NSW Court of Appeal revisits compulsory acquisition law

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On 6 September 2018, the NSW Court of Appeal (Bathurst CJ, Ward JA and Payne JA) delivered judgment in the case of Roads and Maritime Services v Desane Properties Pty Ltd [2018] NSWCA 196.

The case concerned the validity of a Proposed Acquisition Notice (PAN) that had been issued by the RMS for the compulsory acquisition of a property owned by Desane at Rozelle. The property was required as part of the proposed Rozelle Interchange associated with the Westconnex road project in Sydney.

The Court of Appeal (in a unanimous judgment) overturned the decision of the primary judge and found that the PAN was valid. Accordingly, the RMS was able to proceed with the acquisition of the property.

In its judgment, the Court of Appeal gave useful guidance as to the circumstances in which a PAN will be legally defective. The Court held that:

  • PANs are not required to strictly comply with the Approved Form under the Land Acquistion (Just Terms Compensation) Act 1991 (the Act) and that “substantial compliance” is sufficient;

  • similarly, PANs do not need to precisely adopt the language of the Act at the time of issue;

  • there is no requirement for a PAN to state the public purpose for the acquisition;

  • there was no improper purpose on the part of the RMS in relation to the acquisition of the property. The Court found that the critical time for assessing purpose is not when the PAN is issued, but at the time of acquisition. The Court overruled the finding of the trial judge that the RMS intended to acquire the property as open space and parkland - as this would only arise once construction of the underground interchange was complete. The Court adopted a liberal approach to the necessary “purpose” and found that that there was no need to identify the specific purpose with precision at the time the PAN was issued.

Lessons from the Case

The case provides important appellant guidance as to the circumstances in which a PAN may be legally invalid.

The overriding theme of the case is that Courts should adopt a measure of flexibility when the validity of a PAN is challenged. That said, Councils and government agencies still need to exercise great care in the preparation of PANs and the surrounding process to avoid subsequent legal challenges to a compulsory acquisition.

For further information please don’t hesitate to contact:

Justin Conomy
Special Counsel
justin@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

I’m a first home buyer purchasing unregistered land. What should I consider?

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The purchase of unregistered land by First Home Buyers is still one of the most common transactions I see come across my desk. Despite this, there is so much First Home Buyers don’t know about buying unregistered land. This is a must read for First Home Buyers looking to buy unregistered land.

First Home Buyers – it’s time to stop the confusion and get informed.

Transfer Duty (formerly called Stamp Duty)

Purchase price $350,000 or below?

Zero to pay – full exemption.

Purchase price between $350,000 and $450,000?

Discounts apply – the discounts work on a sliding scale depending on the purchase price. The closer the purchase price is to $350,000, the less you pay.

There is a calculator tool on the Revenue NSW website which allows you to calculate how much duty would be payable, depending on the purchase price of your block of land.

If the purchase price is over $350,000 then an element of transfer duty will be payable. This amount must be paid on the earlier of 3 months after the Contract date or settlement. Remember – settlement doesn’t occur until the land is registered. As such, in the majority of cases, you will be required to pay the transfer duty within 3 months of the Contract date. The Contract date is the date the Contracts are exchanged/entered into. I often find this is a common misconception among First Home Buyers. If I had a dollar for every time someone told me they thought that “apart from the deposit, nothing is payable until the land is registered”, I’d be hundreds of dollars richer.

Purchase price over $450,000?

Full transfer duty is payable – no discounts apply. Again, this becomes payable on the earlier of 3 months after the Contract date or settlement.

The above information only sets out the thresholds. It is important to note that there is criteria you must meet in order to be eligible.

First Home Owner Grant

In addition to the transfer duty exemptions or concessions above, as a First Home Buyer you may also be entitled to a $10,000 grant. The grant does not apply to the purchase of land but applies to the construction of a new home on the land. In order to be eligible, the total property value (including house and land) must be less than $750,000.

You may be able to apply through your bank when they’re arranging finance for the building contract or you can apply for it yourself when construction of the new home is completed.

Time frames for registration

Whilst you are provided with an anticipated date for registration, this date is approximate only and subject to change.

The Vendor doesn’t have control over registration of the land because there are a number of processes that need to be followed involving third parties. Before the land is registered, council must approve the plan of subdivision, construction works must be completed and the plan of subdivision must be lodged to Land Registry Services.

It is because of this and a number of other external factors like weather, that an exact time frame of when the land will register cannot be given.

Sunset Date

Generally speaking in a Contract for Sale of unregistered land, there is a ‘sunset date’. This is the latest date that the Vendor has to have the land registered by and is usually longer than the anticipated time frame for registration provided by the sales office.

This is important to consider because as a worst-case scenario you could be waiting until the sunset date. It’s only until the sunset date has passed, that you have any options under the Contract terms.

In most cases, if the sunset date has passed, you have the option to get out of the Contract, get your deposit back and apply for a refund of any transfer duty paid.

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

*This information is current as at April 2019 and applies to First Home Buyers in NSW

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

The pitfalls of not having terms & conditions

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What are some of the pitfalls of not having terms and conditions? We hear many risky stories of companies going without terms and conditions altogether or using terms and conditions that do not belong to them and were not tailored to them.

Here we explore just some of the risks of not having terms and conditions.

1)     Payment terms: clarity on when fees and payments are due, how they are to be paid and interest charges and other feesIf it’s not clear what is included and what is excluded, you run the risk of missing out on being able to charge for (and recover cost) for goods and services provided.

2)     Risk allocation: first and foremost, terms and conditions serve to be a risk allocation document that set out the risks relevant to your goods and services and which party will bear each risk and in what circumstances.  Chances are if you don’t have terms and conditions or don’t have properly drafted terms and conditions, you’ve allocated yourself more risk than you bargained for.  For example, what time frames do you accept? Who runs the risk of timing of decision making and instructions of your client or customer? If they don’t respond in the right time frame, does your timeline or deadline push out or do you wear the risk of delayed instructions or delayed client/customer decisions?

3)     Dates: when the agreement starts and finishes.  The date that the services of goods will be provided… All key milestone dates.  These are just some of the things that are covered by well drafted, terms and conditions.  Having certainty around dates minimises the scope for a frustrated customer or client and makes it clear, upfront, what everyone has agreed to.

4)     Exposure to warranty claims: without terms and conditions, you are missing out on clearly prescribed warranty terms that make it clear to any clients, hirer or purchaser, just when you are on the hook for a warranty claim and, more importantly, when you are not on the hook for a warranty claim.  These need to fit within the legal requirements.

