To bring a tenancy to an end you must provide written notice to the landlord or managing agent, in a specific timeframe depending on your situation. When your fixed term is ending – if you want to leave at the end of your fixed term lease you need to give the landlord at least 14 days’ notice. You can provide this notice at any time up to the very last day of your fixed term. If your fixed term has already ended – if you have continued to rent the premises, say on a week to week or month to month basis, you need to give the landlord at least 21 days’ notice. When the Landlord has decided to sell the property – if you are still in your fixed term you can end your tenancy by giving the landlord at least 14 days’ notice. This however doesn’t apply if your landlord advised you of their intention to sell the property before you entered into the tenancy agreement. When the landlord gives you notice – if you have been given a notice of termination, you are entitled to move out before the notice ends. If you are at the end of a fixed term agreement you must pay rent until the Lease term ends, otherwise you only need to pay rent up until you vacate the property.
Under no circumstances should you ever stop paying rent, even if there is a dispute with the landlord. This is a breach of the lease agreement. Victims of domestic violence – new legislation introduced in February this year has created a provision that applies if you are in a domestic violence situation. In these circumstances there is no minimum notice period, however you must provide specific evidence to the Landlord as well as a domestic violence termination notice to both the Landlord and any of your co-tenants. The evidence that may be used in this situation is a declaration from a Medical Practitioner, a Domestic Violence Order, Family Law injunction or a Conviction Certificate.
Different rules apply for Commercial, Industrial and Retail leases.
Confused about your rights as a tenant? Contact the team at Everingham Solomons, because Helping You is Our Business.
The deceased died in 2016 aged 76 years survived by his widow and two adult sons and 6 grandchildren. The deceased made a Will on the day he died leaving his widow the right to reside in their matrimonial home for life. Upon termination of such right, the deceased sought to provide for 3 of his 6 grandchildren, to make a gift of $10,000 to each of his sons, and for the remainder of his estate to pass to his daughter in law who was also named Executor of his Will. The net value of his estate was in the vicinity of $3.8 million.
The deceased left a statement of wishes acknowledging that the gifts of money to his 2 sons represented “a small component” of his estate. The deceased recounted the substantial financial assistance he had provided to both of his sons during his lifetime especially during their “formative business years”.
A claim was brought by one son, a self-described “professional punter” for a greater share of his father’s estate. A pivotal aspect of every application for family provision is to establish need as this is an area of law that has “developed to address those circumstances where an eligible applicant has not been provided with ‘adequate’ and ‘proper’ maintenance from the estate of a deceased”. Unfortunately the applicant in this case did himself no favours in putting forward contradictory accounts of his financial position without adequate explanation. Far from presenting a convincing case of need, the Court determined that the applicant had made no effort to place before the Court an accurate statement of his financial position. Additionally the Court heard evidence of their long lasting estrangement which the Court noted provides an explanation (perhaps not the only explanation) for the deceased’s decision to make only modest provision for his son in his Will.
The son’s failure to accurately account to the Court for his true financial position, meant the Court was in “no position to assess whether the provision made for the applicant in the Will in question was otherwise than adequate”. “It is the applicant’s duty to place before the Court, candidly and fulsomely, the applicant’s financial position”. The applicant’s failure to do so in this case resulted in his application being dismissed.
At Everingham Solomons we have the expertise to assist you with all matters relating to family provision claims, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
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. In either case, the prospect of a creditor receiving a significant payment is alarmingly small
In 97% of cases, company liquidation does not result in any return to creditors; and
The average return to creditors from a bankruptcy is $.02 on the dollar.
The second category, is surprisingly common. In almost 40 years of legal practice, I’ve lost count of the number of times that creditors have suffered from dealing with or continuing to deal with customers who had already exhibited a clear reluctance to pay their debts. Remarkably, but not infrequently, that’s been coupled with an explanation from the creditor to the effect that they knew that a particular customer was a “rogue” but thought that he “wouldn’t do it to them”.
