Everingham Solomons are still accepting applications from Tamworth, Quirindi, Gunnedah or Manilla students for the Sir Adrian Solomons Memorial Law Bursary.
The Sir Adrian Solomons Memorial Law Bursary was first given in 1998. It provides financial assistance for the successful applicant during their first year as well as an opportunity to gain valuable work experience in our offices periodically throughout the duration of their studies.
The Principals of local High Schools have been contacted and advised of the correct format for submitting applications. Interested students should liaise with the Principal or Careers Advisor of their school, who will assist them in making a formal application for this Bursary.
We emphasise that the selection process does not depend solely on academic merit. We appreciate that students come from a variety of backgrounds and accordingly the selection process concentrates on the attributes of the student as a whole, rather than solely academic achievement.
The Bursary has gained widespread interest since its inception and continues to provide a valuable opportunity for current Year 12 students wishing to pursue a legal career.
Everingham Solomons view the Bursary as a continuing commitment to young people in the communities of Tamworth, Quirindi, Manilla and Gunnedah and we encourage interested students to apply.
Applications will be accepted until 30 September, 2014 with interviews conducted during October. A final decision as to the recipient is made in January once university acceptances are confirmed.
One of the biggest impediments to transferring property from one party to another is the exorbitant stamp duty costs payable to the State Government on transfer.
Under the current law, it is possible for a member of a self-managed superannuation fund to transfer an asset from his/her personal name into the superannuation fund and only incur nominal stamp duty. That is a significant concession and should be considered.
Once a superannuation fund is placed in pension mode, payments distributed to members are currently treated as tax free and accordingly there can be significant advantages in transferring assets into a self-managed super fund.
The property must be held by the trustee of the super fund solely for the benefit of the persons who transferred the property and for the sole purpose of providing a retirement benefit to the transferring member.
The State Revenue Further Amendment Bill (2014) is currently before the New South Wales Parliament and if passed, will increase the rate of duty from $50.00 to $500.00, which whilst more expensive is much cheaper than stamp duty calculated at normal rates and accordingly still makes such transactions attractive.
As many of our readers would know, self managed super funds can now borrow loan funds provided the purchase by the superannuation fund is effected by a custodian or bare trust company which holds the property for and on behalf of the superannuation fund.
There are exemptions in the Duties Act which enable stamp duty on the bare trust or custodian deed to be paid at a nominal fee of $50.00.
The above mentioned Bill proposes to increase the rate of duty from $50.00 to $500.00 on the bare trust document.
If however a trustees of self-managed super funds wish to avail themselves of the concessional duties, it is important that the documentation associated with such transaction are very carefully drafted to ensure that they meet the requirements of the Duties Act so as only concessional duty is paid. A failure to do so, could result in double stamp duty being payable at full stamp duty rates.
At Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
On 13 August 2014 the High Court handed down a decision in a case called Honeysett v The Queen [2014] HCA 29.
In court cases evidence is not admissible unless it is based on fact. There is no room for opinions. The exception to this rule is expert evidence that allows evidence of certain persons that have specialised knowledge to be admitted.
Mr Honeysett was convicted of armed robbery at the Narabeen Sands Hotel based on the opinion of expert evidence. There was CCTV footage of the robbery that showed three offenders that each had on long dark clothing and disguised their faces with ‘white pillows or T-shirts wrapped around’ their faces.
The Prosecution managed to have admitted into evidence, over the objection of the accused, the evidence of a Professor of Anatomy, Maciej Henneberg from the University of Adelaide.
Professor Henneberg gave evidence from viewing the CCTV footage and also seeing photographs of the accused when he was in a Police cell, that included that there were eight features that he could see from the CCTV footage that included that he was adult male, had a skinny body build, medium body height, short hair and the shape of his head. The Professor used medical terms to describe the above characteristics. The Professor came to the view that the accused shared those eight characteristics. The accused asserted that the Professor’s opinion was not expert evidence, but rather an opinion that anybody could have made.
The High Court held that the evidence of Professor Henneberg was not based wholly or substantially on his knowledge of anatomy and that his opinion of the characteristics of the offender was based on his subjective impression of what he viewed on the video and as such was not expert evidence and not admissible.
On that basis the appeal was upheld and a new trial was ordered, which will be without the evidence of Professor Henneberg.
If we can be of assistance, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
Are you wanting to study Law next year at University? Great news – the applications are now open for the Sir Adrian Solomons Memorial Law Bursary.
Everingham Solomons are pleased to announce that once again a Tamworth, Quirindi, Gunnedah or Manilla Year 12 student wishing to undertake university study in Law will have a valuable opportunity to receive the benefits of our Law Bursary.
The Sir Adrian Solomons Memorial Law Bursary provides financial assistance for the successful applicant during their first year of university as well as an opportunity to gain valuable paid work experience in our offices periodically throughout the duration of their studies.
All Principals of local High Schools have been contacted and advised of the details. Interested students should liaise with the Principal or Careers Advisor of their school, who will assist them in making a formal application for this Bursary.
We emphasise that the selection process does not depend solely on academic merit. We appreciate that students come from a variety of backgrounds and accordingly the selection process concentrates on the attributes of the student as a whole, rather than solely academic achievement.
