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. When I first joined John Holman and Doug Webb, the firm was approximately half the size that Everingham Solomons is now. So, I did a bit of everything but my preference was for litigation and I have been a specialist commercial litigator for many years.
I have acted for many corporations and individuals in all kinds of contentious matters. I have acted for banks and finance companies, insurance companies, property developers, construction companies, a trade union and an American toy manufacturer, a German pharmaceutical company and an Italian metal manufacturer. I have acted for individuals alleged to be stand over men, insider traders and stock market manipulators. I have also acted for many individuals with all sorts of problems with landlords, bureaucrats, family, neighbours and the police.
I came to Tamworth because I have family here, because my three children are grown up, because I wanted to escape the clamour of the city and because I wanted to join Everingham Solomons. It is an excellent firm. I look forward to working with the Directors Terry Broomfield, Ken Sorrenson, John Boag, Terry Robinson, Jennifer Blissett and Mark Grady and the Solicitors and staff and that I can contribute to the maintenance of the firm’s standards of excellence in providing legal services to its clients because Helping You is Our Business.
Companies 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.
A company adopts a Constitution on registration of the company provided each person who agrees to become a shareholder agrees in writing to the terms of the Constitution.
A company may modify or repeal its Constitution, or a provision of its Constitution by passing a special resolution. A special resolution requires at least 21 days notice and the agreement of a 75% majority of votes cast.
Special purpose companies such as a superannuation trustee are required to have a Constitution designed for that company.
A corporation can however take advantage of the Replaceable Rules set out in the Corporations Act to govern its internal management, however in our view a company should have a modern constitution that takes account of changes in the law and our changing world. It is not difficult to update a company’s constitution.
It is important to note however that the Replaceable Rules do not apply where the same person is the sole director and shareholder. These companies must use a Constitution.
If you have any enquiries regarding the operation of corporations, then please contact our business law team at Everingham Solomons where Helping You is Our Business.
If 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. “Contractors” are usually engaged under a contract to perform a specific task or are contracted for a specific period. A contractor will normally supply & use their own equipment, and will have control over the hours they work.
Whilst most agreements will state whether the relationship is that of “employer/employee” or “principal/contractor”, some employers may attempt to conceal the true nature of the arrangement in an attempt to avoid paying superannuation and leave entitlements.
The following factors are taken into consideration in determining whether a person falls into the “employee” or “contractor” category:
the degree of control the “employer” exercises over the place of work, hours of work and the manner in which work is performed.
whether the worker is at liberty to advertise their services to others.
deduction of income tax from remuneration paid to the worker.
whether the worker provides significant tools or equipment.
method of remuneration – periodic wage/salary vs. payment on completion of specific tasks.
provision of paid holiday or sick leave.
whether the worker spends a significant proportion of his/her remuneration on business expenses.
If you are currently operating as a “contractor” however think that you should be entitled to the benefits of an “employee” classification, contact the employment law team at Everingham Solomons where Helping You is Our Business.
Click here for more information on Rebecca Greenland.
Whether 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. Most importantly, if you buy at an auction, you are immediately bound by the terms of the contract. It is for this reason that you need to attend an auction well prepared.
Being prepared means, at the very least, thinking about the following:
A couple of weeks before the auction, ask the real estate agent for a copy of the contract. You should then take the contract along to your solicitor and have them explain the terms of the contract to you to ensure that you know what you are purchasing before committing yourself at auction.
Next, you should consider whether you wish to obtain pest and building reports for the property. If you find termites after the auction, it may be too late to do anything because your rights to claim compensation are very limited.
If you are borrowing money to finance your purchase, it is crucial that you make sure you have formal finance approval in writing from your lender. If you purchase a property at auction without formal finance approval and there is a hiccup in getting your finance before settlement, then you risk losing your 10% deposit and the property. You also need to speak to your lender about arranging to have a deposit ready to hand over on the day of the auction.
On the day of the auction, the real estate agent will provide you with a bidder’s guide. This guide contains important information for would-be purchasers intending to bid at an auction. One final tip would be to attend an auction or two as a spectator to familiarise yourself with the auction process.
At Everingham Solomons we can help answer all your questions about buying or selling your property at auction because Helping You is Our Business.
Click here for more information on Lesley McDonnell
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.
The Court accepted that it would be contrary to the girl’s welfare to permit her to be taken overseas for the purpose of the marriage. The Judge was of the view that a 14 year old girl would not have the understanding of the significance of marriage, which would be attributable to an adult. Given that the marriage could not be celebrated in Australia was another reason for the Judge’s decision.
The girl’s name was ordered to be placed on the Australian Federal Police Watch List and her passport was surrendered.
This decision demonstrates the Court’s views on both marriage and children. Firstly, the Court highlighted the significant nature of marriage and that it should not be entered lightly. Marriage is an institution, whereby both parties should enter it freely and with the proper understanding of all that marriage entails.
Secondly, the Court demonstrated that the best interests and welfare of children is the primary consideration in any proceedings in Australia, regardless of whether that conflicts with any cultural upbringing.
If you have any questions regarding any aspect of Family Law, at Everingham Solomons we have the experience and expertise to assist you because Helping You is Our Business.
In 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. The issue was whether the property was to be used predominantly for residential accommodation.
The developer contended that the question as to whether the premises were to be used predominantly for residential accommodation is to be determined by reference to the subjective intentions of the developer. The developer asserted that it intended to develop the property at the end of the tenancy period for uses which were not predominantly for residential accommodation.
The full Federal Court dismissed the developer’s submissions and determined that the test as to whether residential premises are to be used predominantly for residential accommodation should be determined objectively by reference to the physical characteristics of the property as at the date of acquisition and that the intentions of the future owner are irrelevant.
The implications of GST must be considered in every property transaction. It is still an area which is fraught with uncertainty.
At Everingham Solomons we have the expertise to assist you with all of your property and development matters because Helping You is Our Business.
In previous articles we looked at Business Name and Trade Mark registration.
With online business becoming more important everyday, more and more businesses are looking to also register domain names that are capable of being easily identified with their business.
A domain name is simply a textual address for a location on the internet. An internet address with “.au” at the end, indicates that it is registered in Australia and part of the .au domain space regulated by the Australian Domain Name Administrator (commonly referred to as the “auDA”).
Once you’ve chosen the domain name you want to use, registration is through one of the organisations accredited by auDA for that purpose. These organisations (called “Registrars”) are authorised by auDA to provide services to people who want to register a new domain name, renew their existing domain name or make changes to their domain name record.
Similarly to business and company names, there are no proprietary rights in the domain name system. A registrant does not own a domain name but holds a licence to use it for a specified period of time.
Domain name licences are allocated on a first come first serve basis. Provided the relevant eligibility rules are satisfied, the first registrant to apply for a particular domain name will be permitted to licence it. There is also no hierarchy of rights in the domain name system. For example a registered trade mark does not confer any better entitlement to a domain name than a registered business name.
To sum up, the branding of your business will often require a combination of a business name, a trade mark and a domain name registration. The actual mix will vary from business to business and at Everingham Solomons we have the expertise to advise you on the right choices for you business because Helping You is Our Business.
