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Welcome to MBBF’s first Newsletter of the year. We have delayed in issuing our first Newsletter which we had hoped to do earlier particularly after the numerous praise worthy comments that we have received from not only clients but also others in the community who receive our Newsletters. We thank you all for your support. As time will indicate it has been a very busy year for the firm, which continues to grow and receive new and interesting clients. Sadly the year started off with numerous natural disasters causing great hardship and devastation to many parts of the country. The consequences of the incidents have caused financial difficulties to many and were so severe that they are affecting the national economy. |
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There has been continuing debate at Federal level regarding the introduction of a Carbon Tax with arguments on both sides of politics as to whether or not it is necessary and indeed whether or not it will achieve anything. Our State has seen a change of Government in a landslide election and now finds itself in controversy about whether retrospective legislation ought to be introduced regarding the costs of solar panelling. Most Lawyers are always extremely concerned about retrospective legislation, which will leave innocent parties in a position that they have acted to their detriment in reliance upon promises made by the Government, which are now being retracted. No others in the community are entitled legally to act in such a way.
Our firm continues to receive instructions in the areas where it does significant work being Family Law, Commercial and Property Matters, Debt Recovery, Commercial Litigation and Conveyancing. We are pleased to be able to report the success of a landmark case involving a
client who sought Orders from the Court to be able to use the sperm of her late husband for an IVF Procedure (see article below). This case was run by our Partner Mittu Gopalan who was able to supervise a team of Lawyers and Barristers and to not only achieve a successful result,
but have the matter determined within a space of a few months, at a cost well below what one might have expected for a Supreme Court case in which we were arguing against the Government. As the end of the financial year approaches, many people will turn towards organising their financial affairs. We are receiving many instructions for the recovery of monies owing to our clients so that they can be resolved before the financial year end and also accepting instructions for the establishment of Trusts, Superannuation Funds as well as Wills and other Commercial Agreements. Do not leave your financial affairs in disorder before the end of the year. Please feel free to contact us at anytime.
Inside this issue:
I want to Have my dead Husband’s baby
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Ms Jocelyn Edwards approached us in August last year to assist her being able to get access to her late husband’s frozen sperm for the purposes of being able to undergo an IVF program.
Jocelyn’s husband Mark died as a consequence of a work place accident on the day before the couple were to sign the final documents to commence an IVF program.
This extraordinary lady hours after being told the horrible news that her beloved husband had died, had the strength of character and intelligence to enquire as to what could be done to preserve his sperm and on her own was able to convince a Senior Supreme Court Judge to issue an Injunction empowering Doctors to extract the sperm from her husband’s body and to keep it preserved.
Notwithstanding what would seem to be a clear process to put into effect what the parties had obviously been planning for quite some time they were now faced with a legal document entitled and known as the Assisted Reproductive Technology Act of 2007(ART Act). This Act not only prohibited the use of Mark’s semen (referred to as a gamete) without his written consent but also did not even allow a Court of Law to exercise discretion in unusual situations. The evidence was clear that Jocelyn and Mark had even contemplated being able to use his sperm and proceed with the IVF program in the event of his death, after he became concerned that he might have been suffering from some illness. Advice from Senior Counsel was still to the effect that although there clearly was an intention to be able to proceed with the program after one party’s death, there was no document in writing.The law in this area is unusual in that different States and Territories have different pieces of legislation. An IVF program could not be undertaken in NSW in the absence of Mark’s
written consent. The firm proceeded with the Court action and was able to persuade the presiding Supreme Court Judge to simply allow the sperm to be given to Jocelyn who was the Executrix of her husband’s Estate.
This will allow Jocelyn to consider entering into an IVF program outside NSW. Needless to say after many months of grieving and anxiety, we have assisted a remarkable woman in being able to choosea path, which will offer the possibility of fulfilling a long held dream.This case has many consequences for all in the community. It is important that it was
recognised not only by the legal establishment and by the media as well, since it received extensive coverage. As a consequence we are recommending many of our clients who may find themselves in a situation where the possibility of offering parts of their body for use to spouses and members of family, should now be incorporated in their Wills. If you can perceive such a possibility in your own circumstances, your Will ought to be amended so as to be able to clearly provide the written consent that is necessary in being able to offer the use of parts of your body following your death.
As always, please feel free to contact us to discuss the matter.
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Personal Guarantees - Do you ask for them or only get asked for them?
