With the recent and unfortunate resurgence of retail lockdowns it’s timely to revisit landlord and tenant obligations in the retail leasing landscape.
On 13 July 2021, the Covid Retail and Other Commercial Leases (Covid 19) Regulation 2021 enacted.
In its original form, it did not require that tenants and landlords renegotiate rent as they were required to through 2020, but instead provided simply that landlords could not take ‘prescribed action’ against tenants unless they had first attempted mediation.
That situation was altered, however, on 13 August 2021 as lockdowns continued and became more widespread across the state. From that date, sections 6C & 6D were added to the regulation which, in effect re-instated the obligation of landlords to renegotiate leases under the National Code of Conduct.
The code of conduct remains unchanged from 2020 and essentially provides that the leasing parties should negotiate rental reductions proportionate to the lessee’s downturn in revenue, with half of the reduction to be effected as a waiver and the remaining half as a deferral.
The most obvious difference between the 2020 and 2021 versions of the retail leasing relief is in the qualifying criteria. Under the 2021 regulation, a tenant will only qualify as an ‘impacted lessee’ if they are in receipt of either the Microbusiness Grant, Business Grant or JobSaver payments and have an annual turnover of less than $50m.
The current regulation runs to 13 January 2022, but does not apply to leases entered into after 26 June 2021.
If you have any inquiries in respect of retail leasing, please contact Everingham Solomons because Helping You is Our Business.
We recently looked at the licensing and permit requirements to obtain a firearm. Following on from that, we now take a look at firearms offences.
We warn you firearms offences carry heavy penalties including substantial imprisonment sentences. As with obtaining a firearm, you must have a genuine reason for possessing one. Genuine reasons include being the owner of a rural property or memberships of shooting clubs.
It is an offence to possess a firearm without a licence or permit. If found to have a firearm without a proper licence or permit, you face a maximum penalty of five (5) years imprisonment.
If you are found with a “Prohibited Firearm” you face a prison sentence of fourteen (14) years. “Prohibited Firearms” can include pump action shotguns and machine guns and many more. You can also be charged for supplying, acquiring, possessing or using a firearm that is unregistered. Unregistered firearms will incur a maximum prison term of five (5) years and supplying, acquiring, possessing or using prohibited firearms has a maximum of fourteen (14) years prison sentence.
You can also face terms of five (5) to fourteen (14) years in prison if you contravene a Prohibition Order. Prohibition Orders are made if you are deemed an unfit person to possess a firearm.
There are also offences for a failure to ensure safekeeping of firearms. These offences range from failure to keep firearms away from a person who is not authorised to use them and failing to store firearms correctly and securely. Penalties range from $2,200.00 up to two (2) years imprisonment for this type of offence.
These are just the penalties with respect to holding firearms, the penalties for the misuse of firearms or using firearms in the commission of a crime are much much harsher.
Firearm offences can be quite complex. If you require legal advice with respect to a firearm offence, contact Everingham Solomons because Helping You is Our Business.
When you do a job, you rightly expect to be paid. Sadly, we often see clients that are chasing money for work they have done.
However, there are many things that can be done when you initially engage a client to reduce the risk that they will not pay you in the future. Similarly, in the event you are not paid, there are early steps that can be taken that will make pursuing the debt easier. Some things to consider when engaging a new client include the following:
Client Details: Make sure you correctly identify who your client is and ensure you have accurate details for the client. For example, are you dealing with a person or their company? Doing this will avoid a debate as to who is liable to pay you in the future and make pursuing them easier.
Security: If you have standard terms and conditions, you should include a clause whereby the client grants you security over their assets to secure payments due to you. If a client is concerned you can access their assets, this will increase the chance of them paying you to avoid this from happening.
Guarantors: Getting multiple people or entities to guarantee a debt will allow you to pursue them in the event that your client fails to pay you. In particular, if you are dealing with a company, it is wise to have another person, such as a director of the company, to personally guarantee payments due to you. This is because a company may not have any assets. Accordingly, if a company fails to pay you, when you pursue the company they may not have any assets to repay the debt to you. In comparison, a person will often have assets in their own name, such as houses, vehicles and other personal property.
At Everingham Solomons Solicitors, we can assist with ensuring your client intake process and contracting terms provide you with maximum protection. And, in the event you are still not paid, we have deep experience in debt recovery, as Helping You is Our Business.
Click here for more information on David Southwood.
