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Enforcing Financial Agreements under the Family Law Act

In the event that after the parties have entered into and signed a Financial Agreement, and one party is experiencing in difficulty in enforcing the provisions of the contract, that party may be able to enforce the Financial Agreement through the Court’s intervention.

The party must seek a Court Order pursuant to section 90KA of the Family Law Act. The Financial Agreement, like any other contract, must be valid, enforceable or effective. The question of whether a Financial Agreement is valid, enforceable or effective is to be determined by the Court according to the principles of law and equity that are applicable in determining validity, enforceability and effect of contracts and purported contracts, and in proceedings relating to such a Financial Agreement. It is noted that such an application to enforce a Financial Agreement may be met with a responding application from the other party to have the Financial Agreement set aside.

If a Financial Agreement is found to be enforceable, it can then be enforced as if it were an Order of the Court itself.

In the matter of Clemenceau and Clemenceau [2010] FamCA 512 at [2], the Family Court of Australia held that “section 90KA of the Family Law Act provides that whenever a Financial Agreement or termination agreement is in question, its validity, enforceability or effectiveness is to be determined by the Court according to the principles of law and equity that are applicable in determining the validity, enforceability or effectiveness of contracts or purported contracts. Section 90KA also provides that a Court can enforce parts of the agreement as if they were orders of the Court”.

Interestingly, in the matter of Kostres and Korstres [2009] FamCAFC 222, the Family Court of Australia held that a Financial Agreement remains enforceable even if one of the parties made a bad bargain. The Court held that “if the agreement is not susceptible to being set aside, the question arises as to whether the court should resist its enforcement because it would operate unconscionably against one party. If the agreement is valid and binding, it should operate according to its terms. Simply because one of the parties made a bad bargain does not mean that it would be unconscionable for the other party to enforce the agreement. The doctrine of unconscionability looks to the conscience of the party whose rights are sought to be affected”.

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.

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.

Email: ge.wu@legalpointlawyers.com.au

Setting Aside Financial Agreements under the Family Law Act

Despite Financial Agreements sometimes being referred to as “Binding Financial Agreements” or “BFAs”, Financial Agreements are not always “binding” and can be set aside by a Court or mutually terminated by the parties.

Financial Agreement can be set aside by the Court if any of the following events occurred between, or by either party of the Financial Agreement:

  1. Fraud (such as non-disclosure of a material matter); or
  2. An intention to defect or reckless disregard of the interests of a creditor; or
  3. For the purpose of defrauding another person who is a party to a de facto relationship (the other de facto relationship) with a spouse party, or with reckless discard for the interests of that other person (in the case of de facto relationships); or
  4. For the purpose of defrauding another person who is a party to a marriage with a spouse party, or with reckless disregard of those interests of that other party (in the case of de facto relationships); or
  5. Any duress, undue influence or unconscionable conduct (taking advantage of any weakness of a party); or
  6. If the Financial Agreement is void, voidable or unenforceable; or
  7. Circumstances have arisen making it impracticable for the Financial Agreement to be carried out; or
  8. Since the making of the Financial Agreement, a material change in circumstances has occurred, being circumstances relating to the care, welfare and development of a child of the marriage, and as a result of the change, the child or, if the applicant has caring responsibility for the child, a party to the Financial Agreement will suffer hardship if the Court does not set the Financial Agreement aside; or
  9. A payment flag is operating under Part VIIIB of the Family Law Act on a superannuation interest covered by the Financial Agreement and there is no reasonable likelihood that the operation of the flag will be terminated by a flag lifting agreement under that Part; or
  10. The Financial Agreement covers at least one superannuation interest that is an unsplittable interest for the purposes of Part VIIIB of the Family Law Act.

Further, if the Financial Agreement includes a third party, an intention to defraud, or defect the property interests of that third party or the reckless disregard of those interest are grounds for the Agreement being set aside.

Also, a Financial Agreement operating as a release of Spousal Maintenance will be of no effect if a party is in receipt of an income tested pension, allowance or benefit.

In the recent Family Court case, Daily & Daily [2020] FamCA 486, the Court of Appeal considered an appeal to set aside a Financial Agreement pursuant to s 90K(1)(b),(d) and (e), namely, that a Financial Agreement entered into by parties can be set aside on the basis of:

  1. the agreement being void, voidable or unenforceable;
  2. that there has been a material change in circumstances relating to the care, welfare and development of the child since the making of the agreement, and this will cause a hardship to the person who has responsibility for the child; and/or
  3. party to the agreement engaged in conduct that was, in all the circumstances unconscionable.

In the cases of Fewster & Drake (2016) FLC 93-745 and Frederick & Frederick (2019) FLC 93-900 provide the well settled test for hardship, which requires the Court to make a comparison of the position of the child, or the party with caring responsibility if the Financial Agreement is to remain in place, compared to their position, if the Financial Agreement is to be set aside.

In the case of Eaves & Eaves (No.2) [2020] FamCA 863, citing the case of Thorne v Kennedy (2017) 263 CLR 85, the Court discussed the concept of “unconscionability” as a factor of setting aside a Financial Agreement. For circumstances to be held to be “unconscionable conduct”, the innocent party must be subject to a special disadvantage “which seriously affects the ability of the innocent party to make a judgment as its own best interests”. The other party must also unconscientiously take advantage of the innocent party’s special disadvantage. Further, this other party must also knew or ought to have known of the existence and effect of the innocent party’s special disadvantage.

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.

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.

Email: ge.wu@legalpointlawyers.com.au

Financial Agreements under the Family Law Act

What is a Financial Agreement?

Couples are able enter into a private legal contract about their financial affairs and make provision for the distribution of their assets and liabilities, such as rights to real property and/or personal property, and mortgages, regardless of whether such items are held solely or jointly by a party as well as make provision for spousal maintenance. Financial Agreements are an alternative to process to Court or Arbitration that parties can engage to settle their dispute about property settlement matters.