Do you have a SME (small to medium enterprise)? Do you have an extensive list of companies to whom you supply goods and or services? Is your credit application satisfactory and does it cover your current business needs? In today’s often-volatile commercial environment getting new business and customers is tough. Getting those customers to pay overdue bills could be even tougher. A good credit application including terms and conditions is essential for the smooth functioning of recoveries for your business. What you may not know is that a personal guarantee obtained for a trading account is an extremely valuable tool in recovering outstanding debts. You may deal with a company but often extracting money from a company can be an expensive and lengthy exercise. Experienced individuals are able to cover their tracks so that they are rarely personally liable. Ensuring a personal guarantee is in place signed by an individual whether they be a director of the company with whom you deal or another individual ensures that if the debt requires collection you are at liberty to pursue not only the company but the guarantors as well. You may not know that a personal guarantee outlives the resignation of a director and in fact even if the company is placed in liquidation or deregistered you can still rely on the guarantee to commence legal proceedings for the recovery of the debt. Your business is too important not to consider implementing this strategy. Our firm drafts agreements, terms and conditions including personal guarantees on a regular basis .
The End Of Periodic Detention
Up until September 2010 a person convicted of a criminal offence which might have resulted in a short period of detention, could request that the sentence be served in the form of periodic detention which allowed many convicted people to maintain family and work relationships and serve a sentence at times of their choosing, generally on weekends Due to the fact that there were many breaches of periodic detention orders and the ability to administer the program proved to be too difficult, the Government has revoked the concept of periodic detention and in its place introduced what is known as an “Intensive Correction Order” (“ICO”). This option
has become available in NSW since the 1 October 2010.This order can be made to Defendants who are convicted of offences, which may result in imprisonment for a period of not more than two years. The Court may direct that the sentence is to be served by way of an intensive correction in the community rather than full time custody at a jail. There is no minimum length for an ICO although the maximum length can be no greater than two years. No parole period will be set.To comply with an ICO an offender must comply with strict conditions which include the following:-
(a) a minimum of 32 hours community service per month;
(b) participate in programs addressed to his or her offending behaviour as directed;
(c) be subject to drug testing;
(d)comply will all reasonable directions by the appointed supervisor.
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It might also include and be subject to electronic monitoring,complying with a curfew, being subject to alcohol testing, be
subject to random unannounced home visits and other related restrictions and/or requirements.An ICO can be considered by a Court when considering a sentence
of an imprisonment of two years or less and that the offender is not being sentenced with a prescribed sexual offence.
To be considered as a suitable person for an ICO, a suitability assessment needs to be conducted. The assessment will cover
factors such as:-
i. the offender’s age;
ii. the offender’s criminal history;
iii. any risks associated with managing the offender in the community;
iv. the suitability of the offender’s accommodation
including the potential impact of an order on co-residents (children);
v. whether there is a likelihood the offender may commit a domestic violence offence;
vi. whether or not the offender has a drug or alcohol dependency;
vii. whether the offender has a physical or mental health issue;
The community will need to wait and see before it can determine the success of such programs however we believe it is an encouraging and enlightened approach to dealing with convicted
felons rather than simply sending them to full time custodial sentences and overcrowded jails where the rate of recidivism is
yet to decline significantly.
Any criminal issues that might affect you or your family, please feel free to contact us at anytime.
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Landlords beware - Changes to Residential Tenancies
Thinking of purchasing a property for investment purposes?
Do you have tenants in a residential property?
If the answer to the above is YES, Please Read on - for important information that you must know, this will also help you to maximise your investment return.
Changes to Residential Tenancies is now in the form of the Residential Tenancies Act (NSW) 2010. This act became effective on 31 January 2011.
Some important changes to the act are as follows:
Terminating a residential tenancy
1. Pursuant to section 83, a landlord must give notice to terminate a fixed term residential tenancy agreement of not less than 30 days;
2. Landlords must give at least 90 days notice to terminate a periodic residential tenancy agreement (section 85);
3. Pursuant to section 96 a tenant must give 14 days notice for a fixed term residential agreement;
4. Tenants must give 21 days notice to terminate a periodic agreement (section 97).
What is the difference between “fixed term” and “periodic term”, the act defines these terms as follows:
“fixed term agreement” means a residential tenancy agreement for a tenancy for a fixed term.“periodic agreement” means a residential tenancy
agreement that is not a fixed term agreement.
