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Dear Clients, Colleagues and Friends,
We are proud to provide to you the first MBBF Newsletter for the year. We hope that you continue to find the articles and information contained here interesting and use to you. We have been impressed with the very positive response that we have received to our newsletters from a number of people from different walks of life. |
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The coming year will present us all with challenges and opportunities. In the area of business maintaining cash flow, protecting assets and recovery of debts continues to play an important part in commercial planning.
Changes to the Family Law Act to incorporate laws to deal with de facto relationships have come into effect and judgments are presently being issued by the court to allow us to interpret how the courtswill deal with those criteria. For all intent and purposes at this point in tie the rights of de facto couples are almost identical now to the rights of married couples when it comes to dividing assets in the event of a relationshipbreakdown or coming to an agreement as to what is to occur in the event a breakdown of the relationship may take place in the future.
It is hoped that these processes will make difficult situations more tolerable.
In relation to contesting Estates the law has changed from what was previously known as the Family Provision Act to what is now known as the Succession Act. There are different requirements and different interpretations. These changes provide a timely reminder to consider whether or not the Will that you have needs to be changed and if you do not have a Will then we encourage you to consider preparing one and we are more than happy to assist you in that regard.
In relation to contesting Estates the law has changed from what was previously known as the Family Provision Act to what is now known as the Succession Act. There are different requirements and different interpretations. These changes provide a timely reminder to consider whether or not the Will that you have needs to be changed and if you do not have a Will then we encourage you to consider preparing one and we are more than happy to assist you in that regard.
We wish you all a happy, healthy and successful 2010.
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| In this issue: |
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Wills are more important than ever before
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“Spouses automatically inherit the estates of their partners when their partners do not leave
a Will.
Previously estates of people who did not leave Wills are distributed between spouses and their children. Under the new laws children will be excluded from the inheritance unless they are from a previous relationship.
However, fewer than half of those who had children from previous relationships left everything in their Will to their spouse. |
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In around 30% of cases they left their entire estate to their children.
When people die without leaving a Will, there is the potential for emotionally charged disputes and legal action as relatives fight over the estate.
To defuse disputes and simplify the process of dividing an estate, it is important that intestacy laws accurately reflect community attitudes
with regard to who should benefit.
Cousins are recognised as eligible heirs to the estates of people who die without Wills. The entitlements of first cousins come, in order of
importance, after spouses and children; parents; siblings; grandparents; aunts and uncles.
The new law widens the pool of people who can inherit in NSW and recognises that some other jurisdictions in Australia include first cousins in the distribution list under intestacy laws, Intestacy is the default method of distributing someone’s estate; ideally people should have a valid Will in place, however, a 2008 survey by the Public Trustee found 54 per cent of people in NSW did not have a Will.” |
| Maximising benefit of owning unit through exclusive use rights |
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We have had a number of transactions where clients are purchasing units and negotiating to have parts of the common area (the space which they may be permitted to use together with other unit owners or spaces not belonging to other unit owners and otherwise not useable, such as roof space or basement)given to them for exclusive use. This can greatly increase the value of the unit of
such owners who achieve such arrangements and at the same time can be disadvantageous to the other unit owners. There have been some significant changes to the Strata Schemes Management Act 1996 (NSW) which have made it somewhat more
technical to achieve the granting of exclusive uses.
the law is the right to exclusive use:
- after it is created, change to it cannot be made without approval of the proprietor who has the benefit; however
- the strata tribunal can, at any time including in the future, alter the terms if they are inequitable;
Such as, for instance:
- it is unfair (hard to imagine in a case where the unit owner having the right is the only one who could physically get to the space(such as in the roof immediately above the unit or basement or void immediately adjacent to the unit); or
- a fair price has been paid for the space and the unit owner is obligated to pay the levies for that area.
In some cases having the area becomes part of the title, while requiring registration of a new strata plan with consent of the relevant council, is by far the best outcome. This removes doubt of any kind and when, on selling, buyers who are more cautious about less than clear and unequivocal ownership are satisfied. It represents finality.
If you have any interest in the above or any aspect of Strata law we can help you. Unfortunately the reputation of unit ownership is such that there are frequently issues between unit owners. We have extensive and varied experience, especially in mediation of disputes. Our experience in the case of disputes between unit owners is that the sooner they are addressed, especially through mediation, the sooner they can be resolved and before parties create division between and often draw other proprietors to one side or another. Our goal is to preserve harmony between unit owners with the obvious goal of retaining relationships where living in closer proximity, than other kinds of property ownership, make harmony an essential element in prevention and /or cure as early as possible.”