5)     Scoping inclusions and exclusions: good terms and conditions make it clear precisely what is included in your scope, your quote or fee and, importantly, what is not included in your scope, quote or fee.  By having certainty around inclusions and exclusions, you may avoid a claim that further goods or services were included in the original scope, quote or fee, for example.

6)     When you are on the hook, and when you are not: good terms and conditions make it clear what you will be responsible for, and the things and actions that you are not responsible for.  Typically, you will not be responsible for any use of your products or services outside of their intended purpose or scope.

7)     Title and risk: for the sale of goods, this refers to when title and risk passes to the end consumer.  For the hire of goods, this refers to when risk in the good hired passes to the other party.  These both make it clear when the other party is on the hook (and, more importantly, when you’re off the hook).

8)     Fees: good terms and conditions would make clear all components of your price or fee.  This includes additional fees such as bond or delivery, fees that apply if things go outside the scope or outside of time.  Having clearly expressed fees can make it easier for you to recover those fees.  This is particularly important for scope increase and to ensure that you are protected for your fees for any such “scope creep”.  Failure to have clear terms and conditions surrounding your fees may mean that you are required to pay for disbursements or extra fees that haven’t been properly disclosed to the customer, or, the customer not having to pay for certain additional services that weren’t disclosed upfront in your terms and conditions. 

 For tailored terms and conditions that properly address risk and allocate risk between the parties, Coutts is here to help.  For further information please don’t hesitate to contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110  

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Practical Considerations: Challenging a creditors statutory demand

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On 21 March 2019, Justice Black considered an application to set aside a statutory demand: In the matter of Skylane Worldwide Enterprises Pty Ltd [2019] NSWSC 707.

The Court has power to set aside a creditor’s statutory demand under s 459H(1)(a) of the Corporations Act 2001 (Cth) where there is a genuine dispute between a company receiving a demand and the issuer of the demand, about the existence or amount of the debt to which the demand relates.

That threshold has been held to be rather low. It is nonetheless real.

The facts in the matter before Justice Black were of no interest to anyone other than the parties, and will not be rehashed, but Justice Black considered the standard authorities on the low threshold which are worth reviewing:

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Justice Black also referred to two of his own decisions: Re Wollongong Coal Pty Ltd [2015] NSWSC 1680; (2015) 110 ACSR 134 at [9]–[22] and Re Erma Properties Pty Ltd [2017] NSWSC 1748. 

In then setting aside the demand in question, Justice Black concluded that the plaintiff (recipient of the demand) had:

“not established a genuine dispute, involving more than mere bluster or assertion, being a dispute that has sufficient objective existence or prima facie plausibility to warrant further investigation and to require [the defendant] to proceed by way of contested proceedings, rather than by the issue of a creditor’s statutory demand which, if not complied with, will give rise to a presumption of insolvency.”

The case was dismissed with costs.

Lessons from the Case

The case highlights the need for:

  • A creditor, before issuing a demand, to make an objective assessment of whether there are grounds upon which the debtor may rely to assert a dispute or off-setting claim – if so, then suing for the debt may be the preferred option.

  • A debtor, upon receiving a demand, to make a proper assessment as to whether there are plausible grounds on which to seek to set it aside.

Whilst the threshold for raising a dispute is rather low, it is nonetheless real, and it will not be reached where the plaintiff does not rise above mere bluster or assertion.

Coutts can assist clients with advising clients as to both of the above steps, and represent clients in hearings on these matters, without needing to brief counsel to argue such cases.

For further information please don’t hesitate to contact:

Justin Conomy
Special Counsel
justin@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Noisy neighbours: where to start!

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Noise is a major instigator of disputes between neighbours. Whether it be a loud party with music blasting into the early hours of the morning each and every weekend, consistent yelling throughout the days or inconsiderate mowing of the lawn disrupting the sacred Sunday sleep in, noise disputes arise in an abundance of situations and can be difficult to approach.

Noise is legislated under the Protection of the Environment Operations Act 1997 and is defined to include both vibration and sound. The Act makes provision for “offensive noise” being noise that is harmful to a person outside of the premises emitting noise, or noise that interferes with the response or comfort of a person outside of the premises in an unreasonable manner. In order to determine whether noise falls into this definition, the nature, quality, character and level of noise is to be considered.

Despite some noises being specifically prohibited under Regulations that Police and Local Council govern, neighbours can be uncertain about how to approach noises that don’t easily fall into this category. So what do should you do?

1.     Raise your concerns with your Neighbour in a pleasant manner

Whilst one of the simplest options, it may be overlooked to have a pleasant conversation with your neighbour. Noise issues may be simply resolved and neighbours may then be made aware of the impact of their behaviours.

2.     Mediate

In the event that your neighbours don’t respond in the reasonable manner you hope for and the problem continues to persist, you can engage a mediator (being a neutral third party) to assist in resolving the dispute. This gives the neighbours an opportunity to talk with each other and clarify their position on the dispute, talk and be heard. The mediator then can help the neighbours develop options that may resolve the dispute, that perhaps parties had not yet considered.

3.     Consider a Noise Complaint

If the noise continues and your neighbour is unwilling to compromise or reduce their noise, a complaint can be made to Police or the Local Council.

Whilst this may be a person’s first consideration, it should be considered whether the noise and “offense” arising from the noise validates potentially deteriorating the relationship you have with your neighbour. It is essential to remember that whilst some activities can be noisy or annoying, neighbours will continue to reside near you and some things can be tolerated rather than inflaming a situation which could worsen.

4.     Apply for a Noise Order

As a matter of last recourse, a person is able to make an Application in the Local Court addressing the noise and seeking a binding, enforceable Order that the neighbour stop or control a certain type of noise. This is known as a noise abatement order. Essentially, the neighbour will be prohibited from breaking the Order and could face legal consequences for the breach.

If you require advice on how to approach a neighbourhood dispute, would like further information on mediation avenues, have queries about noise complaints or require representation to respond to a noise complaint, Coutts has the experience to assist you. To receive personalised advice on your particular issue, please contact (02) 4647 7577 to book an initial appointment with our Disputes Resolution Team.

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

“Lemon” motor vehicles – consumer rights clarified

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On 8 September 2018 the Australian Consumer and Competition Authority (ACCC) published an updated guide in relation to the application of the Australian Consumer Law (ACL) to motor vehicle sales and repairs. Although this publication does not constitute legal advice or a definitive guide as to when the ACL applies, it does provide some useful legal guidance for consumers in respect of defects and failures in new and used motor vehicles.