Payments by tenants and Landlords
1. Payments by tenants prior to entering into a residential tenancy agreement are now limited. Parties are therefore encouraged to enter into a written agreement. Landlordscan accept payments for holding fee, rental bonds, rent
and fee for registration of Residential tenancy agreement. Tenants are no longer required to pay for the costs of preparation of a written residential tenancy agreement
(section 23).
2. There are limits on when a tenant can be required to pay water usage charges (see section 39);
3. Mandatory payments by landlords are contained in section 40 and include: rates, taxes, charges, and installation fees.
Sale of property
1. The landlord must give at least 14 days written notice to the tenant of the landlord’s intention to sell the property before the first inspection. A tenant is not required to
make the premises available more than twice a week, and the landlord or it’s agent must make reasonable efforts to agree with the tenant on suitable dates and times. (section
53)
If you still have any questions or require clarification of the above,please contact Milne, Berry, Berger & Freedman for further information and advice.
But I wasn’t doing anything?!
While the Police do not have a general power to stop and search a person prior to arrest, the Police do have statutory authority to stop persons and search motor vehicles, where the police suspect the person or vehicle is carrying anything stolen or unlawfully obtained. The Police may also stop and search a person or car, whom or which the Police reasonably suspect of having any prohibited plant or prohibited drug.
The Police also have the power under the Summary Offences Act to search a person whom the Police suspect on reasonable grounds has a dangerous implement on them.
You’re under arrest!A Police Constable or any other person may arrest a person in the act of committing an offence with reasonable cause.Once that person is under arrest, the Police may detain that person for a period of 4 hours to enable the investigation to continue.The Police cannot keep you for more than four (4) hours without applying for a warrant, authorising your detention for up to an additional eight (8) hours. I want to make my one phone call!A person in custody at a Police Station must be informed by the Custody Manager, that the person can attempt to contact a friend or lawyer and ask the legal practitioner to attend at the Police Station. The Police must assist the person in making contact if the person so wishes. As seen on TV! You do have the right to remain silent if you are arrested, and not to answer any questions from the police.
A good fence makes a great neighbour!
It’s always best to agree with your neighbour about the repair or construction of a fence. Once agreed it should then be drafted in a written agreement.
Who pays? In general, each neighbour pays for half the cost of the fence. The fence should be whatever is sufficient for the purposes of the land. This applies to the height of the fence and the type of materials used in its construction.
What if I wanted a bigger fence? If one neighbour wants a more expensive fence than that which is really needed, the other neighbour should only have to pay half the cost of the standard type of fence built in the local area. The extra cost must be paid by the neighbour who wants the more expensive fence.
Disputes: Try to reach an agreement. This can be done by talking to your neighbour, or by using mediation to help you both reach an agreement.If this does not work, write to your neighbour explaining what you want and attach a copy of the quote for the work.If your neighbour will not agree to the work or to mediation, you will have to decide whether to involve your Local Court, where a
magistrate can make a decision.
Using a lawyer :A lawyer may be able to help you organise everything quicker, including an agreement or going to court. In more complicated matters it is always a good idea to get legal
advice.
Leaving it all behind
Have you really turned your mind to what happens when you live happily ever after……
The importance of estate planning cannot be overstated. We may be leaving it all behind, but there’s work ahead for our families, friends and executors in distributing our worldly goods when we die. We
read a lot about legal Wills and how important they are. But we do not often read about what happens after someone lives happily ever after from a legal aspect. Clients generally have a reasonable understanding of what amounts to a Will, however many are not aware of what Probate is, or when it is necessary. If you have a Will your nominated executors are responsible for
ensuring that your wishes are carried out. In the vast majority of cases, this means dealing with your assets. The most common assets in a typical estate are bank accounts, shares, motor vehicles,
real estate, superannuation, life insurance policies and personal possessions. Your executor’s job is to have these various assets sold, or transferred into the name or names of the beneficiaries
listed in your will.
Now comes the hard part. …….
The various Financial Institutions, bodies or government departments that control the title to those assets are required to be contacted and request that they transfer the assets either into the
name of the executor, if the asset is to be sold, or directly into the name of the beneficiaries. This is when engaging a Solicitor will assist the Executors of an Estate ensure all their responsibilities,
obligations and legal responsibilities are met.In some cases, the controlling bodies will oblige after you send them a copy of the Will and death certificate. However in the majority of cases, the controlling bodies will ask for a Grant of Probate from the Supreme Court in your State before they will transfer the assets.
The type of asset and whose name or names are on the title of the asset will determine if a Grant of Probate is required. The reason they ask for this document is to protect themselves against being
sued by someone who may have a financial claim of some kind against the estate. It is a ‘due diligence’ process designed to ensure that your estate is properly administered.