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| DO NOT FORM PART OF A PERCENTAGE....it’s not too late! |
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The NSW Law Reform Commission carried out a study to look at how people who did have a Will distributed their estate. A survey found that 75% of people who have a Will leave everything to their spouse.
Fewer than half of those, who had children from previous relationships, left everything in their Will to their spouse. However, in around 30% of cases where individuals died leaving a Will their entire estate was left to their children.
On 1 March 2010 historic changes to the NSW laws of intestacy took effect. The new laws will apply to the distribution of estates of all those people who die without a valid Will on or after 1 March 2010.
Consideration will be made to the below when Letters of Administration are being applied for:
30 day survivorship – to receive a benefit in an intestate estate a relative must survive the intestate by 30 days – previously there was no such rule and to inherit a relative had only to survive the intestate.
Spouse means:
• A married person or;
• a domestic partner - domestic partner replaces the term “de facto spouse”. Domestic partner means a de facto partnership of at least 2 years or one that has resulted in the birth of a child. A domestic partner may be someone of the same or opposite sex.
Multiple spouses means any combination of a married person and/or domestic partner or partners of the same or opposite sex.
Distribution under the new laws covers the following:
• Spouse/s no issue ;
• Spouse/s and issue of spouse/s;
• Spouse/s and issue of another relationship;
• Sharing between multiple spouses ;
• Single spouse’s right to acquire any property;
Issue only survive - issue means children through all degrees e.g. children, grandchildren, great grandchildren and so on. Where the intestate leaves no spouse only issue, the issue are
entitled equally.
Other Relatives
If the intestate dies without a spouse/s or issue then the istribution pattern is similar to previous intestacy regime i.e.
• parents,
• siblings (there is no longer a distinction between siblings of the whole and half blood), if one or more of the siblings has died then their share will pass to their issue,
• grandparents,
• aunts and uncles (there is no longer a distinction between whole and half blood)
• first cousins (cousins were previously not entitled).
The new intestate laws also make provision for distribution of estates of indigenous people based on indigenous laws and customs.
For the purposes of the new intestacy provisions an indigenous
person is one who:
•is of Aboriginal or Torres Strait Islander descent, and
•identifies as an Aboriginal or Torres Strait Islander descent, and
• is accepted as such by an Aboriginal or Torres Strait Islander community.
The categories of petitioners to the Crown for waiver of its right to the intestate’s estate have been expanded:
•dependents of the intestate;
•any persons who have a just or moral claim on the intestate;
•any organisation or person for whom the intestate might
reasonably be expected to have made provision; and
• the trustees of any person or organisation above.
It is expected that if an intestate had a connection to a charity, for example, did volunteer work or made regular donations, the charity would be able to petition the State Government for the
whole or part of the intestate’s estate. The new laws make the administration of an estate much
simpler in the case of a person without a Will who dies leaving a spouse or partner and children of that relationship. However when people die without leaving a Will there is potential for
emotionally charged disputes and legal action as relatives fight over the estate.
The overriding message here is – avoid any confusion and get a Will don’t leave until it is too late and form part of a percentage!
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| Has your name been picked out of the Barrel? |
why is being Summoned doom and gloom.....
Jury service plays a central role in our justice system. It allows members of our community to play an active role in the administration of justice. A jury is made up of NSW citizens whohave been randomly chosen from the electoral rolls. They are sent a Notice of Inclusion which lets them know they are now on a jury roll and may be called for jury service. In most cases 12 people are
chosen to sit on a criminal trial, however, 15 can be empanelled in trials expected to last longer than three months. Four people are selected to sit on a civil trial jury.
Getting out of jury duty can be tough. Especially when the sheriff says being a clairvoyant, having criminals for friends won’t cut it as an excuse.
Of the 90,000 odd people summoned for jury duty in NSW every year, more than 10,000 are marked absent and it is only if they come up with a reasonable excuse that they can avoid fines of up to $2200.
Last year, jurors were hit with about $3.3 million in fines, with the sheriff taking a tough line on excuses and the State Government sending its debt collector onto the no-shows.