A link to the guide can be found here.

Overview

On 1 January 2011 the ACL was introduced as a uniform consumer protection law across Australia. As the law is relatively new, there is a measure of uncertainty in relation to parts of its practical operation - hence the publication by the ACCC of the above guide.

The ACL prescribed a set of “supplier” and “manufacturer” guarantees which apply to all consumer transactions across Australia.

Major and non-major failures

Under the ACL, where there has been a breach of one of the prescribed guarantees, the remedy to which a consumer is entitled, depends on there has been a “major” or “minor” failure to comply with the consumer guarantee. These are concepts new to the law in Australia.

If a vehicle suffers from a “major” failure, then the consumer is generally entitled to elect to:

  • reject the vehicle and obtain either a full refund or replacement vehicle of the same type; or

  • retain the vehicle and ask for compensation from the dealer or manufacturer.

If a vehicle suffers from a “non-major” failure, then the supplier has the option of repairing the vehicle or providing a replacement or refund to the consumer. A “non-major” failure can become a “major” failure if the vehicle cannot be repaired within a reasonable time

In addition, the consumer may be entitled to compensation for any foreseeable loss suffered by the consumer as a result of any breach of the ACL guarantees.

What are “major” and “non-major” failures

The ACL prescribes a “major” failure as occurring where:

  • a person would not have purchased the product had they been aware of the failure;

  • the failure results in the product being significantly different from a sample or description;

  • the product is substantially unfit for its purpose and cannot be effectively repaired within a reasonable time; or

  • the product is unsafe.

A “non-major” failure is a failure which does not amount to a “major failure” as defined above.

Clarification as to “major” and “non-major” failures

Since the introduction of the ACL there has been a lot of uncertainty in the motor vehicle industry as to when a defect will amount to a “major” defect - particularly when the vehicle is no longer new. Given the infancy of the ACL, there have only been a handful of cases which have considered the application of the ACL in the context of defective vehicles. Hence, the publication of the guide by the ACL provides some measure of clarification to the industry and consumers alike.

Examples of “major” vehicle failures

The ACCC guide sets out the following examples which it considers to amount to “major” failure of a motor vehicle:

  • a manufacturing defect in a new vehicle causing excessive noisiness in the vehicle resulting in multiple repairs (exceeding 5 weeks) which did not see the issue resolved;

  • a 2 year old vehicle suffering from a manufacturing defect causing the engine and vehicle to seize with the vehicle not be able to be repaired within 5 weeks.

Examples of “non-major” vehicle failures

The ACCC guide sets out the following examples which it considers do not amount to a “major” failure of a motor vehicle:

  • a new vehicle which had developed a rattling noise and which did not interfere with its normal operation and which was repaired within 2 days.

  • an 18 month old vehicle with an intermittent electrical fault causing a warning light to activate from time to time. The cause of the problem could not initially be diagnosed and resolved until the third attempted repair;

  • a 3 year old vehicle which had suffered from the following issues and which were repaired on separate occasions - an interior trim coming loose, the satellite navigation system developing a glitch and the boot latch breaking.

Key Take-Aways

The ACCC guide provides some clarification as to what will constitute a “major” and “non-major” failures in the context of motor vehicles. However, the examples provided by the ACCC are reasonably clear-cut and we must await for further cases to be decided in the State and Territory consumer tribunals before more valuable guidance can be given in relation to more borderline cases.

 

We have experience in motor vehicle claims and can help if you are dissatisfied with the performance of your vehicle.   For further information please don’t hesitate to contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110  

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What are Deposit Bonds?

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Deposit Bonds are becoming a common part of the conveyancing process. So it is important for vendors and purchasers alike to understand what Deposit Bonds are.

A Deposit Bond is a substitute for all or part of the usual cash deposit. The deposit is typically paid on exchange of Contracts in the conveyancing process. It almost like a form of insurance where the institution providing the deposit bond is saying the purchaser is good for the money.

The term of the deposit bond can be from 6 months to 48 months. Longer term deposit bonds are usual when purchasing off-the-plan property.

Where can you get a Deposit Bond from?

Deposit Bonds can be obtained through specific companies that only deal in deposit bonds, or through your banking institution.

In order to obtain a deposit bond you will need some documents to support your application. Documents such as the following a typically required:

  • Copy of your loan approval;

  • Evidence of funds to complete the purchase;

  • Signed and dated Contract for Sale (if selling existing property)

What is the cost of a Deposit Bond?

The cost varies between institutions and will vary depending on the value of the deposit bond and how long you need it in place for.

What is the benefit of a deposit bond versus cash deposit?

Greater flexibility at auction. You select your maximum bid amount and the deposit is then valid for up to 10% of that amount. You can then retain the same deposit bond for up to 6 months until you are successful at auction.

First home buyers. With high property prices first home buyers may not have access to 10% cash deposit but can get loan approval for excess of 5%. A deposit bond (possibly with the need for guarantor) is therefore an option to avoid committing to a cash deposit.

Buying off the plan. When buying off the plan, typically the vendor invests the deposit in a low interest earning account which you may only get half of the interest earnt on settlement. However, with a deposit bond you can leave your money where it is and still secure the perfect property.

For more information, please contact:

Kylie Fuentes
Licensed Conveyancer & JP
kylie@couttslegal.com.au
1300 268 887

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Key considerations for employment contracts

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Here at Coutts we understand how important it is as a business owner to maintain positive and healthy relationships with employees. We also understand how crucial it is for an employer to protect their interests and limit their exposure to various claims by their employees.

With the combination of the Fair Work Act 2009 (Cth), the National Employment Standards and Modern Awards, entering into well written employment contracts is essential.

In fact, even if you don’t enter into a written agreement with your employees you are still entering into an oral agreement and therefore owe certain duties and obligations to your employees.

Under the National Employment Standards, whether there is a written employment agreement in place or not, a set of minimum entitlements automatically applies to employees. For example, maximum weekly hours, annual leave, public holidays and notice of termination, and these entitlements are on top of the employee entitlements already provided for under the relevant Modern Awards.

Although you do not legally need to provide an employee with a written agreement, employers often struggle if a dispute arises with an employee in the future, as there is no record of the agreed terms of the employment relationship.

So, the question arises, why not enter into a formal written agreement that clearly outlines everybody’s expectations and obligations?

Some key items to consider when it comes to employment contracts are:

1.       Does the agreement comply with current legislation?

Employment agreements will need to comply with the Fair Work Act 2009 (Cth). It is likely that any employment agreement entered into prior to 1 January 2010 will need to be reviewed to provide for the provisions in this act.

