If you wish to purchase land you are required under the Duties Act 1997 to complete a Purchaser/s Declaration. This Declaration is completed by each person entering into a transaction that results in the acquisition of an interest in land in New South Wales.
The purpose of this Declaration is:-
* Commonwealth Reporting Requirements is to collect and report to the Australian Taxation Office information on transfers of land in NSW;
* Surcharge Purchaser Duty is to inform the Duties Office whether a transaction is subject to surcharge purchaser duty; and
* Surcharge Land Tax is to identify foreign persons for surcharge land tax purposes.
The supporting evidence required for an individual purchaser/transferee are:-
* If an Australian citizen, a certified copy of your Birth Certificate or Australian Passport or Australian Citizenship Certificate.
* If a New Zealand citizen, a certified copy of New Zealand Passport and evidence of holding a special category visa within the meaning of Section 32 of the Migration Act 1958.
A person who is ordinarily a resident in Australia requires:
* Certified copy of Foreign Passport with your current visa
* Movement records from immigration for the 12 month period preceding the date of agreement.
It is therefore important to bring your original Birth Certificate (or equivalent document mentioned above) when meeting with your solicitor/conveyancer for a transaction involving acquiring an interest in land.
At Everingham Solomons, we have the expertise to assist you in your property transactions because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
In 2012 there were some big changes made to workers compensation laws, the impact of which are now being realised. Approximately 6,300 workers in NSW are likely to be impacted by these changes in accordance with section 39 of the Workers Compensation Act 1987. This section states that weekly payments of compensation will cease after an aggregate period of 260 weeks (5 years) has been paid or is payable to the worker in respect of the workplace injury. The section does not apply to an injured worker if their injury has been assessed as greater than 20% whole person impairment.
Approximately 1900 injured workers will have already been cut off from their weekly payments from 26 September 2017 to the end of 2017. A further 1800 injured workers will lose their weekly payment entitlement on 26 December 2017, with a further 3000 workers due to lose their weekly payment entitlement by June 2018.
Injured workers affected by section 39 should have received a letter from the insurer notifying them of the date their weekly payment will cease, as well as evidence of their whole person impairment assessment. If you are an injured worker and have received this letter, it is important you speak to a WIRO approved lawyer because there is free legal advice available and you may be able to overturn the decision of the insurer to cease your weekly payments. An example of this may be that you require further surgery, therefore you have not reached maximum medical improvement, and you are not ready to be assessed for whole person impairment. At Everingham Solomons we have two WIRO approved lawyers, so if you have received the letter from the insurer stating your weekly payments will cease by a certain date, then please contact our office to speak with one of us because Helping You is Our Business.
Click here for more information on Libby Campbell.
Increasingly people live their lives through their mobile phones. In 2016 tragically a man took his own life but he left an unsent text message on his mobile phone recording his last wishes. A friend of the deceased accessed the phone after he died to look through the contact list to determine who should be informed of the deceased’s death. The friend discovered the unsent text message which stated that the deceased’s brother and nephew should “keep all that I have house and superannuation, put my ashes in the back garden”.
A family feud erupted over the status of the unsent text message left by the deceased. The deceased’s brother and nephew asked a Court to rule that the message be treated as the deceased’s final Will. An opposing application was made by the deceased’s widow for a grant of letters of administration declaring that the deceased died leaving no Will. If the widow’s application was successful then the deceased’s estate would be divided between the deceased’s widow and son.
The Court had to determine whether the message was intended by the deceased to operate as his Will to enable the Court to uphold the message as the deceased’s Will. The Court noted “The informal nature of the text does not exclude it from being sufficient to represent the deceased’s testamentary intentions”. Referring to an earlier 2013 case, the Court noted that a DVD left by a deceased person marked with “my will” “although very informal” was found to be a valid Will.
The Court took into account a range of factors in ruling the text message in this case was a valid Will, including that it was “created on or about the time that the deceased was contemplating death, such that he even indicated where he wanted his ashes to be placed”. That the deceased’s mobile phone was with him where he died. That the deceased addressed how he wished to dispose of his property including details as to where cash was to be found, that there was money in the bank and the card pin number, as well as the deceased’s initials with his date of birth and ending the document with the words “my will”.
Whilst ultimately the application to have the text message upheld as a Will was successful, it was not without associated difficulty and delay and uncertainty coupled with considerable legal costs much of which could have been avoided if the deceased had consulted his Lawyer to make a Will. At Everingham Solomons, we have the expertise and experience to assist you with all your Estate planning needs because Helping You is Our Business.