The Bursary has gained widespread interest since its inception and continues to provide a valuable opportunity for current Year 12 students wishing to pursue a legal career. The Bursary is also open to students currently undertaking a gap year who will be commencing university study in 2015.
Everingham Solomons view the Bursary as a continuing commitment to young people in the communities of Tamworth, Quirindi, Manilla and Gunnedah and we encourage interested students to apply. Applications will be accepted until 30 September 2014.
Click here for more information on Terry Broomfield.
Last week on 13 August 2014 the High Court handed down two decisions in criminal matters, one dealing with expert evidence and the admissibility of that evidence, and the other on a similar topic, DNA evidence.
In respect to DNA evidence this case was called Fitzgerald v The Queen [2014] HCA28, and involved the murder of a victim where a number of people were involved. The only evidence that tied Mr Fitzgerald to the scene was his DNA evidence that was on a didgeridoo. There were no witnesses to put him at the scene of the crime or any other evidence apart from this one piece of DNA. There was however evidence that Mr Fitzgerald had, during the course of the day, been in contact with other persons that were convicted of the murder and had been also in the same room as the didgeridoo.
Expert witnesses said that insofar as the DNA evidence was concerned, that it was possible that it was transferred from a person that Mr Fitzgerald had been with during the course of the day or, it was also possible that Mr Fitzgerald left it on the didgeridoo earlier in the day.
On this basis the High Court held that it could not be established, beyond reasonable doubt, that Mr Fitzgerald was present at and participated in the murder, and a conviction based solely on DNA evidence, with these particular facts was not sound.
There was a similar case in Germany that was known as the Phantom of Heilbronn or the Woman without a Face. Between 1993 and 2007 there was DNA evidence of a lady found at numerous crime scenes which included six murders. The Police thought that they were dealing with a female criminal mastermind that had committed murders, burglaries and armed robberies across Austria, France and Germany.
It turned out that the DNA was that of a lady that worked in the cotton bud factory in Bavaria that manufactured the cotton buds that the Police were using and they had not been properly sterilised before being distributed by the factory.
Next week I will talk about another case that involves expert evidence.
If we can be of assistance, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
A testamentary trust is a trust established by a Will that comes into existence upon the death of the testator (the person making the Will). Creating a testamentary trust provides an alternative from giving a gift to a beneficiary absolutely. Instead, the gift is given to the trustees of the trust (usually the executors of the Will), to distribute to the intended beneficiary at a later time.
Benefits of Testamentary Trusts
Including a testamentary trust in your Will can have various benefits, including:
Providing trustees with flexibility and the ability to respond to the changing circumstances of various beneficiaries;
Protecting your assets from being squandered by an irresponsible beneficiary;
Providing an avenue to protect assets that are intended for a disabled/ underage beneficiary; and
Various taxation benefits.
Pitfalls of Testamentary Trusts
Whilst testamentary trusts have the potential to provide numerous benefits, they are not without their drawbacks. Namely:-
The cost of having your Will prepared will be increased and there will be ongoing administrative costs once the trust comes into existence;
Your affairs may be unnecessarily complicated; and
A great responsibility and onus is placed on trustees to administer the trust.
Who should include a Testamentary Trust in their Will?
The inclusion of a testamentary trust should be considered by all persons making a Will, however, they will not be suitable to everyone.
Testamentary trusts may prove particularly useful in the following cases:-
Where there is a large asset pool;
Where the minimisation of tax will be particularly important to beneficiaries; and
In families with young and/or disabled children.
For more information about testamentary trusts and how they can benefit you, please contact the experienced team at Everingham Solomons because Helping You is Our Business.
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When dealing with difficult debtors are you or is your company having to;
Enter into payment plans?
Make stop work threats?
Threaten commencing legal action? or
Accept payments outside the normal trading terms?
These might be perceived as normal industry practice in order to get paid, but, as a creditor you should know the real risks that moneys received in these circumstances could very well be clawed back and repaid to a liquidator.
It is an affronting prospect that a creditor has to hand back monies earned for hard work to a company that may still owe them even more money. The classic examples are sub-contractors that have cash flow problems themselves having to pay back money to the larger building company when liquidators are appointed.
If a creditor receives a payment from a company within 6 months of that company going into liquidation (winding up) then that payment could be deemed an Unfair Preference Payment under the Corporations Act. It is deemed to be “Unfair” because the creditor has received more than it would have as a normal unsecured creditor in the winding up of the company.
There are Defences available. A creditor may be able to prove that it was a party to the transaction in good faith and had no reasonable grounds to suspect that the company was trading whilst insolvent (Good Faith Defence) or that it was part of an ongoing business relationship (Running Account Defence).
As with any potential legal problem prevention is the best cure. To minimise the risk of a later Preference Claim individuals and companies should;
Listen to your industry if you hear that a company is not paying its bills on time or struggling do not supply them;
Request money up front or at the time of supply;
Have clear terms of trade and stick by them;
For larger clients offer to enter a running account whereby an agreed monthly amount is paid.
