YOU ATTENDED AN AUCTION – OR DID YOU?

As many of you would know, there is a 5 business day cooling off period which applies to the sale and purchase of residential real estate.
The intent of the legislation which created the cooling off period was to encourage potential purchasers to exchange quickly to avoid being gazumped whilst retaining the ability to pull out of the sale at minimal cost if anything untoward was discovered.
There are a number of situations in which the cooling off period does not apply. One of those situations is where the property is sold at auction or is sold on the same day after a failed auction.… Read More

Businesses Need to Get Paid

Bad debts can cripple any business.

Some businesses are lucky enough to operate in industries where payment is made before goods or services are supplied but most don’t have that luxury. For most businesses, getting paid after goods or services have been supplied is a daily issue.

Self-evidently, people don’t pay their debts for 2 reasons –

  • They don’t have the money to do so; or
  • They choose not to.

The first category brings the “can’t get blood out of a stone” cliché to mind. Usually after spending quite a bit of money to get there, bankruptcy (if the debtor is a natural person) or liquidation (if the debtor is a company) is the end result.… Read More

We are still learning – Ken Sorrenson

The saying “the only constant is change” certainly applies to the law and legal practice generally. Laws and client needs are constantly changing.

To be an expert and effective solicitor, a lifetime of continuing legal education is required.  In that context Everingham Solomons is very pleased to announce that Clint Coles has been awarded a Master of Laws degree by Sydney University.

The Master of Laws course conducted by Sydney University is without doubt one of the most rigorous and prestigious in Australia.  Clint’s studies centered particularly upon commercial law subjects such as –

  • advanced rules for the drafting and interpretation of commercial contracts, the ability for terms to be implied into contract and the availability of juristic remedies in the case of ambiguity;
  • personal and corporate insolvency including the roles of directors, proprietors, creditors and secured parties in insolvency;
  • Australian business taxes particularly the major transaction taxes of capital gains tax, stamp duty, GST and the various carve outs and concessions;
  • advanced study of the establishment and use of the commercial trust as a vehicle for business and investment, the regulation of managed investment schemes and the potential liability of trustees and beneficiaries,
  • the rationale behind and implementation of the recently developed Personal Property Securities regime in Australia, its impact on borrowers and secured parties and its role in the leasing environment; and
  • structuring strategies for asset protection in the estate and business planning context.
Read More

Air Conditioning in Rented Premises

In our climate, effective air conditioning is usually very important to any lease of retail or office space. A recent Victorian Civil & Administrative Tribunal case highlighted the legal importance of properly documenting and then complying with air conditioning arrangements.

In this case the tenant operated a Pilates studio from a retail premises in Melbourne. When the lease commenced the parties agreed to insert a special condition to the effect that –

  • the landlord would install new air conditioning;
  • thereafter it would be the tenant’s responsibility to maintain the air conditioning; but
  • the landlord remained responsible for any capital repair costs.
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Landlord and Tenant – What’s the best form of security? – Ken Sorrenson

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.… Read More

Protection of Confidential Information – Ken Sorrenson

KJSbwTechnology has fundamentally changed the way business information is stored and shared. For instance, smart phones have given the capacity to access computer systems and to retain and share information to a much greater extent than would have been possible in the past. Particularly after termination of employment, this has led to many claims by employers against former employees alleging misuse of confidential business information.

The first issue is always to determine whether particular information should be considered to be confidential or not. That involves consideration of a wide range of factors including –

  • The extent to which the information was generally known outside the business;
  • The value of the information to potential competitors;
  • The amount of money or effort expended in developing the information;
  • The ease or difficulty with which the information could be properly acquired or duplicated by others;
  • The measures taken to guard the secrecy of the information;
  • Whether it was clearly made known to the employee that the material was confidential; and
  • The extent to which the information can be readily identified.
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Do Directors Duties Continue After Retirement? – Ken Sorrenson

KJSbwBusiness relationships are like marriages. Some stand the test of time, others do not.

A company in which two or more unrelated parties are directors and shareholders is a very common structure. The parties involved usually know each other well and learn to accommodate each other’s idiosyncrasies for the good of the ongoing business.  That frequently changes when business operators age or die bringing new people into the business.

The recent case of Advanced Fuels Technology v Blythe arose in that factual situation.

The company Advanced Fuel Technology (AFT) had operated for many years under the equal control and management of Mr Blythe and Mr Thompson.… Read More

Be specific when making your Will – Ken Sorrenson

KJSbwA recent decision of the Western Australian Supreme Court was a timely reminder of the need to be specific when making a Will.

The deceased was a wealthy grazier who died leaving a number of farms and a significant number of Murray Grey cattle.

In his Will he made a provision gifting a farm to a particular person.  The Will went on to say that the gift of land included all farming plant and machinery on that land.

The issue before the Court was whether the cattle that were normally grazed on that land were included in the gift or putting it in another way, whether cattle came within the accepted meaning of “plant and machinery”.… Read More

TO AIRBNB OR NOT TO AIRBNB – Ken Sorrenson

KJSbwAirbnb and other similar types of short-term accommodation are now very widely used in NSW.

This has been controversial particularly in strata title developments. The perception of “permanent” strata residents has been that short term occupancies are disruptive and sometimes actually damaging to strata property. This has led many strata developments to pass bylaws intended to prohibit short-term lettings which in many cases have been ignored by owners seeking to maximise rental returns from their properties. The issue has become whether strata developments can legally restrict short-term letting?

The NSW Department of Fair Trading view is/was that-

“Strata laws prevent an owner’s corporation restricting an owner from letting their lot, including short-term letting.… Read More

“Safe Harbour” for Company Directors. – Ken Sorrenson

KJSbwCompany directors may be personally liable for a debt incurred by the company if –

  • They are directors at the time the company incurs the debt;
  • The company is insolvent at the time or becomes insolvent by incurring that debt; and
  • At that time, there are reasonable grounds for suspecting that the company is insolvent or would become insolvent.

Essentially, these are creditor protection provisions which actually don’t work all that well in practical terms. From the creditor’s perspective, successful action against directors is very rare and from the company’s perspective the provisions are a disincentive to “trade on” with a view to business recovery due to the potential risks to directors of doing that.… Read More