2.       Have you reviewed the relevant award?

Employment agreements must comply with the applicable modern award. Awards will often dictate:

·       minimum wages;

·       overtime and penalty rates;

·       types of employment such as casual or permanent;

·       employee classifications;

·       expenses such as travel and meal allowances;

·       breaks, hours of work and rostering;

·       leave entitlements.

It is not uncommon for employment agreements to contain a provision that is inconsistent with the award without the employer even realising, for example paying an employee less than what is required under the award for their position.

In most situations it is likely that the award would prevail and the provision in the employment contract is overridden by the award. To avoid disputes with employees or a breach of the law, it is crucial to ensure the employment terms comply with the law and in particular the relevant award.

3.       Is a restraint of trade necessary to protect your business?

Restraints of trade are very common to try and prevent an employee from working with a competitor, poaching clients or other employees.

However, restraints of trade are only enforceable where the employer can show the restraint is necessary to protect legitimate business interests such as trade secrets, confidential information and clients. The restraint can’t be against public interest, as the employee has a right to earn a living. For example, a restraint which tries to restrict employees from working for a competitor for 100 years within Australia, is unlikely to be enforceable.

Factors to be considered when determining the enforceability of the restraint include the nature of industry, the time of the restraint, the distance of the restraint and overall how reasonable the restraint is.

It is really important to have a properly constructed restraint that is clear, well-worded and reasonable to give the restraint the best chance of being enforceable.

4.       Does the employee know what is expected of them?

A written employment can clearly define the duties and role of the employee to create certainty and ensure the employee is aware of an employer’s expectations.  

5.       Does the agreement protect your confidential information?

Often a business has confidential information which may include things such as financial statements, manufacturing processes, trade secrets or client databases. It is important to ensure your employment agreement protects this information and that an employee is prohibited from disclosing confidential information as it may harm the business.

6.       Have you covered your intellectual property?

Employees are likely to be using your intellectual property throughout the course of their employment, so it’s important to ensure it remains your intellectual property.

Depending on the type of employment, the employee may also be developing or creating new inventions, processes or procedures whilst employed with you. If this is the case, you may want to consider ownership of these creations and covering it in the employment agreement to protect your interests.  

7.       Does it deal with the policies of the business?

You should consider if you have any policies you want to incorporate into the employment contract. For example, a drug and alcohol policy or a work health and safety policy. However, if you are including policies in an employment contract, you may also bind yourself to follow and implement those policies under contract law. Alternatively, you might want policies to be acknowledged by the employee as lawful directions. Generally, if you make the policies accessible and clearly communicated to employees you should be able to rely on those policies.

 

Coutts have expertise in preparing tailored employment agreements that both protect the interests of employers, as well as ensure employees are aware of their obligations. Call 1300 268 887 and book an appointment with Alexandra Johnstone or Keely Irving today.

For further information please don’t hesitate to contact:

Keely Irving
Lawyer
keely@couttslegal.com.au
02 4607 2124

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

eConveyancing: the 1 July 2019 mandate

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Conveyancing is the legal process involved in buying or selling property. eConveyancing is the same process but completed electronically meaning the paperwork involved in a manual conveyance is substantially reduced. The transition to eConveyancing aims to transform NSW into the most efficient and secure place to buy and sell property. 

eConveyancing has been a long time coming and from 1 July 2019, mainstream property dealings can no longer be lodged in paper in NSW. This includes transfers, mortgages, discharge of mortgages, caveats, withdrawal of caveats and transmission applications.

Currently in NSW, over 85% of eligible conveyancing transactions are being completed electronically. This percentage is only set to increase as we reach the 1 July mandate.

So, how will this benefit you? So glad you asked.

You get your money faster. Funds are paid and cleared in your account instantly, on the day of settlement. There is no more waiting for cheques to be banked and for funds to then clear. With eConveyancing you have immediate access to funds from settlement.

Reduces costs. Some banks charge $10, even $15 per bank cheque required for settlement. With e-Conveyancing, funds are paid electronically, eliminating the need for bank cheques and additional expenses like bank cheque fees.

Safety first. e-Conveyancing is tightly regulated. Processes are in place to verify the identity of the parties and allow parties to electronically sign documents securely. For all those tech savvy people, the data is encrypted and the receiving computer checks the data to make sure it wasn’t changed in transit.

Less risk and more certainty. I was reading something not to long ago that reported 1 in 5 people surveyed experience delays to settlement. Delays to settlement can mean additional expenses and make for a stressful situation. With eConveyancing the risk of errors and delays is significantly reduced, giving you added certainty of a successful on-time settlement. This is achieved through electronic signing as well as better checks and balances through electronic channels. For example, there are no cheques drawn in eConveyancing, the funds are electronic. This eliminates the chances of cheques being drawn incorrectly resulting in a delay or even a cancellation to settlement.

Less paperwork. Sending documents in the post to be signed increases the risk of delays to settlement, particularly when documents are lost. With electronic signing, there are far less, if any, documents being posted.

Saves time. In order for settlement to occur, the Transfer must be signed. Electronic signing means you can avoid the hassle of printing, scanning and posting documents. You don’t need to make time to drop into the office to sign documents either. The Transfer is signed by your Solicitor or Conveyancer on your behalf, using their digital certificate.

Peace of mind. In the manual world documents required to transfer ownership to you are typically not lodged for days or sometimes weeks after settlement. With e-Conveyancing it is instant, giving you peace of mind. The change of ownership occurs on the day of settlement, with electronic lodgement to Land Registry Services. This also means Government authorities like Council and Water are advised of the change of ownership much sooner.

Moving forward, in order to complete your property transaction it is important that you ensure your Solicitor or Conveyancer is registered for eConveyancing.

At Coutts not only are we registered for eConveyancing as a firm, but each member of our property team has undergone extensive training and are certified with PEXA (Property Exchange Australia).

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Mediation – Know the basics

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Mediation is an alternative dispute resolution process which aims to resolve disputes in a cost effective and efficient manner. The mediation process allows those involved in a dispute to meet with an independent third party, known as a mediator and genuinely attempt to reach a resolution prior to court proceedings.

The mediator plays a crucial role in mediation, acting as a neutral person responsible for ensuring that parties have an opportunity to communicate their goals, issues and desires to reach a resolution across a wide range of disputes. The additional benefit is that all discussions within mediation are kept confidential.

