Civil Dispute Resolution Bill and Access to Legal Services

Posted on July 30, 2010 by Admin

In yet another effort to curb the costs and delays involved in litigation, the Attorney-General announced that the Civil Dispute Resolution Bill will implement key recommendations made by the National Alternative Dispute Resolution Advisory Council (NADRAC) in its November 2009 report, The Resolve to Resolve: Embracing ADR to improve access to justice in the federal jurisdiction (the report). Although the precise content of the Bill has not yet been made public, the report gives some guidance on the sorts of measures likely to be included in the Bill. Cynics of reform however point out that there have been many attempts in the past to make the justice system more quick, cheap and efficient and that they have continuously filed to achieve the outcome by simply adding to the expense of litigation through the extension of the number of boxes which lawyers need to tick before they can initiate litigation. It in some respects also increases the risks that litigants face by abandoning litigation because of concerns about the enormous cost involved. The report by Ronald Sackville in the latter part of the twentieth century concluded that lawyers fees were one of the key elements making the legal system more and more inaccessible to ordinary citizens and this this trend must be curbed in order to ensure that ordinary people would still have access to justice in Australia.

However, looking back on the time intervening since the reforms were suggested there have been many attempts but few successes. The experience of most people who are the clients of law firms is that that the situation is getting worse and that legal costs are getting higher. Compared to inflation, however, legal costs do not actually appear to be going up proportionally to other elements of the cost of living. Although it is now true that many individuals do not factor legal costs into the costs of living because it is so expensive and there is no system of legal costs insurance as there is with medical bills. In any event law appears to be set on another attempt to reform itself and become more efficient.

Separation agreement

Posted on July 30, 2010August 31, 2023 by Admin

If you are looking at separating from your partner it can be complicated and confusing time. You may need a Separation Agreement to give you some clarity and understanding to your rights and obligations in relation to you partner and what you can expect from them going forward. Depending on if you are a defacto or if you are getting a divorce having been separated it can be extremely important to ensure that you can secure your right in relation to the events which occur after the separation. Although many people believe that their partner is likely to be honest and forthright in relation to their affairs after the separation and often this is the case, for many, it is not as simple as this and people can change to become something that you had no way of expecting before the separation. For this reason it is important to ensure that you have legal representation and advice about the documentation which you need, which will include a separation agreement, in the event of a life changing event like a separation.

The two major issues which generally dominate a separation include the division of the property, assets and in many cases, income of the the marriage and the custody of the children. If you need assistance with the visitation agreement, you may consult a visitation lawyer. Unless you take the time to get a good understanding of what you are entitled to, you will risk being taken advantage of by your former partner or their aggressive legal representation who will fight for every dollar and every privilege coming from the separation against you. Although not all lawyers take this approach, unless you have a lawyer who can assist you to protect your interests, it is very likely that you will miss important details in relation to your rights and entitlements. If you would like to obtain a separation agreement, please do not hesitate to contact us.

Click here to obtain a separation agreement:

Separation agreement

Pre-nuptial agreement

Posted on July 29, 2010October 12, 2023 by Admin

A Pre-nuptial agreement is an increasingly common tool which is used by people who want to enter into an intimate and caring relationship but realize that there are certain risks which are associated with this. It is known by other names such as a marriage contract or simply a pre-nup. In formal terms it is found in the law as what is known as a binding financial agreement which is an agreement between two parties to a domestic relationship, marriage or de-facto partnership under the terms of the Family Law Act 1975 (Cth) that they will establish the status of certain assets in the relationship as separated from the union and others as part of the joint property of the relationship. Seeking guidance from an experienced alimony divorce attorney is advisable not only during the divorce process but also when negotiating these types of agreements, which can be made at any point in a relationship, even up to 1 year after the finalization of a divorce or within 2 years of a de facto relationship ending.

Although in some circumstances it may be difficult to ask your partner about the signing of an agreement like this because it indicates that there is a lack of trust in the relationship, for some couples, it is simply a necessary precaution against them or their partner behaving in ways that they didn’t expect when the relationship hadn’t been formalized into a marriage or they hadn’t been living together. It is a very common thing that people have been hurt, in some cases, irreparably, by the effect of the actions of someone in the past and are determined that this should not happen in a future relationship. This is a reason why someone would chose to create an agreement like this. If you are in a situation where you would like to purchase a prenuptial agreement, we have a pre-nuptial agreement available which can be used by you in any jurisdiction of Australia, although we would recommend that you seek the advice of a lawyer when using this agreement, the existence of this template will be of great assistance. All you need do is click on the link bellow.