Obviously, no business wants to deal with people who can’t pay them or who are likely to choose not to and relatively simple precautions and internal procedures can dramatically reduce the likelihood of dealing with these types of customers.
Those precautions and procedures revolve around making proper financial and other enquiries about potential customers, having good customer/supply documentation, sensible billing practices and having appropriately trained staff.
At Everingham Solomons we have the expertise to assist all businesses in the design and implementation of customer and debtor control procedures because, Helping You is Our Business.
If you are renting out your property, your property is likely to need maintenance from time to time. You may consider a handyman or woman to do the “easy jobs” like replacing tap washers or taps, repairing or replacing leaking toilets and cisterns as a good low cost alternative to engaging a licensed contractor.
However, when hiring someone to do any plumbing work, you must make sure they hold a current licence. Only a qualified and licensed plumber and/or drainer can legally undertake repairs such as but not limited to:-
Replacing tap washes or taps
Repairing or replacing leaking toilets and cisterns
Repairing or replacing a hot water service
Repairing water leaks
Clearing or repairing blocked sewer lines
Any person doing plumbing repairs for a payment who is not suitably licensed is breaking the law and can be fined $1,100.00. If the person engaging them does so knowing that the work can only be undertaken by a suitably licensed plumber, that person is also breaking the law and can be issued with the same fine.
At Everingham Solomons, we can assist you with your property queries because Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
When selling your property, it is usual for a purchaser to pay 10% of the purchase price as a deposit for the property. This money is usually held by the Real Estate Agent and under the standard conditions of the Contract can be recovered by Vendor if the Purchaser defaults on the Contract.
However, it is becoming increasingly more popular for Purchasers to ask if you will accept a 5% deposit or sometimes even less.
So what happens if you accept a lesser deposit?
Most of the time, the transaction is completed as normal and the money that would have been held as a deposit is simply paid to the Vendor at settlement. But if the Purchaser defaults on the Contract, can a Vendor claim the balance of the 10% deposit?
The Courts have discussed this exact situation during a number of cases and generally the answer is no.
The Case Law suggests that the Courts will only allow a Vendor to claim the full 10% deposit in circumstances where the Vendor can prove that the 10% is a genuine pre-estimate of the loss suffered by the Vendor.
Typically, if a Vendor accepts a deposit smaller than 10% of the purchase price, Solicitors will draft a special condition that specifically notes that the balance of the 10% deposit becomes payable upon completion or upon the default of the Purchaser. In theory this sounds good, but despite the intention of this clause, it is often not enough to allow the Vendor to recover the balance of the 10%. The Court’s usual view of these special conditions, is that any condition that relies on the default of a Purchaser to make something come into effect, is a penalty and as such will not be recoverable.
If you are considering accepting a deposit smaller than 10% of the purchase price, you should think carefully as there are no guarantees that you will be able to recover the balance of the 10%, despite the intentions of the Contract.
If you are concerned that you will lose the Purchaser if you do not agree to a lesser deposit, there are other options for payment of a deposit including a deposit bond. Deposit bonds are usually for the full 10% Deposit and upon a default can be recovered by the Vendor for it’s full value.
Selling your property can be stressful and it’s important to know your rights. Everingham Solomons has a dedicated property team who can help take some of the stress away because, Helping You is Our Business.
Libby was recently awarded the prestigious title of ‘Young Employee of the Year’ at the 2019 Tamworth Quality Business Awards.
Libby is a Tamworth local who obtained her undergraduate degrees in Arts and Law at the University of New England, Armidale.
While attending university, Libby was involved in a number of community incentives including Backtrack Youth Works, a not-for-profit organisation that assists troubled youth involved in legal proceedings. Around this time Libby was also selected to complete an internship with Magistrate Stafford at the Armidale Local Court. These two experiences particularly afforded Libby a very immediate view of the judicial system, even before she was qualified to practice in it.
In 2015 Libby returned to Tamworth, initially working as a paralegal while completing her Diploma of Legal Practice through the College of Law, Sydney.