When people seek to make a homemade Will ‘on the cheap’ without professional advice, it can cause additional stress and anxiety for the Willmaker’s family if a dispute arises as to the meaning of the Will with associated costs of litigation to resolve issues depleting the estate. A recent case serves as a timely reminder of why expending time and money on a professionally drawn Will now “is a sound investment” for the future.
The deceased died in 2017. The deceased was survived by her husband and her two children. The deceased left only a modest estate. When she died, the deceased left a homemade Will. By her Will the deceased sought to make a gift of a particular residence with a direction that the residence was not to be sold “until majority of the residing tenants agree to the action. I wish my children to remain in abode as long as it is deemed reasonable” (‘the first clause’). After making a number of other gifts, a subsequent clause in the Will empowered the Executor to sell assets in the estate on such terms as he considered expedient (‘the subsequent clause’).
As the Will was not clear and the beneficiaries adopted different positions on what they viewed the Will to mean, the Executor applied to the Court for directions as to the proper interpretation of the Will.
The Court observed that the subsequent clause of the Will was quite difficult to reconcile with the rest of the Will. Having made quite specific directions in the first clause of the Will, the subsequent clause appeared to get the Executor to ignore the first clause of the Will entirely. On the face of it at least, the Court observed “it was not possible to reconcile” the first clause with the subsequent clause of the Will.
After undertaking a review of the rules to be applied when construing a Will, the Court ultimately determined there was “no alternative” but to conclude that the first clause of the Will was void for uncertainty. When the wide ambit of the subsequent clause is added in “it is simply not possible to give a construction of this Will which makes sense”.
The consequence was a partial intestacy which resulted in the share of the deceased’s husband in the estate being enlarged by the addition of the gift of the particular residence that failed in the first clause of the Will.
Where the Court has to determine the proper interpretation of a homemade Will, “there is no doubt a good part of the estate will be consumed in a contest over the meaning of what by any measure is a difficult document. It is invariably the case that money spent on having a Will professionally drafted is a sound investment”.
At Everingham Solomons we have the expertise and experience to assist you in making a Will that deals with your particular circumstances because Helping You is Our Business.
Click here for more information on Lesley McDonnell
Assault is a very common crime dealt with by the Courts, but it is often misunderstood by the lay person.
Originally at common law, there were two separate offences, assault, and battery. An assault being where one person causes another to fear the imminent infliction of unlawful force, whilst battery involved the actual infliction of unlawful force. Today these two previously separate offences have collapsed into one, codified in the Crimes Act 1900 (NSW).
The most frequent charge of assault before the Courts is common assault, found in section 61 of the Act. It carries a maximum penalty of 2 years in prison and/or a fine of $5,500. To be guilty of common assault the police must prove:
• That you caused another person to fear imminent and unlawful violence, or that you made physical contact with another person, and
• That the other person did not consent, and
• That your actions were intentional or reckless.
The question then arises just how imminent does the threat of violence need to be to constitute an assault?
The case of Zanker v Vartzokas (1988) 34 A Crim R 11, considered this point. It involved a young woman accepting a lift from a man she didn’t know. The man sexually propositioned her whilst driving and the woman asked to be let out of the vehicle. The man increased the speed of the vehicle and said “I am going to take you to my mate’s house. He will really fix you up.” Such was her fear, the woman opened the door of the vehicle and leapt out whilst it was travelling at around 60 kilometres per hour.
The driver was charged with assault. It was accepted by the Court that his words and acceleration of the vehicle were enough to cause the woman to fear for her future safety – when they arrived at the mate’s house. But was this fear immediate enough to constitute assault?
The Court held that the feared injury or harm need not be immediate, it was enough that the threat of harm operated immediately upon the victim’s mind. The defendant was convicted of the assault. The law around assault can be quite complex. Should you be charged with an assault, it is important to ensure you are represented by someone with knowledge and expertise in this area.
Our experienced team at Everingham Solomons can look after you in this regard as Helping You is Our Business.
Most Australians will at some point in their lifetime sign a lease. Whether that be a residential lease for a property to live in, a retail space or for some other commercial endeavour.
Most Landlords will require you to put forth some kind of security deposit/bond in leasing matters.
But what are the requirements for you to do such a thing?
In short security for a Lease is not compulsory. In saying that however, most Landlords will require you to pay one. This gives them some security and goes some way to ensuring that they are not left out of pocket if you damage the property or fail to pay rent.
If you refuse to provide some kind of security, then it is likely that a Landlord simply will not lease the property to you and find a tenant that will.