Financial Agreements are a useful mechanism that a party of a relationship can utilise to make arrangements in circumstances where there are children from previous relationships, where one party may have unbalanced wealth, or may be entitled to an inheritance in the future, or where a party aims to preserve a family business.

Types of Financial Agreements

The type of Financial Agreement that parties are able to enter into pursuant to the Family Law Act 1975 (Cth) is depended upon whether the parties are firstly, either in a de facto or married relationship, and secondly, the stage of their relationship, or post-relationship.

Financial Agreements for De Facto Couples:

  1. Before the commencement of a de facto relationship – section 90UB of the Family Law Act.
  2. During a de facto relationship – section 90UC.
  3. After a break down of a de facto relationship – section 90UD.

Financial Agreements for Married Couples:

  1. Made before marriage, commonly known as a “pre-nuptial” – section 90B.
  2. Made at any time during a marriage, but before a grant of divorce – section 90C.
  3. Made after a grant of divorce – section 90D.

Whilst the legal framework of a specific Financial Agreement may differ due to the nature and stage of a relationship, and the provisions that such a Financial Agreement must entail, all Financial Agreement must meet the formal requirements in order to be binding upon the parties and be capable of ousting the jurisdiction of the Courts.

Requirements of all Financial Agreements to be binding:

  1. The Financial Agreement must be in writing and signed by all parties;
  2. The Financial Agreement must expressly state under which specific provision of the Family Law Act it is being made;
  3. Neither person of the couple is a party to any other Financial Agreement;
  4. Before entering into a Financial Agreement, each party must obtain independent legal advice from a solicitor about: (a) The effects of the proposed Financial Agreement on their rights, and (b) The advantages and disadvantages of entering the Financial Agreement to the party at the time of entering the proposed Financial Agreement;
  5. A signed declaration from the solicitor representing the respective party, stating that respective party has received the mandatory advice from their solicitor (this is usually annexed to the end of the Financial Agreement); and
  6. A signed copy of the solicitor’s declaration provided to the party has been given to the solicitor representing the other party; and
  7. The Financial Agreement is effect, meaning that it has not been subsequently terminated or set a side by a Court.

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.

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.

Email: ge.wu@legalpointlawyers.com.au

 

NSW Land Tax COVID-19 Relief

Since late June, the stay-at-home orders have taken a heavy toll on the people of New South Wales. Many people were forced to stop work; businesses are trying to stay afloat; and many have struggled to pay rent. To revive the economy and offer financial relief for the people, the New South Wales government has introduced a variety of measures.

On 14 July 2021, the 2021 land tax COVID-19 relief (1 July 2021 to 31 December 2021) was announced to reduce commercial and residential landowner’s land tax payable for 2021, by up to 100 per cent. This article will explain to you everything you need to know about the 2021 land tax COVID-19 relief, including the eligibility criteria, the amount of relief available, how to apply and how you receive the relief.

Eligibility criteria

Commercial landowners and residential landowners have slightly different eligibility criteria.

Commercial landowners are eligible if:

  1. The commercial tenant has an annual turnover of up to $50 million and is eligible for the Micro-business COVID-19 Support Grant, the 2021 COVID-19 NSW Business Grant and/or the JobSaver scheme;
  2. The landowner reduces the rent of the affected tenant for any period between 1 July 2021 and 31 December 2021; and
  3. For 2021, the landowner has land tax attributable to the parcel of land leased to that tenant.

Residential landowners are eligible if:

  1. The residential tenant who has had a reduction in household income of 25 per cent (or more) as a result of COVID-19;
  2. The landowner reduces the rent of the affected tenant for any period between 1 July 2021 and 31 December 2021;
  3. For 2021, the landowner has land tax attributable to the parcel of land leased to that tenant; and
  4. The landowner is not claiming the Residential Tenancy Support Payment.

Amount of relief

The land tax reduction will be the lesser of:

the amount of rent reduction provided to an eligible tenant for any period between 1 July 2021 and 31 December 2021, or

100 per cent of the 2021 land tax attributable to the parcel of land leased to that tenant.

How to apply

Applications for land tax relief are available now via Service NSW and will be open until 31 January 2022.

How you receive the relief

If you haven’t completed payment of your land tax for 2021, the relief granted will be used to offset the balance of land tax you have left payable. If your land tax for 2021 has been paid in full, the reduction can be refunded to you.

Conclusion

Grappling with the consequences of the Coronavirus outbreak has not been easy for anyone. Landowners who pay land tax every year can seek financial relief in the latest measure by the NSW Government. The measure will also ease the pressure felt by commercial and residential tenants during the current economic downturn. If you meet the above the criteria, feel free to contact our office and we can prepare the application for you.

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.

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

Copyright Infringement: What Does It Mean?

You have probably heard of the word ‘copyright’ before and you will probably recognise the copyright symbol © in books, posters and on television. But what does copyright actually mean under Australian law, what constitutes copyright infringement and what penalties will you attract for infringement? This article will provide answers to these questions and share a recent copyright infringement case in Australia.

What is copyright?

Copyright is a set of rights that allow their owner to control, and be paid for, uses made of the material in which the copyright subsists. It protects the expression of ideas in material form. Examples of copyright material, or works, include books, clothing designs, visual art, music, film, software and broadcasts. Material on the internet or on social media platforms (Facebook, Instagram, Youtube, Twitter) may also be copyright protected. Copyright under current Australian law normally lasts until 70 years after the author’s death, subject to the nature and type of the copyright protected material.

How are copyright materials protected?

The law governing copyright is the Copyright Act 1968 (Cth). As a federal law, the Act can be applied in all states and territories of Australia. The Act attempts to balance the creators’ interests by incentivising creators to produce more copyright material and the society’s interests in accessing such material.

