What can I do if I own a property with somebody else and I am the only one who wants to sell it?
Section 66G of the Conveyancing Act 1919 provides that where any property is owned by more than one person, one of the parties, who owns at least 50%, can approach the court and seek orders that trustees be appointed and for the property to be sold.
The money would then be held by the trustee and distributed in accordance with any orders of the court.
The court will generally only refuse an application for a sale pursuant to section 66G under special circumstances. An example of a reason might be if it has previously been agreed between the parties that they will not sell the property unless everyone agrees.
In respect to the sale proceeds and how the trustee will distribute those, the following rules apply:
the starting point is that the proceeds will be distributed in accordance with the title as provided for on the certificate of title;
if the property is held in joint names, but the parties have not contributed equally to the acquisition/maintenance, there is a presumption that the property is held in a resulting trust in proportion to the respective contributions;
this presumption of a trust can also be rebutted in cases where there may be a presumption of advancement. Presumptions of advancement come about mostly in cases of property that is held jointly by family members and there may be a presumption that one party care or provide for the other, such as a parent/child relationship.
If you should have any queries about selling land that is jointly owned, please do not hesitate to call us at Everingham Solomons because Helping You is Our Business.
It depends. It is always important to review the requirements of the Duties Act in each case before assuming that a rural land transfer will be stamp duty free.
Mum and dad have owned a rural property since the 1970s. The farming business is carried on by a proprietary limited company. The shareholders and directors are mum and dad.
As the son and daughter-in-law now run and guide the farming business, mum and dad have decided to transfer part of the farming land to them valued at about $1.5 million. Mum and dad also propose to make the son and daughter-in-law directors of the farming operations company.
As the land was acquired prior to the introduction of Capital Gains Tax, there is no pre-CGT taxation on the transfer of the land.
Will the land however attract stamp duty of about $68,000.00 or will it be stamp duty free under the intergenerational transfer provisions contained in the Duties Act?
In order to obtain the benefit of the exemption, the primary production business must be carried on by the son and daughter-in-law and be continued to be carried on by them or a member of their family.
While the word “member” in relation to the family of the transferee (the son and daughter-in-law) is defined broadly and goes both up and down the family tree, it does not include family owned or controlled entities such as companies and trusts.
Since neither the son nor daughter-in-law will be carrying on the business and as the trading company is not a member of their family, the exemption will not be available. $68,000.00 stamp duty would be incurred if the transaction proceeds.
It is always important to review closely the requirements of the Act in each particular circumstance before proceeding with a family farm transaction.
At Everingham Solomons we have the experience to assist you with all your property needs because Helping You is Our Business.
No, not the winner of the 1985 Melbourne Cup but invasions of a person’s interest in the beneficial use and enjoyment of his land.
Nuisance is a branch of the law, which defines obligations of neighbourliness.
The nuisances with which farmers are probably most familiar are fire and noxious weeds.
The risk of fire at harvest time is well known to farmers. A fire that gets away during a harvest on wheat country can destroy hundreds of acres of crops. Losses can run to the hundreds of thousands of dollars. If the owner of the land where the fire started had not properly assessed the risk of the fire and taken reasonable steps to protect against it then he will be liable for the loss of his neighbour’s crops. If those crops are insured against fire then it will be a tussle between insurance companies. If not, then it can get very messy.
St John’s Wort is a dreadful weed. Farmers have a statutory obligation to suppress and destroy it on a continual basis. A farmer who does not take reasonable steps to protect his neighbour from the spread of the weed will be liable for the harm that it causes. Such harm includes the cost incurred by the neighbour to check the spread of the weed on to his property, being a cost that he would not be put to but for the nuisance emanating from his neighbour. On large holdings with common boundaries of several kilometres, that cost can amount to tens of thousands of dollars per year. There is an effect on land value as well.
Farmers, more so than any other group, because of the challenges they face, deal with their neighbours in a reasonable and fair-minded way but there are some rogues about, of whom it might be said: “what a nuisance” but are likely referred to in far more colourful language. The litigation team at Everingham Solomons can help you with nuisance questions because Helping You is Our Business.
