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We approach the end of the year 2011 more quickly than we would have expected. Once again Australia is feeling the effect of international events which are beyond our control. The United States economy is uncertain, the European economy is at a critical juncture with real possibilities that the European Union might be seriously affected. The Arab spring has left significant power vacuums and uncertainty which may well affect the supply and price of fuel as well as spread the unrest to other suppressed populations living under dictatorships. Serious questions arise regarding the growth of China, our major trading partner and its economic bubble. As the New York Times Columnist, Thomas Freidman wrote some weeks ago “each of these events could, on its own, change the world but we are now faced with four of them occurring at the same time.” Australia continues to enjoy economic growth with various proposed taxes still being debated. Interest rates have just been lowered for the first time in a number of years foreshadowing a slowing down of the economy and an attempt to stimulate spending particularly as we approach the end of the calendar year and the holiday season.
Our partner, Harry Freedman was just nominated by the Law Society as “Pro Bono Solicitor of the Year” as part of the Law Society Justice
Awards. The award ceremony took place at Parliament House. Harry has been part of the pro bono program since its inception in the mid
1990’s. It is a consequence of the firm’s other clients that the firm is able to commit itself to assist disadvantaged members of the community through various programs including the pro bono scheme operated through the Law Society as well as Jewish Care and other organisations.
We wish all of our clients and readers a successful conclusion to this calendar year and a happy and healthy holiday season.
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| Inside this issue: |
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| Who Will Decide For You If You Can Not Decide For Yourself? |
| Living busy lifestyles causes us to put “ think about planning ahead “on the back burner.
We take it for granted that we can make our own decisions about a range of issues, large and small that affect our lives. For more complex decisions we may seek advice from others but we decide if we follow the advice or not.
The law presumes adults have the capacity to make their own decisions until proven otherwise.
Capacity means that when making a decision you have the ability to:
- Understand the facts involved;
- Understand the main choices;
- Weigh up the consequences of the choices;
- Understand how the consequences affect you; and
- Having the possibility to communicate your decision.
You must have capacity to make decisions about:
- Making a Will;
- Buying or selling a property;
- Taking out a loan;
- Investing money;
- Making a Power of Attorney;
- Making an Enduring Power of Attorney; and
- Entering into a Contract
If you do not have the capacity to make these decisions they will not be legally binding.
Our capacity to make decisions can be affected by illness, injury or age. The loss of our ability to make decisions may be total or partial, we may lose capacity to make any kind of decision or we may lose capacity to make more complex decisions. The loss of capacity may be temporary or permanent.
Have you thought of who will make your decisions for you if you do lose capacity? This will only depend if you have taken the time to plan ahead. You can decide in advance who you would like to make decisions for you if you can no longer do so. If you do not plan ahead and you lose capacity it will be too late to choose who you want to be the decision maker and those who you love will need to approach the Guardianship Tribunal to be appointed as being your guardian.
How can I plan ahead so that decisions can be made for me by someone else?
The law divides decisions into two categories:
1. Financial decisions – which can cover dealing with bank accounts; transferring of money, paying bills, dealing with shares and buying and selling real estate;
2. Lifestyle decisions – this can be about where you live, what services you should receive or what medical and dental treatment you might need.
In NSW we have two special documents you can use:
1. A general Power of Attorney; and
2. An Enduring Power of Attorney
Telephone us at MBBF and speak to one of our solicitors who will explain both documents to you and prepare such documents to tailor your present and future needs. We will tell you why it is important to plan ahead and decide now.
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| How long does a criminal conviction last? |
| For people who have had a criminal conviction recorded against them, the question often arises as to whether or not it gets “wiped off” ones record. The legal term for “wiping off” is known as a “spent” offence.
The Criminal Records Act of NSW 1991, limits how long information about a person’s conviction can be referred to. The Act provides for most minor offences to be “spent” after the person has a crime free period. Once the conviction is spent the person concerned is not obliged to discuss it with employment, insurance or credit card authorities or when completing an Application for a statutory licence.
There are of course exceptions to the rule generally being:
A. If the offence results in a period of imprisonment for more than six months;
B. Certain types of employment applications; or
C. Various sex offences.
Before being entitled to have a conviction spent, you now must have a crime free period of ten years from the date of conviction. This does not apply to minor traffic offences (for juvenile offenders the period is reduced to three years).