The Act gives copyright protection to two broad categories of materials. The first category includes  original literary, dramatic, musical and artistic works, while the other category covers certain types of materials such as sound recordings, cinematograph films, television broadcasts and sound broadcasts,  published editions of works etc. Provisions as to copyright ownership, duration and protection may vary in each category.

It is also notable that Australia is a common law jurisdiction where case law also plays an integral role in copyright law, as it may guide the interpretation and application of the statutory provisions in specific cases.

Copyright protection is automatic in Australia because there are no formalities required and there is no system of copyright registration.

Infringement of copyright

Copyright may be infringed if one uses copyright material without the permission of its owner, such as unauthorised copying or distributing of copyright material,  unauthorised playing of films or music in public places, commercially trading pirated material etc.

In the case of Seafolly Pty Limited vs Fewstone Pty Ltd [2014], Seafolly Pty Limited (‘Seafolly’) sued Fewstone Pty Ltd, trading as City Beach Australia (‘City Beach’) for infringing Seafolly’s copyright in three artistic works. Seafolly and City Beach are two companies that design, manufacture and sell swimwear. Seafolly alleged that a substantial part of the three artistics works were reproduced without a licence on City Beach beachwear garments. At the final hearing, Seafolly won and the Court ordered that City Beach pay damages and be restrained from reproducing the copyright works.

Exceptions to infringement of copyright

The Copyright Act provides exceptions to copyright infringement to allow certain conduct which may otherwise be considered as copyright infringement. For example, a ‘fair dealing’ with copyright material in research, critiques, news reporting or parodies may be protected by such exceptions. Another example is private and domestic use – it may not be copyright infringement for one to record a TV show at home and watch it later.

Various factors need to be taken into account to determine whether a use of copyright material falls within the exceptions, such as the nature of the material and the manner of use.

Remedies

Copyright is enforced by commencing court proceedings in the Supreme Court or in the Federal Circuit Court. Akin to the Seafolly case, the author could seek compensation, payment of profits made by the infringer and court orders to restrain further infringement.

Conclusion

Copyright applies to a wide range of media in Australia and is recognised under the Copyright Act 1968 (Cth). Its law is by no means simple so you should seek legal advice on any copyright-related matter. Whether you are the author or the alleged infringer, contact our experienced legal team to discuss your options.

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 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.

Email: ge.wu@legalpointlawyers.com.au

Jianming Jiang is a practicing solicitor in New South Wales with legal qualification and training in Hong Kong and Australia. He is also a registered trade mark attorney in Australia and a certified English & Chinese translator with the National Accreditation Authority for Translators and Interpreters (NAATI).

Jianming has a deep understanding in Chinese and Western cultures as a result of his training and career in Hong Kong and Australia. Apart from his law degree, Jianming has completed specialised courses including the Master in Intellectual Property Law at the University of Melbourne and the Graduate Diploma in Migration Law and Practice at the University of Technology Sydney. Jianming has experience in a number of practice areas including conveyancing, wills and estate, immigration and intellectual property law.

Jianming is committed to providing clients with quality service based on his sound legal knowledge and experience as well as multilingual proficiency in English, Mandarin and Cantonese.

Email: roger.jiang@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

Family Trusts in a nutshell

We often associate family trusts with high income earners and their children who attend private schools, but that is not always the case. If you want to protect your hard-earned assets from creditors and stream the income earned from the trust assets to beneficiaries in the most tax-efficient way possible, then a family trust is for you. This article will briefly explain to you the essential elements of a family trust and how it works.

What is a trust?

A trust is an arrangement where a trustee, being a person or company, holds assets as the legal owner for the ‘benefit’ of one or more beneficiaries. Types of assets that you can put in the name of a trust include shares, real property and cash. Income earned from the assets is passed to the beneficiaries.

A trust is recorded in the form of a deed, which contains many rules including how the trust must be run, what the trustee can do and lists who the beneficiaries are. In New South Wales, a trust can last for up to 80 years and can also be varied from time to time. The laws around trusts can be very complicated therefore it is essential that you appoint a solicitor to draft the trust deed.

What is a family trust?

A family trust is a popular type of trust, where the beneficiaries have no fixed interest in the assets. Every family trust has four roles that need to be filled before it can begin operation.

1. The trustee plays a significant role in the trust and has a few powers and obligations. The trustee chooses the beneficiaries and decides the amount that each beneficiary receives every year. Moreover, the trustee carries out all transactions for the trust. In terms of obligations, the trustee is responsible for the tax obligations of the trust including the lodgment of income tax returns. Furthermore, the trustee owes a fiduciary duty to the beneficiaries and must always act in their best interest.

2. A beneficiary can be a person or a company. Beneficiaries can be divided into two categories: primary beneficiaries, who are specified in the trust deed, and general beneficiaries, who are usually relatives of the primary beneficiaries.

3. The appointor has the power to appoint and remove the trustee. However, they do not have the power to operate the trust. If a sole appointor dies or goes bankrupt, a majority of the primary beneficiaries can appoint a new appointor.

4. Finally, the settlor is the person who creates the trust and identifies the beneficiaries, the trustee(s) and appointor. The settlor should not be a beneficiary or a trustee for tax reasons. After the trust deed has been signed, the settlor will no longer be involved with the trust.

If you set up a trust in New South Wales, the state government will charge you $500.00 for stamp duty, which must be paid within three months.

Conclusion

Trusts should not be an arrangement that is tied to the wealthy only because it has considerable value in the long-term for any individual. A family trust may help protect your assets and minimise the impact of tax. However, a family trust deed is a sophisticated document which is normally drafted by a lawyer. If you are interested in setting up a family trust today, please do not hesitate to contact our office for a free initial consultation.

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.