With the summer months fast approaching, attention is once again turning to the use of backyard swimming pools. Following a series of inquests into swimming pool deaths, recommendations have been made to improve pool safety around swimming pools. Last month the Swimming Pools Amendment Bill 2012 was introduced into Parliament. The amendments sought to be made to current legislation are designed to address the high rate of non-compliance with swimming pool barriers. Possible changes to the current legislation centre around the requirement for private swimming pools to be registered, self certification of pools and an inspection program.
The proposed amendments will require pool owners to self-register their pool, free of charge, on a statewide online register. Pool owners will be required to self-assess that their pool complies with the requirements. The registration process will involve pool owners using a checklist to help them identify defects in swimming pool barriers and to take the necessary remedial steps to make their pool barriers compliant. Research has shown that even simple defects such as gates that do not self-close or gaps under fences can lead to tragedy when a child is able to gain access to a unsupervised pool.
The registration and self-assessment checklist has been formulated to raise awareness of pool safety and to ensure that pool owners take responsibility to make their pool barriers compliant. The steps taken to make a pool compliant today could save the life of a child tomorrow.
The proposed changes also seek to amend conveyancing and residential lease legislation to require vendors and landlords to have a valid swimming pool compliance certificate before selling or leasing their premises
It is proposed that there will be an 18 month phase-in period to permit landlords and property owners sufficient time to comply with the new requirements if the Bill is enacted.
Additionally, it is proposed that Councils will be required to develop locally tailored risk-based inspection programs in consultation with local communities. The Bill seeks to impose mandatory inspections to be carried out on pools associated with tourist and visitor accommodation due to the increased exposure of those pools to members of the public.
At Everingham Solomons, we have the expertise to assist you with all aspects of your sale, purchase and leasing of property because Helping You is Our Business.
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Fiduciary relationships are common in day to day life and especially common in the world of business. However, they are the result of a legal principal that is not well understood.
If you are an employer, a partner in business, a company director, a beneficiary under a trust, or someone that engages a real estate, property, insurance, finance or any other kind of agent, chances are that you have the benefit of a fiduciary relationship, without even knowing it.
A fiduciary relationship is a bond between parties which is imposed by the law of equity. It does not require the parties to agree that such a relationship exists or for the parties to do anything at all.
Broadly, a fiduciary relationship is where one person, the principal, places the utmost faith and trust in another, the fiduciary, such that the fiduciary is to act, not for his own benefit, but for the benefit of the principal.
A fiduciary must not profit from his position as a fiduciary without obtaining the fully informed consent of the principal. In the event that a fiduciary acts in such a way that they obtain a benefit at the expense of their principal, the principal is entitled to sue the fiduciary for the breach of the fiduciary duty.
If you have employed someone, and in that employment, you trust them with the information that is at the root of the goodwill of your business, for example, client lists, service schedules or trade secrets and that employee leaves you and then uses that information to their own benefit, you may have a right to redeem the employee’s profits, relying on the breach of a fiduciary relationship.
Another situation in which a fiduciary relationship will often exists is between business partners acting together. In the event that they jointly formulate a business plan and then one partner abandons the other and uses the ‘partnership knowledge’ to their own exclusive benefit, usually by starting their own business, then the abandoned partner is likely to have a right against the other for breach of the fiduciary relationship.
If you employ an agent to act on your behalf, in matters that require their specialized skill and expertise, and you subsequently find that they placed the interests of another person higher than your own interests, then it is likely that a fiduciary relationship has been breached.
Where two people come together, on equal footing, to reach a business agreement, that association will not normally cause a fiduciary relationship to arise. What is generally required is some sense of vulnerability on behalf of the principal, such that the principal is relying on the skill of the fiduciary, or trusts the fiduciary to act for the principals benefit.
Mere commercial transactions such as those between a lessor & lessee, manufacturer & distributor, or banker & customer, will not normally cause a fiduciary relationship to arise because there is no special vulnerability of one party.
