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We thank you for the continued support and interest provided to Milne Berry & Berger. With Christmas around the corner, this might be the best time for you to get your business and personal affairs in order. Kindly contact us if you require a Will, Power of Attorney to be executed before your holidays. |
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| In this issue: |
• Obligation to answer on arrest — Know your rights!
• Animal Companion Act— Some law relating to pets
• Interesting Recent Cases
• Protecting your financial choices for tomorrow
• Gonzales Estate Protected From Killer Son
• Issues with your neighbours?
• Directors Duties
• James Hardie - Observations & Learnings
• What is Bankruptcy
• Consumer Warranties
• Do I need a Will |
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| Obligation to answer on arrest — Know your rights! |
Put simply, there is no obligation on a person arrested to answer questions except in limited circumstances. This is known as the right to silence and a person under arrest can exercise this right provided they have a belief on reasonable grounds that they are suspected of an offence (Petty v The Queen (1991) 173 CLR 95). The courts have made it clear that “no adverse inference” will be drawn against the accused in choosing not to answer questions (per Mason CJ, Deane, Toohey and McHugh JJ, Petty v The Queen (1991) 173 CLR 95 at 99).
Contrary to common belief, a suspect does not have a right to legal representation once arrested. Accordingly, if arrested it is important to remember these two basic principles.
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| Animal Companion Act— Some law relating to pets |
Do you own a pet? Are you aware of the legal obligations imposed on owners of pets ( or as the law defines them Companion Animals)? If you own a pet you are responsible for its actions. The law has become very severe in this area. Under the Act dogs must wear a collar and tag, they must be micro-chipped. If a dog defecates in a public area, it is the owners responsibility to remove the faeces and properly dispose of it, otherwise significant fines can be imposed.
In the event that a dog is too aggressive or has attacked a person or another animal it can be declared dangerous. If the Local Council issues a Notice of Intention to declare a dog dangerous this must be responded to immediately. Severe penalties are imposed on the owner of the dogs that are declared dangerous and this includes having a dog de-sexed, being required to wear a muzzle at all times and not being entitled to go off the lead.
For further information please feel free to contact us. |
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| Interesting Recent Cases — Rene Rivkin & Martha Stewart |
Francis Bacon nearly 400 years ago, recognised that “knowledge is power”. In the commercial environment when one person receives special knowledge and uses it to his or her specific benefit and trades in public shares, that person conducts the offence known as “insider trading”. Insider trading involves trading in securities on the basis of price sensitive information which has not been made available to the other party in the transaction.
Sydney’s most famous case in recent years has involved the former stockbroker Rene Rivkin, who was convicted of receiving inside information which, the Court found was used to acquire shares in a
publicly listed company in anticipation of a commercial transaction occurring in the future which was more likely than not to increase the value of the shares.
In a similar situation the famous American business woman Martha Stewart was found to have also received special information which allowed her to make a commercial decision to her advantage. Both Stewert and Rivkin were convicted of what is colloquially known as Insider Trading pursuant to legislation in their respective states and countries.
Although neither Stewart nor Rivkin made any significant sums of money the prosecution expended significant resources to prosecute and obtain convictions and then pressed for custodial sentences. A representative of the Australian Securities and Investments Commission (ASIC), in an interview explained why such tremendous resources were expended in the matter of Rene Rivkin. He asserted that obtaining evidence of Insider Trading is notoriously difficult. When evidence becomes available corporate watchdogs need to act appropriately and to inform the community at large of the offence known as Insider Trading |
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| Protecting your financial choices for tomorrow |
Protecting your financial assets and the operation thereof and your desired personal and lifestyle preferences should you one day not be able to communicate or consciously make such a decision yourself is your responsible choice to make when you are capable of doing so.
A power of attorney is a legal document that appoints one person (the attorney) to act on behalf of another (the principal or donor) in relation to their property and financial affairs. There are any number of personal and business situations where giving someone else the
power to act for you makes good common sense. A power of attorney can assist you during a short period of time, for example, during a major illness or operation, and a lengthy overseas trip where communication is difficult, and so forth. A power of attorney does not allow a person to make medical or life decisions on your behalf.
