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.
The knowledge gained by Clint through this course coupled with his earlier achievements of Bachelor of Laws and Master of Commercial litigation and his continuing taxation studies through the Taxation Institute of Australia equip Clint to expertly deal with a wide range of matters of behalf of his clients.
Everingham Solomons has an absolute commitment to providing the best possible advice to its clients now and into the future. To do that, everyone at Everingham Solomons will continue to learn because Helping You is Our Business.
Changes to the law in NSW has implemented a no meter, no pump policy under the Water Reform Action Plan. Greater penalties now exist for Water Licence holders who do not comply with the obligation to install a properly working meter.
Under the plan, it will be an offence for Water Licence holders to:
Fail to comply with the conditions of a Water Licence or works approval which requires the installation of a meter;
Fail to install metering equipment when required;
Take water from a metered water supply work if the meter is not working properly;
Interfere with, damage, destroy or disconnect any metering equipment; or
Fail to keep the required metering records.
In addition, the Natural Resources Access Regulator (NRAR) has been established in New South Wales to investigate and enforce meter installation and compliance. NRAR have indeed been active and a number of prosecutions are underway. The NRAR acts on anonymous complaints and have very wide powers of investigation.
The fines vary depending on the severity of the offence. The maximum penalty for a breach is $1.1 million and/or prison terms of two years for an individual and in the case of a continuing offence, a further penalty of $132,000 for each day the penalty continues. For corporations, the maximum penalty is $5.005 million and in the case of a continuing offence, a further penalty of $264,000 for each day the offence continues.
The Commonwealth government has increased funding for water use efficiency projects known as the Murray–Darling Water Infrastructure Program and will provide $1.5 billion dollars funding for water efficiency projects in return for the transfer of an agreed volume of water saved.
The types of eligible projects include:
Improving irrigational layout and design;
Permanent planning to improve water efficiencies;
Computer and automation equipment to help manage farm watering operations;
Improving and reconfiguring water storage systems including channels/replacing them with piping or close channels.
We have the expertise to assist you in knowing the conditions imposed on your licence, in assisting should you be subject to a NRAR investigation or should you be interested in reviewing water saving projects involving subdivision and transfer of water entitlements, because at Everingham Solomons, Helping You is Our Business.
In every Contract there is a set time for Completion, or ‘Settlement’ as it is often called. The time for Completion can be a set number of days or weeks after exchange takes place (eg 42 days or 6 weeks), or a set time after another event takes place (eg 14 days after a plan or subdivision has been registered).
Completion or Settlement is essentially when the Purchaser hands over their money and takes title to the property.
It is crucial that a purchaser in a property transaction is aware of the date that Completion is due under the Contract, as there are serious consequences when Completion doesn’t take place on time.
Most Contracts contain a condition that the Purchaser of a property may be charged penalty interest by the Vendor if Completion does not take place on the due date. The interest rate usually varies between 8 and 10 percent and is payable on the outstanding purchase price due at completion (that is, the purchase price less any deposit paid). Depending on the price of the property, the daily interest amount can be hundreds of dollars per day, for every day you are late settling your purchase.
Most Contracts also contain a condition whereby the Vendor’s representative can issue a Notice to Complete, which gives the Purchaser a further term (usually 14 days) to complete the Contract. This notice makes the completion time an “essential” term of the Contract. If completion does not take place at the end of the further term, the Contract can be cancelled and the Vendor may keep the deposit paid, usually equal to 10% of the purchase price.
On top of this the Vendor may also take action against the Purchaser for their costs on the resale of the property (eg agents fees) and also seek compensation if the property is sold for a lower sale price.
Purchasing a property is a rewarding but sometimes stressful exercise and it’s important to know your obligations under a Contract. The team at Everingham Solomons have the expertise to assist you, because Helping You is Our Business.
Despite the recent rainfall received in the area, there has not been any significant inflows into the state’s water storages. On 31 March 2019, the Minister for Regional Water made an order for temporary water restrictions under Section 324 of the Water Management Act 2000 (the Act).