The main reasons accepted were work-related, including being a sole trader (20 per cent), holidays or other temporary absences (15 per cent), illness (15 per cent) and caring for children (10 per
cent). Another 20 per cent had moved out of the district or were not known at their mailing address.
The vast majority of people took their civic duty seriously, but the Sheriff ’s office still received bizarre pleas to be excused. A clairvoyant took a practical route:
“I’m a clairvoyant and therefore I would know whether a person was guilty or innocent. I would be concerned that I may not be able to convince my fellow jurors.”
An alleged medical practitioner showed concern for his patient, a' potential juror:
“This person should not do jury duty as he has a mind like a computer, sometimes it is overloaded and crashes then he needs to reboot, sometimes causing his thoughts to be scrambled.”
Other doctors play clairvoyant, predicting that a person will suffer from a migraine, asthma attack (or the like) - two weeks before the summons date. In NSW, a person is entitled to be paid for attendance for jury service at a court or coronial inquest. Such payments may include, where relevant, an attendance fee, a travelling allowance, and a refreshment allowance.
The adequacy of these fees and allowances has been identified as having a direct and significant relationship to the willingness of some people to serve as jurors. It has been argued generally that
improvements in the levels of allowances provided for jury service would encourage more people to participate in the system and reduce the number of applications to be excused.
Jury Duty invokes the feeling of doom and gloom in the majority of individuals with an initial view of ‘how do I duck the duty’ however jury duty should be taken as an act that allows YOU the
individual to give something back; this is YOUR opportunity as a nominated representative of the community to voice and assist in the realm of justice.
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| Use of Bank Guarantees – Beware |
Those who have bought or sold houses may be familiar with the concept of the Bank Guarantee, sometimes also referred to as a “Deposit Bond Guarantee”. In short, the financier (or “the bank”)
agrees to pay a third party a specified amount if the bank’s customer (or “the borrower”) does not fulfil certain obligations to the third party (usually the Vendor in the conveyance).
A bank guarantee will:
(a) be limited to a specified amount;
(b) only contain an obligation for the payment of money;
(c) will state the circumstances in which the bank must pay the third party; and
(d) will be payable on demand where the guarantee is unconditional.
With an unconditional bank guarantee, there is no requirement
on the third party to state why it is claiming under the guarantee or to provide evidence that the borrower has defaulted under any contract. If the guarantee is unconditional the bank must pay the third party without making any inquiry as to whether the demand is valid.
Importantly, there is authority for the proposition that any dispute as to the validity of the demand for payment must be resolved between the borrower and the third party. Hence you should be
aware of this when using one in lieu of a deposit. Contrastingly, a deposit will usually be held in a trust account in the names of both the Vendor and the Purchaser. It would be wise to include a
condition (if possible) in the Bank Guarantee specifying that any funds paid by the bank are to be paid into such a trust account. Banks usually charge flat fees for issuing a guarantee, and further
fees for keeping the facility available. If the guarantee is called upon, the borrower will usually be required to reimburse the bank immediately.
As a Vendor on a sale, you and your lawyer should carefully check the Guarantee for hidden terms or conditions that may limit it’s operation. Whilst it will usually be a breach of the contract to provide a conditional guarantee where there was a requirement for an unconditional guarantee, this will often be of little utility if only discovered after it has been called for.
In short, where guarantees are to be used in lieu of part or all of a deposit, both parties should be careful as to the content and operation of such a guarantee.
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| Chickens and roads |
“Why did the chicken cross the road?” A vexed question that has troubled philosophers and comedians alike since the beginning of ... well ... roads (assuming chickens came before roads ... if not eggs).
Before delving into the complex motivations and thought processes of a chicken when confronted with the choice between a perfectly good sidewalk and a busy thorough fair for fowl flattening motor
vehicles, there are other more pressing questions to consider.
Arguably, with the popularity of the motor vehicle, spiralling traffic on our roads and increasing levels of legislation, a more poignant question for our times might be “When can a chicken cross a road?”. There does not seem to be any “direct” law or penalty placing any limitation on when a chicken may cross a road. Indirectly however limitations may come from two sources:
1. Laws and policy dealing with a chicken’s welfare;
and
2. The Road Rules
Arguably whether it knows it or not, many chickens will be subject to the supervision or control of a human. In exercising this control and/or supervision, the human will itself be subject to a number of
laws that govern how it is to care for and treat the chicken.
