Pedal the Peel Cycling Challenge 7 April 2019 – Terry Robinson

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TLRbwEveringham Solomons is proud to be one of the major sponsors and organisers of the Pedal the Peel Cycling Challenge to be held at Moore Creek Tennis Club, Moore Creek Rd, Tamworth on Sunday, 7 April 2019.

The event is unique to Tamworth because it caters for all levels of rider fitness and experience.

You can choose from a flat 15 km or 25 km course or the more challenging 45 km or 100 km hilly courses.

The event is designed to encourage all levels of riders (minimum age 12 years) to become involved, have a great fun day and help raise money for local charities.

It is unique because we don’t ask you to raise thousands of dollars sponsorship to ride in the Challenge.

You only need to pay your registration fee of $50 per rider. If however you register before 28 February, there is an earlybird fee of $35.

Included in the registration fee is a steak sandwich and drink which will be provided on return to the start/finish location at Moore Creek Tennis Club. There will also be live music at the start/finish site, so you can enjoy some socialising on your return.

It’s unique because it supports lesser known and less well-supported community organisations.

This year the event will support Youth Insearch which is a grass roots, early intervention program which works with at risk youth and focuses on resolving adolescent issues at peer level. This organisation has had tremendous results in assisting at risk youth change their lives.

We all know that mental health has become a huge issue, so we are continuing to support Billabong Club House.

Domestic violence is also a large and sometimes hidden issue in our region and this year we will be supporting Tamworth Family Support Service to help fund a 12 week support group for women, the victim of domestic violence.

We will also be supporting Rotary Lodge which provides emergency accommodation at Tamworth Base Hospital. The lodge is in urgent need of renovation.

You know the event will be well-run and costs kept to an absolute minimum because it is an event organised by the Rotary Clubs of Tamworth First Light and the Rotary Club of Sunrise.

We encourage you to support this valuable community fundraising effort.

You can register online at www.pedalthepeel.org.au

Everingham Solomons Solicitors supporting our community.

Click here for more information on Terry Robinson

Sir Adrian Solomons Law Bursary Recipient – By Clint Coles

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CKC & CABEveringham Solomons is proud to announce the successful bursar for 2018 is Claire Annis-Brown. Claire is an extremely well rounded student of McCarthy Catholic College having achieved excellent academic results in a range of subjects through her HSC.  She is both liked and admired by her teachers and peers alike.

Claire is an accomplished sportswoman, particularly in Hockey where she has captained Tamworth representative teams for a number of years. She has also been involved in a range of local charitable endeavours over a long period of time.

Claire is enrolled to study law at the University of Newcastle in 2019 and Everingham Solomons wishes Claire the very best in that endeavour.

As the successful bursar, Claire has received a monetary award to assist with her study and the invitation for clerkship at Everingham Solomons during University breaks.

Claire’s school, McCarthy Catholic College, has also received a donation from the firm.

Everingham Solomons is committed to the growth of the region and the success of its youth and has for many years offered a bursary to Year 12 students wishing to pursue university qualifications in law.

The bursary was named in honour of one of the firm’s founders, Sir Adrian Solomons. Sir Adrian completed his secondary education at Tamworth High School before commencing university studies in law in 1940 at the University of New England and later at Sydney University.  Sir Adrian returned to Tamworth after his admission as a legal practitioner in 1949 to become a respected solicitor and founding partner of Everingham Solomons.

Sir Adrian was knighted by Her Majesty Queen Elizabeth II at Buckingham Palace in 1982 for services to law and government having for many years been a member of the NSW Parliament and remained a consultant to the firm until 1989.

If you would like more information on the Law Bursary, please contact Everingham Solomons because, Helping You is Our Business.

The implications of incorrectly spelling your name!! – Suzanne Hindmarsh

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SMHQuite often I come across sellers, testators and mortgagors wherein their names are incomplete or otherwise different from their identification documents (ID) i.e. driver’s licence, passport, birth certificate and marriage certificate (if applicable).

The spelling of your name is critical when preparing any legal documents for example your Will, Power of Attorney, Appointment of Enduring Guardian, sale and purchase of land contracts, mortgages and transferring shares.

These discrepancies can result in delays finalising your property transaction, in some cases breach of contract, issues with selling your shares and can result in increased transaction costs, delay and frustration.