Under Section 324, the Minister has the authority to order temporary water restrictions within a water source for a specified period if those restrictions are determined to be in the public interest. Under Section 324(1), public interest includes “to cope with a water shortage, threat to public health or safety or to manage water for environmental purposes”.
The order imposes temporary water restrictions on certain takes of water from the Lower Namoi Regulated River Water Source, the lower parts of the Namoi Unregulated Rivers Water Sources and the lower parts of the Macquarie Bogan Unregulated Water Sources.
WaterNSW customers have been notified if these restrictions affect your water access licence or approval.
On 30 April 2019, WaterNSW released the Regional Drought Update which showed that general security access licences, mainly held by irrigators in NSW will have zero allocation in both the Namoi and the Peel for 2019/2020 if the conditions remain dry. The report indicated that Keepit Dam is currently at 0.7% of active capacity and that the Tamworth Water supply is only secure through to July 2020
If you are a Water Access Licence or Approval holder, the above restrictions will have an impact on your current conditions of your licence or approval. If you need assistance in understanding your current conditions, please contact Everingham Solomons because Helping You is Our Business.
A Grant of Probate is a document issued by the Supreme Court that acknowledges the validity of the deceased’s Will and authorises the Executor/s to administer the Estate.
Whether or not Probate is required depends on the nature and value of the deceased’s assets.
If the deceased held land in their sole name or as tenants in common with another, Probate will be required.
Financial institutions, superannuation funds, aged care facilities and share registries may also require Probate for larger investments before they will allow those assets to be dealt with. Generally, such institutions will require Probate if the amount held with them is greater than $50,000.00.
What is involved in obtaining a Grant of Probate?
Ascertain assets and liabilities as at date of death
File an online Notice of Intention to make an application for Probate
14 days after the date of publication of the notice of intention, prepare and file a Summons, Grant, Affidavit of Executors, original Death Certificate, Inventory of Property and original Will with the Supreme Court.
It takes the Supreme Court approximately 4 weeks to issue a Grant of Probate. Once the Grant has been obtained, the Executor/s are entitled to deal with the estate assets and liabilities and distribute the surplus assets to the beneficiaries in accordance with the Will.
If a person dies without a Will, or with a Will but with no living Executor, the same process applies however the grant is called Letters of Administration.
The solicitors at Everingham Solomons have the knowledge and experience to assist you in dealing with a deceased estate because Helping you is Our Business.
Click here for more information on Suzanne Hindmarsh.
I am often asked by clients who want to donate their organs, if they should include this wish in their Will. Due to the fact that a Will is not read until after a person’s death, there are better options for people to record their wishes to donate their organs.
Firstly, the Australian Organ Donor Register is Australia’s only national register that enables people to record their decision about becoming an organ donor after their death. Registration is easy, voluntary and allows a person to choose which organs and tissues they are willing to donate. There are a number of ways to register including, but not limited to, the following:
Register through your existing online myGov account;
Download a registration form from the Department of Human Services website at www.humanservices.gov.au; or
Visit a local Department of Human Services Centre and pick up a Donor Register brochure and registration form.
If you register, doctors around Australia can see you are a donor 24 hours a day, 7 days a week. “Transplants need to be fast, so this is vital”. “Around 1,400 Australians are currently waitlisted for a life-saving organ transplant. In 2018, 554 deceased and 238 living organ donors and their families gave 1,782 Australians a new chance at life. The majority of Australians (69%) are willing to become an organ and tissue donor but only 1 in 3 Australians have joined the Australian Organ Donor Register”.
Secondly, people can record their wish for organ donation in their Appointment of Enduring Guardian. This is not a substitute for registering as an organ donor. An Appointment of Enduring Guardian is a legal document that gives a person the power to say who they want to have authority to make medical and lifestyle decisions for them if through accident, illness or misadventure a person loses the ability to make decisions for themselves.
Finally, it is important that you discuss your wishes with your family as they will have the final say. When you die, family are more likely to follow your wishes if they already know about them. If over time your views or goals change, it is important that you let your family, friends and enduring guardian(s) know.