Pre-nuptial agreement

New South Wales Business property lease

Posted on July 28, 2010July 8, 2023 by Admin

If you are a landlord in NSW, a New South Wales Business property lease is a an essential document which can be used to protect your interests. There is a very specific application of a lease document to business premises in New South Wales because of the legislation which surrounds leases in New South Wales such as the Retail Leases Act. In general the drafting of leases are prepared by landlords and they are then subject to review and negotiation by the tenant upon receipt of the draft lease prior to the tenancy. The other legislation which is applicable in New South Wales is the Conveyancing Act 1919 (NSW) which defines the essential requirements for a lease that can be registered on the title of the property. The lease document which has been provided here is suitable for the letting of offices, workshop, factory, shop and others or premises which are part of a larger set of buildings, for example, a shop or a workshop. It is written in simple straight forward language and contains a guide to assist you with the use of the document. It contains terms relating to the guarantor of the lease, rent, other types of necessary payments, allowed and forbidden uses of the property, the circumstances where the tenant breaks the lease, the rights of access of the landlord and a clause relating to rent review for it to be reviewed annually and upwards only. It contains clauses relating to the repair of the property, decoration, insurance and the transfer of the lease, subletting, termination and all of the other standard provisions which are used to protect the interests of a landlord.

If you would like to purchase a New South Wales Business property lease simply click on the text link here and you will be taken to the appropriate download page.

Tenancy agreement for furnished holiday house or flat

Posted on July 28, 2010 by Admin

A Tenancy agreement for furnished holiday house or flat can be a very useful tool if you want to rent out your investment property or if you are going overseas and you need to rent out your property to continue to pay your mortgage which you are gone. The document contains a series of features which can be used for this purpose. It contains all of the terms which are needed for letting a furnished house or flat during a holiday period. Please note, this document is not necessarily suitable for business letting due to the fact that longer terms of possession may lead to a claim of adverse possession. You can enter the appropriate amount of rent which you wish the tenant to pay, the required deposit and terms relating to the access of the landlord. As the landlord, you will also be able to select from the list of promises which the landlord can do or choose not to do. The document also allows for the creation of an inventory and has a series of explanatory notes.

Although this is a document which can cover your needs for the amount that it relates to, nothing contained in here is a substitute for professional or personal advice and you should seek that advice of a lawyer if you are in any doubt about the legal nature of this agreement or if you need advice on the completion of the details of the drafting. However, this tool will save you a lot of time and will also save you the cost of your lawyers time in preparing the document themselves.

If you need a Tenancy agreement for furnished holiday house or flat you have come to the right place. We offer a standard agreement of this type for a very reasonable price. You can purchase this document instantly on line by clicking on the link contained in the text above.

Justice Bergin concerned about No win No pay

Posted on July 18, 2010 by Admin

Justice Bergin, the chief judge of the Equity Division of the New South Wales Supreme Court has warned that lawyers who act on a no win no pay retainer are compromised in their ability to objectively apply the law to the facts of a particular case and therefore achieve a result that correctly applies the law. The judge was speaking in relation to a case where a client refused to accept an offer of settlement against the advice of their lawyers. The lawyers then kept the client’s file and gave him an enormous bill for the work done so far on the basis of the costs agreement between the firm and him. The judge ordered that the firm return the file and pay the costs of the client in relation to the matter. It it likely to set a precedent which many lawyers will be unwilling to follow because of the new risks involved in this type of litigation.

The law society recognized the concerns of the judge, however, the Australian Lawyers Alliance, which represents many personal-injury firms, said: ”By and large, lawyers don’t allow those considerations to affect the advice they provide to clients.” This organisation also argued for the practice of contingency fees on that it provided a community service for thousands of victims of accidents who would otherwise be fighting large insurance companies by themselves. Contingency fees do indeed create access for a greater range of clients to the legal system than would otherwise be possible on a ‘billable hour’ basis. The problem appears to arise in relation to the inability to get a clear retainer negotiated between the firm and the client which the client is fully satisfied with and can accept the consequences of. The debate about contingency fees is unlikely to go away any time soon because the practice is now so wide spread.

Changes to Superannuation Law Proposed

Posted on July 6, 2010 by Admin

The chief of the Super System Review, Mr Jeremy Cooper has made a determination that over competitiveness in the industry is leading to a failure to capture economies of scale which could be used to benefit fund members and managers. The enormous power which the $2 trillion dollar industry now yields in investment markets means that these funds should be able to gain much better results for their members than they currently obtain. The review system is now of the view that funds should adopt a much more aggressive and direct investment strategy in order to maximize returns by directly owning assets and reducing the fees of intermediaries. The vision of the regulator is that there would one day be only a small number of funds in operation in Australia. This vision consists of only 27 large Australian Prudential Regulation Authority-regulated funds, three with assets of about $200bn, four with $100bn and the rest with an average size of $50bn each. The proposal emphasizes the need for super funds to refocus on funds staking rights for substantial amounts of capital. The examples which the regulator gave of the Australian Superannuation industry missing out on substantial returns as a result of the failure to conglomerate was the where some of the largest Canadian pension funds made a bid for the Transurban group.