There are many reasons for the inconsistencies, however the most common are:-

  1. Anglicised names (which buyers/sellers/shareholders may commonly go by in day to day life) are not always the same names as reflected on their legal ID documents
  2. Marriage (or breakdown of marriage) where the seller has changed their name since purchasing the property or shares
  3. Missing middle names, which buyer/seller/shareholder may not use all the time, accidently being omitted from the legal documents i.e. Contract for Sale or Purchase of Land/share transfer forms/will/power of attorney etc
  4. Old errors, perhaps from missing or incorrectly spelt names when a seller originally purchased the property or data entry errors made by land registry at the time
  5. Foreign names where there is unfamiliarity. In some cultures, the christian name is written last and the surname is written first for example, Liu Jianguo, in Chinese would be Mr. Jianguo Liu using the Western style.

As we are moving towards a more digital world, it is becoming more important for us to use our full legal name set out in our identity documents, and to ensure our full legal name is used on all documentation in any legal process.

At Everingham Solomons, we have the expertise to assist you because, Helping You is Our Business.

Click here for more information on Suzanne Hindmarsh.

NSW Introduces Mandatory Interlock Orders for Mid-Range Drink Driving Offences – Megan Jury

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MJTougher penalties for drink-driving offences came into effect in NSW aimed at reducing trauma on our roads. The changes are particularly significant for those convicted of first-time mid-range offences i.e. a blood alcohol reading between 0.08 and 0.149 and no convictions of a similar kind or major drink-drive offences in the previous 5 years.

Penalties from 3 December 2018

If you are convicted of a first-time mid-range drink driving offence committed on or after 3 December 2018 the court must now order you to participate in the interlock program for a minimum 12 months and disqualify you from driving for a minimum 6 months. If you wish to drive after the disqualification period has passed you must apply for an Interlock licence which carries with it a zero alcohol limit.

What is an alcohol interlock device and who pays?

An interlock is an electronic breath testing device that is connected to the ignition of a vehicle and prevents it from starting if alcohol is detected. It is also programed to require random breath tests whilst the vehicle is being driven and records all alcohol readings, vehicle starts, engine shut-offs and violations. Data is downloaded from the device monthly and sent to NSW Roads and Maritime Services for review. Interlock devices also have built in cameras to reduce the risk of another person providing a breath sample to start the vehicle.

The cost of the interlock program is born by the participant and costs between $2,200 and $2,500.00 for one year. This is on top of an increased potential fine of up to $2,200. Although the Court can approve a concession rate or grant an exemption from participating in the interlock program (and extend the disqualification period) they will only do so in limited circumstances.

A conviction for first-time mid-range PCA will cost you.

If you have been charged with a drink-driving offence the Solicitors at Everingham Solomons can assist you in preparing and presenting your case to help achieve the best possible outcome because Helping You is Our Business

Landlord and Tenant – What’s the best form of security? – Ken Sorrenson

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KJSbwI’m often asked by Landlords what’s the best form of security to take from a tenant?

The usual forms of security are one or more of the following: –

  • Personal guarantee from directors or shareholders of a corporate tenant,
  • Cash bond; or
  • Bank guarantee

I generally recommend a bank guarantee.

A personal guarantee requires either a voluntary payment by the guarantors or for a landlord to sue the guarantors. Frequently, a personal guarantee proves to be ineffective because if the tenant can’t pay the rent there’s a good chance that the guarantor’s financial position may not be much better.

A cash bond involves the tenant actually paying an agreed amount of money as security for payment of the rent. If the premises are retail premises, the cash bond needs to be lodged with the New South Wales government. In the event of a breach of lease by the tenant, the landlord needs to apply to the government for the bond. As there are usually two sides to every story, commonly the tenant objects to the bond being paid to the landlord so the process for the landlord to get the benefit of the bond is neither quick nor easy.

In contrast, a landlord can require payment under a bank guarantee usually without prior notice to the tenant and the bank will simply pay the amount of the guarantee without question. That is the essence of a bank guarantee. It is an unconditional agreement by the bank to pay the landlord up to a certain amount of money on demand.

Regardless of what form of security a landlord may take, it may or may not be sufficient to fully compensate the landlord if there is a breach of the lease. The starting point for any landlord’s decision whether to lease to a potential tenant or not is to satisfy itself as best it can that the tenant has the capacity to pay the rent. This will ordinarily involve the landlord requiring financial disclosure from a tenant before entering into the lease.

At Everingham Solomons we have the experience and expertise to assist both landlords and tenants with all tenancy issues because Helping You is Our Business.