So what happens to a Security deposit/ bond after you pay it to the Landlord?
Well that depends on what kind of Lease it is that you are signing, so let’s go through them.
Residential
If you are paying a cash security then Landlords are legally required to give you the option of lodging that security with the Rental Bond Board. The Rental Bond Board is a NSW Government run facility which is managed by Fair Trading. It allows both Tenants and Landlords to make a claim for the security in certain circumstances. It also protects the Tenants security by not allowing Landlord to make a claim for the security without cause.
If the Landlord is managing the property without an Agent, then they have ten (10) working days to lodge the security with the Rental Bond Board.
If the Landlord has engaged an Agent to manage the property then the Agent has ten (10) working days after the end of the month to lodge the security with the Rental Bond Board. We also note that a Landlord cannot require you to pay security of more than four (4) weeks rent.
Retail
A cash security paid with respect to a Retail lease must be lodged with the Retail Bond Board NSW, this is a NSW Government run facility very similar to the Rental Bond Board. The security must be lodged within 20 days from receipt of payment.
Commercial
There is no requirement for a Landlord to lodge the security with a Government agency. Commercial leases usually have a provision that notes that the Security Deposit is to be held by the Landlord.
An alternative to paying a security deposit/bond is a bank guarantee. A bank guarantee is a promise given by a bank or lending facility to pay money to the Landlord if the Landlord makes a claim. They are issued for a certain amount and any claim cannot exceed that amount.
Leasing can be complex, overwhelming and is usually a big legal commitment so if you need assistance with a lease, contact us because Helping You is Our Business.
If you are injured at work and require workers compensation, one of the entitlements available to you is weekly payments for the period you are incapacitated to work. Weekly payments are calculated based on your Pre-Injury Average Weekly Earnings (PIAWE) and are the average of your gross earnings from any employment performed for 52 weeks immediately before the date of injury. Therefore if you work in two jobs, immediately before your injury, earnings from both employers are included in your PIAWE.
Recently, as a result of COVID-19 and the subsequent lockdowns that have been required, the question is then raised if you were not receiving income for the total 52 week period immediately prior to your injury, will your average earnings still be calculated over a 52 week period?
The NSW government introduced the Workers Compensation Amendment (COVID-19 Weekly Payment Compensation) Regulation 2020 and specifically Schedule 1, Clause 8EA allows for an adjustment to occur in the earning period if there was a change to the injured worker’s employment arrangements as a direct result of the impact of the COVID-19 pandemic. Specifically the change had to occur between the periods of 23 March 2020 to 27 September 2020, and therefore those affected weeks would not be included in the PIAWE calculation.
This was a welcomed amendment for injured workers, otherwise if you were required to have the PIAWE calculated over the 52 week period you would potentially receive a substantially less PIAWE rate and therefore your weekly payments would be paid at a lesser rate from the commencement of your claim.
If your PIAWE calculation covered the period between 23 March 2020 to 27 September 2020 and your earnings were materially affected due to COVID-19, please contact our office, because it may be the case that your PIAWE is incorrect and therefore your weekly payments are potentially less than what they should be. We have two IRO approved solicitors that can assist with reviewing your PIAWE so please get in contact with our office because Helping You is Our Business.
I began working at Everingham Solomons in 2019 as a legal administrator and have recently began a new role as a solicitor working in the property department.
I graduated from the University of New England in 2019 with a Bachelor of Business (Financial Management) and Bachelor of Laws. In 2021 I also obtained a Graduate Diploma of Legal Practice from the College of Law and was admitted as a Solicitor to the Supreme Court of New South Wales.
While working as a legal administrator and paralegal at Everingham Solomons I gained experience working across a number of fields including: workers compensation; property and conveyancing matters and; wills and estate planning. I have now joined Everingham Solomons’ experienced property team to provide legal services in conveyancing, leasing and estate planning matters.
Before moving to Tamworth I grew up in Inverell, in the northern New England area. In my spare time I am an avid reader of anything fiction as well as political biographies and commentaries and also enjoy watching movies.
I am excited to have the opportunity to continue my professional career as a solicitor at Everingham Solomons and provide excellent legal services to the region, because Helping You is Our Business.
We are often asked whether a local council requires an easement for its water and sewer pipes to remain on a person’s private land and further whether council is entitled to enter upon the private land to carry out repairs and works on that infrastructure.
The Local Government Act provides the answer in respect of storm water works, sewer and water supply works.
