Advancement of women in the legal profession


Adriana Care, Coutts Solicitors & Conveyancers principal solicitor and Your Law Society Team Country Member candidate in the Law Society of NSW council election, has signed the Law Society Charter for the Advancement of Women in the Legal Profession.

The Law Society of New South Wales promotes diversity, equality and inclusion in the legal profession, in particular by developing and progressing initiatives to ensure the equality of opportunity for all members of the profession, regardless of race, ethnicity, heritage, gender, age, religion, disability, sexual orientation, gender identity or intersex status.

Women make up about 50 per cent of the legal profession, and have made significant advances in all areas of practice. However impediments still remain to the retention and career progression of women in the profession.

The Law Society’s Charter for the Advancement of Women is designed to promote and support strategies to retain women in the profession over the course of their careers and encourage and promote their career progression into senior executive and management positions.

The Charter aims to achieve this by assisting legal practices to develop cultures which promote diversity and inclusion and impact positively on all practitioners in their workplaces, resulting in better business outcomes for legal practices, the legal profession and the community as a whole.

In support of this initiative, the signatories to this Charter commit to:

  • demonstrating leadership by implementing diversity and inclusion principles in the legal profession and removing gender bias and discrimination in the legal workplace;
  • driving change in the legal profession by developing a culture that supports the retention of women legal practitioners and recognises their value in senior roles;
  • implementing recruitment and promotion strategies that include gender diversity as an important consideration, including ensuring equal pay for legal graduates within the same organisation regardless of gender;
  • promoting and supporting mentoring and sponsorship of women in the legal profession;
  • encouraging and supporting flexible work practices in the legal profession to assist men and women to better balance professional and other commitments.

Signatories agree to implement these strategies within two years of signing the Charter, with the exception of equal pay for graduates, which will be implemented within 12 months.

Charter content first appeared on the Law Society website. For more information visit the Law Society of NSW.

Conflict between Franchisors and Franchisees.


Australia is the land of franchising - there are more franchised systems here than anywhere else in the world!

Recently two high profile franchising disputes have filled the daily news- the franchisor’s decision to make its pizza hut franchisee’s sell $5.00 pizzas that decimated many Pizza Hut shops and the 7-11 scandal that saw employees being grossly unpaid. Like many business arrangements, franchising works well until it doesn’t…then it tends to spectacularly fail.

Last year headlines shocked the nation with claims that 7-11 stores underpaying staff with wages as low as $12.00 per hour (with the award being a minimum of $17.29). The ABC’s Four Corners claimed that up to 60% of franchisees were involved in underpaying their workers. The Franchisor went into damage control promising to oversee the payroll functions of the franchisees workers. Franchisees who have correctly paid workers are nervous and have reported a drop in sales as customers assume they too did the wrong thing. Rumours of a class action are circulating.

Who has control?

A franchisor often has the ultimate authority over the franchisees’ business. How much authority depends on the wording of the agreement. Some franchising systems will not allow any change in their system and must approve all advertising and premises. Many food franchised businesses will actually hold the lease in their name and sub-lease it to the franchisee, in addition to choosing all third party suppliers. Others are far more flexible, providing general guidelines about the use of the system and suggestions for advertising. Rigid requirements can cause conflict when a franchisee sees the rigidity as stifling innovation and profit. Franchisors worry that in failing to “follow the system” the franchisee will undermine the business model diluting its worth.

How could it go wrong?

Tensions can emerge when the interest of the franchisee differs to that of the franchisor. In the example of the Pizza Hut case the head franchisor, Yum, wanted to take on Domino’s who had gained a large portion of the market share with their successful cheap pizza range. When Yum required their franchisee’s to start selling cut price pizza’s too, the franchisees responded that they could not turn a profit on a $5.00.

Some franchisee’s banded together and commenced a class action that was fiercely defended by Yum. They argued that the franchisor has an obligation to make decisions that would allow the franchisee to make and increase profits. Ultimately, the Court pointing to a clause in their franchise agreements that stated Yum could unilaterally change pricing and did not guarantee that any pricing decisions would be profitable. You can read more about that decision in our previous article linked above.

Expansion or Dilution?

