Stamp Duty Exemptions

If you are a foreign property buyer, what are your stamp duty implications?

If you are considered a foreign person and you purchase property related to residential purposes in New South Wales (NSW), you may be subject to the Foreign Buyer Surcharge. The Foreign Owner Surcharge is not the same as stamp duty; it is an additional fee imposed on foreign individuals or entities in addition to the regular stamp duty. Currently, it is calculated at 8% of the dutiable value (the higher of the purchase price or property value) and is an extra cost you would need to pay.

However, if you (as an individual, not a company or trust) purchase residential-related property in NSW and intend to use it as your primary residence, you may not have to pay the Foreign Buyer Surcharge if you meet one of the following conditions:

Australian citizen
Usually residing in Australia
A permanent resident who meets the residency requirements
Holding a spouse (temporary) visa (309 or 820) and meeting residency requirements
Holding a retirement visa (405 or 410) and meeting residency requirements
A citizen of a country exempt from the Foreign Buyer Surcharge due to international tax agreements, currently including New Zealand, Finland, Germany, India, Japan, Norway, South Africa, and Switzerland.

However, being a permanent resident or holding a similar type of visa does not automatically exempt you from the Foreign Owner Surcharge. You would need to meet and satisfy one of the following 200-day exemption conditions:

Residing in Australia for 200 days within the 12 months before signing the contract (paying the deposit and signing the contract). This does not need to be continuous; you can travel within and outside Australia during this time.
Residing in the property for 200 continuous days within 12 months after signing the contract. This must be continuous. It is calculated from the contract signing date, not from settlement, so it does not apply to cases where property purchase plans change unexpectedly.

Related Cases:

Aparekka v Chief Commissioner of State Revenue [2022] NSWCATAD 333

In this case, a married couple purchased a family residential property in October of the same year they got married in August 2020. One of the spouses was an Australian citizen, and the other held a 482 visa, which was later granted a spouse (temporary) 820 visa in October 2021. In August 2021, they received a bill for the Foreign Buyer Surcharge. Although the bill was addressed to both spouses, it explicitly stated that the party holding the 482 visa at the time of property purchase was liable for the additional property tax. The Foreign Buyer Surcharge applied to a 50% share of the property. The decision did not exempt foreign persons from paying the Foreign Buyer Surcharge, nor did it shift the responsibility to Australian citizens, as the bill only taxed the dutiable value of the foreign person’s share in the property.

Frietman v Chief Commissioner of State Revenue [2022] NSWCATAD 265

In this case, the buyer signed a property purchase contract in February 2017. Although the buyer was a permanent resident, they had only resided in Australia for 114 days within the 12 months before the contract signing date, not meeting the 200-day residency requirement. Despite residing in Australia for 245 days in the 12 months before paying stamp duty, the obligation to pay the Foreign Buyer Surcharge had already arisen at the time of signing the property purchase contract. According to the Stamp Duty Act 1997 Section 104J, the buyer was considered a “foreign person” on the day of signing the property purchase contract.

If you are eligible for an exemption, what should you do?

Revenue NSW has indicated that they will contact affected individuals. However, if you believe you are eligible for a refund but have not received any communication from Revenue NSW, we recommend reaching out to them directly or seeking legal advice to represent you in communication with the revenue department.

If you have questions about eligibility, potential refunds, or if you or someone you know is from an affected country and qualifies for an exemption, we suggest contacting our property team.

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is hereby expressly disclaimed.

Unfair Dismissals

If you think you have been unfairly dismissed you can make a claim for unfair dismissal as long as you have served a minimum employment period of 6 months. This minimum period is extended to 12 months for small businesses.

So what makes a dismissal ‘unfair’?

Pursuant to section 385 Fair Work Act 2009 (Cth), the Fair Work Commission outlines the law surrounding dismissals:
1. Should not be considered harsh, unjust or unreasonable
2. Should not make an employee redundant if it is not a genuine redundancy
3. Should follow the Small Business Fair Dismissal Code (if they are a small business)

Factors that are taken into account when considering harsh, unjust or unreasonable include:
– Whether there was a valid reason relating to the person’s capacity or conduct
– Whether you were notified of the reason
– Whether you were given an opportunity to respond to the reason
– Refusal by the employer to allow for a support person in facilitating discussions relating to dismissal
– If the dismissal relates to unsatisfactory performance – whether any warning was given before the dismissal about performance
– Any other matters the Fair Work Commission considers relevant

You have 21 days to make a claim of an unfair dismissal – reach out to our professional lawyers for a consultation today.

Binding Contracts

Did you know that using emojis might be interpreted as accepting the terms of a contract?

In a recent Canadian case, the court has acknowledged the ‘thumbs-up’ emoji as a valid signature. This decision was reached based on other prior communications and conduct between the parties, however, this decision could be adopted in the right circumstances in Australia too.

When does a contract become binding?

There are four essential elements in contract law to create a binding contract. They are as follows:

There must be an existing offer being made by one party to the other
The other party must have accepted the offer
Intention for a legal relationship
- The law will consider what a reasonable person would consider the parties intended in the circumstances which the agreement will reach. It does not consider what each party individually believed.
- Commercial arrangements are presumed to be intended to be legally binding.
Consideration
- This is the price that is paid for a promise made by one party to another. Note that love and affection are not ‘consideration’.

With all four elements satisfied, you are likely to have a binding contract.

Other things to consider

Contracts do not have to be in writing to be legally binding
The court will not enforce all contracts – if they involve illegal conduct or are prohibited by legislation, the contract may be void.

Get in touch to obtain legal advice with experts our in this field offering professional services in resolving complex contract matters.

Preventing Loan Defaults

We have seen a dramatic increase in clients who experience defaults by their borrowers and unfortunately, often resulting in significant losses. These situations highlight the importance of having a professionally drafted Loan Agreement in place, especially in light of recent regulatory changes. At our firm, we prioritize safeguarding the interests of all parties involved in any lending scenario. Here’s why our Loan Agreements are indispensable, reflecting our commitment to professionalism and protection:

Clarity of Terms and Conditions A Loan Agreement is a beacon of clarity and transparency. It explicitly states the loan account, interest rate, repayment schedule, and any additional fees or penalties associated with the loan. This helps both parties understand their obligations and minimizes the possibility of misunderstandings and disputes.
Legally Binding Our professionally crafted Loan Agreements are legally binding documents, offering robust protection. They ensure that both borrowers and lenders have a solid legal framework to rely on in cases of breaches or disputes, instilling a sense of security.
Establishes Consequences for Default Our Loan Agreements explicitly outline the consequences of default, including penalties, late fees, and potential legal action. This serves as a strong deterrent against borrowers defaulting on their repayment obligations and provides lenders with a clear course of action in such scenarios.
Preserves Personal & Commercial Relationships Loans often involve family, friends, or business associates, making it crucial to preserve these relationships. Our professionally drafted Loan Agreements define terms and conditions clearly, minimizing the risk of misunderstandings. They can also incorporate dispute resolution clauses to address any unforeseen challenges, ensuring that both parties remain aligned in their expectations.
Facilitates Negotiation for Customization Our Loan Agreements are flexible instruments that allow for tailored terms negotiated between borrowers and lenders. This flexibility ensures that the agreement can be customized to meet the unique needs of each party, accommodating provisions like early repayment, grace periods, or variable interest rates.
Critical Evidence in Legal Disputes In case of legal disputes, our professionally crafted Loan Agreement serves as invaluable evidence. It attests to the existence of the loan, the agreed-upon terms, and the mutual expectations of all parties involved. This documentation can play a pivotal role in resolving disputes or, if necessary, in a court of law.

With recent regulatory changes around loans, particularly for small amounts, we are committed to compliance with these standards:

Loans of $2,000 or less: Lenders are prohibited from offering loans of $2,000 or less that must be repaid in 15 days or less. Fees for small loans in the range of $2,000 or less to be repaid between 16 days and 1 year are strictly capped, including establishment fees, monthly account keeping fees, government charges, default fees, and enforcement expenses.
Loans of $2,001 to $5,000: Loans falling in the range of $2,001 to $5,000 to be repaid between 16 days and 2 years are subject to a one-off fee of $400 and a maximum annual interest rate of 48%, inclusive of all other fees and charges.
Loans of more than $5,000: The law strictly limits the total amount of fees and charges on loans to not exceed 48%. This rule applies to loans exceeding $5,000, loans with terms surpassing 2 years, and all continuing credit contracts, such as credit cards.

Professionally drafted Loan Agreements will safeguard your financial interests, whether you’re a borrower or a lender to establish unassailable legal obligations. By entrusting professionals to draft a comprehensive Loan Agreement, you’ll protect your financial interests and prevent future complications and setbacks.

The Australian Securities and Investments Commission (ASIC) has commenced civil penalty services against s for its risk and compliance failure

CASE SUMMARY

On 06 July 2022, ASIC has issued court proceedings against a financial service ‘Licensee for hire’, alleging various breaches of its obligations as an AFSL holder.

The proceedings emphasize the importance of adhering to the financial services laws if you are an AFSL holder – and in particular, having sufficient resources to do the job.

Lanterne operated under a ‘licensee for hire’ business model in which over 200 authorized representatives (ARs) and over 60 corporate ARs provided financial services to wholesale customers under Lanterne’s AFSL.

These included venture capital funds, wholesale property funds, managed investment schemes and corporate advisory services. These Ars operated in a wide range of different industries, from renewable energy and real estate, to biotechnology and agriculture.

Lanterne was responsible for over $1 billion in funds under management and its authorised representatives were paying monthly fees of around $18,000 during the period.

ASIC deputy chair, Sarah Court, said: “ASIC is concerned that for an extended period there was a real risk of investor harm due to shortcomings in Lanterne’s systems and processes.

“It appears to ASIC that Lanterne operated a wholly deficient business, with no compliance staff and almost no risk management processes in place.”

ASIC alleged that Lanterne failed to:

Have in place adequate risk management systems;
Have adequate resources (including financial, technological, and human resources) to provide the financial services and carry out supervisory arrangements;
Maintain competence to provide its financial services;
Ensure that its representatives were adequately trained;
Take steps to ensure that its representatives complied with the financial services laws; and
Do all things necessary ensure that the financial services were provided efficiently, honestly, and fairly.

ASIC was seeking declarations and pecuniary penalties from the Federal Court and also sought an order that an independent expert be appointed to review Lanterne’s systems, processes and controls. Lanterne was also ordered to implement a risk management and compliance program once the report was received.

Important lesson for AFSL holderS

ASIC’s pursuit of Lanterne is another example of the corporate regulator’s ongoing crackdown on financial services misconduct.