If you need assistance in any estate planning matter, please contact Everingham Solomons, because Helping You is Our Business.
Click here for more information on Lesley McDonnell
Before you can advertise a residential property for sale you are required by law to have a copy of the Contract available for prospective Purchasers to inspect. This is required whether you propose to sell through a Real Estate Agent or privately.
To enable a Contract to be prepared you should contact your Solicitor or Conveyancer as soon as possible to avoid delays in getting the Contract prepared.
Legislation sets out various documents and certificates that are required to be attached to the Contract, failure to attach these could potentially give the Purchaser a right to get out of the Contract after Contracts have exchanged.
In addition to title searches, a Planning Certificate and Sewage Service Diagrams being attached to the Contract, the following additional documents may be required depending upon the property and work which may have been carried out:-
Swimming Pool Certificate of Compliance if you have a swimming pool or spa;
Home Warranty Insurance now issued under the Home Building Compensation Fund is required if you have undertaken residential building work in the last six years (for structural work) or two years (for non-structural work) and where the value of the building work is over $20,000.00;
Final Occupation Certificate if you are selling a newly constructed dwelling or a dwelling where you have carried out additions which required Council approval.
There may be issues that may be prudent to be disclosed in the Contract ie things like illegal building work; fencing disputes; any issues with encroachments by or upon the property ie is a structure located over a boundary.
This is certainly not an exhaustive list however it should assist when you start thinking about your property and what you should be discussing with your Solicitor or Licensed Conveyancer.
If you are looking at selling a hobby farm; rural property, commercial or industrial property, there are likely to be numerous other issues to take into consideration in preparing your property for sale.
Ready to take the next step? Contact the property team at Everingham Solomons, because Helping You Is Our Business.
Many individuals now plan to have children on their own without a partner.
This means that the traditional make up of a family is no longer clear cut and the law has to keep up with significant social and cultural changes in society making the definition of parents and families so much more complex.
Many parents who use formal or informal sperm donors or conceive a child outside of a married or de-facto relationship, want to know whether sperm donors have any parental rights once their child is born.
There are a number of relevant laws in place in New South Wales, but in summary a sperm donor is presumed to not be a parent of a child unless married or in a de-facto relationship with the mother at the time of conception.
The case of Masson, Parsons and Parsons is due to be heard by the High Court and concerns a lesbian couple who conceived a child using a sperm donor known to them. Perhaps more uniquely, the sperm donor has played an active role in the child’s life and was referred to as “daddy” by the child. He was also listed on the child’s birth certificate as the father and all parties agreed that the sperm donor would have a parenting role. Furthermore, the lesbian couple were not in a de-facto relationship at the time the child was conceived.
The mothers (the lesbian couple) sought to relocate to New Zealand with the child, therefore the sperm donor father opposed the relocation on the basis that he was a parent of the child for family law purposes and in this respect he had “equal shared parental responsibility of the child” (in conjunction with the mother), meaning that the mother was required to consult him, among other things, in regard to where the child lived.
The primary proceedings in the Family Court determined that the biological mother was a parent of the child, along with the sperm donor. The other ‘mother’ was not considered to be a parent. Naturally, the mothers appealed the decision.
The full appeal court of the Family Court overturned the decision and found that the sperm donor was not a parent due to the operation of the New South Wales law and the limitation of the Family Law Act 1975 to define a parent.
The matter has since been appealed to the High Court and is due to be heard on 16 April 2019. The father will argue that state law does not apply and that the definition of a “parent” is a question of fact in which biological and social factors, as well as a parent’s conduct should be considered to determine whether a person is a parent.
The Attorney General has also intervened in the proceedings and submitted that the definition of a parent under the family law legislation should be widened to include sperm donors.
As you can see, the law associated with children can be complicated. You should seek legal advice if you wish to embark on artificial conception particularly in light of the High Court case.
At Everingham Solomons we have the expertise and experience to assist you with specialised family law matters because Helping You is Our Business.