Click here for more information on Ken Sorrenson

 

Workers compensation – work capacity decisions – Mark Grady

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MKG-newFurther to Libby Campbell’s article last week in regards to hours of work and the calculation of pre-injury average weekly earnings (PIAWE), for work capacity decisions made on or after 1 January 2019, there is a new regime.

Work capacity decisions include decisions by the workers compensation insurer in respect to a worker’s capacity to work and their PIAWE.

Decisions in respect to PIAWE, which are generally mathematical calculations, require review of wages material in the 12 months prior to the worker’s injury and will be in the large part resolved by a review of the insurer, or failing that by an arbitrator of the Workers Compensation Commission.

All other decisions that would include decisions about a workers ability to work are more complex and require evidence to be gathered from medical professionals. The insurer will be asked to review their decision however, if the insurer is unswayed, then proceedings would be commenced in the Workers Compensation Commission and a decision made by an arbitrator.

The above pathways are new and only available for work capacity decisions made on or after 1 January 2019.

If you require assistance in respect to the above, please contact the writer at Everingham Solomons, because Helping You is Our Business.

Click here for more information on Mark Grady.

 

The extra hours do count – Libby Campbell

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Libby_Campbell web croppedThe payment of weekly compensation for workers compensation matters are calculated based on the workers pre-injury average weekly earnings (PIAWE) prior to the injury date.

Generally the insurer will review the amount the worker has earned in the 52 weeks prior to the injury. The total amount is then averaged over the 52 week period and the weekly amount is known as the PIAWE figure.

For the first 13 weeks of the claim the worker will receive 95% of the PIAWE amount and from 14 weeks onwards the worker will then receive 80% of the PIAWE amount if they are totally incapacitated to work.

If a worker was injured before 26 October 2018 and they had been paid over time or shift allowance payments in the 52 weeks leading up to the injury date, then these amounts were only included in the worker’s PIAWE, and subsequent weekly payments, for the first 52 weeks of weekly compensation payments following the injury.

However there has been some legislative changes and now for workers injured on or after 26 October 2018, any overtime and shift allowance payments are permitted to be included for the purpose of calculation of weekly payments at any time. Meaning the ’52 week step down’ as it was known no longer applies to workers with an injury on or after 26 October 2018.

This is a significant benefit to workers who relied on the additional income from overtime or shift allowance payments.

If you are uncertain whether your PIAWE amount has been calculated correctly please contact us at Everingham Solomons, because Helping You is Our Business.

Click here for more information on Libby Campbell.

 

‘Aussiegolfa’ – Terrible name for a dicey Super Fund – Clint Coles

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CCMany readers will be members of Self-Managed Superannuation Funds (SMSFs) and will understand in general terms the limits imposed on SMSFs with respect to the types of investments they can make.

Superannuation legislation prevents s SMSFs from investments in a related party. This is called the ‘in-house asset test’.  There are some notable exceptions including that a SMSF can often purchase land and buildings (including farms) upon which the SMSF’s members can conduct their business.

Another prohibition insures that SMSFs cannot use retirement savings accumulated at favourable tax rates to acquire property, for example holiday houses or fast cars, that can be used beneficially by the SMSFs members or family before retirement. This is called the ‘sole purpose test’.

‘Aussiegolfa’ is a horribly aspirational name for the trustee of a SMSF that tested the limits of the sole purpose test in the Federal Court and on appeal.

Aussiegolfa as trustee of the SMSF purchased units in a widely held managed investment scheme called DomaCom. DomaCom purchased various property including student accommodation at Burwood.

Aussiegolfa then acquired a particular class of units in DomaCom, known as the Burwood sub-fund, which were specifically associated with the Burwood accommodation. Other parties related to Aussiegolfa acquired the balance of the majority interest in the Burwood sub-fund.

DomaCom rented out the Burwood accommodation firstly to two tenants unrelated to Aussiegolfa, but then to the daughter of Aussiegolfa’s members. Importantly the daughter paid market rates of rent on the Burwood accommodation, equal to the previous two unrelated tenants.

The primary judge and the Court of Appeal both found that the sub-fund was a distinct trust controlled by Aussiegolfa and its related parties in breach of the in-house asset test.

On appeal the Full Court found that as: the property had previously been tenanted to non-related parties; market rent had been paid by the member’s daughter; and the property was managed by an unrelated entity, the sole purpose test had not been infringed. Any benefit enjoyed by the member’s daughter was merely incidental.