An enduring power of attorney may be created by you so that it continues to have effect after you lose capability to make financial decisions.
An enduring guardian is someone you choose to make personal or lifestyle decisions on your behalf when you are not capable of doing this for yourself. You choose which decisions you wish your enduring guardian to make. These are called functions and you can direct your enduring guardian on how to carry out these functions.
Contact us today to secure your long-term personal well being and security of assets. |
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| Gonzales Estate Protected From Killer Son |
On 17 September 2004, Sef Gonzales, a former student and North Ryde Resident, was condemned to three concurrent life sentences by Justice Bruce James in the NSW Supreme Court for the brutal murders of his parents Teddy and Mary Loiva Gonales and his 18-
year-old sister Clodine on July 10, 2001.
Justice James noted that Sef’s motives for such extreme violence were only “to prevent his parents withdrawing privileges they had extended to him: and to gain access to their $1.5million estate “as their sole heir”.
The affect of Sef having been found guilty of the murders of his family automatically excluded him from his family’s estate. The law precludes a person who has unlawfully killed another person from acquiring a benefit in consequence of the killing, their rights are forfeitied by law.
Should you have any enquiries about estates, wills, and the importance of having your own will, contact our office.
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| Issues with your neighbours? |
| Are you aware that:
• You and your neighbour should usually be sharing the cost of repairing any fence between your properties? If you neighbour does not attend to the cost of the repairs, you can proceed against your neighbour to recover the costs.
• Cutting back the branches and roots of your neighbour’s trees that protrude onto your property usually requires the consent of your Local Council under its Tree Preservation Order? If trees are about
3 metres in height, which includes large bushes, it would be wise to check with your Local Council before proceeding to prune!
• If your neighbour’s tree is causing damage to your property, for example if a driveway is being damaged due to the neighbour’s tree roots, you may be entitled to sue for compensation?
• There are regulations that restrict the use of certain noisy items such as lawn mowers, air conditioners, etc to be used by your neighbour. They may only be used during certain times on certain days? If you have any problems in relation to pollution caused due to neighbour’s noise, we can advise you on the best course of action with regards to the relevant Local Council Rules and Regulations and the Act that relates to the Environmental Protection Authority.
• You have a right under the Clean Air Act to prevent your neighbour from burning off any material in their premises except for cooking, recreational, agricultural and fire fighting purposes. If your neighbour is burning off, you may report this to your Local Council.
Please contact us if you require any advice about your rights in a dispute with neighbours. We can assist you with writing letters or completing forms that may be required in approaching the relevant authorities.
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Directors Duties |
| It is established law that a director is in a fiduciary relationship with a company, meaning they have a duty to act in good faith and for the benefit of the company. Courts have noted that as fiduciary agents of the company the power conferred on directors should not be exercised in order to obtain private advantage: Mills v Mills (1938) 60 CLR 150. Duties may also be owed to third parties such as the companies creditors, at least in the case where there are questions as to the company’s solvency: Walker v Wimborne (1976) 137 CLR 1.
A number of high profile corporate collapses in the recent times, including the collapse of the HIH Insurance Group and Onetel, have seen the corporate regulator, the Australian Securities and Investments Commission (ASIC), come to the forefront in enforcing the Corporations law. ASIC took immediate steps to institute actions against the HIH directors after it’s collapse. ASIC sought and the court granted declarations that a director, Rodney Adler, had contravened the law by engaging in the following activities: entering into related party transactions, obtaining financial assistance to buy own shares, breaching hisduties of care and diligence, good faith and misuse of position to gain advantage for himself. As a result he was ordered to pay pecuniary penalties and disqualified from being a director for a period of 20 years.
It is clear from this case, and from ASIC’s prosecution of the directors of Onetel Pty Limited, that a serious view is taken of the role of directors in company law in Australia. Hence, it is important that directors recognise their duties and where necessary obtain legal advice where they are unclear of their obligations in regards to such duties.