To avoid regulatory scrutiny (or worse, punitive penalties), this matter emphasises the need for AFSL holders to:

Implement and keep formal systems which identify and mitigate risk. These systems need to be monitored and reviewed persistently. Such systems also need to be subject to independent oversight;
Maintain competence to provide its financial services; on the aspect of financial and other resources;
Establish a training and competency program which documents the skills and competencies required by representatives. This should assess each representative against the required skills and competencies;
Take reasonable steps to have an effective and documented process for background checks and due diligence of representatives of prospective ARs.
Do all things necessary to ensure that financial services covered by the licence are provided efficiently, honestly and fairly.

This case demonstrates that There will be serious penalties and repercussions for AFSL holders failing to abide by their obligations under the AFSL regime.

Australian Financial Services Licence（AFSL）

WHAT IS AFSL?

AFSL’s is abbreviation of Australian Financial Services Licence, An entity that provides financial services or a financial institution regulated by ASIC in Australia must hold a valid Australian Financial Services License.

The Australian Securities and Investment Commission (ASIC) is the statutory regulator of financial services and markets in Australia. ASIC independently supervises companies, investment behaviours, financial products, financial services in accordance with Australian laws and regulations and supervise the Australian financial services industry to ensure the fairness and transparent of Australia’s financial market.

Being equipped with financial service license is a test for companies and a reliable guarantee for consumers’ rights and interests. When applying for AFSL, ASIC’s strict layer-by-layer review and the follow-up supervision of the three authorities, AUSTRAC, ASIC, and APRA make the application and holding of AFSL very challenging.

Do I need to apply for Australian AFSL?

If you need to engage in the following businesses in Australia, you are required by law to apply for an Australian financial license:

Superannuation, insurance in a broad sense
Basic deposit and payment products (including cash and non-cash payment products).
Financial trading institutions such as providing securities, Managed Investment Scheme, foreign exchange, and derivatives;
All practitioners involved in providing financial product advice or financial services.

Application Process

The financial services industry is regulated by ASIC, which issues AFSL to applicants under Section 911A of the Companies Act 2001. As part of its responsibilities, ASIC must assess an applicant’s application based on whether the applicant has the ability to:

Demonstrate the ability or qualification to provide the financial services specified in the application.
Prove sufficient financial resources are available to provide the proposed business service
Prove other obligations of AFSL licensees can be met (such as competence training requirements, compliance plan, professional indemnity insurance and gaining a membership of EDR).

Applicants must ensure that the information submitted is correct, complete and accurate in order to maintain the reliability of their applications and to accelerate the outcome of the assessment. After successfully obtaining a financial license, the licensee is obliged to provide efficient, honest and fair financial services under the conditions of its AFSL and the Companies Act 2001. Failure to comply with and maintain the warranties under the AFSL and the Companies Act 2001 will result in civil penalties or financial punishment.

Authorisations under the AFSL

Providing financial product advice (personal and/or general);
Dealing in financial products (including issuing and/or arranging);
Making a market in financial products;
Operate a registered scheme;
Providing a custodial or depository service;

There are serious penalties and repercussions for operating without an AFSL or without the correct authorisations

If it’s unclear clear whether you need an AFSL, or which authorisations are appropriate for your business, we suggest you obtain formal legal advice from our lawyers.

How long does it take to get an AFSL?

The standard time frame is 6 months from the date the AFSL application is lodged with ASIC. However, more complicated business models (such as crypto or fintech) will usually take longer to assess so we advise clients to lodge the AFSL application as soon as possible.

Our Service

We will prepare a tailored compliance and risk framework for you to reflect your business and ensure you comply with your obligations; and assist you quickly obtain an AFSL and assist you keep your financial license on foot.

Assessing the applicant’s current business model and structure of
AFSL / ACL application and lodgement
Drafting compliance policies and procedures
Advice on legal and compliance obligations
Identifying qualifications and relevant experience of nominated responsible manager/s
Inhouse Compliance Officer Services
Website Compliance Audit
Assistance obtaining Professional Indemnity Insurance
Drafting product disclosure statement (PDS) and financial service guide (FSG)

Updates on Vacancy Fee 2023

Who is liable to pay a vacancy fee?

Foreign owners of residential properties in Australia are required to pay an annual vacancy fee if their property is not residentially occupied or rented out for more than 6 months (183 days) in a year.

A property is considered ‘residentially occupied’ if:

The owner or a relative of the owner occupies the property as a residence; or
The property is occupied as a residence subject to a lease, for a minimum period of 30 days; or
The property is available for occupation as a residence subject to a lease for a period of 30 or more days

If vacancy fees are not paid on time, the government may take action to recover the debt, which may include court proceedings, or taking ownership of the property.

Who must lodge a vacancy fee return?
The vacancy fee return applies to all foreign owners of residential property, who either:

Made a foreign investment application to purchase a property after 9 May 2017 or;
Purchased a residential property under a New Dwelling Exemption Certificate, which was applied for after 9 May 2017.

If the FIRB application date is before 9 May 2017, then there is no requirement to lodge the return each year or pay the vacancy fee.

All foreign owners of residential property must file a vacancy fee return for the previous year, regardless of whether the property was residentially occupied during the year, or a vacancy fee is not payable. The process is similar to lodging a personal tax return each year- each person must lodge a tax return regardless of whether tax is payable or not.

If the ATO determines that no vacancy fee is payable based on the Vacancy Fee Return, no amount will be required.

When does a vacancy fee return need to be lodged?

A vacancy fee return must be lodged with the ATO after the end of every 12-month period you own it. The time when you own it is the time from which you gained the right to occupy the property- usually, the completion date. For example, if you complete a property purchase on 1 January, you need to file a vacancy fee return by 30 January every year.

An important reminder to all foreign owners of property – remember the anniversary of your vacancy fee return and to file it every year. A failure to lodge a vacancy fee return within 30 days after a 12-month period, will result in you being required to pay the vacancy fee in relation to the property, even if it was occupied or rented out for more than 183 days. Civil penalties may also apply for failing to lodge the return with the ATO.

How much is the vacancy fee?

The vacancy fee will be the same amount as the FIRB application fee you paid at the time you submitted your application.

How to file a vacancy fee return

Completed FIRB Vacancy Fee Form online. The vacancy fee return must be completed online and is available at https://www.ato.gov.au/FIRBvacancyfee/
You must fill out the form and provide relevant details in relation to the property and the owner of the property.
After lodgment of the Vacancy fee return, you will see a confirmation page containing reference details, any amount you need to pay and how to pay. The amount of payment and the payment due date will be contained within an email sent in response to lodgment.

If you need advice regarding property law, please contact our office: 02 9283 8588

Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys. He has been admitted to practise law since 2005. Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

His experience covers all aspects of property law, commercial/retail lease, immigration law and civil litigation, while at the same time, he also has experience in family law, criminal law and other areas such as will-drafting and general advice.

He has frequently been instructed by corporate clients in pre-acquisition due diligence reports, structuring property development, land/shopping centre acquisitions, G.S.T. and stamp duty advice for buying/selling businesses, as well as share transfers and company re-structures.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

400 Temporary Work (Short Stay Specialist) visa

A brief overview of the Subclass 400 Temporary Work (Short Stay Specialist) visa

The Subclass 400 Temporary Work (Short Stay Specialist) visa (‘the specialist visa’) is a type of visa issued by the Australian government that allows individuals to come to Australia for a short period of time to perform a specific type of work.

There are two streams for this visa.

For the highly specialised work stream, it is designed for those who are highly skilled and specialised in their field, and who have been offered a short-term job in Australia.
In terms of Australia’s Interest stream, you must demonstrate that there are compelling circumstances affecting Australia’s interests and the applicant is allowed to and stay in Australia for those compelling circumstances.

To be eligible for the highly specialised work stream of this visa, you must have a valid job offer from an Australian employer for a position that cannot be filled by an Australian citizen or permanent resident. You must also have the skills, qualifications, and experience necessary to perform the work, and you must be able to demonstrate that you are a genuine visitor who will leave Australia at the end of your stay.

The length of stay on this visa can range from three months to six months, depending on the nature of the work and the conditions of the visa. You must also comply with the conditions of the visa, including the requirement to maintain health insurance while in Australia and to only engage in the work specified in your visa application.

One of the benefits of applying for this visa is the short processing time. In general, the specialist visa processing time is much shorter than other work visa subclasses, such as the Subclass 482 and Subclass 494 visa.

Overall, the specialist visa provides a flexible and fast option for individuals who need to come to Australia for a short period of time to perform specialised work urgently.

The eligibility criteria for the Subclass 400 Temporary Work (Short Stay Specialist) visa are:

Job offer: The applicant must have a job offer for highly skilled work in their field of expertise, and the employer must be an approved sponsor.
Compelling Circumstances: where the application is seeking the visa grant under the compelling circumstances stream, they must demonstrate the existence of compelling circumstances which affect Australia.
Specialisation: The position must be highly skilled, and the skills required for the position must not be available in the Australian labour market.
Financial requirements: The applicant must have adequate means to support themselves or have access to adequate means to support themselves during their intended stay in Australia.
Health and character requirements: The applicant must meet the health and character requirements as specified by the Department of Home Affairs.
English language ability: While there is no formal English language requirement for this visa, the applicant must have sufficient English language ability to undertake the work for which they have been offered a job.

These are the general eligibility criteria for the specialist visa. It is always a good idea to check the most recent information and guidelines from our professional migration legal team. We are keen to assist your visa application to suit your specific circumstances and needs.

Highly Skilled and Specialized Stream

The meaning of highly skilled and specialised in their field.

When an individual is considered “highly skilled and specialised in their field,” it means that they have a high level of expertise, knowledge, and experience in a specific area of work. This level of expertise is usually obtained through years of education, training, and practical experience.

For the specialist visa, being highly skilled and specialised in one’s field means that the individual is recognized as an expert in their field and is in high demand for their specialised skills and knowledge. This is usually demonstrated through factors such as advanced degrees, certifications, and a proven track record of successful work in the field.

The Australian government considers a person to be highly skilled if they have the skills, qualifications, and experience necessary to perform the work specified in their visa application, and if they are able to demonstrate that they are a genuine temporary entrant who will leave Australia at the end of their stay.

In general, being highly skilled and specialised in one’s field is a critical factor in being eligible for a specialist visa and is considered by the government when determining whether to grant a visa.

Examples of Highly Skilled and Specialised Fields

The eligible role is required to be highly skilled and specialised. However, it does not require the role to be technical. It is a common mistake that the Subclass 400 Temporary Work (Short Stay Specialist) visa is only designed for occupations such as engineering roles or tradesmanship. Non-technical roles can be eligible for the specialist visa, if they satisfy the ‘highly skilled and specialised’ criterion. The following are some examples of jobs that satisfy the ‘highly skilled and specialised’ requirements.

an installer or maintainer of recently imported equipment, which requires specific knowledge to install or maintain.
a skilled mining engineer advising on a particular procedure or product which is not in use in Australia.
a training professional seeking to enter Australia to support the introduction of new products (for example, newly developed software), concepts or methods (for example, innovative business management techniques) to the Australian workplace or the opening of an international business in Australia.
an internal auditor of an international company who may be required to audit an Australian subsidiary against company-specific control standards.