Sexual Touching in NSW Explained

You have probably heard of offences like ‘rape’ (which is now coined as ‘sexual assault’) and ‘grooming’, but have you heard of ‘sexual touching’? Sexual touching is a relatively new offence that was inserted into the Crimes Act 1900 (NSW) at the end of 2018, and it replaced the offence of ‘indecent assault’. Given that sexual touching carries a maximum imprisonment of five years and is relatively easy to prove, you should be aware of its basic elements. This article will explain, with a real-life example, the elements that the Police will try to prove.

What constitutes sexual touching? (s 61HB)

Section 61HB of the Crimes Act 1900 (NSW) defines sexual touching as touching the alleged victim:

  1. with any part of the body or with anything else, or
  2. through anything, including anything worn by the person doing the touching or by the person being touched,

in circumstances where a reasonable person would consider the touching to be sexual. Circumstances include touching the alleged victim’s genital area, anal area or breasts and where the touching was for sexual arousal or sexual gratification.

Like most criminal offences, there are physical elements and mental elements. For this offence, the alleged offender has to know that the alleged victim was not consenting to the sexual touching. Consent means that he or she freely and voluntarily agrees to that sexual activity. Knowledge comprises of three mental states:

  1. the alleged offender has actual knowledge that the victim does not consent
  2. the alleged offender is reckless as to whether the alleged victim consents; and
  3. the alleged offender has an honest belief that alleged victim consented but has no reasonable grounds for that belief.

Case Law – R v Shanmugam

In a recent Disctrict Court case, R v Shanmugam (No.2) [2020] NSWDC 482, the physical elements and mental elements are set out clearly. The offence happened in early January 2019. After a belated work Christmas party, Shanmugam, the victim and a female workmate ended up at the victim’s home. They all slept in the same bed. Although the victim and Shanmugam had cuddled earlier in the night, there was no expectation by either of them at the time to have sexual relations. The victim woke and saw Shanmugam masturbating. He then rolled towards her and laid against her in the spooning position. He was still masturbating, with his hand against her night shorts while she was facing the wardrobe pretending to be asleep. After she brushed him off, she rolled onto her back to stop him from repeating what he had done. He then put his hands down the front of her pants and rubbed the exterior of her vagina with his hand. She brushed him away, rolled onto her side. She was in shock and reported the incident to the Police.

The conduct of laying against the victim, putting his hands down the front of her pants, and rubbing the exterior of her vagina with his hand satisfied the physical element of sexual touching. In terms of the mental element, the victim continually rolled onto her back, tried to ignore the accused, and tried to stop him. Here, a reasonable person would infer that the victim had not given consent. Shanmugam witnessed these reactions from the victim and continued to sexually touch the victim without her consent. Therefore, he was at least reckless as to whether the victim consented. Shanmugam was sentenced for 1 year and 3 months.

Conclusion

Sexual touching can be a serious offence depending on the circumstances, and the Police can generally satisfy the elements with little difficulty. Our lawyers have rich experience in this area so please contact us on 02 9283 8588 immediately if you need legal representation. We are committed to protecting your legal rights.

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.

What you should know about common assault as a criminal charge.

Common assault is one of the most common criminal charges in Australia. In 2019, there were 67,661 victims of assault recorded in New South Wales. It can arise out of a physical fight, a heated verbal argument or even a verbal threat from someone. Depending on the circumstances, the punishment can be severe; the length of imprisonment can reach up to two years if the matter is dealt with in the Local Court. For less serious types of common assault, punishment could be a criminal record and a fine.

The legal meaning of common assault is broad as it can be generally divided into two categories: assault by force and assault by threat of force.

Assault by force

This could arise when you use force or make unlawful contact with another person’s body without consent. You need to be aware that no injury is required by this offence. Therefore, even the merest physical touch may be sufficient.

Assault by threat of force

Threat of force means your conduct causes another to apprehend immediate infliction of force without consent. For example, if you trap the victim in your van and say to the victim, “I am going to take you to my mate’s house, he will really fix you up” – you could be charged with common assault.

Defence

There are a handful of lawful excuses available if you are charged with common assault. Generally, you are not criminally responsible for an offence if you carried out common assault in self-defence and believed the conduct was necessary to defend yourself or another person, and the conduct was reasonable.

Aggravating circumstances

You also need to be aware of aggravating circumstances, which can make the offence more serious. For example:

  1. The victim is a special person like a police officer, emergency services worker and judicial officer;
  2. Violence was involved;
  3. The offence was committed in company of other people; and
  4. The offence was committed without regard for public safety.

Section 10 Dismissal

A charge of common assault usually leads to a criminal record, which can ruin a person’s career and reputation. However, under section 10 of Crimes (Sentencing Procedure) Act 1999, the Court can find you guilty but not record a conviction under specific circumstances. To learn more about a section 10, please see our article here.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

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.

Drug Possession in NSW

Possession of prohibited drugs is a criminal offence in NSW under the Drug Misuse and Trafficking Act 1985 (the Act). Schedule 1 of the Act provides an extensive list of prohibited drugs including cannabis (also known as weed or marijuana), cocaine, ketamine, heroin. According to the National Drug Strategy Household Survey, around 3.4 million Australians reported using a prohibited drug in 2019. This article will explain the elements of drug possession that the Police need to prove, and the penalties attached.

The elements

The Police must prove the following two elements beyond reasonable doubt:

  1. The prohibited drug was in the person’s ‘custody’ or ‘control’. Importantly, a person may be charged with drug possession even if the substance is found in their car.
  2. The person knew the substance was in their possession and knew that the substance was a prohibited drug.

Generally, a person licensed or acting in accordance with an authority to have possession of the prohibited drug is not unlawful. These licensed people may include medical practitioners, pharmacists and registered nurses. If a person obtains a prohibited drug which has been lawfully prescribed or supplied, the possession is also not unlawful.