Often a franchisor wants to increase its market share by expansion whereas a franchisee can see the same expansion as a threat to its own profitability. When considering whether to buy into a franchise, do so with open eyes. Read every single clause in the agreement and try to chat to existing franchisees about their experience. Seek legal and accounting advice. Be territorial- if your agreement does not give you an exclusive territory, ask why not? The Franchising Council of Australia has great online resources for potential and current franchisees to read. Despite these tensions, franchising remains a popular choice and many people do find them profitable businesses to own and operate.

What is an Appointment of Enduring Guardian?


What does it do?

Similar to a Power of Attorney, an appointment of Enduring Guardianship allows another person or persons to make decisions on your behalf when you are unable to make those decisions for yourself. A Power of Attorney allows the attorney to make financial and legal decisions, whereas an Appointment of Enduring Guardian makes medical and lifestyle decisions. They are easily confused!

Who should you consider?

When considering who you trust to make these decisions, consider: does the person have similar views to lifestyle, medical treatment and end of life decisions. Presently, the law does not allow for a professional carer or treatment provider to be appointed as your guardian. Your guardian must follow your wishes and hold your interests and welfare as the paramount consideration for all decisions they make on your behalf.

What is the process?

As with a Power of Attorney where the attorney(s) have to sign the document to accept their appointment, so too does the guardian(s) need to sign, however, in addition to their signatures they also need to receive a certificate of legal advice confirming that they understand the effect of the document and are voluntarily signing it. Because the certificate requires legal advice, a JP cannot sign that part of the document. In contrast to the Power of Attorney, there is no person or body that supervises these documents once made. The Guardianship Tribunal can become involved of there is a conflict.

What does it not do?

This document does not deal with the important decision of organ donorship. If this is something you wish to do, please tell your family of your wishes! It is thought that the majority of Australians support the idea of being an organ donor. However, if they forget to tell their family or when the family is asked by the hospital about organ donorship they decline based on their own views, not knowing what to do or possibility the great shock of losing a loved one. You can also record your decision on the Organ donor online registry, currently found here.

4 Do's and Don'ts when your house is being broken into.


Generally, when a person’s home is being broken into, they automatically assume that they have the right to fight the intruder and/or assault the intruder because the intruder is trespassing in their home. Unfortunately, the law does not account for homeowners having a right to fight or hurt an intruder, and this mentality is what sees a lot of people experience the Criminal Courts across New South Wales.

So the question then is: what should you do if your house is being broken into?

  1. Listen carefully so that you can assess where the intruder may be and whether it is safe for you to get out of the house;
  2. If it is safe to do so, leave the house and go to your neighbours. If you do not feel that it is safe to leave, hide in a safe place inside the house with your family all in the one room and lock the door;
  3. If you do come into contact with the intruder, comply with their requests; and
  4. Call the police and report the incident. Wait for the police to attend before you return to your house.

What shouldn’t you do if your house is being broken into?

  1. Do not approach the intruder;
  2. *Do not assault the intruder.
  3. Do not call out and let the intruder know that you are in the house, if it is not safe to leave; and
  4. Do not tell the intruder that you have called the police.

*If you do assault an intruder, you may face legal implications and be charged. It's difficult to prove that you have acted in self-defence. It is up to the court to determine if you have acted in self-defence based on the evidence provided to them. If you are charged, you can be given up to 5 years imprisonment depending on the decision made by the court

Things to consider before you approach an intruder if you decide not to take the above advice:

  1. You don’t know who the intruder is;
  2. You don’t know how many intruder’s there are;
  3. You don’t know the mental or physical state of the intruder (For example, whether the intruder is under the influence of drugs or alcohol); and
  4. Whether the intruder is carrying a weapon.

Do not be a hero in these circumstances – you could be placing yourself and/or your family in a very dangerous situation.

You should ensure that you have good measures in place for your home security to limit the chances of having your home invaded. Also note that if an intruder is injured during their attempt to break into your property as a result of a homeowner assaulting them, they may have a right to claim through the civil courts, against the homeowner.

If you have been charged, or need advice in relation to a criminal law matter, please contact our Criminal Law Hotline on 02 8324 7527 to arrange an initial free consultation today.