Click here for more information on Lesley McDonnell
In a recent Supreme Court of Queensland decision, the Court held that the real estate agent was liable for the representations it had made to a purchaser which were found to be false.
The Court proceedings related to the sale of a shopping centre. The purchaser alleged that the information provided about the financial performance of the shopping centre was misleading and false
The purchaser requested information regarding the shopping centre. The agent sent a number of emails together with an Information Memorandum to the purchaser containing information about the net rentals for the centre, the rent payable under each lease and estimates of outgoings. The agent also made additional verbal representations to the purchaser during the sale process.
In reality the shopping centre was not performing well and this was not disclosed.
The purchaser claimed that it relied upon the information in the Information Memorandum and the additional representations made by the agent to induce it to purchase the shopping centre.
Interestingly, the Information Memorandum contained a formal disclaimer indicating that the information in the Information Memorandum had been provided by the seller and the agent had not independently checked the information and had merely passed it on and as a consequence the purchaser should rely on their own enquiries.
It was relevant that this disclaimer was at page 39 of the document.
The general rule is that an agent will not have engaged in misleading or deceptive conduct where it has merely passed on information from the seller without adopting or endorsing it.
In this recent Queensland decision, the Court found that the real estate agent had clearly adopted the information and represented it as its own and in this regard had displayed its logo on each and every page of the Information Memorandum.
Further in discussions with the purchaser, the real estate agent made statements which went well beyond the information in the documents and endorsed and amplified the financial information which was in fact false.
The Court found that the agent had made certain representations itself rather than simply passing on the information supplied by the seller.
The disclaimer clauses were not effective to alert a reasonable person in the purchaser’s position that the information in the document was simply being passed on.
Judgment was awarded against the agent for $1.6 million plus costs.
At Everingham Solomons we have the expertise to assist you in all of your property and commercial matters because Helping You is Our Business.
Two schemes currently exist for First Home Buyers. One is a grant of $10,000 and the other is a Stamp Duty Exemption.
First Home Buyers Assistance Scheme – (Stamp Duty exemption)
For both new and existing homes – you will not pay stamp duty up to a purchase price of $650,000, and you will get a concession from stamp duty if your purchase price is between $650,000 and $800,000.
The usual stamp duty on $650,000 is $24,760 – a huge saving!
Vacant land – you will not pay stamp duty up to a purchase price of $350,000, and you will get a concession from stamp duty if the purchase price is between $350,000 and $450,000.
The usual stamp duty on $350,000 is $11,260.
First Home Owner Grant (New Homes) Scheme – (Grant)
A grant of $10,000 is available for the purchase of new homes with a purchase price up to $600,000. For Contracts to build or owner builders the price can be up to $750,000. A new home is a home that has not been previously occupied.
Am I eligible?
You must satisfy the following requirements in order to receive the Grant or Exemption:
The purchase must be for the whole property
All purchasers must be ‘eligible purchasers’ – a person (not a company), over 18 who has not (and whose spouse/de facto has not) previously owned residential property or received an exemption or concession under the old First Home—New Home Scheme.
At least 1 eligible purchaser must occupy the home as their principal place of residence for a continuous period of 6 months, within the first 12 months after completion. The residence rule however may not apply for those in the armed forces
Note: If not all purchasers are first home buyers you may still qualify for a concession under the shared equity arrangements. Provided that the eligible first home buyer buys at least 50% of the property then you can get a pro-rata concession.
Thinking of buying your first home? Contact the Property Team at Everingham Solomons because Helping You is Our Business.
The heat has arrived in the North West and the countdown to Christmas is here. This is an opportunity for employers to review how their business deals with one of the biggest liabilities that sits on their books. It is of course annual leave.
The January period in the region for many industries and sectors is often the quietest month which in turn may or may not require a fully staffed workplace.
Under the National Employment Standards (NES) workers in full time employment are guaranteed a minimum four weeks annual leave per year or for some shift workers 5 weeks. If those minimum weeks of annual leave are not taken during the calendar year the residual leave not taken accumulates. If this is multiplied over a number of years a significant liability owed to employees can leave a business exposed.
A practical way to reduce this liability is to direct or require employees to take their annual leave over the Christmas/New Year shutdown. Approximately 28% of Australian workers are ‘forced’ to take annual leave each year.
Whether or not an employer can require an employee to take annual leave depends on the terms of applicable modern award (noting that there are 83 modern awards) and or the terms of their employment contract.
An employee should be given eight weeks written notice but no more than 12 months’ notice of forced leave. In circumstances where leave is required the leave must be at least one week. Employees cannot use personal leave as annual leave as these are two separate entitlements and under the NES cannot be traded off.