Penalties

The penalties for possession of prohibited drugs can vary significantly. The amount of prohibited drug found in your possession is a major factor in determining the severity of the penalty. For example, a person with 1g of cocaine would usually be charged with drug possession because 1g is classified as a small quantity and would have the matter dealt in the Local Court. If the person possessed 5g of cocaine, then they would probably be charged with supply and have the matter dealt with in a higher court with more severe penalties.

In the Local Court, the maximum fine is $2,200.00 and the maximum term of imprisonment is 2 years. Other penalties that can be imposed by the Local Court include a conditional release order, an intensive corrections order, and a community corrections order. If it is a first-time offence, you can apply for a section 10 dismissal under the Crimes (Sentencing Procedure) Act 1999, which allows you to maintain a clean criminal record. Our law firm can act for you to secure the best chance of a section 10 dismissal.

Conclusion

In NSW, drug possession requires two key elements to be proved beyond reasonable doubt, and the penalties attached can be detrimental. One of the basic principles of our criminal law system is that a person is innocent until proven guilty. In other words, if you find yourself being charged by the police with drug possession, you are still innocent until you plead guilty or the Court finds you guilty. Our team of criminal law specialists have a track record of exceptional results and are available to defend you.

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.

Understanding Retail Leases in NSW

A retail lease is a contract between a landlord, who usually owns the property, and a tenant, who has the right to occupy the property and sell goods or provide retail services. The term ‘retail’ implies a sale to the public and excludes wholesale transactions. This article covers the important aspects of a Retail Lease that landlords and tenants should be aware of.

Types of retail leases

In New South Wales, retail leases are governed by the Retail Leases Act 1994 (NSW) (‘the Act’). Subject to certain special exclusions, the Act applies to two essential types of retail leases.

The first type is when a tenant rents a premises to run a business prescribed the Act and its regulations. You can check Schedule 1 of the Act to confirm whether your business is covered. Examples include books and toy shops, barbers and art galleries.

The second type is when a tenant rents a premises in a retail shopping centre (for whatever business unless excluded by the Act).

Documents that must be provided before signing a retail lease

Before any retail lease is signed, the landlord must share three documents with the tenant:

a completed lessor’s disclosure statement;

a draft copy of the Lease; and

a copy of the NSW Retail Tenancy Guide.

Lessor’s disclosure statement

The purpose of a lessor’s disclosure statement is to enhance transparency between the landlord (also known as a lessor) and the tenant (also known as a lessee), and reduce the risk of dispute in the future. Under the Act, the landlord is required to answer all questions in this document and pass it to the tenant at least seven days before the Lease begins. Inside, there are important information about the shop, the Lease, estimates of outgoings and the tenant’s financial obligations.

The Lease

Below are the key aspects that you should be familiar with:

‘Term’ is another word for length of the Lease with the start and end dates. The Act will only apply to your shop if the term is between 6 months and 25 years.

‘Rent’ is a key term in a Lease. When the Lease is signed, the tenant agrees to pay the rent for the full term of the Lease. If the tenant is late with rent, the landlord has the right to take possession of the shop and lock the tenant out.

‘Outgoing’s are expenses related to the shop that the tenant has agreed to pay on top of the rent. They include council rates, water rates, land tax and public liability insurance.

A ‘bond’ is a fixed amount of money given to the landlord at the beginning of the Lease. It is financial security for the landlord if the tenant fails to meet its lease obligation.

Costs for preparing a Lease

Under the Act, the landlord is responsible for the cost of drafting the lease and the mortgagee consent fee (if any). On the other hand, the tenant would need to pay their own legal costs for reviewing the lease and usually the costs of registering it. If the term of the Lease is 3 years or more, it must be registered at the NSW Land Registry.

Dispute resolution

If one side failed to meet its lease obligation such as failure to pay rent or failure to return the bond, the other side can try mediation or seek orders from the NSW Civil and Administrative Appeals Tribunal (NCAT).

Conclusion

Leases and lessor’s disclosure statements should be carefully reviewed before signing. Before you sign a lease, revisit your business plan and make sure it is realistic and covers all contingencies. You should also consult our experienced legal team before you sign the lease, which may save you a lot of time and money in the long-term.

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.

NSW bail applications for serious offences

Last time, we explored a basic overview of a bail application in New South Wales. In this article, we will take a deeper dive into what the Judge considers when a bail application is heard in relation to a serious offence. We will also examine two real-life cases that were heard in the higher courts.

Firstly, the Judge will consider reasons why detaining the accused is not justified. If the Magistrate is not satisfied, then bail would be refused. If the Magistrate is satisfied with the reasons, then the Magistrate will apply the ‘unacceptable risk test’. The accused must be refused bail if there is an unacceptable risk that the accused will:

  • fail to appear at any proceedings for the offence;
  • commit a serious offence;
  • endanger the safety of victims, individuals or the community; or
  • interfere with witnesses of evidence.

McAndrew v R [2016] NSWCCA 58

Mr McAndrew was charged with a serious offence, namely armed robbery, and he failed to convince the Court of Appeal that his detention was not justified.

Mr McAndrew submitted four arguments:

  1. He needed to take care of his newborn child;
  2. He was unable to adequately grieve the loss of his grandmother whilst he was imprisoned;
  3. He intended to plead not guilty; and
  4. He needed to take care of his mother who had suffered a series of strokes.

The Court rejected all arguments from Mr McAndrew and concluded that his personal and family reasons do not easily translate into a demonstration that his continued imprisonment should not continue. Therefore, Mr McAndrew’s bail application was refused.

R v BNS [2016] NSWSC 350

BNS was charged with a serious offence that is, possession of a commercial quantity of a prohibited drug. The Court dismissed BNS’ bail application for the following reasons:

  1. The Prosecution had a very strong case.
  2. BNS has a high risk of not appearing in Court because he is a citizen of a foreign country and has no familial or community ties to Australia.
  3. BNS is likely to face a substantial term of imprisonment if convicted.