What is in a name? - Contract for Sale of Land


What is in a name? 

Getting your name right on a Contract for Sale of Land is important.

When buying property it is important to know who the buyers will be.  Sounds obvious right?  What buyers do not often realise is that exchanging contracts under their personal names and then changing that later to a company name will incur double the stamp duty.  Now that is a large sum of money!

Sale of Land

For personal names, check that the correct name, including any middle name, is on the contract. If you are purchasing in a company name, make sure that the company exists and is incorporated at the time of purchase.  This will prevent you from having to pay extra stamp duty later.

In addition, if you are thinking of purchasing a property in your Self Managed Super Fund, you would generally have a Trustee for the Super Fund. If the Trustee is a Company, it is very important that it has been created and incorporated as a Company prior to the purchase of the property.

Before signing a contract, always make sure the entity exists.

Your guide to Apprehended Violence Orders (AVO) in NSW


What is an Apprehended Violence Order (AVO)?

An AVO is an Order made by a court against a person for the following reasons:

  • That person has made you fear for your safety;
  • To protect you from further violence, intimidation or harassment;
  • To prohibit the person from assaulting, harassing, threatening, stalking, or intimidating, amongst other conditions.

The person that is feared is known as the defendant, and the defendant must obey the Order made by the court.

There are two types of Apprehended Violence Orders:

  1. Apprehended Domestic Violence Order (ADVO) is made where the people involved are related, living together or in an intimate relationship, or have previously been in a similar situation. They can also be available to people who are or have been in a dependent care arrangement with another person, including paid carers, and to people living in the same residential facility.
  2. Apprehended Personal Violence Order (APVO) is made where the people involved are not related and do not have a domestic relationship, for example, if they work together or live in the same neighbourhood.

In both circumstances, the police can make a Provisional AVO when they are waiting for the matter to be listed in court. When it is listed in court, the police can then apply for an interim AVO to protect a person, whilst the matter is pending.

A provisional order will remain in place for 28 days at the most. An interim AVO will remain in place until the matters has finalised, and either been dismissed or a final AVO has been granted.

If a final AVO is made, they are generally made for 12 months to 2 years. An alleged victim has the opportunity to extend the AVO prior to the end date, if they are still fearful of the Defendant, and have proof of same.

When can the court make an Order?

The Court can make an AVO if:

  • The Defendant has been served with the Application but does not come to court without a good reason;
  • The Defendant consents to an AVO being made; or
  • After hearing evidence, the Magistrate is satisfied that there are fears for a person’s safety and those fears are reasonable.

Proceeding to Hearing

If the Defendant does not agree to the AVO being made, the matter will be delayed for Hearing. The Magistrate will then direct both the Defendant and the Police to file written statements to the court by a specific date. If the Applicant (person in need of protection) fails to comply with these directions, the court may dismiss the Application, or the court may delay the matter for the filing of these statements. Similarly, if the Defendant does not comply with the direction, they may not be able to give any evidence at Hearing.

Once both parties have complied with the direction of the Courts, the Magistrate will set the matter down for a Hearing.

At the Hearing, the evidence is usually based on what is contained in the statements; however the parties may be required to give further evidence verbally. The police may also submit a video or audio recording.

The Applicant or the Police Prosecutor on behalf of the Applicant, presents their case first. The Defendant or their lawyer will then have the opportunity to ask the Applicant and witnesses questions about the evidence. The Defendant will then present their case. The Police Prosecutor on behalf of the Applicant will have the opportunity to ask the Defendant questions about their evidence.

What conditions can be imposed?

 The court can impose both Mandatory Conditions and Additional Conditions, if they deem it necessary.

 Mandatory Conditions

  1. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
  2. The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
  3. The defendant must not stalk the protect person(s) or a person with whom the protected person(s) has/have a domestic relationship.