To discuss fiduciary relationships and their role in business further, please contact Everingham Solomons, because Helping You is Our Business.
The above song title written by Louis Jordan, of course, is used in a different context when the question is asked in a legal proceeding. From biblical times it is told that Solomon was required to decide the parentage of a child and to the present time, disputes continue over parentage.
Thankfully, science can, in many cases, put the question beyond dispute, following the advent of DNA testing.
When a parentage of a child is at issue under family law proceedings, the Court may require a “parenting testing procedure” to be carried out to help in determining the parentage. Such an order may be made as follows:
at the request of a party to the proceedings;
at the request of a party representing a child;
at the Court’s own initiative.
A Court will not order parenting testing merely because it has been requested to do so. The applicant must show an honest and reasonable belief that there is doubt as to paternity. The Court will objectively assess the circumstances giving rise to the applicant’s belief.
In the case of FR (1992) 15 FAMLR 533 it was held :
“…there must be an honest, bona fide, and reasonable belief as to the doubt (in relation to the parentage). An objective test is not to be applied that evidence in such an application is seldom, (if ever) sufficient to enable the Court to make an objective conclusion.”
Should a party refuse to comply with an Order for parenting testing, the Court may draw such inferences from the failure to undergo testing as appears just in the circumstances.
At Everingham Solomons we have the expertise and experience to assist you with all legal matters associated with Family Law because Helping You is Our Business.
Click here for more information on Jennifer Blissett.
As overseas travel becomes more accessible, so too does the possibility of love blossoming with someone who is a resident of a foreign country. As a result an Australian citizen may marry or form a serious relationship and the parties may choose to continue to reside outside Australia. If the parties have children, the question may arise “What happens if the relationship ends and one of the parties wants to return to Australia with the parties’ children?”
In a recent case that has been overwhelmingly publicised which involves four Italian children who had been detained in Australia is one such example. The facts of this case were the mother travelled to Italy when she was just 16 years of age on a study trip. At 17 the mother married an Italian man and they had four daughters to their marriage.
Their marriage ended in 2007. Orders in relation to the living arrangements for the children were made in the Italian Courts allowing for the children to live with the mother and to spend time with the father. The mother subsequently was living by herself with their children in a country with no members of her maternal family.
The mother travelled to Australia with the children and never returned to Italy. The father subsequently had to file an Application with the Court for the children to be returned. The mother’s evidence was that the father gave her permission to move back to Australia with the children to be with her family. The father maintained he did not ever agree to such suggestion.
After numerous applications by the mother to Australian Court to have the children remain living in Australia, the final judgment was delivered on 3 October 2012 by a Judge of the Family Court. Whilst His Honour was aware of the girls request to stay in Australia, the International obligations of the Hague Convention overruled that request.
This was not a decision that the children should live with their father, but a decision that the children should be returned to Italy so that the living arrangements of the children could be determined by the Italian Court system.
Australia is a signatory to the Hague Convention, which is an agreement with many countries outlining rules concerning what is required to be considered if a child is abducted from certain countries. Italy also is a signatory to the Hague Convention. Both countries need to abide by that Convention when a child has been wrongfully removed or abducted from their home country.
At Everingham Solomons we have the experience and expertise to assist you with all of your Family Law needs Helping You is Our Business.
Employers have an obligation under the Work Health & Safety Act to ensure, so far as is reasonably practicable, the health and safety of workers.
One of the increasing areas of concern is drug and alcohol use which affects a workers’ performance or has the potential to cause harm or injury to other employees.
Many employers are implementing workplace drug and alcohol polices in an effort to satisfy their WHS obligations.
A recent decision by Fair Work Australia illustrates that in attempting to comply with WHS legislation, employers need to consider the privacy rights of workers.
The case involved a company implementing a new drug and alcohol testing policy which included urine testing. Both the employer and the Union representing the employees of the company, agreed that random drug and alcohol testing was appropriate from a WHS perspective. The cause for disagreement was the appropriateness of urine testing.