So what exactly is required to obtain a Grant of Probate? The executors named in your will are required to make a formal application to the Supreme Court in your State for a Grant of Probate. The application consists of a number of completed forms and affidavits (sworn statements), your Will, the death certificate, and a copy of the death notice placed in the newspaper. As each State has different requirements, the format, content and number of forms for the application vary. Engaging a qualified Solicitor in this area is recommended as they will be familiar with what documents are required to be prepared and ensure all relevant information required is submitted with such application.The Probate Registry with the Supreme Court is the area that wouldprocess your application and they are extremely pedantic about the accuracy and content of the forms. A misspelled name is sufficient to cause the rejection of an application and Requisitions then being raised.
Once the Grant is issued, your executors will have the authority to deal with your estate. The executor has the power to step into the shoes of the deceased and act accordingly to ensure the Will
is complied with. Once Probate is granted the Executor has a duty to uphold the Will and will be legally responsible and personally liable for what occurs during this process, hence why engaging a Solicitor is highly recommended to leave no stone unturned. When someone has passed away, the last thing you need is more stress and grief of dealing with probate. At MBBF our solicitors can advise you on all aspects of estate administration and probate in NSW. We will be able to work with Executors and beneficiaries of the Will throughout the probate process to ensure the assets are identified, any claims on the estate are established, taxes are paid and that the assets are correctly distributed among the beneficiaries.
All Creatures Great and Small ….
Yet for some reason most people never turn their attention to them…
If your family unit includes a furry, feathered or scaly member then you are counted amongst the 63% Australian households caring for a pet.
There are over 58 million pets of various species throughout Australia and 91% of Aussies say they feel very close to their pets. Many Australians consider their pets a beloved family member and some think of them as children.Regrettably we can forget about our pets when it comes to our own mortality. Maybe it is just too sad to think of parting from our beloved furry companions or perhaps its just too hard to know what to do.Unfortunately it is not as easy as just leaving money in our Wills in our pets names but there are ways to provide financially for our pets care.In many jurisdictions around the world, including Australia, pets are not allowed to be named as beneficiaries in Wills because only people and organisations can be named.
If you want to ensure your beloved pets are looked after, once you pass away, it is recommended that you organise someone who has committed to providing a good home and speak to us at MBBF so that we can tell you how to do it. We all love our pets, but what will happen to them when we are no longer around?
Milne Berry Berger & Freedman’s Contributions to the General community
Our firm and its employees also contribute to the general community by participating in various organisations and activities
including:
a) Duty solicitors at the Local Court;
b) Duty solicitors at the Family Court;
c) On the panel for Jewish care;
d) Participating and having membership with Rotary;
e) The members of the Gladesville Chamber of Commerce;
f) Members of the Law Council, Law Society, City of Sydney
Law Society,
g) Pro bono panel of the Law Society,
h) Board member of the MTC non profit organisation; and
i) Executive of Ryde Business Forum.
MBBF can provide the following services and price estimates
generally are:
Free letter of demand
Free 30 minute consultations for new clients
Preparing Debt Recovery Claim At court scale cost
Residential conveyancing from $1,500.00
Mortgage with purchase from $300.00
Will from $200.00
Power of Attorney from $200.00
Simple divorce from $750.00
Appointment of guardian from $200.00
Purchase of business from $1,200.00
Retail lease (lessor) from $1,200.00
Retail Lease (lessee) from $900.00
All these prices are exclusive of GST
Milne Berry Berger & Freedman
Prides itself on Having a Multicultural Philosophy
Various members of our staff speak the following languages:
Hindi, Malayalam, Tamil, Hungarian, Hebrew, Lebanese, French, Croatian and Italian.
MBBF’s Services
• Accident Claims
• Building Law and Arbitration
• Business Agreements
• Commercial Litigation
• Conveyancing
• Criminal Law
• Debt Recovery
• Estate and Retirement Planning
• Family Law and De facto Law
• Insolvency
• Intellectual and Industrial Property
• Joint Venture and Partnership Agreements
• Liquor and other Licensing Law
• Leases
• Local Government, Planning and Environmental Law
• Media, Entertainment and Defamation Law
• Mortgages
• Product Liability
• Probate and Administration
• Wills
• Power of Attorney
The comments and information herein does not constitute legal or professional advice. If you wish to seek any legal advice please contact us. The material presented in this newsletter is general commentary only.