Once the conviction has been spent, if a person is questioned regarding his or her criminal history they are entitled to answer it without referring to the spent convictions. There is of course a difference between being asked whether or not you have been convicted or whether or not you have been charged. The Act does not stop a person being asked whether or not he or she has ever been charged, even when the charges may have been withdrawn, dismissed or spent.
The Act provides penalties mainly on government offices, for unauthorised release of information on spent convictions or for fraudulently or dishonestly obtaining information. The Act does not apply to obtaining information to be provided to a law enforcement agency or a Court and this means that a lawyer can obtain the criminal record of a witness or a party to court proceedings through a Subpoena.
If you have any questions in relation to a criminal record or seek assistance in relation to a criminal conviction please do not hesitate in contacting us.
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| The Plight In Sri Lanka – Behind The Cover Up |
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| Since 1983, the small country of Sri Lanka has carried the immense weight of an ethnic conflict. Warfare has persisted for nearly 30 years between the Sri Lankan Army and the Liberation Tigers of Tamil Eelam (LTTE), a military organisation led by Velupillai Prabhakaran, with both female and male fighters, determined to create an independent state for Tamils in the north. This conflict has caused insurmountable tragedy for the country – politically, economically and most importantly in the massive loss of life, mass displacement of people, enlistment of child soldiers and the commission of war crimes on all sides.
In 2004, parliamentary elections were held and the Prime Minister Ranil Wickremasinghe was defeated. The newly elected Prime Minister, Mahinda Rajapakse later ran for President and was elected in November 2005. Elections in Sri Lanka have been consistently criticised by electoral observers as not being free and fair.
A much needed visit was made to the struggling country by the United Nations Special Rapporteur from 1 – 8 October 2007. He was informed by detainees suspected of being LTTE members held in Sri Lankan government prison facilities that they were being tortured by police. Many prisoners were moved out of prisons visited by the Special Rapporteur before he arrived. Some who had been most seriously tortured and who bore visible marks of ill treatment.
On 2 January 2008 the Sri Lanka government announced that it was unilaterally abrogating the 2002 ceasefire agreement from January
16. The announcement was made after a suspected LTTE bombing in the capital Colombo. The Sri Lankan government then authorised General Sarath Fonseka, leader of the army to lead 160,000 well equipped soldiers to crush the 10,000 odd LTTE fighters remaining in a ground offensive. The conflict escalates with LTTE resistance. The government targeted civilian ‘no fire zones’ as well as military targets.
After a Sri Lankan government announcement made on 8 September, foreign NGOS and the UN were forced to leave Vanni. This meant imminent shortage of food and medical supplies to the region where living conditions became intolerable. Major bombings by the Sri Lankan Air Force occurred in early 2009 including of the only remaining hospital in Udaiyaarkaddu on 5 February 2009. Two ambulances and a medical store of the hospital were completely destroyed. The Sri Lankan Air Force raid a second hospital, this time in Puthukkudiyiruppu killing scores of people and injuring many including Red Cross staff. Random acts of violence continue.
In 2009, damning video footage begins to leak from Sri Lanka. In May 2009 three foreign journalists from Britain’s Channel four are briefly detained in Trincomalee and then expelled from Sri Lanka as a result of a broadcast they made showing the terrible living conditions for civilians living in one of 32 displacement camps in Sri Lanka. Thousands lacked clean water and sanitation. UN satellite images prove that Sri Lankan air force had bombed civilians in a no-fire zone. On 18 May Sri Lanka declared total victory in one of the world’s most intractable wars, after killing the separatist Tamil Tigers’ leader Velupillai Prabhakaran and taking control of the entire country for the first time since 1983.
A member of our own team, is involved in a project through Young Lawyers in association with the International Commission of Jurists, the Sri Lanka Project (“SLEP”). The project is aimed at collecting, recording and documenting evidence from witnesses about the conflict, and more specifically in relation to the last part of the war, ending in 2009. The group have collected statements both in Australia and Overseas and have documented evidence of War Crimes. With credible witness evidence, the ICJ Australia can present a case for investigation and even prosecution actions both against the Sri Lankan government and LTTE for the serious war and humanitarian crimes committed.
Stay tuned for further updates as the project takes on the next phase.
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| Are you buying a new house or apartment? |
The Home Warranty Insurance Scheme has existed to protect purchasers including subsequent purchasers from incomplete or substandard building work whether structural or non structural.