Section 59A of the Local Government Act provides that Council is the owner of all works of water supply, sewerage and storm water drainage installed in or on land by the council, whether or not the land is owned by council.
This means that even where council’s infrastructure is located on private land, the works themselves, if installed by council, belong to council.
The works may be considered to have been installed by council even if a developer partly funded the installation and also applies to council infrastructure that was installed prior to Section 59A being legislated.
The Section of the Local Government Act, goes on to allow the council to operate, repair, replace, maintain, remove, extend, expand, connect, disconnect, improve or do any other thing to those works to ensure their efficient operation for the purpose for which they were installed.
This enables the council to both use the works for the purpose they were installed for example, to drain storm water, water supply and sewerage and also to maintain and extend or replace the works.
In effect the section means that council owns the infrastructure works despite the fact that there is no easement or other interest registered on the certificate of title of a private person’s land and allow the council to operate, repair, replace and maintain the works and no easement is required.
It is, however, normal for council with respect to new subdivisions to require easements to be registered on the title of land being created for essential services such as water, sewerage and storm water.
The result is that a landowner cannot require council to remove any such works or prevent council from exercising those powers.
If you have any property enquiries or need assistance in a property related transaction, contact us at Everingham Solomons, because Helping You is Our Business.
In February 2021, the Senate passed the Federal Circuit and Family Court of Australia Act 2020 providing for the amalgamation of our two specialist Family Law Courts in Australia: The Federal Circuit Court of Australia and The Family Court of Australia.
The Act provides for the establishment of a new Court, the Federal Circuit and Family Court of Australia (FCFCA) comprising of two (2) divisions:
FCFC Division 1 will continue the work of the Family Court of Australia, dealing with the more complex matters and exercising appellate jurisdiction; and
FCFC Division 2 will continue the work of the Federal Circuit Court of Australia and will be the point of entry for all new family law and child support cases. The FCFC Division 2 will also have jurisdiction over general federal law matters.
In a statement to the media on 23 February 2021, the Honourable Justice William Alstergren, Chief Justice of the Family Court of Australia, said “to improve the system we need a streamlined single point of entry, as well as harmonized rules, forms and case management approaches.”
Under the new framework, the number of specialist Judges will increase. There are currently 33 judges in the Family Court of Australia and 40 judges in the Federal Circuit Court of Australia. The amalgamation will allow for 35 specialist judges in Division 1 and 43 judges in Division 2.
The promising news for those who have current cases before either the Federal Circuit Court of Australia or the Family Court of Australia is that the structural changes should not have an immediate impact on the way cases are conducted and accordingly, should not result in further delays or backlogs.
Despite the structural changes, the core principle of the Court will remain the prioritisation of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate management of risk factors.
At Everingham Solomons we have the expertise to assist you with all legal matters associated with Family Law because Helping You is Our Business.
With the recent and unfortunate resurgence of retail lockdowns it’s timely to revisit landlord and tenant obligations in the retail leasing landscape.
We recently looked at the licensing and permit requirements to obtain a firearm. Following on from that, we now take a look at firearms offences.
When you do a job, you rightly expect to be paid. Sadly, we often see clients that are chasing money for work they have done.
When people seek to make a homemade Will ‘on the cheap’ without professional advice, it can cause additional stress and anxiety for the Willmaker’s family if a dispute arises as to the meaning of the Will with associated costs of litigation to resolve issues depleting the estate. A recent case serves as a timely reminder of why expending time and money on a professionally drawn Will now “is a sound investment” for the future.
Assault is a very common crime dealt with by the Courts, but it is often misunderstood by the lay person.
If you are injured at work and require workers compensation, one of the entitlements available to you is weekly payments for the period you are incapacitated to work. Weekly payments are calculated based on your Pre-Injury Average Weekly Earnings (PIAWE) and are the average of your gross earnings from any employment performed for 52 weeks immediately before the date of injury. Therefore if you work in two jobs, immediately before your injury, earnings from both employers are included in your PIAWE.
I began working at Everingham Solomons in 2019 as a legal administrator and have recently began a new role as a solicitor working in the property department.
We are often asked whether a local council requires an easement for its water and sewer pipes to remain on a person’s private land and further whether council is entitled to enter upon the private land to carry out repairs and works on that infrastructure.
In February 2021, the Senate passed the Federal Circuit and Family Court of Australia Act 2020 providing for the amalgamation of our two specialist Family Law Courts in Australia: The Federal Circuit Court of Australia and The Family Court of Australia.