Libby was admitted as a solicitor of the Supreme Court of NSW in 2017 and commenced employment as a solicitor with Everingham Solomons shortly thereafter.
Libby practices primarily in personal injury law, employment law and commercial litigation. On a day to day basis Libby acts for both employers and employees in workers compensation and employment disputes. Libby also takes instructions from various parties in a wide range of commercial disputes.
Additionally, Libby is also undertaking the very demanding task of studying a Masters in Business Law while working full-time.
Outside of the office, Libby is a successful netballer, has an interest in a New England cattle property and is a member of the NSW Young Farmers.
At Everingham Solomons, we are very proud to have someone as likable, smart, and dedicated as Libby on our team and think of it as only fitting that Libby be recognised as Tamworth’s Young Employee of the Year.
If Libby can be of any assistance to you, please contact Everingham Solomons because Helping You is Our Business.
Its my great pleasure to introduce Ya Zhang, who recently joined the team at Everingham Solomons with a most impressive and unique experience.
Ya completed her undergraduate qualifications in law in China. She was then admitted to practice as a lawyer in 2007.
For many years she worked from the Beijing and Shanghai offices of one of world’s largest law firms, primarily in their corporate and commercial law teams.
Ya then moved to the US where she obtained a masters degree in law from the Cornell Law School and shortly thereafter fulfilled the rigorous requirements entitling her to practice at the prestigious New York Bar.
Ya moved to Australia with her family in 2014 and is currently undertaking the Juris Doctor program through the University of Southern Queensland. Prior to coming to Tamworth, Ya worked in a specialist commercial law firm on the Gold Coast.
Ya speaks English and Mandarin and is excited by the opportunities of working in a vibrant regional centre.
Ya is a most welcome addition to the business law team at Everingham Solomons and brings to it an enormous amount of experience in very complex corporate and commercial dealings. Ya has a special interest in foreign investment, migration, corporate governance, restructuring, tax and business mergers.
If you require assistance with any commercial law enquiries, please contact Everingham Solomons because Helping You is Our Business.
A company is its own legal entity. While it doesn’t have a pulse, just like a person, a company can enter into contracts, incur debts, sue and be sued in its own name.
The directors of a company however must be living, breathing people. They are the people that control the company. Although the company is able to do things in its own name, it does so at the will of the directors.
Because a company is a separate entity from the directors that guide it, normally a company’s debts are repaid only from the company’s assets. The company’s creditors do not have access to the directors’ personal assets to repay the company’s debts. Understandably, this causes frustration for the creditors where the company is broke but its directors appear wealthy.
One of the few exceptions to this rule comes from section 588G of the Corporations Act which makes it unlawful for a director to causes a company to incur a debt knowing that the company cannot repay it.
If a director causes or allows the company to trade whilst insolvent , the creditor, the company liquidator, or ASIC can sue the director personally to have the director repay the debt either to the creditor or the company.
The proceedings against the company director are not only compensatory. They can be criminal in nature as well. ASIC has the power to prosecute directors for insolvent trading with the penalties including fines up to $220,000 and imprisonment for 5 years. The director can also be disqualified from acting as a director in the future.
A word of warning however: Insolvent trading cases are relatively rare. They are legally complex and expensive to pursue. Very few company liquidations result in insolvent trading prosecutions.
The practicality of dealing with companies is that creditors should be diligent in investigating the company’s creditworthiness and should often take written guarantees from the directors or shareholders behind the company.
If you have any commercial litigation enquiries, contact Everingham Solomons because Helping You is Our Business.
Under the NSW Workers Compensation system a worker is assessed, once they have reached maximum medical improvement, based on a percentage of whole person impairment. This percentage then equates to varying levels of compensation. If a worker is assessed at greater than 30% whole person impairment the worker is then considered a worker with Highest Needs.
Section 38A of the Workers Compensation Act 1987 then comes into play as it provides a special provision for workers with Highest Needs. Provided the worker has some level of incapacity, the worker has access to a minimum weekly payment of compensation. Under section 38A the amount is $788.32 indexed, and is currently $840 per week.