Although it’s unlikely to be an approach widely adopted by advisors, Aussiegolfa supports the proposition that the sole purpose test can be met where a related party has the use of SMSFs assets when market rent is paid.

If you have any commercial law enquiries, contact Everingham Solomons because Helping You is Our Business.

Click here for more information on Clint Coles

 

What is Electronic Conveyancing? Suzanne Hindmarsh

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SMHAs some of you may be aware, land transactions have been moving over to an electronic platform called PEXA. This involves the settlement and registration of a land transaction into the new owners and mortgagee’s name, instantaneously on settlement.

It is anticipated that by 1 July 2019, electronic settlements will be compulsory in NSW.

All paper titles of land held by about 150 banks were converted to electronic certificates of title called eCT’s in September this year. The conversion of the titles was undertaken by the banks and other financial institutions, the NSW Land Registry Services and the legal and conveyancing peak bodies with many people working behind the scenes for months.

As there are now over 2 million eCT’s and more solicitors and conveyancers becoming registered PEXA subscribers, there is a greater chance of your purchase or sale being settled through the PEXA system.

If you own a property and have a paper title, how do you deal with your land if you wish to sell it?

Currently in the paper world, if a person wanted to sell their land or give consent to their title being used, they would physically hand the title over to the party who wishes to use it, or produce the title at the Land Registry. In the world of eCT’s, there is no physical paper title to hand over.

Under the PEXA system, a registered proprietor is given the Control of the Right to Deal (“CoRD”) and this is where the registered owner has the authority to consent to the registration of a subsequent interest in land.

If land is mortgaged, the registered proprietor has the right to deal with their land but the control of that right to deal (CoRD) is held by the first registered mortgagee (the bank) or party in legitimate possession of the certificate of title. A mortgagee now provides a CoRD Holder consent electronically in transactions.

If land is not mortgaged, the registered proprietor has both the right to deal and the CoRD and provides CoRD holder consent to that transaction.

In order for a vendor to deal with a paper title and use the CoRD, they need to contact a PEXA subscriber.

Everingham Solomons is a registered PEXA subscriber and we are continuing to extensively invest in training our solicitors and staff to ensure a seamless transition.

At Everingham Solomons, we aim to provide expert advice and manage your transaction with due speed and minimum inconvenience to you, because Helping you is Our Business.

Click here for more information on Suzanne Hindmarsh.

 

The importance of a Will and its whereabouts – Lesley McDonnell

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LAMA Will is a legal document which sets out who will receive your assets when you die. Taking the time to make a valid Will is an important first step but it is not the end of the story. A Will should be reviewed regularly and particularly when significant life events occur such as marriage, divorce, birth of a child, or if one or more of your beneficiaries die. Equally so, you should always keep your Will in a safe place and let the Executor(s) of your Will know where it can be located. This is because if a Will cannot be found at your death, it can lead to considerable uncertainty, distress and expense for your family as the following case illustrates.

The deceased committed suicide in 2013.The deceased had two adult children and a wife who survived him. The deceased had separated from his wife in 1991 but they never divorced. Following his death, no original Will could be located.  In 2014, the deceased’s daughter applied for Letters of Administration on the basis that the deceased had not left a Will. Letters of Administration were granted to her in 2014. In 2015, the deceased’s son located an unexecuted copy of a 1991 Will of the deceased and made application to the Court for proof of the 1991 Will.

To be successful in this case, the deceased’s son had to prove to the Court that the lost Will had not been revoked. This is because under the law “If a will known to have existed and last known to have been in the possession of the deceased cannot be found after death, it is presumed that the deceased destroyed it with the intention of revoking it”. To rebut this presumption, “the evidence must show it is more probable that the Will was lost or stolen or, more generally, could not be produced for some reason other than that it was destroyed by the deceased with the intent to revoke it”. The strength of the presumption of revocation varies according to the facts of each case.

The Court found that in 1991 the deceased executed a Will but the original Will could not be found. On the evidence before the Court it was held that, by mid-2013, the deceased had destroyed the 1991 Will. As a consequence the Court found the deceased died intestate meaning his estate would be distributed according to the rules of intestacy.

The above case reinforces the importance of keeping your Will in a safe place and letting the Executor(s) of your Will know where it can be located. At Everingham Solomons we can help you both with making a Will and safely retaining your Will for the peace of mind of you and your loved ones because Helping You is Our Business.

Click here for more information on Lesley McDonnell