Additional Conditions

  1. The defendant must not reside at the premises at which the protected person(s) may from time to time reside, or other specified premises.
  2. The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises.
  3. The defendant must not go within a certain distance from where the protected person(s) may from time to time reside or work.
  4. The defendant must not approach or contact the protected person(s) by any means whatsoever, except through the defendant’s legal representative, or as agreed in writing, or as directed from Family Law Court Orders.
  5. The defendant must surrender all firearms and licences/permits.
  6. The defendant must not approach the school or other premises at which the protected person(s) may from time to time attend for the purposes of education or child care.
  7. The defendant must not approach the protected person(s) or any such premises or place at which the protected person(s) may from time to time reside or work within a specified time of the defendant consuming drugs or alcohol.
  8. The defendant must not destroy or deliberately damage or interfere with the property of the protected person(s).

Can the AVO be dismissed if the alleged Victim does not appear at Court?

A number of scenarios can occur if the alleged victim does not appear at Court. These include:

  • Dismissing the AVO;
  • Issuing a warrant for the arrest of the alleged victim (more likely if the alleged victim has been served with a subpoena);
  • Adjourning the matter to see if the police can get the alleged victim to attend court on another date; or
  • The matter is stood in the list until later on in the day to see if the police can contact the alleged victim to attend court.

Can I be charged along with the AVO?

Police can charge a Defendant, as well as take out an AVO on the Defendant. There is a chance that the charge or AVO can be dropped, however this is uncommon as Police are determined to have these matters dealt with in Court, according to law.

What effect will an AVO have on my future?

An AVO is not a criminal charge, so if an AVO is made, you won’t get a criminal record. However, there are some issues that arrive in the event that an AVO is made against you. These include:

  • The police will record the AVO in their database.
  • If you have registered firearms, you will have to give them to the police, and your firearms licence or permit is automatically suspended by a provisional or interim order, and revoked by a final order.
  • You cannot obtain a new firearms licence for 10 years after the order has finished.
  • An order may affect your ability to work as a security officer, police officer or corrections officer, or if it involves children, it may also affect your ability to work with children.

Breaching the AVO

You can be charged with the offence of Contravene AVO if you breach the AVO. The maximum penalty is a fine of $5,500.00 and/or a prison sentence of 2 years. It is a very serious offence, and if you have been charged, please contact our 24 hour legal hotline on 0403 242 924 to arrange an initial free consultation.

If you have any questions, or are seeking advice in relation to an AVO, please contact our Criminal Law Hotline on 02 8324 7527 to arrange an initial free consultation.

10 things to think about when Separating - Property


If you are going through a separation, and own property together (whether you are married or a de facto couple), you will need to decide on separating property between you. Before you are able to reach an agreement with separating property you have, it’s important to have reasonable expectations. Expectations of life after separation and what life is really going to be like for you, sometimes don’t meet up, so it is important to take a realistic approach.

Here are 10 things to think about when separating property:

10 things - Property.PNG

What next?

After you have taken the time to consider these things and what you want for the future, it is important to speak to a lawyer about the best way to move forward. It’s very important that a formal family law property settlement is done to protect you both in the future.

To make an appointment to discuss your separation and these issues, contact us today. We can help you plan how to move past these issues and onto the next exciting chapter of your life.

6 steps to recover financially from a Separation or Divorce

In Australia today around 1 in 3 marriages can be expected to end in divorce. With 77% of Australian couples also living together before getting married (and let’s face it - some don’t go the distance) the real impact of  relationship breakdowns is likely to be much higher than the statistics lead us to believe. 

There is no doubt moving on from any long term relationship, be it marriage or de facto, can attract a heavy emotional toll. But the financial impact can also be far reaching and long lasting.

Finances are often left on the back burner as you focus on the emotional health of yourself and your family. Perhaps it is the fi rst time you have had sole responsibility for your finances? Or maybe you feel overwhelmed and don’t know where to start?

The key is to take action early. Here are some steps to get back on track financially after a separation or divorce…

1. Check your credit rating

A vital first step is taking control of your financial future! Check to see if your credit report contains any errors or if any of your partner’s information is listed. If so, have it rectified. There are two main credit reporting agencies - Veda and Dun & Bradstreet

2. Identify your creditors

Make a list of all your creditors, both secured and unsecured. Your secured creditors are those where assets are used as security for the loan, eg house or car. Negotiation of both the assets and the outstanding loans will be required by both parties.

3. Separate all joint accounts

A time consuming but crucial step is to unravel all your joint accounts, including credit cards. Even if the separation is amicable it is best to separate all accounts to avoid future issues.