The general principle is that a judicial body should not seek to interfere with the right of an employer to manage its business, unless the employer is seeking from the employees something which is unjust or unreasonable.
Fair Work Australia found that urine testing was an unjust and unreasonable method because:
oral (saliva) testing was available;
oral testing is able to identify whether there has been recent consumption of drugs, whereas urine testing cannot; and
urine testing can have a positive result even where the consumption of drugs occurred several days prior. There was therefore a risk that employees might be disciplined for drugs taken outside the employment context which at the time of testing had no WHS ramifications.
The decision illustrates the need for employers to be reasonable in their requirements of employees, whilst also balancing their WHS duties.
The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate employment policies because Helping You is Our Business.
Click here for more information on Rebecca Greenland.
Borrowing by Self Managed Superannuation Funds (“SMSFs”) has been allowed under strictly controlled circumstances for over five years. Over that time the “grey areas” have gradually become a little clearer both through legislative change and the issue of very detailed rulings by the ATO.
In May this year the ATO issued a new major ruling. It is a very useful document and contains many examples of what the ATO considers can and can’t be done. Some of those examples are particularly relevant to farming properties.
One of the key concepts of the legislation is the concept of borrowing to acquire a “single acquirable asset”. Most farming properties will be comprised in more than one land title. If those titles can be dealt with separately, in many cases the farm will not be regarded as a single acquirable asset even if from a practical viewpoint, it would be unlikely that any part of the farm would be dealt with separately from the other.
If a farm was not regarded as a single acquirable asset, it may still be possible to proceed with a borrowing by breaking up the transaction into separate loans over each title. There will be practical problems in doing that however particularly due to the likely requirements of financiers and the duplication of borrowing expenses.
The ATO ruling also includes some useful examples of the distinction between “repairing” and “maintaining” a farm, which is allowed, and improving the farm which is not . For instance, replacing a section of existing cattle yards or fencing is a permissible repair whereas adding a further set of cattle yards or additional fencing would be an improvement.
Involving your SMSF in a farming business requires expert financial and legal advice. Borrowing is only one of a number of alternatives and there are ongoing operational issues relating to the arrangements between the entity that conducts the farming business and the SMSF.
There are many pitfalls for the inexperienced or ill advised. At Everingham Solomons we have the experience and the expertise to work with you and your financial advisors to achieve the best outcome for you because Helping You is Our Business.
There are many different ways for an employer to engage an employee, so it is vitally important that the employment contract correctly reflects the actual employment relationship.
Various employer/employee relationships
Employees are generally engaged on a:
full-time
part-time, or
casual basis.
The terms and conditions of employment may change if the employee is:
employed for a fixed-term
covered by an award or enterprise agreement, or
an executive employee.
Courts have found in many cases that employees are in fact a different type of employee to that stated in their employment contract. For example, workers who the employer considered to be casuals have been found actually to be permanent employees, with the result that they had access to employee entitlements such as the unfair dismissal jurisdiction or parental leave.
In the case of Williams v McMahon Mining Services, Mr Williams’ letter of employment noted that he was employed as a casual, however he worked the same hours on a set roster. The Court found that Mr Williams was not a true casual because he was employed on a regular systematic basis. As a result his employer was required to pay Mr Williams the entitlements of a permanent employee, including accrued annual leave.
What can happen if I use the wrong contract?
Using the wrong type of employment contract could result in:
accrual of leave entitlements
access to unfair dismissal
access to leave the employee may not otherwise be entitled to
a breach of industrial instruments, such as an Award, or
an underpayment claim.
Additionally, using the wrong type of employment contract could expose you and your company to the imposition of fines, including a maximum civil penalty of up to $33,000 in the case of a corporation, and $6600 for an individual.
The Employment Law team at Everingham Solomons is well equipped to assist you to prepare appropriate employment contracts for your staff because Helping You is Our Business.
Click here for more information on Jessica Simmonds.
What can I do if I own a property with somebody else and I am the only one who wants to sell it?