Another option to reduce liabilities is for employees to “cash out” their annual leave. An employer can’t pressure employees to do so and if agreed the agreement must be in writing. Any payment must be made at the same rate as if the employee was taking leave.
The potential exposure of accumulated annual leave highlights the need for correctly drafted employment contracts. At Everingham Solomons we have the expertise to advise you on the terms of modern awards and the drafting of employment contracts.
The team at Everingham Solomons wishes everyone a safe and Merry Christmas and we look forward to helping you in 2018 because, Helping You is Our Business.
Up to the late middle ages, business was pretty steady. One family owned a cow, another owned a goat, there was mutual jealousy and so they were swapped. In time, money was used to facilitate more complex exchanges. All in all, relatively few people were involved and there wasn’t a huge need for capital.
Around the 1600s though, people started exploring the world. Trade followed exploration and trade was very profitable so naturally the great families of the era liked to keep it to themselves.
However, there were two essential problems:
firstly, intercontinental explorers were thin on the ground and trade required the wealthy to give some bold upstart a great deal of money and send him to some remote corner of the world; and
secondly, trade exploration required a lot of capital and given the risks, often more than one family was willing to contribute on their own, so there was a need for joint investment from unrelated parties.
A system was needed to record who was trustworthy and who held whose money, so the monarch assumed the right to allow these early joint stock companies to operate. One of the earlier companies to receive a Royal Charter was the British East India Company which developed a reputation for oppressing India over a few centuries, so they changed their name to the Honourable East India Company to clear things up.
Through the colonial period, trade increased nations’ GDP which even the royal families saw as a good thing so slowly the regulation of companies was lowered and stock certificates came to be traded amongst progressively more common people.
The industrial revolution increased business size and technicality to unprecedented levels and the essential problems were heightened:
investors didn’t have the foggiest understanding of Carnegie’s Steel or Rockefeller’s oil, and while they didn’t like these risks, they didn’t want to forgo their profits either; and
companies had become so big, that they required the continual diversified funding of a large number of investors to continue expansion and operation.
Thus emerged the concept of limited liability. To get people to invest it was seen as necessary to create a law that:
separated the shareholders from the company itself; and
provided that shareholders could only be liable for the company’s risks up to the amount of share capital they had initially purchased.
That remains the essence of a limited liability company today, and explains why a right to sue a company does not include a right to sue its directors or shareholders. Without the rule, which sometimes seems harsh, our economy could not have developed as it has.
If you have any commercial law enquiries, contact Everingham Solomons because Helping You is Our Business.
The Family Law Act in Australia determines whether couples are in de-facto relationships for the purpose of adjusting their property interests upon the breakdown of such relationships.
It is possible to be married and to have a partner who meets the definition of being a de-facto partner.
The court applies “elements” to determine whether, having regard to all the circumstances of the relationship that a couple “lived together on a genuine domestic basis”.
For example the court will look at aspects of the relationship such as:
The length of the relationship;
The nature and extent of the common residence;
The financial relationship between the parties;
Whether there was a sexual relationship;
Whether the parties acquired property and how they improved or used those property assets during the relationship; and
Whether there was a mutual commitment to a shared life.
The court applies its discretion as to the weight it will give to each of the “elements” of the relationship, however, in other words not every characteristic described above will need to be met for a de-facto relationship to exist.
The recent Family Court case of Sha & Cham FamCAFC161, upheld that a married man was found to be in a de-facto relationship with a sex worker whom he had a short relationship with from August 2012 until September or October 2013.
The short facts of the case are as follows:
The parties did not have a common residence but they spent significant and regular time together at the de-facto wife’s residence and maintained a sexual relationship;
The de facto wife stopped working and the de facto husband made periodic and lump-sum payments to her as well as paying the school fees of her daughter;
The parties did not purchase any property together but the de facto husband had purchased a lounge and armchair for his use at the de facto wife’s property;
Both parties agreed to conceive a child through IVF demonstrating a commitment to shared life;
The parties entered into a financial agreement which referred to the parties as being in a de facto relationship even after 4 months.
Obviously this case had a unique set of circumstances but nonetheless it shows that the court carefully assessed all the facts and circumstances of the case and found that on balance, a de facto relationship did exist, despite it being of a short duration and strongly contested by the de-facto husband.
At Everingham Solomons we have the expertise and experience to assist you with all family law and de facto matters because Helping You is Our Business.