Whether an applicant satisfies the highly skilled and specialised field requirement will largely depend on the individual circumstances, such as qualifications, licences, registrations, work experiences, nature of the work and many other relevant issues. Please contact our professional migration team to discuss your circumstances before lodging this type of visa.

Jobs that might not satisfy the Highly Skilled and Specialised Requirements

Please note that the Subclass 400 Temporary Work (Short Stay Specialist) visa is not intended for workers who wish to work in a generic profession. For example:

a team of tradespersons being brought to Australia to perform annual shutdown maintenance in an Australian factory.
a computer programmer being brought to Australia to assist a company to manage tight deadlines or peak workloads or
an electrician being brought to Australia to install electrical wiring in a new housing development.

Australia’s Interest stream

Australia’s interest stream enables the Department to grant the specialist visa if there are ‘compelling circumstances affecting Australia’s interest’ to applicants who do not satisfy the highly skilled and specialised stream requirement.

Compelling circumstances in the migration policy

In general, compelling circumstances means unusual or special circumstances in its nature. This stream provides the Department a general discretion to grant the specialist visa based on the individual circumstances.

For example:

the entry of the a person is required to assist in a disaster or emergency or
Australia’s relationship with a foreign government would be damaged were the person not granted the visa or
Australia would miss out on a significant benefit that the person could contribute to Australia’s business, economic, cultural or other development (for example, a special skill that is highly sought after in Australia) if the person was not granted the visa or
Australia’s trade or business opportunities would be adversely affected were the person not granted the visa.

Please note that the visa grant under this stream is discretional and highly circumstantial. Please contact our professional migration team to discuss your circumstances before lodging your specialist visa application.

Other Criteria which apply to both streams

Demonstrated need to be in Australia.

The specialist visa is designed to allow visa holders to visit Australia to participate in certain events or work. The visa applicant must demonstrate that there is a genuine need for the applicant to visit in person to present in Australia in person to fulfil their obligations.

The Department may have regard to, but are not limited to considering, the following factors:

the applicant’s current occupation and skill level (i.e. training and experience), the applicant’s field of study (whether current or recently completed) or area of expertise
whether the applicant’s proficiency in English is sufficient to undertake the proposed activity or work and
the number of times the applicant has undertaken the same or similar activity or work.

Like the highly skilled and specialised requirement, this requirement is also dependent on many factors of your circumstances. Please contact our professional migration team to discuss your circumstances before lodging this type of visa.

Genuine Temporary Entry

The specialist visa applicant must demonstrate that they genuinely intend to stay temporarily in Australia for the purpose for which the visa is granted. The department might consider the following factors:

whether the applicant has complied substantially with the conditions to which the last substantive visa, or any subsequent bridging visa, held by the applicant was subject; and
whether the applicant intends to comply with the conditions to which the Subclass 400 visa would be subject; and
any other relevant matter.

Genuine temporary entry requirement is another important issue for this type of visa application. Please contact our professional migration team to discuss your circumstances before lodging this type of visa.

Adequate means of support

Even though most of the specialist visa applicants will engage in paid work activities in Australia, the specialist visa still requires the applicants to prove that they have adequate financial capacity to support themselves during their stay in Australia.

Concluding remarks

The specialist visa is suitable for visa applicants who wish to work in Australia in highly skilled fields on a non-ongoing basis. It also allows applicants to help Australia in the event of natural disaster or other compelling circumstances. The short processing time is also one of the many benefits that this type of visa can help.

However, it cannot be used for ongoing work or training purposes, where other types of work visas may be more appropriate. Therefore, applicants and their Australian employer must be wary about the purpose and nature of this type of visa before applying. At Legal Point Lawyers, we have a professional migration law team who has years of experience in helping our clients to achieve their goals. Please contact our professional team for the customised assistance regarding specialist visa or any other types of visas.

Mr Tianhao Wu has a very strong background in Australia immigration law, especially in visa applications and AAT appeal applications. He is very experienced in all types of visa applications such as Global Talent Immigration, student visas, tourist visas, parent visas, partner visas, employer sponsored visas, general skilled visas, business skilled visas, bridging visas, other temporary visas, and AAT appeal applications.

Please contact Mr Tianhao Wu:

Email: tianhao.wu@legalpointlawyers.com.au

Mobile: 0416 316 188

Parenting Plan

Following the breakdown of a family unit, parents can make arrangements for their children, independent from the Courts and without the need to commence Court proceedings (if appropriate). Parents can choose to make an informal verbal arrangement as to where the child lives and how much time the child spends with the other parent as well making decisions about the child’s long-term needs and major matters such as decisions about education, health, and religion. In other instances, parents may wish to have such arrangements in writing, as a future reference point for the parents and to avoid any potential disagreement. This type of document is referred to as a “Parenting Plan”. A Parenting Plan is likened to a private contractual arrangement between the parents, providing flexibility to be changed and amended as the needs of the child or circumstances change. Alternatively, parents are also able to file Consent Orders in respect of parenting arrangements.

Parenting Plan

Parents are able to finalise parenting arrangements by engaging in negotiations, exchanging correspondence with proposals between themselves or via their solicitors, or by attending a Family Dispute Resolution Conference (Mediation) with a view of formulating a Parenting Plan. Mediation is a more structured approach and takes place with a qualified Family Dispute Resolution Practitioner. Mediation may be conducted face-to-face, by telephone or shuttle. These alternative dispute resolution process (if appropriate), provide parents with the opportunity to resolve any remaining issues in dispute and to formulate parenting arrangements without commencing Court proceedings. Should the parents reach an agreement, then a Parenting Plan can be prepared and entered into by the parents.

A Parenting Plan should be broad in scope and cover a arrange of matters concerning all aspects of the child’s life. It should include arrangements for both parents to have “equal and shared parental responsibility” as to making decisions in relation to the child’s long-term care, welfare and development in respect to the child’s long-term needs and major matters.

A Parenting Plan should also reflect parenting arrangements that are in the “best interests of the child”, which includes the child spending “equal time” or “substantial and significant time” with both parents. This means, that the child will generally live with one parent and spend frequent time with the other parent on a scheduled basis for sufficient periods of time on each occasion to ensure the child develops a relationship with the other parent. Additional time is scheduled for days of significance and school holidays. Arrangements will differ depending on the child’s age, with future arrangements to trigger when the child reaches certain developmental or age milestones. Parenting Plans should also include arrangements for a child to communicate with the other parent, when they are not living with them.

Cautiously, a Parenting Plan are not enforceable by the Court, and therefore in the event that a parent does not follow the terms of a Parenting Plan, the Court would not be able to enforce the other parent to comply. However, should a parent commence Court proceedings seeking Parenting Orders, the Court may take into account the existing parenting arrangements provided for by a Parenting Plan in making fresh Parenting Orders.

If you would like advice about your family circumstances and your options, please contact our firm for an appointment.

Important Information About De Facto Relationships

What is a de facto relationship?

A de facto relationship is when you and your partner are in a relationship and live together as a couple but are not married. Having regard to all the circumstances of the relationship, the couple must be living together on a genuine domestic basis.

The partners of the couple can be of opposite sex or same-sex. The partners must not be related by family. A de facto relationship can also exist even if one person of the couple is already legally married to a third party or in a de facto relationship with another party.

What determines the status of a de facto relationship?

The following circumstances may be considered to determine whether the persons have a relationship as a couple:

the duration of the relationship;
the nature and extent of their common residence;
whether a sexual relationship exists;
the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
the ownership, use and acquisition of their property;
the degree of mutual commitment to a shared life;
whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
the care and support of children;
the reputation and public aspects of the relationship.

It is noted that no particular finding in relation to any of the above-mentioned circumstances is to be regarded as necessary in deciding whether the couple in is a de factor relationship. For example, it is not necessary for the couple to have children in their care and support in order for their relationship status to be defined as a de facto relationship.

Registering a de facto relationship

Couples living in the State of New South Wales can register the status of their de facto relationship via Service NSW.

The eligibility criteria for registration includes:

One partner of the couple lives in NSW.
Both partners are over 18 years of age.
The partners are not in a registered relationship in another Australian state or territory.
The partners are not married to each other or another person.
The partners are not in a relationship as a couple with another person.
The partners are not related by family.

Seeking a financial settlement post break down of a de facto relationship

Following the breakdown of a de facto relationship, it may be appropriate that one partner the former couple seeks a financial settlement such as an alteration of property interests, splitting of superannuation interest, and/or spousal maintenance. If the former couple is able to determine such matters privately, then a property settlement can be achieved by entering into a financial agreement or consent orders. It is noted that consent orders must be filed with the Federal Circuit and Family Court of Australia within 2 years of the former couple’s date of separation.

In the event that the former couple is unable to come to an agreement, then one partner may seek the Court’s intervention and commence proceedings. However, before the Court can determine the dispute, the applicant must satisfy the Court that the former couple was in a genuine de facto relationship, which has now broken down, together with at least one of the following criteria points:

the couple separated after March 2009;
the de facto relationship was at least 2 years long; and/or
there is a child of the de facto relationship; and/or
the relationship is or was registered under a prescribed law of a state or territory; and/or
one the partners made significant (financial and/or non-financial) contributions to the property of the other, and the failure to now make a Court order would result in a serious injustice.

Additionally, the applicant must have a geographical connection to the Court where the proceedings are to be commenced.

Again, an application by a partner of a former de facto relationship must be filed within 2 years of the former couple’s date of separation.

If you would like advice about your family circumstances and your options, please contact our firm for an appointment.

Discovery and why litigants need to know about it

Are you unsure about suing someone?

You can consider ‘discovery’ to obtain access to documents in the other party’s possession relevant to the matter in question. As a result, you may have access to the necessary resources to prove a case. However, preliminary discovery is a remedy, not a right, pursuant to the court’s discretion. As part of the court’s assessment, the court must balance the needs of the plaintiff against the privacy of the respondent. This article will examine the purposes, benefits and limitations of discovery with support of real-life case examples.

Purpose of Discovery

The history of discovery dates to the 19^th Century. Generally, there are three purposes of discovery:

1. It minimises the possibility of surprise;

2. It causes litigation to be fair by placing the parties in an equal position at the final hearing; and

3. It assists with identifying the issues in dispute.

Therefore, the parties have access to possible benefits such as enabling an earlier appraisal by the parties of their cases and consequently promote settlement, save time and reduce legal costs. Litigants will be more informed in their decision-making and settlements will more likely represent the real merits of the matter.

