Marie the 1st!”.
- It is also not possible to register a name which bear a resemblance to a title, such as “Duke of Edinburgh Smith”. However, it is possible to register a name which has a title as a name such as “Edward Duke Smith”.
The state will not register a prohibited name, and can assign a name to a child if the name is a prohibited name, or where each parent lodges a birth registration statement because they are unable to agree on the child’s name.
Changing your child’s name following separation
Changing the surname of both child and spouse has been customary at marriage. Many women may choose to revert to their maiden name upon separation or divorce, however both parents must usually provide consent to change their child’s surname. An agreement can be reached privately or through alternative dispute resolution. The child must also consent to the change of name, unless they are unable to understand the meaning and implications of the change of name.
However, one parent can apply alone to change their child’s name if:
- they are the only parent named on the child’s birth certificate; or
- the other parent has passed away; or
- a court has approved the new name for the child.
Changing Names
Names recognise your individual identity and are a significant part of your personal brand. If you are not happy with your name, in NSW you can only change your name once in a 12-month period, and three times in your lifetime.
You may apply to change your name if you are an adult (over 18 years old) and:
- your birth is registered in NSW; or
- you were born overseas and have been a resident in NSW for 3 years when you apply for the name change; or
- your birth is not registered in NSW and a protection order has been made to protect you and/or your children from domestic violence.
Further Information
It is important to be aware of the laws surrounding name changes in NSW if you are considering changing your name or your child’s name. If you would like more information on how we can assist you with your matter, do not hesitate to contact us on 9963 9800 or via our contact form.
Jun 3, 2020 | COVID-19, General Advice
Disclaimer: The directives in this article relating to the COVID-19 pandemic may no longer be in force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.
This article has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, financial advice. We recommend that you should consult your own finance advisors before engaging in any transactions.
The COVID-19 pandemic has shocked the financial markets and created difficult situations for people who own assets that have fallen in value. In this article, we explore three tips that could help protect your assets and finances throughout the COVID-19 crisis, or other financial difficulties.
Protecting Personal and Family Assets
A discretionary trust (also known as a family trust) can be used to protect assets in the event of a financial crisis or bankruptcy. In a typical family trust, the trustee is under an obligation to hold property for the benefit of the beneficiaries. The trustee is the legal owner of the trust property and the beneficiaries hold an interest in the property. Therefore, if a beneficiary experiences financial hardship, trust assets are protected from the any creditors, as the beneficiary does not own the trust property.
It is common for family trusts to have a corporate trustee as this allows for particular tax benefits. It also means the trust can exist indefinitely, as there may be multiple directors appointed to control the trust.
However, there are many events that risk exposing the assets of a trust, including where loans are made from a family trust, when there are unpaid allocations of trust income and capital, and when companies are beneficiaries. Many deficiencies stem from a poorly constructed trust deed, therefore it is important to consult a legal professional to carefully draft a deed to ensure asset protection.
Protecting Business Assets
One of the greatest risks during economic downturns is that a business may become bankrupt, leaving both employees and directors vulnerable. Creating limited liability companies or corporations is the most common strategy to help protect your personal assets from the reach of creditors if your business becomes bankrupt. Businesses can also use the structure of a trust to protect assets that have value, such as machinery, equipment or intellectual property, to prevent them from being taken in the event of a lawsuit.
Professionals that are at risk of personal liability must be careful as the risk of insolvency and/or lawsuits frequently arises during a financial crisis. Thus, it is important to check your business and professional indemnity policies for inclusions and exclusions. One way you could protect yourself is to increase your professional and public liability policy premiums and cover more extensively the events that are likely to occur in the current environment.
Pension and Superannuation Funds
Most pension and superannuation funds allow you to shift your investments across different asset classes. As volatile market movements have resulted in falling share prices, shifting your investments could substantially reduce the current value of your portfolio. If you are older or rely on income from your fund, you could consider reducing the risk of your investments by shifting holdings from equities to bonds and cash. However, it is important to note that moving your investments could mean that you sell at a lower than usual price and therefore miss out on opportunities for future price increases. As such, some financial advisors may suggest to sit out of the market and wait until things blow over. If you are middle-aged or younger and will not need to rely on a fund income within the next ten years, attempting to time the markets is risky and rash decisions could lead to a loss in the potential future value of your assets. Many suggest that the key is to maintain a balanced portfolio that spreads risk across different asset classes to reduce your downside risk and also ensure exposure to upside risk when the market outlook improves.
Further Information
If you would like more information on how we can advise you about trusts and protecting your assets, do not hesitate to contact us on 9963 9800 or at [email protected].