Critics of the proposal point out that without substantial incentives for funds to aggregate, it is unlikely that this proposal will be realistic. Also the monopolistic power of the funds would be a concern in terms of the macroeconomic structure of the market for superannuation in Australia. The choice available to consumers would be more limited and less personalized. The commentators who seemed neutral about the proposal reacted by saying that the message from the talk was that the system of superannuation was ultimately built for members and that it has been hijacked by sales people and investment managers and the government intends to restore control to members and the fundamental benefits of the system to members.

Miners Tax Lawyers rejoice as legal deal is done with Julia

Posted on July 1, 2010 by Admin

The meeting today between Julia Gillard and BHP, Rio Tinto and Xstrata appears to have resulted in a peaceful resolution to the mining tax war which was developing between the Government and the Australia’s largest mining companies. The points of compromise appear to have been where the kick in rate for the tax comes in which was previously set at 5% and it has now been agreed that it will be at 12% as well. It also appears that a the government has given ground on the two biggest objections of the Mining industry. The first of these was that the tax would be retrospective. The mining companies can now avoid the costly taxation over the Pilbara mines in Western Australia and the rich coal reserves along the east coast of Australia as these are existing assets and the government appeared to accept that it would not make the tax retrospective in its application. This is a very large concession. It is also one which could potentially have flared a constitutional argument against the tax because retrospective legislation is only of questionable constitutionality. The other major concession which the government seems to have given is that it now accepts that 40% was too high as a tax on the Miners and some slightly lower figure will now be accepted. The proposed tax was the highest in the world by a long shot, with only Norway’s Oil Super-Profit Tax coming close in terms of its rate of profit capture.

Naturally, the imposition any greater amount of taxation is an imposition on industry which will make it less competitive internationally and prevent the Australian Mining industry from growing and creating more jobs (which would in turn yield greater tax revenue). However, this argument is not accepted by the government. Under Mr Rudd’s watch, an enormous government debt accumulated and this must now be repaid in some method, the mining tax appears to be the popular tax that the government can think of to fill this giant hole in its budget.

Changes to the law of Conveyancing and Caveats

Posted on June 30, 2010July 27, 2023 by Admin

The recent High Court Case of Black v Garnock [2007] HCA 31 has led to a change in the way that conveyancing practice is likely to occur in the future. The facts of the case were that a conveyance was being performed between a purchaser and a vendor. The day that the settlement occured, a writ of execution for the levy of property was ordered over the property and the trasnfer which the purchaser obtained was ineffective because of the writ which had been obtained. The purchasers were therefore unable to obtain posession of the property and their interests were seriously prejudiced becasue the transfer could not be registered for the property as result of the issuing of the writ of execution.

All of this occured despite the fact that the purchaser’s solicitors took the precaution of obtaining a final title search on the day of the settlement. This is a very normal precaution in the conveyancing process which is insisted on by the banks because of the risk that something might appear on the title before the time of settlement and make the transaction ineffective. The court said that it was necessary for the purchasers to have lodged a caveat prior to settlement to prevent the writ for the levy of property being executed. Although there is some argument that in this case, the vendor requisitions on title should have been served and this should have revealed the fact that there was litigation support in relation to the property which should have alerted the purchasers to the danger that a writ would be taken out in the near future, for whatever reason that is not explained in the judgment, this did not occur. It is now a precaution that is often taken by purchaser’s solicitors that a caveat is lodged at the time of settlement to prevent a situation like this developing for their client. If you would like more information about any of this, please do not hesitate to contact us using any of the contact methods available on this site.

Workplace Relations and Queensland Rail

Posted on June 23, 2010 by Admin

In recent decision by the Federal Court, Queensland Rail has been fined $660,000.00 for failing to properly consult its staff on the sale of the company. This ruling may make consultation in similar cases something that unions can demand in the future as part of work agreements. The need to retrench 20 Queensland Rail workers which arose from the sale of the business lead to a finding that the company had breached its agreements with the workers. The finding by Justice Logan was emphatic and stated that

“This change so radical, a breach so comprehensive, the occasion for consultation so obvious that anything less than maximum penalties would not do justice to the case and the need to ensure public confidence in the adherence to industrial relations bargains.”

Union were obviously pleased with the decision which would enable to demand greater amounts of consultation before the assets of a business were sold off. The decision is considered unusual by industrial law experts because of the size of the fine and the way in which the judge railed against the actions of the company in the decision. This decision was brought down despite the fact that the company had gone to great efforts to inform its workers about the planned changes, but nothing to consult them or to genuinely account for their views in the decision making processes of the company. The company has already filed a notice of intention to appeal the decision in the High Court. It is obviously difficult to predict what will eventuate from a high court decision because the High Court makes a ruling from a position of far greater stature than the Federal Court of Australia. However, the present High Court has appeared to have taken a traditionally more conservative view of the status of the law in the past than some of their judicial brethren in lower courts and on a probability basis it would seem unlikely that the decision would be overturned.