Mediation has cemented itself as a successful step in resolving disputes across various areas of law including but not limited to family law matters such as property settlement and neighbourhood disputes.

Further, parties are able to participate in mediation in public formats, such as community justice centres or privately through mediation centres. Therefore, the timeline for when parties can meet to discuss their dispute may vary as per the avenue they select.

What are the benefits?

Mediation is known for the many benefits it offers to parties of a dispute. Such benefits include:

1.     Cost effectiveness: Mediation is more cost effective than Court proceedings;

2.     Informality: The informal nature of mediation allows people to feel more comfortable negotiating and discussing the issue at hand;

3.     Preservation of Relationships: If both parties are willing, mediation may also preserve the relationship of the parties in comparison to Court proceedings given the cooperative nature of mediation being less adversarial than Court;

4.     Time efficiency: The Court process is often time heavy and may take several weeks, month or even years to achieve a Court Order. As such, mediation gives the opportunity for a matter to be settled in a time effective manner;

5.     Varying Agreements: Often when a matter is brought before a court, a Court is limited in their ability to customise agreements and Orders. Mediation allows for both parties to customise and modify their agreement to best suit the circumstances of the parties.

What happens if it doesn’t work?

Often once a resolution is agreed upon by the parties, it can then be formalised in writing and upheld as an agreement, however if a resolution is not achieved, parties can commence Court proceedings, depending on the nature of the matter.  

If you are experiencing a dispute that you need assistance in resolving, please contact Coutts on (02) 4647 7577 to book an initial appointment so we may assess your legal options for dispute resolution.  

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

NSW Drink Driving Rules

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COMMENCING TODAY, the new laws surrounding drink driving have come into effect.

Under the new rules, ALL people caught drink driving, or driving with an illicit substance present in their blood, will lose their licence on the spot and be issued with a fine. This includes low range drink drivers, with a minimum fine of $561.

The blood alcohol limit for full licence holders, whether you drive a car or motorbike, is under 0.05.

For professional drivers, including bus drivers, taxi drivers, and heavy vehicle drivers, the blood alcohol limit is 0.02.

Learner and P Plate drivers must have a blood alcohol limit of zero.

These new laws are a key priority of the Road Safety Plan 2021. The Road Safety Plan is targeted at providing safer communities and safer country roads by utilising current technologies and implementing harsher penalties for drink and drug driving. 

Be sure not to drink drive or drive whilst under the influence of an illicit substance. If you find yourself in trouble with the law, contact our Criminal Law Department on (02) 4647 7577 or contact or 24 hour criminal law hotline on (02) 8324 7527.

If you have any questions or for further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

The importance of brand ownership: Snapshot of the UGG boot case

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Brand ownership is so important for businesses of any size.  There is a common misconception that owning a business name means that you own that brand, but the reality is brand ownership in Australia is protected by trade marking of your brand, through either logo protection or words protection.

The other important basic element of brand ownership is that it is jurisdictional, meaning that trade marks are owned in each jurisdiction.  Just because you own a trade mark in Australia does not guarantee that the same trade mark is available in the USA and vice versa.  Protections are obtained for trade marks in each particular country that you wish to sell your goods and services. 

You can own your brand in one country but not in another.

The recent USA “Ugg” case highlights some important lessons learned.

This case was recently heard in the USA where Australian Leather had sold a total of twelve pairs of ugg boots in the USA between 2014 and 2016, but without having any trade mark rights in the USA to the word or logo “UGG”.  Deckers Outdoor Corporation a Delaware corporation (Deckers) alleged the sales of Australian Leather UGG boots in the USA breached the Deckers owned US trade mark for ugg boots, being the registered brand of Deckers.  On Friday 10 May, a Chicago jury found these sales of ugg boots by Australian Leather in the USA meant that Australian Leather was guilty of wilful infringement of the Deckers owned UGG trade marks.  Accordingly, Australian Leather was ordered to pay statutory damages of $450,00USD.

Lessons learned from this recent Chicago case are that before your business makes any sales (including as in this case online sales) of an Australian good in the United States, you need to ensure that any sales don’t infringe a trade mark ownership in the USA.  This means at a minimum you should check the trade mark protections in existence in the US to ensure that your Australian brand does not infringe on trade mark ownership in the USA.

Secondly, if you plan to launch your brand in the USA it is wise to check whether your brand is available or already owned in the USA, particularly if you are looking at brand continuity within many countries such as Australia, New Zealand and the USA.  Ensuring availability of brand ownership in all the countries you intend to operate is important.  Strategic planning of your intellectual property is really important.

In Australia, let’s have a brief look at the trade marks each of these brands own and what each of these brands are able to do within Australia.   To understand this, let’s briefly examine some of the formal protections that are in place within Australia between these two brands. 

The UGG Australia logo is a logo trade marked and owned in Australia by Deckers.  This was registered by Deckers from 12 February 1999 in Class 25: Footwear, including boots, shoes, and clogs.  Click here to see the logo that Deckers owns and uses in Australia.

Among its trade mark portfolio, rival company Australian Leather owns a trade marked triangular shaped logo featuring the letters U and G in Australia.  This is registered from 1 October 2009 in Class 25: Clothing, footwear, headgear.  Click here to see just one of the logos that Australian Leather owns and uses in Australia.

In Australia, each of Deckers and Australian Leather have the right to sell and brand ugg boots using their trade marks that they own, within the same class (as noted above, being class 25 including footwear and in the case of Australian Leather, extending to clothing).  Provided each of the brands is used in accordance with their trade mark ownership in Australia, each brand is selling footwear under a brand that they own and is not infringing brand ownership of the other party.

At Coutts, we regularly assist with legal advice on brand ownership, trade mark applications, intellectual property licences and intellectual property management strategies and implementation.

For further information please don’t hesitate to contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110  

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Construction Contractors Beware - High Court confirm monies due to a sub-contractor cannot be withheld

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Overview

Construction sub-contracts will sometimes include a provision allowing a head contractor to retain a portion of the monies due to a subcontractor until a date after the subcontractor’s works have been complete - for example, at practical completion of the head contract or when the defects liability under the head contract has expired. This delay in payment can cause real unfairness to the subcontractor - especially when there is a large time lag between the works performed by the subcontractor and the completion of the overall build. It also raises the risk of a subcontractor never receiving full payment for its works if the contingent event never occurs or if the head contractor becomes insolvent in the meantime.

Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act)

Recognising the unfairness caused to sub-contractors, the Act when introduced in 1999, included a “pay when paid” provision (section 12) which mandated that any provision in a construction contract which sought to make payment to the subcontractor contingent on the head contractor being paid by a third party, or payment to the subcontractor being made contingent on the operation of another contract, was of “no effect”. The scope of this section has previously received little judicial attention.

High Court rejects a narrow operation of the “pay when paid” provision

In Maxcon Constructions Pty Ltd v Vadasz [2018] HCA 5 the High Court upheld the finding of the adjudicator that the “retention” provisions in the subcontract fell within the operation of the Act’s “pay when paid” provision. In doing so, the High Court rejected a narrow approach to this provision which had been adopted by the South Australian Supreme Court. 

In Maxcon’s Case, the building contractor (Maxcon), and Mr Vadasz, a piling subcontractor, were parties to a subcontract under which Mr Vadasz had agreed to design and construct piling for a strata development in Adelaide. The subcontract required Mr Vadasz to provide a "cash retention" equivalent to 5% cent of the overall contract sum with the retention funds to be released in tranches as follows:

·        50% within 90 days of the occupation certificate being obtained;

·        the remaining 50% within 365 days of the occupation certificate being obtained.

Under this clause of the subcontract, Mr Vadasz would be denied a large amount owed for works performed by him at the initial construction stage until one year after the entire building was complete - lengthy period of time.

On 25 February 2016, Mr Vadasz served on Maxcon a payment claim under the Act stating that a progress payment of $204,864.55 was due (this amount included the retention monies). On 8 March 2016, Maxcon provided a payment schedule pursuant under the Act stating that it would pay only $141,163.55, ie it deducted a retention sum and administration charges. Mr Vadasz then applied for adjudication of his payment claim under the Act.

The adjudicator accepted Mr Vadasz's submission that Maxcon was not entitled to deduct the retention sum and determined the adjudicated amount to be equal to the total amount claimed by Mr Vadasz. In relation to the retention sum, the adjudicator concluded that the retention provisions of the subcontract did constitute “pay when paid” provisions and were thereby ineffective - meaning that Maxcon had no right to withhold the retention sum.

Maxcon appealed to the South Australian Supreme Court which found in favour of Maxcon. The Court considered that the retention provisions did not fall within the “pay when paid” provision of the Act on the basis that the date when occupation is achieved is not contingent on Maxcon either being paid or on the operation of the head contract.

The High Court rejected the approach of the South Australian Supreme Court. It held that the “pay when paid” provision of the Act meant that Maxcon could not withhold the retention monies from Mr Vadasz because, ultimately, the release of the retention monies to Mr Vadasz was dependent on the operation of another contract (ie the issue of an occupation certificate for the building was dependent on Maxcon performing the building works as required under the head contract).

Lessons from the Case

The High Court favoured an expansive interpretation to the “pay when paid” provision of the Act. In practice, the effect of the decision is that head contractors need to ensure that their subcontracts do not contain retention provisions which infringe the “pay when paid” provision of the Act, as interpreted by the High Court.

It is important to note that the decision does not affect the provision of “security” under a subcontract such as a bank guarantee or an insurance bond. In light of the High Court’s decision, we recommend that head contractors review their subcontractors to ensure that they are legally compliant and to consider other amendments to provide adequate protections for defective subcontractor works.

For further information please don’t hesitate to contact:

Alexandra Johnstone
Partner
alexandra@couttslegal.com.au
02 4607 2110  

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What makes a Will valid?

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A will is a legal document that sets out your wishes for what you want to happen with your estate assets after you have passed away. Ensuring that your will is well structured, clear and up to date is very important, as it will be more likely that your assets will go to who you want them to. Most people have some idea about what they would like to happen with their estate once they have passed. Whether you decide to leave your assets to your children or your favourite charity, it is important that you ensure the will you make is valid so that who you want to benefit will actually happen.

 

Why Should I Make A Will?

We understand that making a will can be a very difficult document for a person to create. However, some reasons it is a good idea to make a will include:

·       To express your wishes and intention for what you want to happen with your estate assets once you have passed;

·       To provide adequately for the people that you care about, especially when considering blended families or other people who you wish to inherit from you;

·       To make it less likely for a dispute to arise; and

·       To avoid the delay and cost of administering an estate when passing without a valid will in place (also known as dying intestate).

 

Legal Requirements for the Will

In New South Wales, for a will to be considered valid it must be:

·       In writing;

·       Signed by the will maker on every page of the will (or by a person the will maker has directed to sign on their behalf in their presence if they are physically unable to sign it themselves); and

·       Witnessed by at least two people at the same time the will maker signs the document. The witnesses must also sign each page of the will to confirm that they were present and witnessed it.

However, there are also requirements regarding the two witnesses. Unless certain circumstances apply, the witnesses cannot be listed as a beneficiary under the will and they cannot be a person who is unable to see.

 

Capacity and Intention

If you are a person who wishes to make a new will, you must have the legal capacity to do so. What this means is that you must have the ability to make decisions for yourself and you must be able to demonstrate that you understand the nature and consequences of your decisions.

You must also be over 18 years of age or have approval from the Court to make a will if you are a minor.

When it comes to signing the will, it must also be clear that you know what you are signing, that it was your intention to make a will and that you were not coerced, influenced or manipulated when you were making your will to have your estate divided in a certain way.

 

Drafting Issues

Whilst it may seem quite easy to make a valid will without seeing a lawyer who practices in the area, certain elements of your will need to be written in such a way that they reflect your intentions.

If a will is not drafted correctly, what you intended to happen or who you intend to benefit may not happen at all. Speaking to a professional will also give you the benefit of experience and ensure it is drafted correctly and allow you to receive a will that is tailored to reflect your individual needs and circumstances.

For further information contact:


Kaisha Gambell
Senior Lawyer
kaisha@couttslegal.com.au
02 4647 7447

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

New laws give added protection for purchasers in NSW when purchasing off-the-plan

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At the end of last year, new laws came in to give purchasers in New South Wales added protection when purchasing off-the-plan properties.

 

A contract for a property being purchased off-the-plan is a contract for the sale of a residential property that has not been completed at the time the contract is entered into.

 

In an off-the-plan contract, there is a sunset clause. The sunset clause is a provision that provides for the contract to be cancelled if the property is not created by the sunset date. The sunset date will be noted in the contract and is the latest date by which the property must be created.

 

Mr Dominello, the Minister for Finance, Services and Property said it best in a recent Media Release when he said “While it works well in most cases, we’ve all heard the horror stories when things go wrong”.

