Solicitor

Conflict between Franchisors and Franchisees.

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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 in a name? - Contract for Sale of Land

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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

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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.

5 Do’s and Dont’s for Separation involving children.

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Separation is a very difficult thing to go through, and is made even harder when there are children involved. It is important to remember that regardless of the circumstances in which separation has occurred, your kids love both you and your former partner. There are things that you should and shouldn’t do during the time of transition.

While this isn’t based on what the law says, we see so many families going through separation. Everyone is human, and we all make mistakes, but there are practical ways that you can approach this situation to support your kids as much as possible.

Things you should do:

Things you should do

Things you shouldn’t do:

Things you shouldn't do

By remembering that your children love both parents very much, and keeping them as your focus through the separation process, you can make decisions that are good for them, as well as good for you, helping you move on to the next exciting stage of your life.

If you have any legal questions about separation and children, please click here to contact us.

10 things to think about when Separating - Property

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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:

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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.

I have been left out of a Will! - Can I make a claim?

When a person dies, it is often a troubling time. When a person finds out they have been left out of a Will it can increase the stress, particularly if that news comes as a surprise. There are two main things to consider if you have been left out, if you are considering what your legal rights are: are you an eligible person and, if so, what are your needs to be provided for?

Who is an eligible person?

A spouse or a child of the deceased are considered to be eligible persons. There is a third category that defines any person who was in a relationship of financial dependence with the deceased to be eligible. We are waiting for a few decisions to be made giving us examples of what types of people may fall into this category. But until it is thought that some types of carers who are paid in kind (perhaps with free food or board) for their assistance and grandchildren who receive financial support from the deceased. But it is still a fairly untested category.

What kind of needs does the Court consider?

When making a claim you will need to provide solid evidence of your financial circumstances: what assets you own, how much super you have, your income, your debts and any future needs (such as medical and education expenses). If you have a spouse, the same information will be required from them too. Then your position will be compared to those named in the Will (the beneficiaries). If you are in substantially worse of position, the Court may order that some of the estate is given to you. The Court will also consider your relationship with the deceased, any of your conduct that may be relevant to why you were left out in the first place and of course, the wishes of the deceased. After all, the fact they choose to disinherit you will not be ignored by the Court.

It is very important to know that you only have 12 months from the date of the deceased’s death to file your Summons, commencing your claim. Although it is possible to commence an action after 12 months has passed, you need to convince the Court that they give you their permission to start your claim.

Because of the strict time requirements imposed by the Court, if you have been left out of a Will you should legal advice as soon as possible with our experienced estate litigation solicitors.

A note to those people who have a Will already or are considering making a Will that will leave someone out. It is very important that you meet with an experienced Will practitioner to discuss your particular circumstances and what can be done to protect your estate against silly claims.

Coutts can help you with your Will or advise you of your rights if you have been left out of a Will. Contact Coutts Solicitors & Conveyancers today.

Mallik Rees joins Coutts at the Hunter Valley Vineyards

On Tuesday the 5th April the team at Coutts Solicitors & Conveyancers travelled to the Hunter Valley to celebrate Coutts joining with Mallik Rees Lawyers located in Cessnock. Mallik Rees Lawyers is an accredited specialist firm providing a variety of legal services to the Cessnock community, with a focus on local government and planning law. The announcement was made to distinguished guests at the Goldfish Bar and lounge in Polkolbin. The evening debuted the new branding for the Cessnock location and revealed the firm will now be known as "Coutts Mallik Rees Solicitors & Conveyancers". The evening was celebrated with perfect weather, food and beverages in the picturesque Hunter Valley setting. Guests included the Mayor of Cessnock Bob Pynsent and representatives from Dungong Council, Liverpool Plains Council, Gunnedah Council, Tamworth Council and Maitland Council as well as long term supporting business partners of Mallik Rees Lawyers. With the joining of the two firms Coutts Solicitors & Conveyancers and Mallik Rees Lawyers are able to leveridge the legal services at both locations and provide their clients with additional expertise for a richer more elite experience from some of the best solicitors in the state.  

Can I sell my home to a buyer with 5% deposit?