4. Create a budget

An unavoidable result of separation is a change in lifestyle. An important step in making this adjustment is creating a comprehensive budget separating discretionary and mandatory expenses. To stick to your new budget you may need to make tough decisions on discretionary spending. Of course, if you have children then child support may also come into the equation – one party may be paying child support while the other receives it. Remember that child support payments will cease or may be amended at some point in time. This should be factored into future planning for both parties.

5. Decide on your housing options

In most cases the family home is either sold or refinanced. At least one partner will need to find somewhere new to live. While renting may be a viable short term option, in the long term most people wish to buy a home. You will need expert advice on how to best refinance your home or secure a loan for a new home. If refinancing or applying for a new loan it is important that all required identity documentation reflects your new marital status and/or any change of name.

It is essential you contact your mortgage broker to discuss the process BEFORE lodging any loan application documents.

6. Prepare a Financial plan for the future

• Start an emergency fund - open a separate savings account for unexpected emergencies. • Update your Will – ensure it reflects the changes that have occurred in your life. • Manage your debt - contact us for a chat about how to reduce your ‘bad’ debt like credit cards and personal loans as quickly as possible. • Plan for your retirement - review superannuation and update beneficiary details if required. • Review your insurance needs - you will need to update policies from married to single status.

This is a guest blog written by Andrew Evans from Mortgage Guy. If you would like to discuss getting your finances on track after a separation or divorce click here to contact Mortgage Guy . If you are thinking of separating from your partner and would like information from the Coutts Solicitors Family Law team click here to contact Coutts Solicitors.

Is Separation hard to do?

As a family lawyer, I see people going through separation every day. Many people ask me "Is Separation hard to do?" , Separation is becoming more common in our society. But just because it happens every day doesn’t mean that it is easy, either emotionally, physically or legally. Even though most people do not realise it, being married or in a de facto relationship actually bears very serious legal ramifications, and so the process of separation is also a complex legal matter.

Background: the marital relationship

Throughout history, marriage has been considered a legal agreement to bind two people into a relationship. From a legal point of view, it is very similar to a contract. As a part of this legal agreement, many rights and obligations are given to both parties particularly in relation to property. Think of these as the ‘fine print’ or the ‘terms and conditions’ of marriage. Once a couple is married, any assets or debts that they have are considered marital assets and marital debts, regardless of whose name those assets or debts are in. Marriage also creates certain rights in relation to a persons estate after they pass away.

Since 2009, the Family Law Act also covers de facto relationships. This means that there are rights and obligations that mirror that of a married couple if two people are in a relationship and have been living together for more than two years or if they have children together.

It is important to remember that just because marriage and de facto relationships are common does not mean that the law treats them with indifference. The rights and obligations that go along with these relationships create serious and quite complex legal issues.

What kinds of rights and obligations are created in these special relationships?

The main rights and obligations that are created are in relation to legal and financial matters.

When a party to marriage or a de facto relationship buys property or acquires an asset, that property or asset becomes property of the marriage, regardless of whose name it is in.

The same goes for debts, all credit card debts, loans and mortgages taken out by either party become debts of the marriage.

There are also rights and obligations created in terms of information. For example, if my husband is in an accident, I have the right to information about his health and condition, and I also have the obligation to make decisions about this treatment if he is not in a position to do so himself.

Marriage and de facto relationships also create rights of survivorship and impact on a person’s estate after they have passed away.

Separation: exiting a marriage or de facto relationship

The act of separation itself does not end the rights and obligations that have been created. So, when separation does take place, proper steps must be taken to end the rights and obligations that have been invoked by marriage or time (in the case of de facto’s).

The steps that must be taken can vary slightly on a case by case basis, but what all separations have in common is this: you must engage in legal processes to end the rights and obligations that have been created by the relationship. If you do not do this, those rights and obligations will continue into the future (for more information about time limits, please click here).

Just as the rights and obligations created are serious and complex, so is the process to undo those rights and obligations. Although it is possible to enter into an agreement about what you want to do with those rights and obligations, for that agreement to be legally recognised it must be done in a certain way.