Limitations to Discovery

a) Documents cannot be discovered if they are shielded by privilege. Examples of privilege include, but are not limited to, legal professional privilege between solicitor and client; privilege against self-incrimination; public interest immunity; and privilege attached to ‘without prejudice’ documents.

b) The party who receives the discovered materials must not use it for purposes outside of the proceedings. Failure to uphold this obligation may be deemed as contempt of court, which attracts serious consequences.

c) Document must be in the possession or under the control of a party.

Case example: Discovery to identify a defendant

The rise in globalisation and international trade in the modern world have caused the identification of an appropriate defendant very difficult. For example, in Norwich Pharmacal Co v Customs & Excise Commissioners [1974], the plaintiff successfully obtained court orders for discovery to identify who was importing chemicals into England in breach of the plaintiff’s patent.

Case example: Discovery to assist with proof of a case

In Bank of New South Wales v Undaunted Gold Mining Co (1870), the defendant had refused to admit cheques drawn on the plaintiff bank. Discovery orders were granted in favour of the plaintiff for the purpose of accessing the defendant’s books. With this information, the plaintiff could prove that the defendant had drawn the cheques on the plaintiff.

Conclusion

Discovery is a very useful remedy when litigants do not have a complete understanding of the facts, issues and evidence. Purposes of discovery include reducing the chance of surprise at trial; ensuring an equal footing between the parties; and point out the issues in dispute. However, an order for discovery is not immediately granted by the courts. To ensure that you have a good chance, our experience litigation team can help with the preparation of court documents.

Disclaimer:

This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is hereby expressly disclaimed.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Email: ge.wu@legalpointlawyers.com.au

Director ID – must-have for every Australian company director

Like every Australian company which has a unique Australian Company Number (ACN), pursuant to a reform by the Australian Government which commenced from 1 November 2021, every director of an Australian company is now required to have an Australian director identification number (director ID). Failure to comply with this requirement may incur civil or criminal liabilities.

What is a director ID？

A director ID is a unique 15-digit code required of every person serving as or intends to serve as a director of an Australian company. An application for a director ID must be made to the Australian Business Registry Services (ABRS) as follows:

– a director appointed before 1 November 2021 must apply for a director ID by 30 November 2022;

– a director appointed between 1 November 2021 and 4 April 2022 must apply for a director ID within 28 days of their appointment; and

– from 5 April 2022, a person must first apply for a director ID before being appointed as a director.

One director may apply for only one director ID. Once granted, the director ID stays with the director even if his or her name, company, occupation or address changes.

How to apply for a director ID？

An application for a director ID is free. Normally a person may apply for the ID online using the myGovID app by passing its identify verification process and filing an online application.

Alternative ways of application are also available if a person has difficulties in using the myGovID app or passing the identify verification (such as overseas residents), including telephone or paper applications. The relevant hotline and application forms can be found on the ABRS website.

Application for a director ID is subject to stringent identity checks and the applicant is inquired to provide copies of his or her valid identity documents as required by ABRS.

What if you do not comply with the requirement？

The Australian Corporations Act 2001 (Cth) has been updated with statutory provisions regulating the director ID. Non-compliance with these provisions may be an offence with significant legal consequences, including:

– a substantial fine if a person fails to apply for a director ID on time; and

– a substantial fine and even prison terms if a person applies for multiple director IDs or misrepresents a director ID.

We can assist you

As part of a reform by the Australian Government in its commercial regulatory framework, the director ID affects everyone who serves as or intends to serve as a director in an Australian company. Apart from preventing identity fraud of company directors, the director ID will play an essential role in facilitating the tracing and identification of company directors in such cases as company administration, liquidation, or investigation into unlawful activities. Our experienced commercial lawyers are ready to assist you and your company with tailor legal advice and comprehensive legal services to address your need.

LegalPointLawyers

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Runaway Tenants

A runaway tenant is a challenge faced by commercial and residential landlords, particularly during a pandemic. There are many possible reasons for tenants to behave in this way. Over the past two years, commercial tenants have been significantly impacted by government restrictions, which have lead to staff shortages and reduced foot traffic. Whereas residential tenants are confronted with a rise in unemployment and reduction of work hours.

In January, the New South Wales government extended the National Code of Conduct for commercial tenancies for another two months, giving rent waivers and deferrals to commercial tenants. Arguably, this measure curbs the risk of runaway tenants.

To better protect the interests of the landlord, this article will examine the mechanism of a break fee and other legal remedies. Each state and territory of Australia has its own unique laws on tenancies and property abandonment. Therefore, complying with these laws will assist the landlord with re-renting the property and recovering lost income quickly.

Break fee

When a tenant signs a fixed term lease, they are committing to stay for the full term. If a tenant intends to move out before the end of the fixed term, the tenant will likely incur a break fee, being a penalty. Mandatory break fees may apply based on how many months have elapsed since the commencement date.

For leases of three years or less, the set break fees payable are:

– four weeks rent if less than a quarter of the agreement has expired.

– three weeks rent if a quarter or more but less than half of the agreement has expired.

– two weeks rent if half or more but less than three quarters of the agreement has expired.

– one weeks rent if three quarters or more of the agreement has expired.

The landlord can also make a claim against the bond if the tenant breaks the lease early.

Our law firm has witnessed many outdated leases that do not prepare for tenants who break the lease early. Contact our property team today to ensure that your lease thoroughly protects your interests.

Remedies at common law

Ideally, every tenant will pay rent on time for the full duration of the Lease and provide proper notice to the landlord before moving out. However, what can you do if the tenant leaves the keys behind with outstanding rent?

At common law, failing to pay rent on time entitles a landlord to terminate the lease because it is a breach of an essential term.

If the breach is not capable of being remedied or rectified, the landlord can ask for reasonable monetary compensation. One cost-efficient solution to claim compensation is to write a letter of demand to the tenant. Our article here summarises the content and effect of a letter of demand.

If the tenant does not respond, then you can draw and file a statement of claim in court. The jurisdiction of the court depends on the size of the claim.

Conclusion

Therefore, it is very important to be aware of the legal remedies available to a landlord when a tenant fails to pay rent. The landlord can seek a break fee, which can be recoverable from the bond. Furthermore, the landlord can terminate the lease and even seek compensation by way of letter of demand or a statement of claim. If you are experiencing a difficult time dealing with a tenant who is likely to not pay rent, then contact our experienced property law team for advice. Time is of the essence to maximise your chances of recovering unpaid rent.

Disclaimer:

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Email: ge.wu@legalpointlawyers.com.au

How to make someone bankrupt in Australia

In January 2021, the Australian government amended the Commonwealth bankruptcy regulations to adjust the threshold for triggering bankruptcy from $20,000.00 to $10,000.00. Therefore, if someone owes you or your business $10,000.00 or more, then you may be eligible to apply to the courts to make them bankrupt. This article will explore the consequences of bankruptcy and the procedure of making someone bankrupt.

Meaning of bankruptcy

In Australia, bankruptcy refers to the legal status imposed by the Bankruptcy Act 1966 (Cth) (‘the Act’) upon individuals only. The Act confers the assets of the debtor in a trustee for sale. The sale proceeds are distributed to the creditors until the debtor’s indebtedness is fully discharged. Assets may include real estate, cars and savings in a bank account.

The normal term of the bankruptcy is three years, but it may be extended to eight years depending on the debtor’s conduct and affairs. During this period, the debtor has a duty to assist the trustee and an obligation to make contributions to the bankrupt estate. The debtor is also restricted from obtaining credit and travelling outside of Australia.

The Australian Financial Security Authority (‘AFSA’) is responsible for the regulation and administration of the bankruptcy system in Australia.

Steps to make someone bankrupt

1. Obtain a court judgment or order

The judgment or order must show that the person owes you $10,000.00 or more.

2. Check the National Personal Insolvency Index (‘NPII’)

The NPII outlines all people who are bankrupt in Australia.

3. Apply for a bankruptcy notice online

A bankruptcy notice is a formal demand for payment based on the judgment or order. Further details on how to apply are available on the AFSA website and an application fee is a payable.

4. Serve the bankruptcy notice

You must serve the bankruptcy notice within six months of the date it was issued by AFSA. Methods of service include personal delivery, post and email. If the notice cannot be served, then you can apply to the courts for an order of substituted service. To comply with the notice, the debtor can arrange a suitable payment by instalment plan with you.

5. File a creditor’s petition in the Federal Court of Australia or the Federal Circuit Court of Australia.

A creditor’s petition must be supported by the debtor’s act of bankruptcy within six months before the presentation of the petition. Acts of bankruptcy are listed in s 40 of the Act. The most common one is a failure to comply with a bankruptcy notice.

Furthermore, a creditor’s petition must be:

a) in the prescribed form;

b) executed by or on behalf of each creditor;

c) supported by an affidavit verifying the factual matters it contains; and

d) personally served on the debtor unless an order for substituted service is obtained.

6. Appoint a trustee

The trustee will manage the bankruptcy and investigate whether they can claim assets to pay creditors. A full list of trustees is available on the AFSA website.

7. Obtain a sequestration order

If the court accepts your creditor’s petition, it may make a sequestration order to make the debtor bankrupt.

Conclusion

Demanding payment by way of bankruptcy should be the last resort given that it is a costly, technical and lengthy process. If a debtor owes you a large sum of money, you need to act quickly. Our team at Legal Point Lawyers can simplify the process for you and enhance your chances of recovering the money owed to you.

Disclaimer

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Division 7A loan from a company

A loan from a private company to a shareholder or an associate of a shareholder may be deemed to be a dividend unless certain requirements are met. Without a compliant loan facility agreement, the loan may become assessable income for the shareholder. In other words, the shareholder will need to pay tax on that amount.

The law

Division 7A of the Income Tax Assessment Act 1936 (Cth) contains anti-avoidance provisions that are aimed at preventing private company shareholders from avoiding dividend taxation by accessing company profits in another form, for example, by way of a loan.

For a person to be a ‘shareholder’ of a company, that person needs to be entered on the register of shareholders. The word ‘associate’ has a broad definition and it includes relatives, partners, trustee of a trust and a company.

The exception

The most significant exception to the operation of Income Tax Assessment Act 1936 (Cth)is where the loan is made subject to a written agreement that complies with the criteria set out in section 109N of the Income Tax Assessment Act 1936 (Cth).

Criteria of Income Tax Assessment Act 1936 (Cth)

The criteria are technical and extensive therefore it is prudent for you to seek a lawyer to assist you with drafting this document.

The written agreement must provide:

– that the interest rate payable for an income year subsequent to the income year in which the loan was made is at least equal to the benchmark interest rate for that year. The ATO publishes the benchmark interest rates for income years from and including the 1998–99 income year.

– that the maximum term of the loan is 25 years if the loan is a secured loan or 7 years if the loan is not secured.