 

In summary, the major amendments to the Conveyancing Act include:

  • Founding minimum disclosure standards

    Prior to entering into a contract, purchasers must be provided with a disclosure statement, which includes a copy of the proposed plan, proposed by-laws (list of rules) and schedule of finishes (list of the inclusions). Penalties will apply to the vendor if a disclosure statement is not provided.

  • Keeping developers accountable for delivering what they promised

    Purchasers must be given a copy of the final plan and a notice of any changes (if applicable), at least 21 days before they can be required to settle. Additionally, purchasers can cancel the contract or claim compensation if they are adversely affected by changes made, after which time they become entitled to a refund of the deposit paid.

  • Extending the cooling off period

    The cooling off period under a contract for the purchase of an off-the-plan property is extended from 5 to 10 business days after the contract is entered into.

  • Clarifying the powers of the Supreme Court

    The Supreme Court can award damages where the contract is cancelled by the vendor under a sunset clause. The Supreme Court can also make an order allowing the vendor to cancel the contract under a sunset clause, but only if the vendor proves to the court that the order is just and equitable in all the circumstances.

 

The changes are of significant importance when you consider that 12% of all residential property sales in NSW are off-the-plan sales.

For further information please don’t hesitate to contact:

Melina Costantino
Licensed Conveyancer
melina@couttslegal.com.au
02 4607 2104

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

High Court overturns long-standing Prasad direction

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A recent decision in the High Court of Australia has overturned what is known as a Prasad direction, a principle which has been applied in criminal cases since 1972. The principle is named after the case of R v Prasad (1979) 23 SASR 161, a South Australian decision which has been adopted by New South Wales Courts.

What is a Prasad direction?

In a criminal matter, at the conclusion of the Prosecution’s evidence in chief, the Judge may give a direction to the jury that if they believe that the evidence they have heard is not sufficient to support a conviction, it is open to them to stop the trial and enter a verdict of not guilty. If there is direct evidence which is capable of proving the charge, it is not open to the Judge to give a Prasad direction, regardless of the Judge’s perception of the strength of the evidence.

If the Judge chooses to give a Prasad direction, the Judge should tell the jury that it is open to them to bring in a verdict of not guilty at the conclusion of the Prosecution’s evidence or at any time during the trial, however they must be unanimously convinced that the evidence is insufficient.

Is a Prasad direction still available?

Following the decision of the High Court on 20 March 2019, Prasad directions are no longer available. The unanimous decision in the matter of Director of Public Prosecutions (DPP) Reference No 1 of 2017, Re [2019] HCA 9 held that a Prasad direction is contrary to the law and should not be given to a jury during a criminal trial. The Court held that for a judge to invite a jury to stop a trial without hearing the totality of the evidence and without understanding the application of the law to the facts was not only inconsistent with the division of the roles of judge and jury, it was akin to inviting the jury to decide a matter from a position of ignorance. A jury no longer has a common law right to return a verdict of not guilty at or after the close of the Prosecution’s case.

If you have any questions or for further information contact:

Luisa Gaetani
Senior Lawyer
luisa@couttslegal.com.au
02 4607 2112

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

Surcharges on card transactions – are you charging too much?

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The Competition and Consumer Amendment (Payment Surcharges) Act 2016 implemented a new framework that banned surcharges by large businesses for card payments that were excessive, including surcharges for the use of Eftpos, Mastercard, Visa or American Express. Whilst large businesses have been subject to this framework since 25 February 2016, from 1 September 2017 all businesses (including small to medium sized businesses) have been banned from charging surcharges that are in excess of the caps set out in the legislative reforms.

What are excessive surcharges?

Under these reforms, a business that is charging a surcharge for credit card payments must not charge more than the actual cost for the business to process the credit card payment via Eftpos, Visa, Mastercard or American Express. If the actual cost to process the credit card payment is a percentage of the purchase amount then the fee charged by businesses to customers can be represented as a percentage, for example, “all payments made with a credit card will attract a surcharge of 0.78% of the purchase amount”.

Under the reforms, businesses can choose to charge a set single surcharge for all payments made with a credit card, although, this set amount has to be the lowest cost for processing the payment that business will have to pay to the credit card processer. This set single surcharge cannot be the average fee but must be the lowest fee. For example, a coffee shop cannot set a single surcharge fee of $0.50 and charge a customer to use a credit card to pay for a coffee worth $4.00 (being a surcharge of 12.5% of the purchase amount).

What surcharges are excluded from these reforms?

These reforms apply exclusively to:

-          Eftpos;

-          Debit MasterCard;

-          Credit MasterCard;

-          Visa Debit;

-          Visa Credit; and

-          American Express cards,

issued by Australian banks.

Imposing surcharges for payments via Diners Club, PayPal or BPAY does not fall under these reforms.

What does this mean for my business?

Businesses should, if they already haven’t, put in place processes within their businesses that require maintaining up to date records relating to actual costs for accepting certain card payments as well as monitoring the actual costs incurred by the business in comparison to the amount of surcharges imposed by the business to customers.

If the Australian Competition and Consumer Commission (ACCC) reasonably believes that a business has included an excessive surcharge on a card payment (and that card payment falls within the scope of these reforms) the business may receive an on the spot fine up to $108,000 for listed corporations, $10,800 for other companies and $2,160 for all other merchants, with these fines being per contravention of the reforms.

Case example – Red Balloon

At the end of 2017 Red Balloon Pty Ltd paid penalties of $43,200 following the issue of four infringement notices from the ACCC for alleged breaches of these reforms.

Red Balloon was found to have charged four customers excessive surcharges for payments made by MasterCard credit, Visa credit, Visa debit and MasterCard debit on 31 March and 30 June 2017.

This case is a key example of how important it is that businesses of all sizes have processes in place to ensure they are not in breach of these reforms and are not charging customers excessive surcharges.

If you are unsure about these reforms and would like more information on ensuring your business is complying with the reforms, the Australian Competition and Consumer Commission has published guidance material for businesses (and consumers) about the ban on excessive surcharges and what it means in the day to day operating of a business. These guidance materials can be found on the ACCC’s website.

At Coutts we can advise and draft appropriate commercial contracts or terms and conditions for your business that cover off the relevant legislation including in respect of credit card surcharges.

For further information please don’t hesitate to contact:

Keely Irving
Lawyer
keely@couttslegal.com.au
02 4607 2124

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

De facto relationships decoded

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The aftermath of a relationship breakdown is always difficult, when couples are required to divide their property and deal with the emotions mourning a relationship.  Most people are aware that married couples have rights under law upon the breakdown of their marriage, however it is also important to note that de facto relationships are also governed by Australian legislation and can also apply for property settlement to determine their financial relationship on a final basis.