Are you wanting to sell or buy land in NSW? From 1 May 2016, the NSW Land and Property Information (LPI) under Section 12E Conveyancing Rules of the Real Property Act 1900, announced the Verification of Identity Standards (VOI Standards) will be applied to all land transactions. Without a VOI you cannot buy or sell land.
Verification of Identity (VOI) is a process to identify a party/parties to a conveyancing transaction. The VOI framework has been introduced to reduce fraud and improper land dealings.
So what does this mean for you if you are selling or buying property in NSW? When you visit your solicitor/conveyancer, you will need to provide original up-to-date identification documents to enable your solicitor/conveyancer to take reasonable steps to identify you when acting on your behalf in a property transaction.
These requirements include a face-to-face interview and the production of certain identification documents. A photograph is taken of yourself together with your documents. There are 6 categories, however, the majority of people utilise the following categories:-
Category 1:
Australian/Foreign Passport
Plus Australian Driver’s Licence/Photo Card
Plus Marriage Certificate/Change of Name if necessary
Category 2:
Australian/Foreign Passport
Plus full Birth/Citizenship/Descent Certificate
Plus Medicare/Centrelink/Department of Veterans’ Affairs Card
Plus Marriage Certificate/Change of Name if necessary
Category 3:
Australian Driver’s Licence/Photo Card
Plus full Birth/Citizenship/Descent Certificate
Plus Medicare/Centrelink/Department of Veterans’ Affairs Card
Plus Marriage Certificate/Change of Name if necessary
The VOI is valid for a period of 2 years. If you buy and sell property frequently, the VOI process is only required once every 2 years if you remain with the same firm of solicitors/conveyancers.
If you are unable to visit your solicitor/conveyancer due to distance, you have two options. The first option is downloading an app onto your phone or tablet and following the apps instructions. The second option is attending at a participating Australia Post outlet. Your solicitor/conveyancer will be able to provide you with the relevant information and forms required for these two options.
At Everingham Solomons, we have the expertise to assist you in all your property transactions because, Helping You is Our Business.
Click here for more information on Suzanne Hindmarsh.
If you have been injured at work you may be eligible to claim for four types of compensation under the Workers Compensation Act 1987 (NSW). Firstly, if partial or total incapacity for work results from a work injury your employer is required to pay you a weekly payment during the incapacity. Secondly, your employer is liable to pay reasonably necessary medical, hospital and rehabilitation expenses including associated travel expenses to attend the treatment. Thirdly, your employer is liable to pay permanent impairment compensation for an injury that results in a degree of whole person impairment greater than 10% for physical injuries, and greater or equal to 15% for psychological injuries. Fourthly property damage expenses, up to a specified amount. Death benefits and funeral expenses may also be payable if a worker dies as a result of a workplace injury.
An example of all entitlements in action is if you were working as a nurse, you wore glasses and during a shift in the Emergency Department you had a patient who turned violent striking you across your face, your glasses broke with a part of your glasses rupturing your eye.
First entitlement – you need time off work as you are unable to see in one eye and you require treatment. Once certified by your Doctor as having an incapacity you are then eligible for weekly payments during your incapacity.
Second entitlement – you require an operation to fix your eye, and subsequent eye drops. If these are considered reasonably necessary, you are eligible to have these expenses paid for by your employer.
Third entitlement – you have permanent damage to your eye and have reduced vision as a result of the injury. If you are assessed as over the required threshold, you are potentially eligible for a permanent impairment payment.
Fourth entitlement – you need new glasses. You are eligible to claim for a replacement pair up to a specified value.
Ideally no problems will arise in receiving these benefits, but if they do you can contact a WIRO approved solicitor and they will be able to assist you to try and overturn the decision at no cost to you. At Everingham Solomons we have two approved WIRO solicitors so please make an appointment to speak with one of us if you believe you have an entitlement that has not been paid to you, because Helping You is Our Business.
Click here for more information on Libby Campbell.
If you wish to purchase land you are required under the Duties Act 1997 to complete a Purchaser/s Declaration. This Declaration is completed by each person entering into a transaction that results in the acquisition of an interest in land in New South Wales.
In 2012 there were some big changes made to workers compensation laws, the impact of which are now being realised. Approximately 6,300 workers in NSW are likely to be impacted by these changes in accordance with section 39 of the Workers Compensation Act 1987. This section states that weekly payments of compensation will cease after an aggregate period of 260 weeks (5 years) has been paid or is payable to the worker in respect of the workplace injury. The section does not apply to an injured worker if their injury has been assessed as greater than 20% whole person impairment.
Two schemes currently exist for First Home Buyers. One is a grant of $10,000 and the other is a Stamp Duty Exemption.