– the name of the parties, being the company and the company’s shareholder or associate of the shareholder.

– the loan terms including the amount of the loan, the date the loan amount is drawn, the requirement to repay the loan amount, the period of the loan and the interest rate payable.

– minimum yearly repayment. Failure to make the required minimum repayment of the amalgamated loan in a later year will trigger a deemed Div 7A dividend to the extent of the deficiency.

For a loan to be secured:

– 100% of the value of the loan must be secured by a registered mortgage over real property; and

– when the loan is first made, the market value of that real property (less the amounts of any other liabilities secured over that property in priority to the loan) must be at least 110% of the amount of the loan

How we can help

There are material tax consequences when money is lent from a company to a shareholder. A generic loan agreement will not be satisfactory. Our commercial law team at Legal Point Lawyers can assist you with drafting a loan facility agreement that complies with Division 7A of Income Tax Assessment Act 1936 (Cth).

By clicking on the button below, you can access our fully-featured document that satisfies all the requirement in Division 7A of Income Tax Assessment Act 1936 (Cth).

Division 7A Loan

Disclaimer:

Mr Ge Wu is the solicitor director of Legal Point Lawyers & Attorneys. He has been admitted to practise law since 2005. Throughout his practice, Ge Wu predominantly practises in the areas of Property Law, Immigration Law, Commercial Law, Civil Litigation and Family Law.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Email: ge.wu@legalpointlawyers.com.au

Why you need a Deed of Settlement and Release

A Deed of Settlement and Release is a legal document that contains terms and conditions between disputing parties. Common disputes revolve around unpaid loans, unpaid work and employment contracts. For example, an employer could request their employee to sign a Deed of Settlement and Release to ensure that the employee cannot make any claims after their employment has ceased. This article will briefly explain the advantages of preparing a Deed of Settlement and Release, the key terms and conditions and how you can obtain a copy for yourself.

Advantages of a Deed of Settlement and Release

Drawing a Deed of Settlement and Release has four distinct advantages:

1. It is a cost-effective solution in comparison to resolving a dispute in Court.

2. It can be drafted quickly provided that all the terms and conditions have been negotiated.

3. It offers both parties certainty in their respective obligations as the Deed of Settlement and Release is written and signed. Too often agreements to settle a dispute are made verbally, which creates unnecessary risk.

4. It is legally binding, which means the Deed of Settlement and Release is recognised by the Court. For example, if Party A failed to pay Party B according to the Deed of Settlement and Release, then Party B can submit a claim in Court and rely on the Deed of Settlement and Release as strong supporting evidence. The Court can make an order to reflect the terms of the Deed of Settlement and Release and grant Party B remedies to enforce that order.

Key provisions

A Deed of Settlement and Release typically includes the following key provisions:

a) Recitals. This provision is a summary of the dispute including the parties’ names and key events with dates.

b) Settlement terms. This provision could be as simple as a single sentence stating that Party A pays a lump sum payment to Party B on a specific date.

c) Mutual releases. Under the Deed of Settlement and Release, Party B will ‘release’ Party A from future claims, demands and actions. In other words, Party B waives any right to sue Party A and releases Party A from any liability for any losses in respect of the claim. Conversely, Party A will release Party B.

d) Confidentiality. Both parties have an obligation to not disclose information relating to the Deed, clients, suppliers and other financial affairs.

e) Non-disparagement. Both parties have an obligation to not communicate in any way any statement that might reasonably be constructed to be negative to any other party. The purpose of this clause is to preserve the reputation of both parties, keeping the dispute resolution process clean.

f) Jurisdiction. Importantly, the Deed of Release and Settlement should note which court has exclusive jurisdiction to settle any dispute or claim. Jurisdiction means the scope of a court’s authority to decide matters. Often the jurisdiction given to a court is based on geographical area, for example, the laws of New South Wales, Australia.

How we can help

The good news is that our law firm offers online services so that you can create legal documents conveniently at home, without the need to meet a lawyer in-person near you. Our cutting-edge Deed of Settlement and Release is suitable for individuals and companies. Access the Deed of Settlement and Release now by clicking on the button below.

Deed of Settlement and Release

If the other party has requested you to sign a Deed of Settlement and Release, it is prudent that you allow a lawyer to review it and obtain legal advice.

Disclaimer:

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Email: ge.wu@legalpointlawyers.com.au

How to enforce a default judgment when the defendant does not respond

According to a 2016 report published by the Law and Justice Foundation of New South Wales, a sizeable 37% of Local Court matters were finalised through default judgment. Fair to say that without this summary disposal process, many cases would remain unresolved, and injustice would be prevalent.

A default judgment applies to proceedings commenced by statement of claim in the Local Court, District Court or Supreme Court and can be entered if the defendant is in “default”. A defendant is in default if the defendant fails to file a defence within 28 days of serving the defendant with the statement of claim. However, a defendant is not in default if the defendant has made a payment towards a liquidated claim. This article will explore the consequences of a default judgment and the procedure of obtaining one.

Consequences

Significant financial consequences are attached to default judgments. After a default judgment is entered, the plaintiff can commence action to enforce the default judgment against the defendant. Enforcement actions include, but are not limited to, writ for the levy of property, garnishee orders and bankruptcy. Furthermore, the plaintiff can seek additional legal costs and interest from conducting the enforcement action.

Another consequence of a default judgment is that it can be recorded on the defendant’s credit report and negatively impact the defendant’s ability to borrow from banks and other financial institutions.

Procedure

The procedure concerning a default judgment will depend upon whether the plaintiff’s claim is liquidated or unliquidated.

A liquidated claim is one where the amount claimed is known or can be determined. Examples of a liquidated claim are loan agreements and building contracts which contain clauses by which parties fixed the total damages if a breach occurs. For liquidated claims, an affidavit in support, an affidavit of service and a notice of motion need to be filed in court. If these documents are in order, the registrar will sign and seal a form of the judgment without the need for you to attend court. A signed and dated copy of the judgment will be sent to the plaintiff or the registrar will send a notice to the plaintiff that confirms the default judgment was entered.

An unliquidated claim includes a claim for damages and will need an assessment by the court. Examples include motor vehicle accidents and defamation claims. Unliquidated claims are usually case managed.

If the plaintiff does not apply for a default judgment within 9 months of filing a statement of claim, the court can dismiss the case. Once a default judgment is entered, the plaintiff has 12 years from the date of judgment to enforce the default judgment.

Conclusion

Therefore, default judgments are very important to the operation of the civil justice system as they present an outlet for plaintiffs to resolve their matters when defendants fail to respond. When a default judgment is entered, proceedings are concluded without the need to attend trial and the plaintiff will have access to a wide range of enforcement actions. If a defendant does not respond to your claim, you should seek a lawyer to prepare a notice of motion (default judgment). Our civil litigation team at Legal Point Lawyers has profound experience so you can be assured that you will get the outcome you deserve.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

The meaning of due diligence in the context of purchasing a business

The first major task involved in any proposed purchase is called due diligence. It is the process by which the purchaser examines the ‘target’ (assets collectively, business or company) to determine whether to proceed with negotiations on the purchase, how the transaction would be structured and what the purchaser believes the target is worth. This article will examine the tasks that the purchaser needs to undertake before the share or asset purchase agreement is finalised.

Sign a Non-Disclosure Agreement (‘NDA’)

One document that is ancillary to the share or asset purchase agreement is an NDA, or a Confidentiality Agreement. Before the vendor reveals its records to the purchaser, the vendor will usually expect the purchaser to sign an NDA. As the records are commercially sensitive, the vendor would want an NDA to be signed to deter the purchaser from competing with the vendor if the sale does not proceed. Common terms of an NDA include:

– mutual confidentiality obligations on both parties with respect to all information each receives from the other party;

– a prohibition on either party publicly announcing the transaction; and

– obligations on the return and/or destruction of materials either once the transaction is completed or determined that the transaction will not proceed.

Prepare a Memorandum of Understanding

Another ancillary document that needs to be prepared is the Memorandum of Understanding, also known as a Heads of Agreement. It records the critical elements of the transactions that the parties have agreed in-principle as well as those that remain outstanding. Matters that should be addressed include, but are not limited to:

– Name of the parties;

– Purchase price;

– A non-reliance provision; and

– Composition of the purchase consideration.

Searches and enquiries

The type of searches carried out will vary from business to business. Due diligence generally involves searches of the following:

– Search the Personal Property Security Register to find any security interests over the company, such as charges taken by the vendor’s bank to secure the company’s borrowings. The purchaser needs to make sure that the assets being purchased are not subject to any registered encumbrance.

– Search the company name on ASIC to confirm that the company exists and is not subject to external administration.

– Search records relating to the registration of any relevant trademarks.

– Search NSW Land Registry records to identify the owner of the land, any mortgagees and any inconsistent registered leases.

If the business is a real estate agency, a restaurant or a bar, then the purchaser’s lawyer should review the licence conditions and compliance with those conditions.

The purchaser may request to view a large volume of documents including financial records, legal documents and other business records. Financial records, including sales figures, staff salaries, customer lists and budgets and forecasts, are usually inspected by the purchaser’s chief financial officer or accountant. Legal documents such as contracts and leases are inspected by the purchaser’s solicitors.

The purchaser may also wish to run interviews with employees of the business, attend management presentations and inspect the premises, plant and equipment.

Conclusion:

Due diligence is a complex and essential step prior to any purchase of business. Tasks include the signing of an NDA; preparation of a Memorandum of Understanding; and searches and enquiries. Altogether, they can consume a significant amount of purchaser’s resources. Therefore, it is prudent for purchasers to seek legal advice prior to purchasing a business to minimise risk and costs.

Disclaimer: This publication provides general information of an introductory nature and is not intended and should not be relied upon as a substitute for legal or other professional advice. While every care has been taken in the production of this publication, no legal responsibility or liability is accepted, warranted, or implied by the authors or our firm, and any liability is herby expressly disclaimed.

How to have your COVID-19 Digital Certificate notarised?

It has been three month since NSW entered into Lockdown due to the delta variant. The Public’s travel has been substantially affected. Following that NSW Government declared that the State would be in much freedom once the vaccination rate reach 80%, COVID-19 Digital Certificate and Vaccine Passport become a common topic in people’s daily life. Although the international travel is strictly monitored by the government, people are now aware that COVID-19 Digital Certificate would become a mandatory document to be carried on board an international plan. In this article, we will explain the frequently asked question in relation to the vaccination record, including how to receive your COVID-19 Digital Certificate, how to have it notarised, how to have it authenticated/apostilled and etc?

What is a COVID-19 Digital Certificate?