The Prevention of Cruelty to Animals Act 1979 and the subordinate legislation, the Prevention of Cruelty to Animals (General) Regulation 2006 outline a number of requirements in caring for,
transporting, restraining and tethering animals. Failure to comply with these provisions carries significant penalties to owners of any animals, including chickens. The Regulations provide for further
special requirements for the housing and care of laying fowl (meaning any fowl bred, kept or used for the purpose of commercial egg production).
Other Guidelines and Codes of practice applicable to chickens include:
• Guidelines relating to the welfare of animals.
• National Model Codes of Practice for the Welfare of Livestock
• Animal Welfare Code of Practice - Animals in pet shops
Interestingly the legislation, guidelines and codes fail to specifically address how a chicken must be “supervised” whilst crossing a road. This would seem to depend upon the volume and nature of
the traffic on the road. Conventional wisdom would suggest (when considering the speed of cars versus the attention span of chickens) that chickens wishing to cross a road should be carried across in methods compliant with the legislation, guidelines and codes.
Carrying a chicken across a road would lead to the indirect application of the Australian Road Rules (at Part 14) to chickens, through their application to the human carriers. To this extent it is important to note that “Jay walking” is not an urban myth. Part 14 provides that a human must “cross the road by the shortest safe route and not stay on the road for longer than is necessary ...” (r 230 – where there are no pedestrian lights) and “must not cause a traffic hazard by moving into the path of a driver” or not unreasonably obstruct the path of any driver ...”. A breach of these provisions, carries a not insignificant maximum penalty of $2200 for the humans pedestrians (whether or not they are also carrying a chicken). |
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The Pedestrian Council of Australia maintains a
website http://www.walk.com.au/pedestriancouncil/
page.asp ) that often contains references to media releases outlining instances where local law
enforcement authorities are “cracking down” on
pedestrian safety and “jay walking”. This puts paid
to the view often expressed that these laws are never enforced.
Hence whilst a chickens ability to cross a road
would appear at first unfettered, the reality of it’s
dependence upon (or control by) it’s supervising
or controlling human tells a different story. In such
circumstances the chicken will be subject to the same limitations and controls as the human, which in turn will limit when a chicken might cross a road.
Of course, apart from their application to chickens,
careful regard should be had “generally” to the:
1. Animal legislation, policy and guidelines
outlined above; and
2. The Road Rules at Part 14 and their application
to pedestrians
Both areas of law provide an important framework
for the protection of animals and the safety of pedestrians respectively.
If you have any questions or queries about the nature or application of these laws please contact us.
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| Horseplay Over Gai Waterhouse’s Thoroughbred |
In a decision to race Theseo in the Doncaster Mile at Randwick on 17 April 2010, Gai Waterhouse turned heads when she requested Nash Rawiller to be the jockey to race the horse. Mr Rawiller was
previously scheduled to ride Rangirangdoo a Chris Waller trained horse.
This claim was heard at first instance by NSW Racing Stewards who decided that Mr Waller could not ride Theseo in the Doncaster Mile.
The Sydney Morning herald reported on 14 April 2010 in an article “Gai’s Rawiller appeal has legal eagles scratching their heads” that Gai Waterhouse gave her intention to appeal the Stewards
decision pursuant to section 42 of the Thoroughbred Racing Act and that this caused jurisdictional issues according to Ray Murrihy Racing NSW Chief Steward.
Section 42 of the Thoroughbred Racing Act 1996 creates a right to appeal against a racing authority (which includes Stewards of Racing NSW as defined in section 42(2)), the right to appeal is to
the Appeal Panel (consisting of a Principal Member appointed in accordance with section 46, and not less than 3 members- section 47).
Section 42(1) creates a right to appeal by A person aggrieved in thefollowing circumstances:
(a) a decision to disqualify or warn off any person,
(b) a decision to disqualify any horse,
(c) a decision to revoke the licence or registration of any person or suspend (for any period) any such licence or registration,
(d) a decision to fine any person a sum of $10 or more,
(e) a decision that Racing NSW determines, by order published in the racing calendar published by Racing NSW, to be a decision that may be appealed against to the Appeal Panel.
It seems that the intention to appeal was short-lived, in a strategic gallop to the Supreme Court of NSW for an urgent injunction.