Although BNS’ mother was prepared to offer AUD$1,000,000.00 as a bond, the Court was not convinced that BNS had any sense of obligation to his mother with respect to that money. Furthermore, the Court could not assess the relative impact of the loss of that sum to BNS or his mother in the event that he does not appear.

Conclusion

Convincing the Court to grant bail is not an easy task, especially in relation to serious offences. Our lawyers have been instructed to apply for bail on many occasions and have a very clear understanding of what Judges are looking for. Recently, our team successfully obtained bail for a client who was charged with aggravated sexual assault. If you have been charged with a serious criminal offence, we can help you attain 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.

Section 10 Dismissal and preserving your criminal record

Crimes like murder and sexual assault stir the most attention in the media, but it is important to be aware of non-serious offences as well because they are more common. When people engage in fights or arguments, they could be charged with common assault. When people drive dangerously, they could be charged with drink-driving. If you are guilty of these non-serious offences, there is a chance that you will have a criminal record. No one wants a criminal record because it can stop you from getting the job you want; prevents you from travelling to certain countries; and damages your reputation. In this article, we will talk about how we can help you prevent a criminal record.

A Section 10 dismissal is the most popular term in NSW criminal matters for a good reason. It is a potential lifeline, when you are found guilty of a non-serious offence, because the Judge may decide not to record a conviction. In Australia, criminal offences can vary in severity: murder and sexual assault are very serious; while drink-driving, possession of illicit drugs, and common assault are usually non-serious. The Judge considers many factors before granting a Section 10 dismissal including the person’s character, prior convictions, age, health, mental condition and so on.

To prepare for a Section 10 application, you will need at least three character references and a letter of apology. Depending on your charges, you may need further supporting documents.

A good character reference is written by people who are of good reputation. This means that they have not been in trouble with the police and are respected in the community. They could be your close friends, colleagues, neighbours and members of a group which you belong e.g. sport and church.

A good letter of apology would be addressed to the victim of the offence; acknowledge the foolishness of your behaviour; express feelings of remorse; and share reasons why you will not re-offend again.

For international students and new immigrants, being aware of a Section 10 dismissal is highly important. A criminal offence is related to condition 8303 of student visas and other temporary visas. It states that “you must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group within the Australian community”. Therefore, if a visa holder has a conviction recorded, his/her visa will be cancelled and he/she will no longer be allowed to return to Australia. In August 2020, our team successfully applied for a Section 10 dismissal for two international students in a common assault matter.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

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.

Common pitfalls in a commercial lease

A commercial lease is a contract between a landlord and a tenant, who has the right to occupy the property like an office or a warehouse. Commercial leases differ from retail leases because they have different regulatory frameworks. Unlike retail leases, commercial leases are not as tightly regulated which means that parties of a commercial leases have more flexibility to negotiate terms. The legal jargon used in commercial leases can be difficult to understand and there are a few terms that often trigger disputes between landlords and tenants. This article will cover clauses on option to renew, rent review and repair and maintenance.

Option to renew

After you determine the term of the lease, the starting date and the terminating date, you may want to consider the ‘option to renew’ clause. The option is the tenant’s right to demand another fixed term of the lease on the same terms as the existing lease (except for the rent and duration). For example, a five-year lease may have a five-year option, making the total duration ten years if the tenant chooses to exercise the option.

Without an option to renew, the landlord has two options at the end of the term: either offer the premises to the same tenant on different terms and conditions or offer the premises to a different tenant.

It is often in the interests of both parties to include this term if they want to maintain a long-term commercial relationship. The landlord will have more financial security and a more valuable property. Conversely, the tenant benefits from building a strong reputation and goodwill by maintaining the same location for their business.

If an option to renew clause is inserted, the duration of the new terms should be sufficiently long and the preconditions of an option for renewal should be clearly outlined. Examples of preconditions include: ‘that the tenant must have punctually paid rent throughout the lease term’, and ‘that there is no subsisting breach of any lease covenants by the tenant at the date of serving notice of exercise of the option’.

Rent review

The next term that all landlords and tenants should consider is the rent review clause. There are various ways to review rent such as by a fixed percentage, by movements in the Consumer Price Index (CPI) and by market rent. Landlords and tenants should be aware of any ‘ratchet’ clause in the lease as it can give rise to considerable problems in lease drafting and litigation. A ratchet clause prevents the rent to reduce after market rent review. Hence, inserting a ratchet clause is in the landlord’s interest.

Repairs and maintenance

Clauses pertaining to repairs and maintenance are often disputed because parties do not clearly specify who is responsible for repairing or maintaining certain items in the premises. The exact obligations for repairs will usually differ with each lease. Generally, if the damage to the property is beyond fair wear and tear, the tenant has the responsibility pay for the cost of repairs. A large hole in the wall is an example of beyond fair wear and tear. The landlord is normally responsible for repairing the roof, the ceiling, the external walls and the floors of the property.

Conclusion

Therefore, landlords and tenants need to be alert to certain terms in a commercial lease otherwise costly disputes can arise. If you want to enter into a commercial lease, get in touch with our experienced legal team so that we can review your lease and protect your interests.

How to Fight against Domestic Violence

According to a 2020 report by the Australian Institute of Criminology, more than half the women who experienced coercive control from their partners reported the escalation of emotionally abusive, harassing or controlling behaviours during the COVID-19 pandemic.

The rise in domestic violence is attributable to a combination of factors including increased time spent at home, increased social isolation, increased financial stress and job insecurity. What can you do when you experience domestic violence? In this article, we will explain the fundamental elements of domestic violence in NSW and Apprehended Domestic Violence Orders (ADVO).

What is domestic violence?