If you have your house on the market, you are selling at a time where  property prices and mortgages are high, buyers will need to offer a deposit to purchase, but the current market conditions mean it is uncommon that a buyer will have a 10% deposit. However, the Contract for Sale of Land stipulates that a 10% deposit must be paid on exchange of Contracts. So this leads many people to question " Can I sell my house to a buyer with a 5% deposit? " and if so, how is this done? and is there any risk? The simple answer is yes you can and yes it does come with a risk, but there are ways to minimise the risk.

You can accept any deposit you wish under the Contract for Sale as long as it is agreed to by all parties, but here is the catch…

  • If you agree to accept a 5% deposit and if you ever had to terminate the Contract on your buyer, then you would have to try and recover the balance of the 5% due to you under the Contract. This would be done through litigation (going to court), which is an expensive process with no guaranteed outcome.
  • If you do not feel comfortable agreeing to a 5% cash deposit, you can always ask your buyer to obtain a 10% deposit bond. A Deposit Bond acts as a substitute for the cash deposit between signing a Contract and settlement of a property. At settlement the purchaser would then pay the full purchase price including the deposit. A Deposit Bond can be issued for all or part of the deposit amount required, up to 10% of the purchase price.

Thus, it is safer to ask for a 5% cash deposit together with a 5% deposit bond, which would total your whole 10% deposit.

Ideally, it is up to you whether you agree to accept a 5% deposit, just remember that it does come at a risk. Even though you are lead to believe it is “common practice” you are entitled to the 10% deposit under the Contract for Sale, you do not need to accept the 5% even if there is a “special condition in the Contract” as if you do accept the lesser deposit,  that is most likely all you will get if the Contract is terminated.

If you are thinking of selling your property you will need a contract of sale before you market your property. This can be done by a licensed conveyancer. Contact Coutts Solicitors & Conveyancers.

I am an Executor of a Will - What do I do?

If you are an Executor of a Will you may be thinking 'What do I do?". Being an Executor is an important job. Many consider it to be an honour to assist with the carrying out of a person’s final wishes. However, for others it is a stressful time- they fear family conflict bubbling up to the surface, find the probate process a nightmare of court rules procedures and don’t have the time to sort through the paper and work out what the person owned. The first task an executor needs to do, is to locate the original Will (if someone has passed away without a will, read this article- What happens when a person dies without a Will?). Some people store these at home, but many have their original Will with their solicitor or, less common now days, in a bank deposit box. Solicitors have ways to communicate quickly with other solicitors to determine where the original Will is. You also need to obtain the original death certificate before you can apply for Probate

Probate is the process that describes the Supreme Court verifying the validity of the Will and then granting the power to the executor to start administering the estate. Once probate is granted, an executor can start a process of “calling in the assets”, such as removing funds and closing bank accounts, selling property and share and the like. Before probate is granted an executor is personally liable for any errors, so it is vital an executor wait until probate is granted.

We are experts in locating Wills, assets, bank accounts and property. We are well experienced in the probate process as well as distributing the estate the beneficiaries (that is, people named in the Will as receiving an inheritance). We can also advise you on superannuation issues, advise if you need to file a tax return (on behalf of the deceased person or the estate), help you manage any claims made against the estate and make sure you follow the Will’s intentions and the law in dealing with the estate.

If you are an Executor of a Will see Coutts Solicitors & Conveyancers for your Probate matter. Call 1300 268 887 or click here for a call back.

What happens if a person dies without a Will in NSW?

What happens if a person dies without a Will in NSW? If a person dies without a Will it is up to a family member or a friend to apply to the Supreme Court for Letters of Administration. The process is very similar to obtaining a grant of Probate on a Will, but there are a few more steps involved. When someone leaves a Will, they are entitled to leave their items to whomever they please. However, in the absence of a Will, a person’s property is distributed in accordance with the law. It will automatically pass to a person’s spouse, then any children, then parents and so on and so on. Things can become complicated very quickly where there is more than one “spouse”. Because the definition of spouse is fairly flexible, it is possible for someone to have separated from their husband or wife without being divorced and living in a de facto relationship and then there are two potential spouses to deal with. Things can also become complicated where there have been deaths, divorces and remarriages or other events that have changed people’s surnames- generally where this has happened, the Court requires original birth, deaths and marriages certificates. So the paperwork required can become pretty expensive, pretty quickly. All applications for Letters of Administration would be filed within 6 months of the person passing away. Sometimes a person has left document that is meant to be a Will but it has issues, such as it is not signed by the deceased, or it was signed by the deceased but not witnessed, or, not clear what the person wanted. Another situation can arise where a valid Will has been made but the executor or executors named have all since passed away. In these cases Letters of Administration is still applied for but these documents are attached.