A builder, developer or tradesperson must supply a Certificate of Insurance from an approved insurer or if you are an owner/builder and work was done within the previous 6 years a Certificate of Insurancee is also required . A Certificate of Insurance is only required when the Contract price is $20,000.00 or if the labour and materials supplied is over the value of $20,000.00(previously
$12,000.00).
For policies issued before 1 July 2002 cover is provided for 7 years from the date of completion of the work or the end of the contract for the work, whichever is the later for loss arising from defective work.
In October 2011 the NSW Government passed a series of amendments to the scheme for policies issued after 1 July 2002. Previously the insurance cover for structural and non structural defects was 7 years. Changes to this scheme now reduce the period for claims to 6 years for structural defects and only 2 years for non structural defects. The new statutory warranty periods come into effect 1 February 2012.
The October 2011 amendments also include a requirement to notify the insurer in writing for policies created after 30 June 2002 even if you have verbally notified your insurer about making a claim. You will be allowed 6 months from 25 October 2011 to notify your insurer in writing.
There is however a mechanism whereby if you fall outside the insurance period a delayed claim may be made if you are able to demonstrate that you pursued the negligent party to rectify the problem and notified your insurer during the insurance period.
Additionally, if your policy was issued before 1 July 2010 all claims must be lodged within 10 years of the work being completed.
If you have any queries our solicitors would be happy to discuss them with you and please do not hesitate to contact us on (02) 9264 3877.
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| Safe Investment Of Self Managed Superannuation Funds |
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Many now have Self Managed Superannuation funds (SMSF) and are in the fortunate position that they have sufficient funds to invest in real estate. From time to time the owners of the fund are trying to stretch the rules so as to get the best advantage and growth of their fund. Of course to do that is important since our governments have caste the owners of such funds, the majority of whom have never invested on the scale they are expected to do so to accumulate enough wealth for retirement since the former saftey net of pensions is a dwindling resource.
A recent example is a young couple who owned a home investigated the buying of a next door property where:
- The shared backyard would be bigger and the children would have more space; and
- The wife had a home-business and could use virtually all of the new space for it but a room at the rear would be available to convert into a rumpus room for the children and open onto the backyard.
The advice was that the new property be purchased in the SMSF and leased to the business of the wife. As an in-house transaction:
- There needed to be a formal lease; and
- Even then, the fund could only have a 5% interest in the property.
Many now have Self Managed Superannuation Funds(SMSF) and are in the fortunate position that they have sufficient funds to invest in real estate. From time to time the owners of the fund are trying to stretch the rules so as to get the best advantage and growth of their fund. Of course to do that is important since our governments have caste the owners of such funds, the majority of whom have never invested on the scale they are expected to so as to accumulate enough wealth for retirement since the former safety net of pensions is a dwindling resource.
A recent example is a young couple purchased who owned a home investigate the buying of a next door property where:
The problem is that the property had to be wholly and exclusively used in the business.
As a result of the error the choices were:
- Stop the non-business use; or
- Sell the property.
Each having serious financial repercussions.
Great care and good advice is essential since errors are easy to make and the consequences are serious. Hence before making any serious decisions relating to your future, please give us a call and meet with us to discuss the options available to you.
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| Are you charged with Demerit points? Check out the Courts new powers. |
| Previously, if you were found guilty or pleaded guilty (in the hope of obtaining a dismissal of charges) you would still lose demerit points penalty in relation to that particular offence.
Now after the change of law, if you are charged with traffic offences you can now avoid having demerit points imposed by the RTA if a court dismisses the charges.
This is inclusive of times when a person pleads guilty and the matter is dismissed, under Section 10 of the Crimes (Sentencing Procedure) Act 1999.
This means that persons charged with speeding and other traffic offences can now apply to the Court to not take away demerit points if they are able to provide a reasonable explanation for the offence and it is withdrawn or dismissed.
Section 3A of the Road Transport (Driver Licensing) Act provides that:
“To avoid doubt, the Authority (RTA) is not to record demerit points against a person under this Division in respect of an offence if the Court makes an order under Section 10 of the Crimes (Sentencing Procedure) Act 1999 in respect of the offence”.
The ‘standard’ considerations will still apply in persuading a Magistrate to deal with a matter by way of a dismissal of the charge and this is an outcome which is based only upon the sentencing Magistrate’s discretion.
• A person’s character, antecedents, age, health and mental condition;
• The trivial nature of the offence;
• Extenuating circumstances relating to the commission of the offence;
• Any other matter’s which the Court thinks appropriate to take into consideration.