First, you may notice that the definition of domestic relationship is actually quite broad. Under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘the Act’), the definition encompasses marriage, de facto relationships, intimate relationships, and couples living in the same household.  Under the Act, domestic violence means an offence committed by a person against another person with whom the person who commits the offence has (or had) a domestic relationship, being:

  1. A personal violence offence; or
  2. An offence which is intended to coerce or control the person and cause intimidation or fear.

Furthermore, Intimidation includes:

  1. harassment or molestation of the person, such as cyberbullying by publication or transmission of offensive material over social media or via email;
  2. conduct causing the person to fear for his or her life by telephone, text messaging, emailing and other technological means;
  3. conduct causing apprehension of injury;
  4. damage to property.

Are you a victim of domestic violence?

In NSW, you can ring the Domestic Violence Line (1800 65 64 63) to speak with a caseworker from the NSW Department of Communities and Justice. Alternatively, you could seek an ADVO which is a court order to protect people from violence and intimidation (including harassment) by another person. We can help you apply for an ADVO in the Local Court.

When an ADVO is granted, some mandatory conditions are attached to the ADVO including:

  1. the defendant is prohibited from assaulting, threatening, stalking, harassing, or intimidating the protected person, or damaging property;
  2. the defendant must not approach the protected person; and
  3. the defendant must not come within a certain distance of the premises where they reside or work.

Have you been served with an ADVO?

If you are served with an ADVO, your rights are adversely affected. For example, you may have to move out of your home; you may lose your job after your employer runs a police check; or you may lose your right to see your children in the Family Court. If you are a visa holder, you could even lose your right to stay in Australia.

If you think you are involved in a domestic violence matter, please contact our professional lawyers to help you. Our team has rich experience in domestic violence and family law matters, and we are committed to protecting your rights and your best interests.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

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.

What to do when someone owes you money

Does a tenant owe you rent? Does your boss owe you wages? You loaned money to someone and he/she did not pay you back? Pursuing people for money that belongs to you can be irritating and time-consuming. One way to recover your money is to sue the person or company owing you money (also known as a debtor), but this is generally the most expensive way of resolving a dispute. Before going to court, it is worth considering alternatives such as issuing a ‘letter of demand’ to the debtor, and mediation. In this article, we will explain to you the initial steps in your journey to recovering your debt.

Letter of demand

A letter of demand is exactly what it sounds like. This document is addressed to the debtor and contains your demand for money which belongs to you. The most effective letters are succinct and can include the following:

  • The amount owed to you in dollar value;
  • A copy of the invoice which has not been paid or a copy of the contract that has been breached;
  • The deadline for repaying the debt (usually within 7 days of the date of the letter);
  • The method of repayment (e.g. electronic funds transfer, cheque or cash); and
  • Your intention to sue the debtor if the debt is not repaid.

Take the time to ensure that you have correctly identified the debtor or debtors including address and email. You also want to make inquiries about the debtor’s assets and ascertain whether or not the debtor can satisfy your debt. If you would like an effective letter of demand to be drawn up, feel free to contact our team.

Mediation

Another affordable way to resolve a monetary dispute is through mediation. It involves the parties, usually with their lawyers, attending a meeting with a mediator trained in settling disputes. At first, the mediator meets the parties and their lawyers altogether, at which each side makes an opening statement of their position, followed by some negotiation. At this stage, you want to find out why the debtor has refused to return your money. Next, the parties and their lawyers are placed in separate rooms, while the mediator moves between each room, presenting offers of settlement, and trying to bring each closer to the other’s position.

Attempting mediation is generally expected by judges before court proceedings begin.

The NSW Community Justice Centres and NSW Small Business Commissioner offer cheap mediation services.

Statement of claim

If the two options above are unsuccessful, then you can consider filing and serving the statement of claim to the debtor. The statement of claim is a written declaration by you, the creditor, containing the facts that are to be relied upon to a support a claim against the debtor, and the relief claimed. It can be an effective way of bringing the debtor to the negotiating table. However, this pathway is costly and can take many months before a trial takes place. If you do go to trial and obtain a judgment in your favour, you can legally force the debtor to repay you.

For debt up to $100,000.00, the statement of claim would be filed in the Local Court.

For debt between $750,000.00 and $100,000.00, the statement of claim would be filed in the District Court.

For debt greater than $750,000.00, the statement of claim would be filed in the Supreme Court.

Conclusion

Therefore, there are various options available to recover your money, and we recommend that you try resolving the dispute outside of court first. Issuing a letter of demand and attending mediation are not only cost-efficient, but they are also short in duration and have a relatively high success rate. If you need any assistance with drafting an effective letter of demand or need legal representation, please contact our team.

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.

Applying for a partner visa and the impact of the 20/21 Federal Budget

A partner visa is one of the most important type of visas because it affects a substantial number of families. This visa allows a foreigner to stay in Australia so that he or she can be united with his or her Australian partner. Following the Australian federal budget 2020-21, several changes are made to the partner visa scheme with significant implications. In this article, we will take a brief look at such changes and their impact on partner visas.

Requirements

The visa applicant must be ‘sponsored’ by his or her partner who is an Australian citizen, Australian permanent resident, or a New Zealand citizen who satisfies specific criteria. The visa applicant’s partner must first apply to and be approved by the immigration authority to be a sponsor.

The visa applicant’s partner must be visa applicant’s ‘spouse’ or ‘de facto partner’. In either case, they must be committed to each other in a shared life to the exclusion of others. Moreover, they must live together or not be separated permanently. For a de facto partnership to be recognised, it must have lasted for at least 12 months.

To be granted a partner visa, the partnership must be proved as genuine and continuing. All circumstances of the partnership must be considered by the immigration authority, including four essential aspects, namely financial aspect, nature of household, social aspect and nature of commitment to each other.

Application process

There are permanent and temporary partner visas: a permanent visa grants permanent residency in Australia, while a temporary partner visa allows the applicant to stay in Australia before the permanent visa is granted. The applicant must apply for a temporary visa and a permanent visa at the same time. Assessment of the permanent visa application will normally start two years after its lodgment.