If someone has passed away and they only owed joint property, for example a joint bank account and they owned a house as a joint tenant, then it’s probably not necessary to apply for Letters of Administration. However, you still need to transfer the property into the survivor’s sole name to ensure the title deed is updated.

Coutts Solicitors and Conveyancers are skilled at preparing the necessary affidavits, detailing how it is known there isn’t a Will and the thorough searches for the Will that have been undertaken and applying for Letters of Administration. We can provide advice about which family members will be inheriting and undertake all of the communication, as well as explaining to other disgruntled people why they might be missing out.

If you are next of Kin to someone who has died without a Will, contact Coutts Solicitors for expert advice on 1300 268 887.

If you are an Executor of a Will and want to know what to do, read this article - I am an Executor... what do I do?

Time limits when separating

If you are separating from your partner it is important to remember time limits when separating and protect yourself with a property settlement within this time frame. People who enter into marriages and de facto relationships create a very special relationship emotionally, socially, and legally. That special relationship brings many rights and obligations at law. It is these legal implications of a relationship that allow a property division to take place when a relationship ends or when a couple are separating.

Dividing up property and having a property settlement is different for every separating couple. To understand exactly what you need to do, it is best to speak with a family lawyer.

It is also important that you know that there can be time limits on when a property division can take place.

How early can we do a property settlement?

You can do a property settlement as soon as separation takes place. To ensure that your property settlement is legally recognised, you should engage with a lawyer and do things properly. This process can take a few weeks or a few months depending on the case.

De facto time limits

If you have been in a de facto relationship and you have separated, it is important that you know that you only have two years to make an application to the court to have a property settlement take place.

Example: John and Sarah separate on 31 August 2013. They have a house together, bank accounts, and cars, but they never got married. John and Sarah talk about how they want to divide up the property but can never reach an agreement.

John and Sarah must either enter into a legally recognised agreement, or make an application to the court by 31 August 2015. If they do not do this, they no longer fall under the Family Law Act, and this can cause serious legal issues for them.

Marriage time limits

If you have been married, it is important to know that there is no time limit on when a property settlement has to take place, unless you have gotten a divorce and more than 12 months has passed. This is very important to consider as it means that the legal rights and obligations that your marriage has created do not end until you do have a legally recognised agreement or a court order in place.

Example: Chris and Tammy have been married for seven years. They have each have superannuation, cars, bank accounts, and credit cards. They also have a house and a mortgage. They separate on 1 May 2012. Although they often talk about it, they cannot reach an agreement on how to split up the property and who should have to pay the credit cards. On 30 June 2013, Tammy applies for a divorce, and the divorce is granted on 1 August 2013. Chris and Tammy then only have until 1 August 2014 to enter into a legally recognised agreement or make an application to the court for a property settlement. If they do not do this in time, then they no longer fall under the Family Law Act and this will lead to serious legal issues for both of them.

For advice on your circumstances contact Coutts Solicitors & Conveyancers on 1300 268 887 your first consultation is FREE for up to 1 hour.

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.

Joint tenants and tenants in common

What are Joint tenants and tenants in common ? If you and your partner have just thought about purchasing a property or are in the process of purchasing a property this is a question you will need to know the answer to. When you review your contract with your conveyancer you will be asked if you would like to purchase your property as Joint tenants or tenants in common. Most people are not aware of this until the appointment and do not realise the implications of their choice. We at Coutts endeavour to help you make the best choice for your current circumstances ensuring you have an easy transaction from beginning to end. As like every person, buying a property is quite complex and it can be a stressful period. One of the biggest decisions you both have to make is whether you wish to buy the property as Joint Tenants, Tenants in Common in equal shares or Tenants in Common in unequal shares. In this article I will describe to you the differences between joint tenants and tenants in common.