COVID-19 Digital Certificate is a proof of Vaccination issued by Australian government. It would record the type of vaccine that you had, the date of your vaccinations and the date from when the Certificate is valid. People would receive a copy of the COVID-19 Digital Certificate only when they complete the two doses of the approved COVID-19 vaccine. In Australia, the current approved vaccine are Pfizer and AstraZeneca.

It is known that most countries now require the travellers to have their COVID-19 Digital Certificate legalised by the government authority if they intend to travel overseas during the Pandemic.

How to obtain a copy of your COVID-19 Digital Certificate?

People would only receive a digital Certificate by using their Medicare of Individual Healthcare Identifier services through myGov account.

If you are not eligible for Medicare, you would need to link the Individual Healthcare Identifier service with your myGov account.

How to have your COVID-19 Digital Certificate legalised?

If you intend to use the COVID-19 Digital Certificat in a foreign country, you may be required to have the Certificate to be issued with an authentication or apostille certificate. Before you can have the Certificate legalised by the Department of Foreign Affairs and Trade Australia, you need to have the Certificate notarised by a notary public in your state.

As the Certificate is issued in a digital form, there are currently news articles circulating, regarding the forged Certificate. In this case, the notary public is required by the rules to verify the authenticity of the Certificate. In the case that it is an essential and critical service, you are allowed to meet the notary public in person with precautions so that the notary public can verify the authenticity of the Certificate. Considering that the Certificate would only be able to access with your login details of myGov account, there are no other means that you can forward the original link to the notary public. In this case, you would need to meet the notary public in person and log into your myGov account in the presence of the notary public.

Following verifying the authenticity of your Certificate, the Notary Public would be able to issue a Notarial Certificate and seal it with a print copy of the digital Certificate. Your COVID-19 Digital Certificate is therefore notarised. You can continue with the legalisation service in the Department of Foreign Affairs and Trade.

Following the easement of lockdown measures, the Government has restarted international travel for fully-vaccinated citizens and permanent residents. It is important to have your documents ready so that there would be no delay on your travel plan. We can also help you attend the legalisation service in the Department of Foreign Affairs and Trade. If you have any queries, please feel free to contact us.

吴戈律师

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Cross Border Families

Often, following the breakdown of a family unit, parents are able to mediate and make living with and spend time with arrangements for their child, in other circumstances, parents require a domestic Family Law Court to make Court Orders in relation to such parenting arrangements. But as more and more family units consist of family members from a diverse family, cultural or international background, parents may be faced with the challenge of deciding where the new family unit post-breakdown will reside, whether this be domestically or internationally, especially when one parent wishes to relocate to another country or return overseas to reunite with their extended family. In some instances, parents are able to agree that their child will continue to live in Australia, or be permitted to travel for overseas visits, or relocate to another country that is reflective of a parent’s international background. However, there are other instances where parents cannot agree, and one parent then takes matters into their own hands and makes an executive decision to remove their child from Australia indefinitely, and importantly, without the other parent’s knowledge nor consent. In other instances, a parent, who may reside in a different country has retained a child following the end of an overseas visit. Such matters are referred to “international child abduction”. This is because the Hague Convention on the Civil Aspects of International Child Abduction (Convention of 25 October 1980) (herein referred to as the “Hauge Convention”) recognises that it is wrongful to remove a child from a country or fail to return a child to their usual country of residence in circumstances where the “taking parent” does not have the right to do so. Such circumstances, the “left behind parent” should quickly take action and seek the return of their child to their usual country of residence. Whilst the Hauge Convention provides the international legal framework, it is noted that not all countries are signatories nor enforce such matters.

Under Australian law, the Hauge Convention is enforced and recognised, and therefore parents are able to seek assistance with the following scenarios:

1. Seek parenting arrangements for a child who is living in Australia, or

2. Seek the return of a child who has been removed from a listed convention country (State) to Australia, or has been unlawfully retained in Australia.

Under the current Australian family law framework, being the Family Law (Child Abduction Convention) Regulations 1986 (Cth), a party can file an application to seek a declaration that the retention of child in a convention Country is wrongful under the Hague Convention, or seek that the removal of child from Australia to a convention Country is wrongful under the Hague Convention.

The Hague Convention is enforced between Australia and the following countries:

1. Albania	31. Guatemala	61. Saint Kitts and Nevis
2. Argentina	32. Honduras	62. San Marino
3. Armenia	33. Hong Kong (China)	63. Serbia
4. Austria	34. Hungary	64. Singapore
5. Bahamas	35. Iceland	65. Slovakia
6. Belarus	36. Ireland	66. Slovenia
7. Belgium	37. Israel	67. South Africa
8. Belize	38. Italy	68. Spain
9. Bosnia and Herzegovina	39. Japan	69. Sri Lanka
10. Brazil	40. Latvia	70. Sweden
11. Bulgaria	41. Lithuania	71. Switzerland
12. Burkina Faso	42. Luxembourg	72. Thailand
13. Canada	43. Macau (China)	73. The Former Yugoslav Republic of Macedonia (FYROM)
14. Chile	44. Malta	73. The Former Yugoslav Republic of Macedonia (FYROM)
15. Colombia	45. Mauritius	74. Trinidad and Tobago
16. Costa Rica	46. Mexico	75. Turkey
17. Croatia	47. Moldova, Republic of	76. Turkmenistan
18. Cyprus	48. Monaco	77. Ukraine
19. Czech Republic	49. Montenegro	78. United Kingdom
20. Denmark	50. Netherlands	79. United States of America
21. Dominican Republic	51. New Zealand	80. Uruguay
22. Ecuador	52. Nicaragua	81. Uzbekistan
23. El Salvador	53. Norway	82. Venezuela
24. Estonia	54. Panama	83. Zimbabwe
25. Fiji	55. Paraguay
26. Finland	56. Peru
27. France	57. Poland
28. Georgia	58. Portugal
29. Germany	59. Republic of Korea
30. Greece	60. Romania

The following countries have acceded to the Hague Convention on the following dates, but it is not yet in force between Australia and these countries:

1. Andorra	(acceded in April 2011)
2. Gabon	(acceded in December 2010)
3. Guinea	(acceded in November 2011)
4. Iraq	(acceded in March 2014)
5. Kazakhstan	(acceded in June 2013)
6. Lesotho	(acceded in June 2012)
7. Morocco	(acceded in March 2010)
9. Russia	(acceded in July 2011)
10. Seychelles	(acceded in May 2008)
11. Zambia	(acceded in August 2014)

The following elements are integral elements of cases concerning the international abduction of children:

1. Children covered by the Hague Convention

The Hauge Convention ceases to apply when the child attains age 16 (Authority: Article 4 of the Hague Convention).

2. Habitual Residence

The child’s usual State (Country) of residence prior to the wrongful removal or detention of the child overseas.

The removal or retention of a child is considered to be wrongful where:

– It is in breach of rights of custody attributed to a person by the State in which the child was habitually resident immediately before the removal or retention; and

– At the time of removal or retention, those rights were actually exercised, either jointly or alone, or would have been exercised, but for the removal or retention (Authority: Article 3 of the Hague Convention).

The Hauge Convention applies to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights (Authority: Article 4 of the Hague Convention).

3. Jurisdictional issues under the Hague Convention

Applications need to be lodged within a reasonable time (Authority: Article 16 of the Hague Convention).

4. Return and Time Limits

If a period of less than 1 year has lapsed from the date of the wrongful removal or retention, the court shall order the return of the child (Authority: Article 12(1) of the Hague Convention).

5. Rights of Custody

Rights of custody may arise by operation of law, by judicial or administrative decision, or by agreement having legal effect under the law (Authority: Article 3(a)(b) of the Hague Convention).

“Rights of custody” includes rights relating to the care of the child and the right to determine the child’s place of residence.

“Rights of access” includes the right to take the child for a limited period of time to a place other than the child’s habitual residence (Authority: Article 5(a)(b) of the Hague Convention).

6. Exceptions to Return: Consent and Acquiescence

The person having care of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention (Authority: Article 13(1)(a) of the Hague Convention).

7. Exceptions to Return – Grave Risk of Harm

Question to be considered – if the child was returned to State X, is there a grave risk the child would be exposed to physical or physiological harm, or otherwise placed in an intolerable situation? (Authority: Article 13(1)(b) of the Hague Convention).

8. Exceptions to Return – Child’s Objection to Return

The Court may refuse to order the return of the child, if it finds the child objects to being returned, and has attained the age and degree of maturity at which it is appropriate to take account their views (Authority: Article 13(2) of the Hague Convention).

9. Exceptions to Return – Settlement of the Child

Even where the proceedings have been commenced after the expiration of the 1 year period, the Court shall also order the return of the child, unless it can be shown the child has settled in its new environment.

Lastly, where the Court has reason to believe the child has been taken to another State, it may then stay the proceedings or dismiss the application for the return of the child (Authority: Article 12(2)(3) of the Hague Convention).

Georgia holds a Bachelor of Laws and Bachelor of Business Administration from Macquarie University and a Graduate Diploma of Legal Practice from The College of Law. Georgia was admitted as a Solicitor of the Supreme Court of New South Wales and her name was entered on the High Court Register of Practitioners.

Prior to joining Legal Point Lawyers, Georgia predominately practiced as a Solicitor within Family Law, acting for clients seeking parenting arrangements as well as urgent relief such as Airport Watch List Orders and Recovery Orders.Georgia also held carriage of matters falling within the Care and Protection jurisdiction of the Children’s Court, acting in Application of Care Orders and Application to Vary or Rescind Care Order matters.

During her time at Legal Point Lawyers, Georgia has acted in transactional and litigation matters within Family, Equity and Commercial Law jurisdictions. Georgia has further appeared on behalf of clients in Status of Foreign Judgement matters, successfully obtaining Orders to recognise and enforce foreign Judgements within the local jurisdiction.

Email: georgia.vlachos@legalpointlawyers.com.au

Calderbank Letters

If you have been represented by a lawyer in a civil dispute, you may have heard the legal term ‘Calderbank letter’ or ‘Calderbank offer’. The word ‘Calderbank’ is actually a surname, and it originates from the English Court of Appeal case, Calderbank v Calderbank, in 1975. Although the decisions from English cases are not automatically binding in Australia, it has nevertheless been adopted by the Australian judicial system. Australian courts aim to achieve dispute resolution in three ways: litigation management; referral of matters to alternative dispute resolution; and the use of costs orders to penalise parties who reject settlement offers. One way to make a settlement offer is through a Calderbank letter. This article will explain why Calderbank letters are important to clients and examine its essential elements and legal consequences.

What is a Calderbank letter?

A Calderbank letter is an informal offer of settlement which carries potential costs benefits for the party making that offer (‘the offeror’). If several conditions are satisfied, the Court will consider making a costs order after the substantive issues are solved at trial.

Why are Calderbank letters important?

