Make sure the contract you sign is worth the paper its written on

Lesley McDonnellA recent case in the NSW Supreme Court provides a timely reminder of the potential problems that can be encountered if a Contract does not spell out all of the terms agreed upon by the parties. In this case the irrigated farming land sold recorded the sale of the land but was silent in relation to the water entitlements.

The Walsh family had farmed irrigated land since the 1950s. Family members were involved together in farming partnerships until 2000 when it was decided that those partnerships would be dissolved and the irrigated farming land would be sold.

Prior to selling the land, Graham and Maurice were co-owners of the farm.… Read More

Who Owns the Home?

There have been some concerns in recent years regarding the notion of “equitable” rights over property.  That is, the claim that one party holds a property “on trust” for the other party due to an alleged promise that the property would one day be passed on.  This issue has been raised particularly where one party has been allowed to live in a house (and undertake renovations etc), with the often argued expectation that the house would one day be theirs.

In the recent case of Wheeldon [2011], the wife in a family law dispute sought a declaration that the husband’s parents held a property on trust for the husband. … Read More

Which is better for a Company, a Constitution or Replaceable Rules?

TRIn an earlier article I spoke about the rules that govern a corporation. These can be either a specifically designed set of rules called a “Constitution” or a set of standard rules call “Replaceable Rules” set out in the Corporations Act 2001.

The question arises which is better?

In my view using a specially designed Constitution has many advantages over being governed by the Replaceable Rules set out in the Act including:

  1. A Constitution enables you to have several classes of shares with different voting rights, dividend rights and rights to capital upon winding up which can be useful in achieving objectives like income splitting, dividend streaming and selective control.
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Redundancy Rights and Risks

jmhIf you are an employer faced with the difficult task of making employees redundant, it is important to know what obligations you have and what steps you ought to take to meet those obligations.

If you are an employee faced with redundancy, it’s important to know your rights and ensure you receive the correct entitlements.

What does redundancy mean?

A redundancy occurs when employment is terminated because the employer decides they no longer want that person’s job to be done by anyone, or because the employer becomes insolvent or bankrupt.

In order for a redundancy to be a ‘genuine redundancy’, it must be shown that:

  1. The job will not be done by anyone else and the position will not be filled by any other person.
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Introducing Mark Johnson

Let me introduce myself.

My name is Mark Johnson and I am very pleased to have just joined Everingham Solomons in the position of Special Counsel.

Everingham Solomons is a very good law firm.  I know this because I have a great deal of experience of lawyers and law firms.  After graduating from the University of Sydney, I was admitted as a Solicitor in December 1976.  From the date of my admission until a few weeks ago, I practised continuously as a Solicitor in the CBD of Sydney.   For 25 years, I was a partner of Holman Webb, a mid tier firm. … Read More

Corporations and their Governance

TRCompanies formed after 1 July 1998 can have a simple set of rules known as “a Constitution” in place of what was previously called “Memorandum and Articles of Association”.

If a proprietary company does not adopt a Constitution, they will be automatically governed by the Replaceable Rules as outlined in the Corporations Act 2001.

Most companies have a Constitution which is drawn up prior to the registration of the company. The Constitution has the effect of a contract between:

  • the company and each shareholder;
  • the company and each director;
  • the company and the company’s secretary;
  • a shareholder and each other shareholder.
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Contractor or Employee?

RHGIf you are beginning a new job, you should ensure that your relationship with the business hiring you is clearly defined.

If you work for a business under a contract of employment in return for regular pay, you will generally be classified as an “employee”. Employees are provided with the safety net of minimum terms and conditions of employment under the National Employment Standard (NES), which include annual & personal leave, parental leave, a right to request flexible working arrangements, a standard working week of 38 hours, public holiday entitlements and notice of termination.

Independent contractors, on the other hand, are generally not entitled to the benefits under the NES.… Read More

Purchasing at auction? Plan today to avoid a nightmare tomorrow

Lesley McDonnellWhether you are buying your first home, or relocating, purchasing property can be daunting.  If you are considering buying at auction then the experience can seem all the more confronting. The experience need not be a daunting one as long as do your homework. To assist you, the following information may provide some guidance as to what to expect and how best to prepare for the big day.

An auction provides the venue through which buyers and sellers come together to permit interested buyers to make bids on property they wish to purchase. If you are the successful bidder at an auction, you will be required to sign the Contract and pay your deposit then and there. … Read More

Court Saves 14 Year Old Girl from Arranged Marriage

Whilst Australia prides itself on being a multicultural society and being accepting of the values of all cultures, the Courts have recognised that some practices may not always be in the best interests of children.

In a decision in late 2010, the Family Court of Australia restrained a 14 year old girl from leaving Australia, thus saving her from an arranged marriage to a 17 year old man she had never met.  The Department of Human Services was alerted to the problem when the girl stopped attending school.  After interviewing her, the Department was of the view that the girl did not appear to understand the consequences of marriage.… Read More

Is GST Payable on a Residential Purchase if the Proposed Use is Commercial?

TRIn a recent full Federal Court decision, a New South Wales property developer purchased a single story house, intending to develop it into units for use other than for residential accommodation. At the time of settlement the home was occupied by a tenant. The developer adopted the view that the sale was a taxable supply because it was his intention to develop the land into commercial units and consequently claimed a tax credit from the ATO.

The ATO took a different view.

The GST legislation provides that the supply of property is not subject to GST if the premises are to be used predominantly for residential accommodation.… Read More