Legal processes: ending the rights and obligations

While legal processes can often seem confusing and unnecessary, it is important to follow these processes to make sure that you are protecting yourself in the future. If you do not engage in these legal processes after separating, then you are not ending the rights and obligations that the parties have to one another.

To actively sever the rights and obligations created by your relationship in a way that is legally recognised, you will need to either:

  1. Enter into an agreement that is drawn up in accordance with the law. This means using forms and processes that are set out under the Family Law Act and Family Law Rules. A mere verbal or written agreement is not enough to be a legally recognised agreement.
  2. Have an order made by the Court.

It is also incredibly important that you consider doing things like:

  1. Updating you Will, Power of Attorney, and Enduring Guardianship.
  2. Applying for a Divorce.

Protecting myself in the future: what do I do now?

To find out more about what you need to do next, contact Coutts Solicitors and Conveyancers  to make an appointment on 1300 268 887.

We will be able to provide you with advice about what needs to be taken into consideration in your particular case, and guide you through the processes from there.

What is a Will?

What is a Will? A Will is a written record about how you would like your possessions and property to be distributed when you die, and, who you wish to be in control of that process. It’s something we all agree is an important task for our future, but we often don’t make the time to write those plans before we die. It’s important to plan ahead when thinking about your Will, you need to decide who will be your beneficiaries, the person or people that will inherit your property and the executor (the person who does the actual giving away). A few alternative executors in case the person you chose is no longer around when you pass away is a good idea too.

It is important that everyone has a valid will when they pass away. Without a Will, your next of kin will have to apply to the Courts for a document called Letters of Administration, which then allows that person to distribute your estate in accordance with a set formula that may not be what you actually wanted.

Like many things in life, it pays to think ahead. If you put off making your Will it might be too late. While we can and do prepare Wills for people in hospital, it generally quite rushed and not ideal.

During the appointment, there are two other estate planning documents we can discuss with you. They are an Enduring Power of Attorney and an Appointment of Enduring Guardian.

There are certain legal requirements for a valid will and while attempting to prepare a “DIY” Will, many people don’t end up with a valid Will and this can result in a costly legal battle. It is also possible to have the NSW Public Trustee prepare your Will. If you are considering this option please be fully aware of the fees that the trustee will charge as your executor. However, using a Solicitor to draft your Will provides you with many more options and the cost is fixed, not charged as a percentage of your estate.

For any further advice or legal assistance on this issue, please contact us at Coutts on 1300 268 887.

Debt Collection Guideline

Revised Debt collection guideline released The ACCC and the Australian Securities and Investments Commission today released an updated version of their joint Debt collection guideline: for collectors and creditors publication.

The revised guideline aims assist creditors, collectors and debtors to understand their rights and obligations, and ensure that collection activity is undertaken in a way that is consistent with the Commonwealth consumer protection laws.

This publication has been updated to reflect new communication technologies developed since the 2005 version of the publication, including the use of social media platforms and auto-dialers, and significant changes to the law, such as the introduction of theAustralian Consumer Law in 2011, the National Consumer Credit Protection Act 2009and new privacy laws and principles.

For more information read theDebt collection guideline: for collectors and creditors publication or the full media release.

Do you provide goods on credit, consignment or under a lease? Is your interest in those goods protected in the event of bankruptcy or insolvency?

You can protect your secured property by registering your interest on the Australian Government’s Personal Property Security Register (the PPSA). If you don’t register your interest and the business holding those goods is placed into receivership (or an individual declared bankrupt), you may find yourself treated as an unsecured creditor, uncertain whether you will ever see your money or goods again.

Before 2009, if a business or individual loaned money, leased goods or provided goods on credit or consignment they could register their security and protect that interest with ASIC or a variety of registers that existed in various states. Now, there is one register, the PPSA. The PPSA records the registration of an interest in personal goods, such as cars, boats, caravans, machinery, shares, crops and livestock. It does not include real estate. An interest in real estate is (still) registered by lodging a caveat with Land and Property Information (formerly, the Land Titles Office).

For the past few years ASIC has encouraged anyone with a registered interest to move that registration onto the PPSA. From 30 January 2014 other registers will no longer operate.