It is important to pick your shares earlier on in the purchasing transaction. During your Contract Review with your Solicitor or Licensed Conveyancer they will describe the difference. This article is going to give you a clear understanding on the differences and describe what these mean in "layman" terms so that any persons,  purchasing a property can make an easier decision prior to signing on the dotted line.

It is important to understand, discuss and decide on your shares prior to completion date, as if you make the wrong decision it will cost time and money to amend your shares later on down the track. It is not impossible to change your shareshowever, choosing the most suitable option early on will save you time and money and protect your best interests.

Joint Tenants

Usually, married couples are joint tenants. They own 50% of the property each. This means that if one party was to die the share he/she hadat the time of death can be transferred to the surviving partner. Therefore one person would have the whole 100% share.

One thing most people don't know about Joint Tenants is that you cannot "leave" your share to another person. For example if you and your de facto are joint tenants and you pass away you can't leave your share to your children regardless of the terms of your will. Your share will be left automatically to your de facto partner. It is up to them whether they choose to leave part of the property to your children when they pass away.

Tenants in Common in equal Shares

Tenants in Common in equal shares are normally made by couples who purchase who are not married. This means that yourself and your partner own 50% of the property each and if one of the partners were to pass away their 50% share will be left in accordance with the terms of their Will. This is becoming more common with second time around partnerships and couples with children to previous marriages.

It is very important that if you select to be a tenant in common that you prepare a Will immediately. In the Will you can set out how you wish for your 50% share to be divided. So, what does this mean for your partner who is left behind? It means that the people who are entitled to your share can force your surviving partner to sell the property to obtain your share of the property.

I have in previous years seen where this is an issue. An elderly person has been made to sell the property because step children wanted to sell the property to obtain their share of their parents half of the house. In this case we can create a life estate later on to protect the interest of an elderly person to ensure that they can live in the property until such time as they pass away or decide to move on.

Tenants in common in unequal shares

This is the same principal as above the only difference being on how many shares you own.

For example Brother and Sister are purchasing a property. Property is worth $1,000,000. The brother puts in $800,000 of his savings and sister puts in the remaining $200,000 into the property. As you can see the brother contributed 80% of the purchaseprice and the sister contributed 20% of the purchase price. Both wish to be tenants in common in unequal shares. Therefore, they will own the property as "brother as to 80/100 shares and Sister as to 20/100 shares".

As long as the shares add up to the value of 100th or 10th you can have as many people purchasing or as many shares as decided.

Given the rising prices of housing in all of Sydney many parents are choosing to either go guarantor on the children's property or even putting large sums of money towards their children's home. To protect their interest many parents are added onto the Contract and onto the deeds. An example where we can mix joint tenants and tenants in common is: husband and wife buy property, dad contributed a large some of money towards the purchase. Husband and wife own the property as joint tenants 50% and dad owns other half of the property, 50% as a tenant in common. This means that if the husband was to pass his share will automatically go to his wife. However, if the father passes away his 50% share would be distributed as per the terms of his will. If at any stage the husband and wife want to purchase back the fathers 50% then husband and wife would have to obtain a valuation from a registered property valuer and pay 50% stamp duty on the value of the property.

As you see from the examples whenbuying a property things can get quite complex. So ensure that you have discussed these matters with your partner prior to signing on the dotted line. If you would like any more information about your shares in a property please contact Coutts Solicitors & Conveyancers on 1300 268 887.

Separated? ....... how do your kids feel?

Whether you have just decided to separate or have been separated for some time, you and the other parent obviously need to think about and agree on arrangements about the children. Many children worry about what will happen to them when their parents split up, and it can be a big relief to them if the arrangements become clear and predictable.

How do I make a parenting agreement?

A parenting agreement is an arrangement that separated parents make about how their children will be cared for and supported. One of the things about coming to a parenting agreement that many parents are particularly worried about, is working out where their children will live and how much time each child will spend with whom.

There are usually strong emotions around this topic for parents, these strong feelings can lead people to act in ways that they might not usually act, or may not even agree with. Some parents can get focused on who will 'win’, they may have long debates about where children live and how much time each parent should get. Arguments between the parents can continue for long periods without a resolution.