Calderbank letters encourage proper compromise of litigation so that the dispute can end as soon as possible. The potential for Courts to impose costs orders discourages stubborn resistance and unreasonable behaviour by the parties. If the matter is settled early, both parties will save significant legal costs and stress. By encouraging settlement, the substantial case load in NSW courts will also be eased and consequently reduce delays and facilitate greater access to justice for the public.

Case summary of Calderbank v Calderbank [1976] Fam 93

Prior to 1976, informal offers of settlement could not be raised in Court because they were not admissible. The decision of Calderbank is the first time where the Court recognised informal offers of settlement and featured costs orders in favour of the offeror.

Court:

English Court of Appeal

Facts:

The case concerned a matrimonial property dispute between Mr Calderbank (husband) and Mrs Calderbank (wife). Mrs Calderbank, who financially supported her family for 17 years, sought a declaration that she was the sole beneficial owner of the matrimonial home. However, Mr Calderbank refused to leave the matrimonial home and applied for a property adjustment order. Before the matter went to trial, Mrs Calderbank offered Mr Calderbank another house, which was worth 12,000 pounds in exchange for Mr Calderbank leaving the matrimonial home. Mr Calderbank rejected this offer. At trial, the Court ordered a lump sum payment of 10,000 pounds to Mr Calderbank from the proceeds of the sale of the matrimonial home. Unhappy with the outcome, Mrs Calderbank appealed on two grounds:

1. The Court had no legal jurisdiction to make such a property division.

2. Mr Calderbank should not be entitled to legal costs because he declined a reasonable pre-trial settlement offer. Mrs Calderbank submitted that she should have her costs paid by Mr Calderbank as her pre-trial offer was greater than the lump sum awarded by the trial judge.

Decision:

The Court of Appeal dismissed the first ground and accepted the second ground. The Court outlined that an offer of settlement, although inadmissible as to the substantive issues of the case, can still be relevant when the Court turns to making cost orders. It was subsequently held that this principle would not only apply in family court proceedings but to all civil proceedings.

Elements of a Calderbank letter

Below is a non-exhaustive list of requirements for a Calderbank letter.

1. The letter includes a statement that the offer is made in accordance with the principles from Calderbank v Calderbank [1976] Fam 93.

2. The letter must indicate the period that the offer will remain open. A reasonable period would be 14 days.

3. Some courts have demanded that the letter provide reasons why the offer should be accepted. This can be achieved by raising the offeree’s low prospects of success and the weaknesses in their case.

4. The letter needs to be precise so that the judgment and order can be readily compared. Ideally, the amount should exclude costs and interests.

5. The letter must represent a genuine offer of compromise.

6. The letter must clearly show the words “without prejudice”. This way, it cannot be given in evidence as an admission of liability.

7. The offeror bears the burden of drafting an offer that is clear enough for the court to make the determination as to the reasonableness of the rejection of the offer. The Supreme Court of Victoria in Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) provides guidance in this aspect. The Court should consider the following factors:

– The stage of the proceeding at which the offer was received;

– The time allowed to the offeree to consider the offer;

– The extent of the compromise offered;

– The offeree’s prospects of success, assessed as at the date of the offer;

– The clarity with which the terms of the offer were expressed;

– Whether the offer foreshadowed an application for an indemnity costs in the event of the offeree’s rejecting it.

Conclusion

A Calderbank letter must contain an offer that is genuine, precise and not bettered by the offeree upon judgment. Reaching a compromise through a Calderbank letter is generally a better solution than continuing expensive and drawn-out court proceedings. Before you write an offer to the other side, you should contact a lawyer for a consultation. Our litigation team have over 10 years of experience in representing clients across all levels of court.

Disclaimer:

This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Daniel’s expertise spans civil litigation, criminal law and real property matters.

Daniel is noted for his experience in settling a complex family law matter concerning the division of matrimonial property. Furthermore, he has appeared in Courts across New South Wales for criminal matters ranging from traffic offences to assault charges to bail applications. Daniel also has extensive knowledge and experience to prepare and advise on commercial leases and contracts for the sale of land.

He has a keen interest in obtaining the best possible outcome for his clients in the most cost-efficient way. Clients appreciate Daniel’s responsiveness, business acumen and ability to deliver advice that is easy to understand.

Daniel holds a Bachelor of Laws and Bachelor of Commerce from the University of Sydney. He is a solicitor of the Supreme Court of New South Wales.

He is proficient in English and Cantonese.

Email: daniel.wong@legalpointlawyers.com.au

The technical requirements of a statutory demand

A statutory demand is a formal demand for payment of a debt owed by a company. Creditors issue statutory demands to show the Court that the company is insolvent and apply for winding-up orders. Section 459E of the Corporations Act 2001 (Cth) [‘the Act’] clearly sets out the requirements of a statutory demand, which can be applied in the Federal Court or the Supreme Court of New South Wales. Although the list of requirements appears to be simple, in practice it is filled with pitfalls due to the technical nature of the requirements and the enforcement of strict procedural compliance by the Courts. Most requirements are tied to case law which go into further detail about the Court’s expectations. This article will share a case summary of Austech Institute for Further Education Pty Ltd v Britt [2010] NSWSC 56.

Presumption of insolvency

Under s459C(2) of the Act, the Court must presume that the company is insolvent if, during or after the three months ending on the day when the application was made, one of six situations arise. The most common situation is the company’s failure to comply with a statutory demand. However, this presumption can be rebutted if there is clear evidence of solvency. Even where insolvency is proven, the Court can still refuse a winding-up order on various grounds.

Requirements of a Statutory Demand

1. The debt is due and at least $4,000.00. If there are two or more debts due, the total of the debts must be at least $4,000.00. The Commonwealth Government raised the statutory minimum from $2,000.00 to $4,000.00 via the Corporations Amendment (Statutory Minimum) Regulations 2021, which came into effect on 1 July 2021. This change was the Government’s response to the economic impact of COVID-19 so that small businesses, their creditors and their employees are better served.

2. The demand must specify the debt and its amount.

3. The demand must require payment within twenty-one days, calculated from the date of effective service. It must be addressed to the correct company and correctly identify the corporate name of the creditor or the business name under which it is entitled to carry on business and to include the Australian Company Number.

4. The demand must be in writing.

5. The demand must be expressed in the prescribed form from the Corporate Regulations 2001 (Cth).

6. The demand must be signed by or on behalf of the creditor. If there are joint creditors, it should be signed by both creditors. If the creditor is a company, then it must be signed by an officer of the company. If a solicitor is signing on behalf of the creditor, the affidavit supporting the winding-up application should affirm the solicitor’s authority to sign the demand on behalf of the creditor.

7. Unless the debt(s) is a judgment debt, the demand must be accompanied by an affidavit that verifies that the debt(s) is due and payable by the company and complies with the Court rules. In other words, the affidavit must be sworn or affirmed by someone with direct knowledge of the debt and not on information and belief. The reason behind this strict requirement is to ensure that a company is not served with a demand that has not foundation. A defective affidavit accompanying the demand may result in the demand being set aside.

Case Summary

Austech turns to the issue of whether a statutory of demand is defective if the affidavit that verifies the debt is affirmed or sworn by the creditor’s solicitor.

Court:

New South Wales Supreme Court

Parties:

Plaintiff: Austech Institute for Further Education Pty Ltd

Defendant: Ms Britt

Facts:

The Plaintiff failed to pay rent from 1 March 2009 to 30 September 2009. Consequently, the Defendant served a statutory demand on the Plaintiff and claimed $260,901.62. However, the affidavit verifying the demand was not sworn by the defendant, but by the defendant’s solicitor. The Plaintiff lodged an application in the Supreme Court to set aside the demand.

Decision:

The statutory demand was set aside for two reasons:

Firstly, the affidavit verifying the demand was defective. Generally, demands ought not to be supported by an affidavit from the creditor’s solicitor. Failure to comply with the requirement to state in the affidavit supporting the Statutory Demand the source of knowledge or the basis of information for the belief that there is no genuine dispute as to the existence of the debt is fatal to the Statutory Demand. The Defendant’s solicitor did not investigate any records which could inform him as to whether a genuine dispute exists which arises outside the terms of the lease and by reason. Therefore, the solicitor’s affirmation that there is no genuine dispute as to the existence of the debt must be founded either on a complete absence of knowledge of the circumstances or must be based on hearsay from a source not identified.

Secondly, there were genuine disputes as to the existence of the debt under the lease and as to an offsetting claim.

The Defendant was to pay the Plaintiff’s costs of proceedings.

Service of a statutory demand

A demand can be served by post to the registered address of the company. Alternatively, it can be personally served on the company’s director. Section 109X of the Act outlines further details on how a document can be served on a company. However, service by post has been subject of many disputes, therefore this method should be avoided if possible.

Conclusion

Winding up a company by way of statutory demand is far from easy from a creditor’s standpoint. The Act and surrounding case law share a significant amount of detail that is required to be inputted in a demand. If the demand is not drafted correctly, the creditor could face indemnity costs like the Defendant in Austech. Therefore, if a company owes you money and you want to issue a statutory demand, you should seek legal advice. Our commercial law team at Legal Point Lawyers have many years of experience in preparing statutory demands and winding up companies.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Daniel’s expertise spans civil litigation, criminal law and real property matters.

Daniel holds a Bachelor of Laws and Bachelor of Commerce from the University of Sydney. He is a solicitor of the Supreme Court of New South Wales.

He is proficient in English and Cantonese.

Email: daniel.wong@legalpointlawyers.com.au

Does your case have reasonable prospects of success?

“What are my chances of winning?” – A very common question that a client would ask his or her lawyer, especially in the early stages of the case. To answer this question, the lawyer needs to read the client’s materials and be familiar with the applicable law. In short, lawyers must not provide legal services unless they reasonably believe that the case has reasonable prospects of success. This obligation is enshrined in Schedule 2 of the Legal Profession Uniform Application Act 2014 (NSW) [LPUAA]. The meaning of the phrase ‘without reasonable prospects of success’ is ‘so lacking in merit or substance as to be not fairly arguable’ (Justice Barrett in the New South Wales Supreme Court Case, Degiorgio v Dunn (No 2) [2005] NSWSC 3). This article will delve deeper into the meaning of this phrase with the support of a case summary of Lemoto v Able Technical Pty Ltd & 2 Others [2005] NSWCA 153 and examine the consequences faced by lawyers if they fail to discharge this obligation.

The Legal Profession Uniform Application Act 2014 (NSW)

The LPUAA applies to solicitors and barristers. It features provisions about costs in civil claims in the Local Court, District Court and Supreme Court, where there are no reasonable prospects of success. The relevant provisions are outlined below:

(1) A law practice must not provide legal services on a claim or defence of a claim for damages unless a legal practitioner associate responsible for the provision of the services concerned reasonably believes on the basis of provable facts and a reasonably arguable view of the law that the claim or the defence (as appropriate) has reasonable prospects of success.