If you have been the subject of an Unfair Preference Claim by a liquidator contact Everingham Solomons dispute resolution team. Our team is committed to providing the most time and cost efficient outcome when advising on Unfair Preference Claims or your debt collection needs because Helping You is Our Business.
Attached to a lot of superannuation funds are insurance policies that will entitle the policyholder to a payment should they become unable to work.
Generally speaking there are either income protection policies or total & permanent disability policies. An income protection policy entitles a person to an income whilst they are unable to work because of illness or injury. There is usually a preclusion period and the payment will go for a finite period.
Also attached are total & permanent disability policies which provide for a lump sum to the ill policyholder. Whether or not you are totally and permanently disabled will depend firstly on the illness and secondly on the definition of ‘total & permanent disability’. There are two definitions for total & permanent disability policies:
any occupation – if you have been unable to work as a result of illness or injury and are incapacitated to the extent that you will never work in any income earning occupation suited to your educational, training and experience; and
own occupation – if you have been unable to work to such an extent that you are unlikely to engage in your own occupation.
Obviously the definition of ‘own’ as opposed to ‘any’ is a far easier definition to satisfy. If for example your occupation is a builder and you suffer an arm injury which makes you unable to work as a builder. It may however be that you can still undertake a sedentary job such as a lawyer, provided you have the education, training and experience and therefore you would fulfil the definition of ‘own occupation’ but not the definition of ‘any occupation’.
So in the above example you would be able to claim under the second definition but would not be able to fulfil the first definition.
To lodge a claim involves completing a great deal of paperwork as well as obtaining medical reports from treating doctors and complicated legal principals.
If we can be of assistance, please do not hesitate to contact us at Everingham Solomons because Helping You is Our Business.
Greetings my name is George Hoddle, I am the most recent addition to the Everingham Solomons Dispute Resolution Team.
I originally grew up on a farm in the Gunnedah area and my wife is originally from Armidale so the move has felt in some ways a bit of a home coming. I have been impressed with the economic growth and opportunities this area is providing.
With two children under two and having gone from a two bedroom inner city apartment to being able to have a menagerie of chickens, cats and dogs my family is thriving in its new country environment.
I am enjoying reconnecting with this great region and I am often on the road meeting with clients in the North West discussing what they require in legal services.
For the past 8 years I have been practicing in a commercial law firm based in Martin Place. During that time my practice was in the areas of commercial and common law litigation acting for companies, community groups and individuals across most State and Federal Jurisdictions.
Everingham and Solomons has impressed me with its continued pursuit of excellence and I am enjoying working with a team providing city standard service whilst competing on price and excelling in client service.
Our Dispute Resolution Team is headed by an accredited mediator. This helps us to explore all avenues available to our clients outside the traditional legal frame work. Some issues however, require a determination of a Court or Tribunal. In those circumstances, we are able to benefit from a combined experience of over 60 years of legal practice to prepare our client’s case for the best possible outcome.
Any form of legal dispute can be extremely stressful for all involved. At Everingham Solomons, our Dispute Resolution Team is committed to providing the most time and cost efficient outcomes for our clients because Helping You is Our Business.
Retail Leases are covered by the Retail Leases Act 1994 (‘The Act’). The Act sets out a number of requirements that Landlords must follow when a Retail Lease is prepared, to ensure that the Lease is enforceable against a Tenant. They include:-
A Landlord must not advertise a retail shop for lease unless he has a copy of the proposed Lease in his possession. Maximum penalty for Landlords = $5,500.00.
A Landlord must make a copy of the proposed Lease as well as a copy of a Retail Tenancy Guide available to prospective Tenants as soon as negotiations are entered into. Maximum penalty for Landlords = $5,500.00.
A copy of a Lessor’s Disclosure Statement (LDS) must be provided to a Tenant at least 7 days before the Lease is entered into. If a Tenant does not receive a LDS within this time frame, or if the LDS is incomplete or contains information that is materially false or misleading, the Tenant may terminate the Lease at any time within 6 months after the Lease was entered into (unless a permitted exception applies). Landlords should further note that any requirement for a Tenant to contribute towards the Landlord’s cost of any finishes, fittings etc. is not enforceable if it is not disclosed in the LDS.
If a Landlord requires a particular standard of fit-out to be carried out by a Tenant, the relevant information relating to the standard required must be contained in a Tenancy Fit-Out Statement and provided to a Tenant at the same time as the Lessor’s Disclosure Statement, or included in the Lease itself.
A Tenant is not obligated to carry any of the Landlord’s fit-out requirements if they are not contained in a Tenancy Fit-Out Statement.
It is not good enough to simply have all of the Lease terms and conditions contained in the Lease itself.
To ensure that a Retail Lease is enforceable against a Tenant, a Landlord must ensure that all procedures prescribed by The Act are followed and that all required documents are provided.
For assistance in ensuring that your Retail Lease is enforceable, please contact the experienced team at Everingham Solomons because Helping You is Our Business.
Click here for more information on Abbey Huckstep.
Everingham Solomons are still accepting applications from Tamworth, Quirindi, Gunnedah or Manilla students for the Sir Adrian Solomons Memorial Law Bursary.
