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.

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.

Mining Law and the Resource Super Profits Tax

Posted on June 19, 2010March 28, 2024 by Admin

According to the current proposal by the government for the new mining tax, the so called Resource Super Profits Tax (RSPT) is due to be introduced on 1 July 2010 at a rate of 40% on the profits made from the exploitation of Australia’s non-renewable resources.

Why is the government doing this?

The present government has stated that the exploitation of Australia’s wealth of natural resources does not currently provide a fair return to the Australian community. Although there is no empirical evidence given to verify this, the government believes that the imposition of the new tax will increase employment and investment in the resources sector. There is no explanation as to how this is likely to occur, in traditional economics the imposition of a new tax is likely to reduce employment and investment in a sector where greater taxation is applied. However, the economic argument for the tax is that compared to the current system of taxation which is based on royalties rather than a proportion of profit the new RSPT will only impose taxation where the businesses are profitable. It could be argued that this is misguided because it removes the possible initial incentive for mining prospecting or the mining entrepreneur to invest because in an already risk laden business, losing 40% of the profit to taxation in addition to company income tax would be a serious disincentive to invest or to employ new staff, including through EU Workers. The government also argues that it will reduced national uncertainty be creating a nationwide uniform system of taxation for mining which may be true, but it will also be a new tax system that will be difficult to administer the compliance costs of many businesses will go up as they attempt to identify their exact obligations under the new system of taxation. It is also argued that this profit based resource taxation is used in countries such as Norway (50% on oil), Canada and the United States. However, with the exception of Norway’s tax on oil super profits, these other taxation systems do not exceed 20%. There is therefore very little evidence that the tax will work int he way that the government predicts. It will most likely do enormous damage to Australia’s national economy and prevent our largest export industry from performing competitively in an already globally competitive market.

Are the any exemptions of ways of reducing the tax?

One respite which mining companies may find in relation to this new tax is that the crude oil excise is going to be abolished a the same time as the imposition of this new tax. Resource companies will also be able to elect to stay with the current Petroleum Resource Rent Tax (PRRT) of move over onto the new tax system, although once this decision has been made it will not be capable of being reversed. It will also be possible to obtain credit for royalties paid to state governments in relation to the tax. Perhaps the most important element of the new tax proposal is that the basis of exemptions as they are proposed is that if there is no net benefit to society of applying the as in the case of minerals which are not super profitable or in the case of microbusinesses which face large compliance costs then it would be unlikely that the tax would be applied according to the current proposal.

ATO crackdown on big business

Posted on June 17, 2010 by Admin

The latest enforcement drive of the esteemed Australian Taxation Office is to target large firms. The government authority hopes to raise extra revenue by auditing up to one third of the 1,300 largest firms in Australia, most of which are public companies. The rationale produced by the ATO is that these firms will present one of the largest tax risks. The way that the commissioner of Taxation looks at the definition of a large firm is if it turns over more than $250,000,000.00 or if it dominates a market for a particular good or service in Australia. Companies are classified on a scale of non-compliance from high through to low risk.

High risk candidates will be watched very closely and auditing is likely to reveal significant problems which these companies will need to deal in order to prevent the ATO taking significant action against them. The ATO has hastened to add that only a very small proportion of reviews will lead to full blown audits. The way that the the ATO intends to collect information about these companies is by examining the past compliance of the business, if they have risk management procedures in place, through industry monitoring and cooperation with other sectors of the government such as state based revenue agencies. According to Michael D-Ascenzo, there will also be an eye of suspicion over companies that utilise tax professionals with a history of shady tax practices. The head tax man says that each company will be run through a series of risk filters to identify the possibility of non-compliance.

The ATO’s systems of compliance monitoring are becoming ever more sophisticated as well with the agency having the ability to cross match records from bank accounts, dividend payments, PAYG returns and foreign tax regulators in order to identify undeclared income. Contrastingly, however, the commissioner emphasised the need for greater trust between big business in Australia and the ATO. This makes sense given that the tax office is ultimately run by public servants who are paid to serve the elected representatives of the people. The ATO must not be a bar to the efficient functioning of the economy, it must provide the background to facilitate this. Overly intrusive and obstructionist tax regulation borders on being undemocratic, because the government must always act ultimately in the interests of the Australian people and these large companies produce goods and services which people consume and provide employment to thousands of Australians, nevertheless, the ATO has stated that it wants to be tougher on big business.