(4) A plaintiff’s claim has reasonable prospects of success if there are reasonable prospects of damages being recovered on the claim. A defence has reasonable prospects of success if there are reasonable prospects of the defence defeating the claim or leading to a reduction in the damages recovered on the claim.

Advising on prospects of success of a case is an essential task for all litigation lawyers. Being able to do so accurately requires many years of experience. The lawyer needs to understand the facts of the client’s case, read all the available evidence, compare similar cases, and apply the current laws. Both the Plaintiff’s lawyer and the Defendant’s lawyer need to advise their respective clients on prospects of success. Our case summary of Lemoto will explain the standard expected by the Courts to discharge the obligation.

After the client is advised the prospects of success and the cost estimate of the matter, he or she can make an informed decision about going to court. Litigation is not only expensive, but it can also be stressful and drag on for over a year. If the prospect of success is low, the client may choose cost-effective options such as negotiating with the other side or withdrawing the case completely.

Case summary

The decision of Lemoto examines the principles governing the application of the phrase “reasonable prospects of success”.

Court:

New South Wales Court of Appeal

Parties:

Appellant: Mr Lemoto was the solicitor for the third respondent.

First Respondent: Able Technical Pty Limited, employer of the third respondent, a labour / hire agency.

Second Respondent: B & C Mailing Pty Limited.

Third Respondent: Christine Stoddart, who had suffered an injury to her lower back on 11 October 1999 from lifting boxes while working at the second respondent’s premises.

Facts:

On 26 November 2001, the appellant filed a Statement of Claim in the District Court seeking damages on the third respondent’s behalf. In those proceedings, the first and second respondents were named as the first and second defendants respectively. The matter was referred to arbitration and the third respondent lost. The third respondent sought a rehearing and lost again. The District Court Judge made costs orders against the appellant pursuant to s 198M, Part 11, Division 5C of the Legal Profession Act (LPA). The purpose of Part 11, Division 5C of the LPA is to deter lawyers from representing a client whose case had no reasonable prospects of success. The appellant sought leave to appeal against the costs orders.

Decision:

The Court of Appeal allowed the appeal and discharged the costs order because the District Court Judge failed to accord procedural fairness to the appellant. The District Court Judge did not inform the appellant of the precise basis upon which he had apparently formed the view that the appellant had provided legal services to the third respondent without reasonable prospects of success.

Furthermore, the Court commented that a costs order should not be made against a lawyer because a case was unsuccessful. That proposition is not weakened because one party lost twice. The third respondent had an adverse outcome for reasons largely connected to the District Court Judge’s assessment of her credibility. Therefore, the third respondent’s claim did have reasonable prospects of success.

Costs claims against lawyers and other disciplinary actions

Section 99 of the Civil Procedure Act 2005 (NSW) contains provisions for clients and opposing party to seek personal costs against lawyers in relation to an unsuccessful claim or defence. Lawyers are protected by professional indemnity insurance against claims for personal costs.

Alternatively, clients could lodge a complaint to the Office of the Legal Services Commissioner (OSLC) if their lawyer demonstrated unsatisfactory professional conduct or professional misconduct. If the lawyer is guilty, he or she could face consequences including removal from the Roll of Legal Practitioners, suspension of practicing certificate or a fine.

Conclusion:

Lawyers in New South Wales have an obligation to not provide legal services in a civil case unless it has reasonable prospects of success. The consequences faced by lawyers for failing to discharge this obligation include costs orders and complaints to the OSLC. The case of Lemoto is one example where a costs claim against a lawyer did not succeed. Before you initiate any court proceedings, you should contact a lawyer for a consultation. Our litigation team have over 10 years of experience in representing clients across all levels of court.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Daniel’s expertise spans civil litigation, criminal law and real property matters.

Daniel holds a Bachelor of Laws and Bachelor of Commerce from the University of Sydney. He is a solicitor of the Supreme Court of New South Wales.

He is proficient in English and Cantonese.

Email: daniel.wong@legalpointlawyers.com.au

An introduction to motor vehicle accidents

No one wants to be in a car accident: cars are expensive to fix and the person at fault is not always obvious. There are two types of damages (or loss) in motor vehicle accidents, namely personal injury and property damage. Personal injury includes bruises, broken bones and even death, while property damage includes dents and scratches to a car. This article will focus on the concept of negligence and the initial steps you should take in the event of a car accident.

Negligence

The most common motor vehicle accident claim is brought in negligence. To prove negligence in Court, the plaintiff (person commencing court proceedings) must prove:

A) that the defendant owed the plaintiff a duty of care;

B) the defendant breached that duty; and

C) the plaintiff suffered damage from the breach of duty.

In the context of driving, all drivers owe a duty to other road users, their passengers, and pedestrians. Examples of where a driver breaches a duty of care include failing to keep a proper lookout; failing to maintain a safe stopping distance; and driving under the influence of drugs.

Initial steps

If you are involved in a motor vehicle accident, we suggest the following steps to be taken:

1.Stop and exchange details.

Under regulation 287 of the Road Rules 2014 (NSW), you must stop at the scene of the accident and share details about your name, address, vehicle registration number and any other information to identify the vehicle. It is important that you capture multiple pictures of the car damage for your own record. These pictures will not only become part of your evidence, but they will assist with determining who is at fault and the amount of damage. Obtaining the other driver’s mobile phone number is useful if you decide to seek compensation in the future.

Generally, you do not need to call the police unless someone is killed or injured in the accident; or the other driver did not stop and exchange details with you.

2.Contact your insurance provider.

Explain to your insurance provider about the details of the car accident and advise whether you would like to make a claim. Your level of cover will determine what action your insurance provider will take and how much money you can recover. The three most common types of insurance cover are:

– Comprehensive is the highest level of cover which covers the damage to your car and other cars regardless of fault.

– Third Party Property Damage only covers damage to other cars.

– Compulsory Third Party (also known as a Green Slip) only covers injuries or deaths from a car accident which you may be liable for.

3.Contact witnesses

Witnesses play a significant role in Court. You should contact any witnesses and obtain a statement while memories are still fresh. The effort needed to find them and seek their assistance is usually justified. Relevant details in the witness’ statement include date and time of collision; traffic conditions; and direction and speed of vehicles at point of impact. Witnesses who are neither relatives nor acquaintances to you are more readily believed in Court. Footage from your dash cam, if you have one, is also another valuable piece of evidence which will be considered in Court.

Conclusion

Proving negligence in respect of motor vehicle accidents is not always straight forward. If you only have Compulsory Third Party Insurance, then you should seek a lawyer to make a claim or defend against a claim. Our civil litigation team at Legal Point Lawyers has profound experience in motor vehicle accident claims so you can be assured that you will get the outcome you deserve.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

Daniel’s expertise spans civil litigation, criminal law and real property matters.

Daniel holds a Bachelor of Laws and Bachelor of Commerce from the University of Sydney. He is a solicitor of the Supreme Court of New South Wales.

He is proficient in English and Cantonese.

Email: daniel.wong@legalpointlawyers.com.au

Subpoenas – a powerful tool to gather more evidence

The origin of the word ‘subpoena’ dates back to the early 15^th Century, which in Medieval Latin means ‘under penalty’. They are the first words of the writ commanding the presence of someone under penalty of failure. Fast forward to today, the English common law system uses the word to summon witnesses during court proceedings. A subpoena is one effective way to gather more information and obtain access to documents that are not in your possession from a person or company who is not a party to the proceedings. You can issue a subpoena in the Local Court, District Court, Supreme Court and Federal Court. Subpoenas are governed by Part 33 of the Uniform Civil Procedure Rules 2005 and complemented by each Court’s practice notes.

In civil litigation, there are three types of subpoenas:

Subpoenas to attend to give evidence

An order in writing that requires the person or officer of a company to attend the Court for the purpose of giving evidence.

Subpoenas to produce documents or things

An order in writing that requires the person or officer of a company to produce a document or thing to Court.

Subpoenas to produce documents or things and to attend to give evidence

Procedure of issuing a subpoena

Firstly, the issuing party must make a request in the relevant Court. The request must be clear as to what the issuing party is seeking and be specific enough to avoid a ‘fishing expedition’ for evidence. The accepted practice for the Local, District and Supreme Court is for the prescribed UCPR form to be completed by the issuing party and filed at the court registry either in person or electronically. After the registry approves the subpoena, a Court date is appointed.

Next, the subpoena must be served personally on the producing party and on all parties to the proceedings within a reasonable time.

The producing party must comply with the subpoena by:

a) attending on the date, time and place specified in the subpoena and producing the documents or tings specified in the subpoena to the court; or

b) delivering the documents or things to the court before the date specified on the subpoena.

Once the documents are in Court, the issuing party can inspect them provided that there are no objections to the access.

Non-compliance with subpoena

Failure to comply with a subpoena is as serious as contempt of court. It may result in a warrant for arrest being issued against the producing party. However, if the subpoena is too onerous, any interested party can set it aside wholly or in part.

How much does issuing a subpoena cost?

Prescribed fees are payable when the subpoena is filed. The applicable fees are outlined in the Civil Procedure Regulation 2012 (NSW) and on each Court’s website.

The producing party does not have to comply with the subpoena unless it receives an amount to meet its reasonable expenses in complying. This amount is called conduct money. Reasonable expenses include travelling to court, collating and sending the documents to court, cost of legal advice reasonably incurred, and costs of photocopying.

Conclusion

A subpoena is a powerful tool to gather more evidence after court proceedings have commenced. It is a court order that is available in all levels of the court hierarchy and compels producing parties to comply. The rules and procedure around issuing a subpoena is complex, therefore you should obtain legal advice if you ever receive a subpoena or intend to issue a subpoena.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Ge Wu has been appointed as Notary Public since 2011 and started to provide Notary Public service to clients from different cultural backgrounds.

Mobile: 0433539869

Email: ge.wu@legalpointlawyers.com.au

CASE SUMMARY

Important lesson for AFSL holderS

This case demonstrates that There will be serious penalties and repercussions for AFSL holders failing to abide by their obligations under the AFSL regime.

WHAT IS AFSL?

Do I need to apply for Australian AFSL?

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A property is considered ‘residentially occupied’ if:

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A brief overview of the Subclass 400 Temporary Work (Short Stay Specialist) visa

The eligibility criteria for the Subclass 400 Temporary Work (Short Stay Specialist) visa are:

Highly Skilled and Specialized Stream

Australia’s Interest stream

Other Criteria which apply to both streams

What is a de facto relationship?

What determines the status of a de facto relationship?

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Seeking a financial settlement post break down of a de facto relationship

What is a director ID？

How to apply for a director ID？

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Conclusion

Meaning of bankruptcy

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Conclusion

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