Before getting caught up in conflicts about what is fair and unfair for each parent, you could get ready to make a parenting plan by focusing your thinking on what will be best for your children.

What actually are my parental responsibilities?

  • Consider your children’s needs as a priority and make arrangements for your children that are in their best interests.
  • Protect your children from physical or psychological harm or the risk of harm.
  • Encourage your children to talk to and see the other parent regularly, unless this would place your children at risk of harm.
  • Not say or do things that stop your children communicating with the other parent, or  that might harm their relationship with the other parent.
  • Encourage and assist your children to enjoy their culture.
  • Maintain your children financially.
  • In most cases, participate in major long-term decisions about your children.

How a Solicitor can help you to reach an agreement

Not all separated parents are able to agree on parenting arrangements, or the agreements they have made are not kept. The highly charged emotional nature of the decision making in regard to the children can cause massive stress, especially if arguments have become aggressive and unreasonable.  In some cases it may not be safe to try to reach agreement, or there may be other difficulties or urgency that prevents parents from agreeing to arrangements. If this applies to you, you may need to go to court. A Family law Solicitor is an expert in this field, they can advise you on your rights as a parent and the family court system. They will guide you through the legal process and how it relates to your families circumstances.

If you go on to court, the court will have to consider the terms of the most recent parenting arrangements and make a parenting order in relation to your children, if they believe that is in the best interests of your children. A Solicitor will be on hand to give you the advice and support you will need while going to court.

Information was sourced from HERE.

If you would like to talk to a Family Lawyer call Coutts Solcitors & Conveyancers on 1300 268 887 for a FREE Initial Consultation for up to 1 hour.

Labelling for Businesses

ACCC launches guidance on country of origin labelling for businesses

Today, the ACCC has published its revised guidance on country of origin labelling which will help businesses comply with the Australian Consumer Law (ACL) when making country of origin claims.

The ACL provides ‘safe harbour’ defences for ‘Made in’, ‘Product of’ and ‘Grown in’ country of origin claims. If goods satisfy the criteria, the business is deemed not to have engaged in misleading or deceptive conduct or made a false or misleading representation under certain sections of the ACL. Businesses that do not qualify for these defences are still able to make country of origin claims provided they are not false, misleading or deceptive.The ACCC’s guidance provides information and examples to illustrate when businesses can rely on the ‘safe harbour’ defences in the ACL.

The Country of origin claims and the Australian Consumer Law publication is available on the ACCC website. For further information, please also see the ACCC’s media release.

Government releases competition review papers

The Harper panel has now released an issues paper and fact sheet regarding the Australian Government’s ‘root and branch’ review of competition laws and policy.

Copies of these documents are attached and can be found online at http://competitionpolicyreview.gov.au/consultation/

Submissions will be open until Tuesday 10 June 2014 and can be submitted online at http://competitionpolicyreview.gov.au/submissions/.

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.

House price high set to continue

We were amazed to hear that a normally slow period for the housing market has turned out to be a bumper one. Supported by the lowest interest rates in decades, a rise in investor confidence and a solid economic performance, Australian home buying activity is progressing towards record levels. And there doesn't seem to be any slow-down in the coming months.

In the June quarter, National house prices have risen by 2.8 per cent and an astonishing 5.4 per cent this year to date. This level of growth has not been seen since March 2010, according to the Australian Property Monitors (APM) quarterly housing report. But what is so interesting, is that this boom hasn't been created through any Government intervention or stimulus package.

Prepare to cash-in on a hot winter for home owners

The current housing boom is so significant, it’s set to be one of the hottest winter property seasons on record. If predictions are in fact correct, buyer activity is set to accelerate through the remainder of 2013 with the expectation that market momentum will continue in full-swing and prices will keep on rising until the year end.

If you’re thinking of selling your property, you might want to think about it sooner rather than later, to take advantage of a supply and demand situation that’s currently in favour of those selling up. Before your house goes on the market, you’ll need to swiftly get a Contract for Sale prepared by a Solicitor or Conveyancer.

If you need some advice or assistance in getting your property market-ready, we can help with an affordable, fixed-price service that’s quick and convenient. Don’t hesitate to call us on 02 4647 7577 to get started.