Armed with a registered security interest, you are treated as a secured creditor and will be given priority over unsecured creditors by the receivers.

You can no longer rely on a retention clause or some other contractual agreement to protect your goods.

For example ABC Office Supplies enters into a lease agreement with XYZ Accounting services for 2 computers. XYZ Accounting does not make any repayments and subsequently goes into receivership. If ABC secured their interest in those computers on the PPSR the receiver should pay to ABC money from the sale of those computers. If ABC did not register its interest, it will be an unsecured creditor and might not receive anything, even if there is loan agreement between ABC and XYZ containing a clause stating the title in the computers does not pass to XYZ until ABC has received payment in full for the computers.

But I registered my interest on the ASIC register, is that still ok?

No. The PPSA replaces older registers, such as the ASIC Register of Company charges and “REVS” (Register of Encumbered Vehicles). From 30 January 2014, any interest registered elsewhere will be invalid. If you have a registered interest you need to immediately move it to the PPSA. Coutts can attend to this quickly on your behalf.

How do I register on the PPSA?

In order to register, you must submit a form to the PSSA registry, setting out the parties to the transaction and must describe the collateral and the security sufficiently. Any items that have a serial number should have that serial number included and any other relevant information that would identify your security. Make it easy for the receiver to identify the property you claim an interest in.

I have loaned money to a 3rd party for them to buy personal property- do I have an interest in the property and should I register it?

Yes. Where money is advanced to buy a specific item, for example a loan to purchase a photocopier, an interest exists and should be registered. However until the item is purchased, there is no security to attach that interest to. The only way to protect an interest during the period between when the loan is advanced and the item purchased, is to have a carefully worded clause in the Loan Agreement. Once an item is purchased, it is essential to register this interest, as the Agreement will no longer be sufficient.

For example, XYZ Accounting borrow money from OK Financing to lease computers from ABC Office Supplies. XYZ Accounting are placed into receivership and ABC and OK both claim an interest in the computers. Big Bank has also claimed an interest in all of XYZ Legal’s goods under a mortgage document executed several years ago.  If OK financing registered their interest before the computers were leased, their claim will fail as there were no goods to “attach” their interest to. If OK registered their interest after the computers were purchased their interest will be protected and will probably out rank the Big Bank’s general claim. ABC Office Supplies will also be treated as a secured creditor provided they registered their interest with the PPSR too.

I regularly buy second hand equipment- can I check the title of these items on the PPSA?

Yes. You can quickly search to see if the item has any registered interests, to ensure you are not buying an item that is actually leased to the seller or has some other restriction that may compromise your title to it.

For more information or to book an appointment with one of our expert solicitors contact us today.

Will you sleep tonight? Without a Will, your assets are at risk.

Thinking about the worst is not something that any of us like to do.  But unfortunately, life doesn't always turn out the way we had planned. Preparing a Will isn't just for those at retirement age. If you have any assets or money at all, you should have a bulletproof Will in place to make sure they are left with the right beneficiaries. In the absence of a Will, your home, savings and more importantly - the financial security of your family is at stake. We've seen it all too often and it’s heartbreaking.

The number of people contesting Wills today is much higher than it used to be, which provides another compelling reason to put your Will in place. Firstly, people are becoming wealthier, so there is more wealth to leave behind.  Secondly, the rising divorce rates are creating complex family structures that aren't as straightforward as they were in the past.

Preparing your Will

If you haven’t yet prepared a Will, consider the following questions:

  • How much is your estate worth and who will be your beneficiaries?
  • Do you wish to include any specific charities?
  • Who will execute your Will after you've gone?
  • Do you need to name legal guardians for children under 18?
  • Do you need to mitigate any inheritance tax liability?

Already have a Will?

If you already have a Will prepared and haven’t looked at it for a while, it might be a good idea to go through it again and make sure you've left no stone unturned. Perhaps your situation and circumstances have changed and you wish to make some adjustments. There’s no better time than today.

Ensuring there are no discrepancies in your Will is not a simple task.  We can work with you to ensure your Will covers all facets of your estate, to reduce the likelihood of any legal dispute. If you need some expert help on preparing or reviewing your Will, don’t hesitate to get in touch.