The proceedings were heard by Chief Justice Patricia Bergin, who brought the gallop to a halt. Justice Bergin upheld the Stewards decision at first instance and as reported in The Australian on 16 April 2010 in article “Gai Waterhouse loses court battle for her top jockey”, gave the following decision: “The Stewards took on board all the facts and I am satisfied no error was made in the stewards’ decision of April 12”.
Perhaps the bid for Rawiller was worth the punt, as the saga continued and the horseplay came to an exciting end when Rawiller won the Doncaster Mile at Randwick on horse Rangirangdoo. |
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| Co Owning Property with a Friend |
It may sound like a good idea but is it a wise ove? Like everyone else, Kasey dreams of having her own house but the 30 year old administration executive who is based in Sydney knows she can not afford one.
So, for the past 10 years ofworking in Sydney Kasey, who hails from Perth has been moving around within the Eastern Suburbs renting rooms in different private residences.
“Rentals are becoming a huge burden as I move nto a better living space to suit my lifestyle. These payments are really eating into my disposable income, and I am not getting anything out of it. So it is not worth it, but buying a unit is also not easy for me”, she laments.
Apparently she is not alone. Her friend, Lucy, a 20 year old software engineer from Brisbane, whom she has known for more than three years, also finds herself in the same situation.
Common Quandary
Such cases are perhaps quite common among manysingle young working adults these days. It is getting increasingly difficult for many of them to get a foot on the property ladder and invest in a first home. Unless, of course, they receive support from others
such as their family members or close relatives.
It helps little that property prices have been escalating over the last fifteen years at a pace that is faster than the growth of their pay cheques. Another reason is their lack of egular savings over the years of their working lives. For Kasey and Lucy hatever the factors that have contributed to their present quandary they are putting it all behind them. They are determined to move on and break away from the shortcomings of tenant-ship.
So, Lucy comes up with an nteresting idea, pool their financial resources to buy a house in a good location. After all, both believe in the well preached mantra that the first thing about buying a good piece of good property is all about ‘location, location, location’.
Co -ownership sounds like a good idea that enables one to stretch one’s money and acquire a better property in an ideal location. But, is it really wise to make such a big - ticket financial commitment over a long period with a friend?
It would appear that it is not from the property experts that have been polled on this question. It is interesting to know, nevertheless, that property co ownership is a growing trend in the United Kingdom, where a number of young single professionals and young families have already started to subscribe to such schemes to buy their first home.
Their case studies are eatured in a website of shared mortgage specialist, called ‘Share To Buy’. This company is an associate company of Britannia.
The Risk Involved
Experts point out that when friends enter into agreements to buy a house together, there is always the risk that circumstances might change that could affect their deals. For instance, one of them might get married later or the other may become unemployed and hence
not able to keep up payments, or one may even die. Whilst the National Land Law of Australia allows Co -Sharing of a property
between individuals who are not related to one another, a lot of complications ranging from financial to legal matters could arise if the relationship of the individuals concerned turns sour. Even if the parties involved create a personal agreement exposing all eventualities, the present legal framework may not recognise it. So, one party could be opening him or herself to unnecessary risks. What happens in the event of one party defaulting on the mortgage,the bank will still exercise its rights to pursue the regular instalments of the loan repayments in full from the other party.
What happens in the event of death? Then the remaining party has to deal with the land administrator pertaining to the will of the deceased partner. If the deceased has willed to another individual, then oe ill have to get into a new partnership with another person in owning the property.
Consider Carefully
But what happens to the mortgage part when one party passes on?
One has to deliberate carefully before signing on the dotted lines to co- own a property with a friend because there are definitely morerisks than what the benefits could justify. However having said that there are successful cases of non related individuals in Australia who have formed such alliances to buy properties purely for the sake of investment and not to stay together.
Most of these cases involve individuals who are very good friends with one another, who have known each other for a very long time and who are very clear about their goals, such as how much to invest individually and when to exit to make a profit. They have no intention of keeping the property for long or to stay with one another. It is best that individuals consult property and legal experts to get in depth analysis and to find out what are the other options available to minimise their risk exposure if they insist on co owning a property.
Milne Berry Berger & Freedman solicitors are fully versed in all new and past laws and can take you through your pathway to ensure you are protected and able to manage not only the profits that you will reap but the risk exposure in the event that the relationship of
the individuals turns sour. |
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.
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