In NSW each year there are approximately 100 deaths that occur at work or as a result of work. The Workers Compensation Act 1987 NSW provides specific provisions for compensation to families who have a loved one who dies as a result of work. Section 25 of the 1987 Act entitles dependents to a lump sum death benefit amount which is currently $798,100 (as at 26/03/19). Dependent children are also entitled to a weekly benefit of the current rate of $142.90 per week (as at 26/03/19) under the age of 16 years, or if they are student up to the age of 21 years.
Section 26 provides for payment of reasonable funeral expenses not exceeding $15,000.
Biological children and step-children are considered the same for the purposes of the compensation. Student means a person receiving full-time education at school, college or university.
In these particular matters the first step is for liability to be determined. If the insurance company accepts liability, that is, there is no dispute that the deceased died as a result of work, then compensation will be paid to the dependents of the deceased. This compensation includes the funeral expenses, weekly payments to dependent children if they under 16 years, or are under 21 years of age and are full-time students, and the lump sum death benefit.
The second step in these matters relates only to the lump sum death benefit. Each dependent person will have the opportunity to put forward their reasoning in relation to what amount of the lump sum death benefit is apportioned to them. Significant issues to cover include:
The dependents level of past dependency and expected future dependency, for example were they living with the deceased.
Does the dependent have any special needs such as illnesses or conditions that warrant a greater level of apportionment to cover the cost of care or treatment that the deceased worker would have contributed to.
Does the dependent have any significant lifestyle factors that require consideration.
All of these issues and factors will help determine the apportionment to each dependent. If you believe you are a dependent of a deceased worker please contact out office to obtain advice in relation to the entitlements that are available to you because Helping You is Our Business.
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.
Rather than install new air conditioning however the parties subsequently agreed that the landlord would refurbish an existing air conditioning unit installed in the premises. The landlord did that but the unit did not function properly. The tenant advised the landlord of the problems and requested the air conditioner to be replaced. The landlord counted that it was the tenant’s responsibility to maintain the air conditioning unit per the special condition in the lease.
Ten weeks after the tenant notified the landlord of the air conditioning problems, the tenant vacated the premises and argued that the landlord’s failure to repair or replace the air conditioning unit amounted to a repudiation of the lease by the landlord.
The Tribunal agreed with the tenant. In doing so it made various findings of fact including that the landlord’s failure to make the air conditioning system function properly was a fundamental breach of the lease.
At Everingham Solomons we can help both landlords and tenants in properly documenting agreed arrangements in relation to air conditioning and all other lease issues because Helping You is Our Business.
The saying “the only constant is change” certainly applies to the law and legal practice generally. Laws and client needs are constantly changing.
Changes to the law in NSW has implemented a no meter, no pump policy under the Water Reform Action Plan. Greater penalties now exist for Water Licence holders who do not comply with the obligation to install a properly working meter.
In every Contract there is a set time for Completion, or ‘Settlement’ as it is often called. The time for Completion can be a set number of days or weeks after exchange takes place (eg 42 days or 6 weeks), or a set time after another event takes place (eg 14 days after a plan or subdivision has been registered).
A Grant of Probate is a document issued by the Supreme Court that acknowledges the validity of the deceased’s Will and authorises the Executor/s to administer the Estate.
I am often asked by clients who want to donate their organs, if they should include this wish in their Will. Due to the fact that a Will is not read until after a person’s death, there are better options for people to record their wishes to donate their organs.
Before you can advertise a residential property for sale you are required by law to have a copy of the Contract available for prospective Purchasers to inspect. This is required whether you propose to sell through a Real Estate Agent or privately.
Many individuals now plan to have children on their own without a partner.
In NSW each year there are approximately 100 deaths that occur at work or as a result of work. The Workers Compensation Act 1987 NSW provides specific provisions for compensation to families who have a loved one who dies as a result of work. Section 25 of the 1987 Act entitles dependents to a lump sum death benefit amount which is currently $798,100 (as at 26/03/19). Dependent children are also entitled to a weekly benefit of the current rate of $142.90 per week (as at 26/03/19) under the age of 16 years, or if they are student up to the age of 21 years.