Please keep in mind before making any election to have the matter dealt with by the Court that if you have a poor traffic record and have lost your licence repeatedly then the Court dealing with the matter may be less inclined to extend to you any leniency in dealing with your current or most recent offence. Before making any admissions, please contact us, so that we can guide you and provide you with the best possible legal advice.
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| Partners with rose coloured glasses. |
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| We have had much experience in the negotiating of partnerships and documenting them. The parties rightly are full of enthusiasm and look to the future with great confidence.
It is our practice to have parties consider at the outset, what it is they expect each to contribute to the partnership. It is worthwhile doing that, as one must look beyond the immediate enthusiasm and confidence of the parties and look at what that is built upon. In this way the parties:
- Are caused to think through their expectations of what can be reasonably delivered by each; and
- Address reality which is each response upon the other to deliver.
We often strike surprise and incongruity when we draw the minds of the parties to thinking about how:
- Unfulfilled expectations of each other; and
- Potential failure of the venture.
Should be dealt with and emphasise that the documents must be clear and unequivocal on the subject. Ideally, the parties should then go through each of the kinds of reasonably foreseeable causes to evoke such provisions in order that fair treatment is available in those circumstances. Among the things that need to be considered are:
• What will happen in the case of deadlock;
• How should the property of the partnership be dealt with;
• Should there be some right for a party to purchase the interest of another and if so:
o How much of the property; and
o At what price;
• What if there is provision for resolving matters, what kind of alternate dispute resolution should be adopted and what happens if that fails;
• Typical provisions which defer the court proceedings until all other efforts to resolve have been explored leaving provision for agreement on appointment of receivers, managers and or liquidators without the need to have court intervention.
Many persons are vague and imprecise about how to resolve the foregoing. In our experience simply that state of affairs contributes considerably to the delays, loss for the business and legal expense to overcome complex/dispute which would otherwise be the case if there was proper thought beforehand and efficient processes put in place.
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| Are you thinking about leaving the Nest? |
| Before you do think about this.....
As you get older you may find that living alone in your own home is no longer working for you. You may want to be closer to your adult children for companionship and support.
There are many reasons why older people decide to live with their children.
You may decide to enter into what is called a ‘granny flat arrangement’. This is usually an arrangement between you and your adult child where you make a financial contribution to a property in exchange for the right to live in the property. It may involve the construction of a separate dwelling on your child’s property or renovations to the existing property. Or it may involve you selling your home and buying a new home for you and your family to share. This may include an agreement which includes them providing you with physical care and support for your long term future.
These arrangements often work out well however problems can arise if you have not considered what would happen if circumstances change or if a dispute arises about what you and your family have agreed to.
The common scenarios we have seen happen if you have not protected your interests to include the following:
- You could lose all the money you put into the property and you may have to take legal action against your family to recover it;
- The law may consider you intended to give the money to your child with the intention of not getting it back; and
- You could end up homeless with your pension reduced.
There are many things you can do to make sure that if things do not work out as planned your right to a share of the property, namely your legal interest in the property is protected.
Some handy tips to consider before you come and see us:
1. Get it in writing – most people do not think about putting things in writing or obtaining legal advice when making such agreements. It is a good idea to have a formal agreement regardless of who the agreement is with.
2. Get Legal Advice – you should get independent legal advice before making any decisions to move in with your family. Advice will be given to you regarding how a written agreement will be tailored to your needs and what else you can do to protect your interests. The cost of getting advice may save you more money in the long term if things were to go wrong.
3. Hope for the best but plan for the worst – when preparing a family agreement both you and your family need to understand what is being agreed so that there is no misunderstanding down the track.
4. Think about your pension – if you are in a granny flat this may affect your pension entitlements. Centre Link has special rules; and
5. Get legal advice quickly if things do go wrong.
At MBBF we can assist with helping you avoid the stressful and expensive legal action down the track by just thinking about what it really means to leave the nest all behind.
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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 f GST
Ground Floor, 154 Elizabeth Street, Sydney NSW 2000
Partners: Victor Berger, Harry Freedman
& Mittu Gopalan
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.
Solicitors: Lewis Rupell, Anne-Marie Doueihy, Simone Checchia & Daniel Mifsud
Tel: (02) 9264 3877
Fax: (02) 9267 8639
Web: www.milneberrybergerfreedman.com.au
Email: mbbf@legalmbbf.com.au
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