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| JAMES HARDIE— Observations & Learnings |
Commissioner David Jackson QC, handed down his Report on 21 September 2004 subsequent to a six month enquiry into James Hardie’s massive under- funding of compensation for victims of asbestos disease. The report confirmed that James Hardie Industries broke the Corporations Law and misled the public when it claimed it had put aside enough money to meet its asbestos liability which could draw a total of $B2.24. Mr Peter Macdonald, the Chief Executive Officer, was criticised for making misleading and false statements about the company’s asbestos liabilities being “fully funded”. James Hardie executives now face the risk of being prosecuted by the Australian Securities and Investment Commission.
• We can advise you of a Director’s rights and obligations that are enumerated under the Corporations Law.
• If you require, we can advise you of the courses of action available to you when the company funds have been misappropriated and how a trace can be made to the funds when the company funds are dissipated. When company funds are in fact inappropriately handled, it becomes a criminal issue and we can assist you with writing letters or completing forms that may be required when approaching the Australian Securities and Investment Commission or an ombudsman to lodge a complaint anonymously. |
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| What Is Bankruptcy? |
The term “bankrupt” derives from the Latin “bancus”, referring to the table or counter of a tradesperson, and “ruptus”, meaning broken. It thus denotes one whose place of trade is “ broken” or gone.
Bankruptcy is the process by which the state takes possession of one’s property, that person being unable to pay their debts. The bankrupt hands over control of their property and finances to a Trustee and in turn receives protection from legal action by their creditors (people to whom money is owed). The process of bankruptcy is governed by the Bankruptcy Act and is structured so that money received from the sale of a bankrupts property is distributed by the Trustee to creditors on a pro rata ( a percentage of overall debts) basis.
There are two ways a person can be made bankrupt. Firstly, if you owe a debt to a person and are unable to meet it you may file a Debtors Petition: this being an application to become banktrupt. You will also need to attach a statement of affairs for the Trustee detailing information such as your income, assets, debts and business dealings. Secondly, you can be forced into bankruptcy if you owe
a debt over $2000. For a creditor to force you into bankruptcy there must be a court judgment stating that you owe the creditor $2000, a bankruptcy notice must be served on you and if you cannot pay out the creditor a Creditors petition must be served on you. The final step is when the Federal Court or Federal Magistrates Court make a “sequestration order” against you i.e.: declare you a bankrupt.
If you would like further information please contact us to make an appointment. |
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| Consumer Warranties |
The Trade Practices Act 1974 (the Act) affords certain defined consumers the protection of warranties and conditions that are implied in certain consumer transactions. A consumer is defined within the act as a person who has acquired goods or services to a value less than $40,000.00 or where this price is exceeded, the goods or services are of a kind required for personal, domestic or household use or consumption.
Such implied terms include: undertakings as to quality and fitness og goods, that services will be rendered with due care and skill and that materials supplied in connection with these services will be reasonably fit for the purposes they are supplied. Trade Practises Act Part V Division 2.
It is important to note that contractual provisions that attempt to exclude these implied warranties are void pursuant to the Act.
The Act also makes a provision for the right of consumers to recover direct from manufacturers or importers in respect of unsuitable goods, goods of unmerchantable quality and the failure to provide facilities for repair of such goods.
As actions in respect of these provisions are subject to time limits, prompt legal advice should be obtained.
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| Do I Need A Will? |
| If you do not make a Will, you may die “intestate” and your assets will be divided and distributed according to State laws. This could indirectly mean that the people who may benefit from your estate may not be those that you would have in fact chosen. In order to prevent such unfair result, we would advise you to prepare a Will. We can help you draw up a Will to ensure your wishes to be complied with after your death. We can give you legal advice or recommend independent financial advisors, draw up and supervise the proper execution of your Will, advise on gifts and other transfers of assets with minimum tax repercussions, advise on trusts and estate planning. Please contact us before Easter to grab our special offer to draft and supervise the proper execution of your Will for only $200.00 before your proceed to go for a holiday. |
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