Previously, if a worker with Highest Needs had some capacity to work, was earning income less than the minimum weekly payment, and their pre injury average weekly earnings was less than the minimum weekly payment, it was presumed that the workers compensation insurer would top up the worker’s wage until it reached the figure stipulated under s38A. However, the case of Vostek Industries Pty Ltd v White [2018] NSWWCCPD 47 has found differently. Mr White who was the injured worker was assessed at 32% whole person impairment. He returned to work and was earning $984.50. He then made a claim for the amount under s38A, in addition to his earnings from employment.
Mr White was successful in his claim and it is now confirmed, as a result of this case, that the injured worker is entitled to earnings plus the amount under s38A provided they are a worker with Highest Needs, and have some level of incapacity. If you think you are or know someone who fits this criteria and has not been receiving the additional amount under s38A please contact our office because Helping You is Our Business.
Click here for more information on Libby Campbell.
Undertaking work before being paid is a part of business. If you’ve been in business for a while you’ll know the difficulties that can arise in getting paid after the fact.
This is a situation where prevention is much better than cure. There are a number of steps that a business can take to greatly reduce the likelihood of payment problems arising.
Although it seems simple, the first is often overlooked. It is important to properly identify who your business is dealing with and to make an assessment of the creditworthiness of the entity you are contracting with. People and companies can enter into contracts, but nobody else. Identification troubles arise particularly when businesses purport to contract with business names, trusts and partnerships. The identity of companies and the people behind it can be verified by a search with ASIC.
Secondly, a business needs to have enforceable written contracts. Often these contracts can be generic documents suitable for adaptation to many different jobs, but, it is important that they clearly state the scope of the work and the payment terms. For the supply of goods, they may include retention of title clauses which provide the supplier with a form of security. The use and effect of such clauses is controlled by the Personal Property Securities Act.
When dealing with smaller companies particularly, the lines can be blurred as to whether the company owns any assets capable of satisfying its financial obligations or whether the assets are really owned by the people behind the company. In these situations it is always prudent to have the people behind the company guarantee the company’s performance of the contract. That is, if the company doesn’t pay, the people that stand behind it must.
In some cases, it may also be appropriate for a business to consider taking some form of security for the money they are to be paid. The mortgage is a form of security that most people are familiar with – if you don’t pay the bank as you promised, they take your house – but there are a great many other forms of security available to businesses. It’s possible to take security over assets other than land or to have a third party offer some form of security on behalf of the contracting party.
If you want to improve your business’s financial security, contact Everingham Solomons because Helping You is Our Business.
To bring a tenancy to an end you must provide written notice to the landlord or managing agent, in a specific timeframe depending on your situation.
The deceased died in 2016 aged 76 years survived by his widow and two adult sons and 6 grandchildren. The deceased made a Will on the day he died leaving his widow the right to reside in their matrimonial home for life. Upon termination of such right, the deceased sought to provide for 3 of his 6 grandchildren, to make a gift of $10,000 to each of his sons, and for the remainder of his estate to pass to his daughter in law who was also named Executor of his Will. The net value of his estate was in the vicinity of $3.8 million.
Bad debts can cripple any business.
If you are renting out your property, your property is likely to need maintenance from time to time. You may consider a handyman or woman to do the “easy jobs” like replacing tap washers or taps, repairing or replacing leaking toilets and cisterns as a good low cost alternative to engaging a licensed contractor.
When selling your property, it is usual for a purchaser to pay 10% of the purchase price as a deposit for the property. This money is usually held by the Real Estate Agent and under the standard conditions of the Contract can be recovered by Vendor if the Purchaser defaults on the Contract.
Libby was recently awarded the prestigious title of ‘Young Employee of the Year’ at the 2019 Tamworth Quality Business Awards.
Under the NSW Workers Compensation system a worker is assessed, once they have reached maximum medical improvement, based on a percentage of whole person impairment. This percentage then equates to varying levels of compensation. If a worker is assessed at greater than 30% whole person impairment the worker is then considered a worker with Highest Needs.