 

What is a de facto relationship?

De Facto relationships are defined under section 4AA of the Family Law Act 1975 (Cth). A relationship is deemed a de facto relationship if two persons (not married or related by family) live together on a “genuine domestic basis”. Whilst this definition is quite broad, it allows a Court to determine whether a couple relationship exists with reference to circumstances such as but not limited to the duration of the relationship, financial dependence or lack thereof, whether there is a sexual relationship, if the couple live together and their mutual commitment to a shared life.

Further, this concept is inclusive of same-sex couples. 

How do I know if our relationship is eligible for a property settlement?

A de facto relationship is eligible for a property settlement in the following instances:

1.     Where the relationship period was at least two (2) years;

2.     Where there is a child or children of the relationship;

3.     If a party made substantial contributions (financial or non-financial) throughout the relationship and failure to make orders dividing property would be unjust for a party; or

4.     If the relationship was a registered relationship in accordance with state or territory requirements.

Do we need to formally divide our property?

There is no legal obligation for de facto or married couples to commence formal property settlement, however undertaking this settlement will ensure finality of the financial relationship between two parties and can assist in resolving property issues whilst a couple are still amicable. This finally determines ownership of property including motor vehicles, household contents, real estate, superannuation and shares. A written binding financial agreement or a legally-biding Consent Orders will document the way property is to be split between the parties.

Additionally, a time limit exists to make an application for financial orders, being two (2) years from the date of separation. If a person wishes to obtain orders outside this period, permission is then required to be sought from the Court to make orders.

Coutts are able to assist in preparing the necessary documents to formalise a property settlement for de facto relationships. Contact Coutts on (02) 4647 7577 to book in an initial appointment to received tailored advice to your present circumstances.

If you have any questions or for further information contact:

Riley Earle
Lawyer
riley@couttslegal.com.au
02 4607 2114

 

 

 

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What does a Notice to Complete mean?

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You have been told you cannot settle on your Contract on the due settlement/completion date and you are going to be issued with a Notice to Complete. So, what does this mean for you?

Contracts in NSW will generally have an additional condition in the Contract stating if settlement/completion does not occur on the correct date then a Notice to Complete can be issued.

When you enter into a Contract to sell or purchase you will be provided with a settlement date also referred to as a completion date. This date is when you must settle/complete the Contract by.

A Notice to Complete can be issued on behalf of the Vendor or the Purchaser.

If, by the settlement/completion date, for some reason a party cannot settle/complete then the other party may issue a Notice to Complete.

There may be many reasons settlement cannot take place, such as the bank may not be ready, the funds for purchasing may not be available, or the property is not completely vacated. The Notice to Complete will provide an additional 14 days for settlement/completion to take place within. This is an assurance for the party ready to settle that an end date is in place and pressure is on the party that is not ready.

As a vendor who has issued a Notice to Complete on a Purchaser, it is at the end of those additional 14 days that you have the right to either extend the Notice to Complete period or terminate the Contract. Upon termination of the Contract you keep any deposit paid by the Purchaser and possibly sue for any financial loss/damages incurred due to the default by the Purchaser. You will then be entitled to place the property back on the market.

As a Purchaser who has issued a Notice to Complete on a Vendor, it is at the end of those 14 days that you have the right to terminate the Contract, get a refund of the deposit paid, possibly sue for any financial loss/damages you may have incurred and walk away from the matter.

For further information please don’t hesitate to contact:

Meagan Groom
Licensed Conveyancer & JP
meagan@couttslegal.com.au
02 4607 2102

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.

What is a privacy policy and does my business need one?

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A privacy policy is used by a business to govern how it collects personal information from customers. Privacy policies can often be found on the bottom of websites as a link or may be incorporated in physical forms that customers sign.

 

The purpose of a privacy policy is to outline to clients how the business appropriately handles, uses and manages privacy information.  A privacy policy should outline what information you collect in the course of conducting your business.

Australian privacy laws are governed by the Privacy Act 1988 (the Act) which, incorporates thirteen (13) Australian Privacy Principles (Principles). 

The Principles cover:

  1. open and transparent management of personal information;

  2. anonymity and pseudonymity;

  3. collection of solicited personal information;

  4. dealing with unsolicited personal information;

  5. notification of the collection of personal information;

  6. use or disclosure of personal information;

  7. direct marketing;

  8. cross-border disclosure of personal information;

  9. adoption, use or disclosure of government related identifiers;

  10. quality of personal information;

  11. security of personal information;

  12. access to personal information;

  13. correction of personal information.

 

Generally, a privacy policy should be accessible in any reasonable requested form, free of charge, displayed on the business’ website and include the following:

  • The kinds of personal information you collect and hold;

  • How you collect and hold that personal information;

  • The purposes which you collect, hold, use and disclose personal information;

  • How an individual may their access personal information held by you and seek the correction of such information;

  • How an individual can complain about a breach and how you will deal with a complaint; and

  • Whether you’re likely to disclose personal information to an overseas recipient and if so, to specify the overseas counties if it is practicable.

 

When outlining what kinds of privacy information a business collects it is important to distinguish between:

  • Personal information: which relates to information/opinions that identify an individual such as contact and financial details (whether they are true or not); and

  • Sensitive information: which relates to information/opinions about things like health, religion, political opinions, race or ethnicity.

 

The Act and Principles apply to:

  • organisations and companies with an annual turnover over $3 million;

  • all private health service providers; and

  • some small businesses.

 

If your business meets the relevant criteria, you will need to have a privacy policy. Coutts can assist you in determining whether you need a privacy policy. The Office of Australian Information Commission also has a checklist to assist small businesses to assess whether they need to comply with the Act.

 

Entities required to have a privacy policy must not breach the Principles. There could be consequences for businesses such as a fine where the business does not have a privacy policy when required to or if the business breaches the policy, the Act or Principles.

 

Coutts have experience in reviewing and drafting privacy policies to meet the requirements of the Act and the Principles. Coutts recognise the importance of understanding your business and your specific processes and procedures to ensure the policy reflects how you do business. For further information on privacy policies please contact the Commercial Law team.

For further information please don’t hesitate to contact:

Keely Irving
Lawyer
keely@couttslegal.com.au
02 4607 2124

This blog is merely general and non specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever in relation to this blog, including all or any reliance on this blog or use or application of this blog by you.