Partner visas can be applied for either in Australia (on-shore) or outside Australia (off-shore). An interesting fact is that an offshore applicant can apply for a prospective marriage visa to come to Australia to marry his or her Australian partner. After the marriage, the applicant can apply for onshore partner visas.

CHANGES FOLLOWING FEDERAL BUDGET 2020-21

The Australian Federal Budget 2020-21 has brought significant changes to the partner visa scheme including:

  1. more visa places allocated to partner visas;
  2. priority to regional residents;
  3. mandatory character check for sponsors; and
  4. English requirements.

More visa places

In the 2020-21 visa program year (starting from 1 July 2020), the Australian Government has planned to grant 72,300 partner visas, compared to 39,799 in the 2019-20 program year.

Priority to regional sponsors

Partner visa applications will be given priority in the application process if the sponsor lives in ‘designated regional area’ such as Perth, Adelaide, the Gold Coast and Canberra. In other words, applicants with a regional sponsor might obtain permanent residency faster.

Sponsor’s character check and obligations

The sponsor applicant must provide the immigration authority with a police check. Moreover, the sponsor applicant must consent to the immigration authority disclosing his or her criminal records to the visa applicant.

The sponsor is obliged to provide the visa applicant and his or her children with accommodation and financial assistance 2 years after the temporary partner visa is granted, even when the permanent visa is granted before the 2 years expiry. The visa may be cancelled if the sponsor fails to perform his or her obligations.

English requirement

Both the partner visa applicant and the sponsor are required to have ‘functional English’ by the time the permanent partner visa is granted. They must at least demonstrate that they have made reasonable efforts to learn English. Such efforts may be demonstrated by, for example completing 500 hours of free English language classes through the Adult Migration English Program.

Conclusion

Applying for a partner visa is a long process and has a handful of requirements. This year, the Australian Government has created more opportunities for partner visa applicants and tightened the requirements for sponsors. At Legal Point Lawyers, we can help you with your application and offer a service that is smooth and efficient.

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.

Getting bail – an overview

The actor Gao Yunxiang (Gavin Gao), who is also known as “Hugh Jackman of China”, was charged with sexual assault in 2018. The famous Chinese actor was granted bail by Justice McCallum, but in return he would have to satisfy multiple bail conditions. Gao was ordered to pay $3 million surety for bail, stay at a $6000-a-month Chatswood property, obey a nightly curfew, wear an electronic monitoring bracelet, and to stay 100m away from Sydney International Airport. You may wonder how complex a bail decision is. In this article, we will explain to you the fundamental elements of a bail application.

What is bail?

The term ‘bail’ is the authority to be at liberty for an offence until the proceedings for the offence finish. In other words, the accused can be released from custody on the condition that they attend court when required and abide by other bail conditions.

Steps leading up to Court

If you have been charged and arrested, the police will quickly decide whether or not you can go home or stay in custody. Generally, the police will refuse bail if the alleged offence is a serious one. If the offence is minor, then you may have a right to release. If bail is refused by the police, you will be brought before the Court as soon as practicable for a bail application. Remember you have a right to contact a lawyer for help with bail.

Court considerations

Some of the matters that the Court will consider include:

  1. Your criminal history and community ties;
  2. The nature and seriousness of your offence;
  3. The strength of the prosecution case;
  4. Whether you have a history of violence;
  5. The length of time you are likely to spend in custody if bail is refused;

In Gao’s case, Her Honour outlined that her main concern was the risk of flight because there is no extradition treaty with China.

Examples of bail conditions

There are different types of conditions that can be imposed on bail including:

  1. Conduct requirements such as reporting to police every day, living at a specific address, surrendering your passport and obeying a curfew;
  2. Security requirements such as giving a security bond;
  3. Character acknowledgments by an acceptable person; and
  4. Enforcement conditions such as answering a police check.

If you need legal advice for your criminal matter and would like a quotation for our services, please give us a call on 02 9283 8588.

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.

Application for Divorce in Australia

You probably heard the news about Bill Gates and his wife filing for divorce recently, but did you know that almost 50,000 divorces were granted in Australia in 2019? This figure is quite substantial given than just over 100,000 marriages were registered in the same period.

Divorce is the legal end of the marriage between two spouses. Deciding to divorce is arguably one of the most difficult decisions that a person has to make, but the application process does not have to be. This article will go through the two essential preliminary issues you need to consider and the application process.

Issues before applying for divorce

Before applying for divorce, you should consider who gets what, that is to determine how the matrimonial pool of assets is divided. Another issue that must be resolved prior to a divorce application is the children’s future. The Court may not grant a divorce if the parties have failed to make appropriate arrangements for the children such as child support, accommodation and supervision. These two issues can be complex, and you should contact a family law lawyer for legal advice.

The application process

Under the Family Law Act 1975 (Cth), the Federal Circuit Court has the power to deal with all divorce applications. Divorce applications must be filed online unless the parties are in a same sex relationship. An application fee of $930.00 (FY20/21) also needs to be paid. However, if payment of the full fee would cause you financial hardship then you may be qualified for a reduced application fee of $310.00 (FY20/21). You can either apply for divorce by yourself or together with your former partner. Each option has different formalities.

The one and only ground for divorce is ‘irretrievable breakdown of the marriage’. To prove to the Court that your marriage has irretrievably broken down:

  1. You and your partner must have lived separately and apart for at least 12 months; and
  2. There is no reasonable chance of getting back together.

If you can prove the above in Court, then a divorce order will be made and be effected one month and one day later. The Court will not acknowledge allegations of fault such as cruelty, adultery and desertion as a ground for divorce.

Furthermore, at the time of application, either spouse must be an Australian citizen, or domiciled in Australia or an ordinarily resident in Australia.

How long does it take to get a divorce in Australia?

At least 16 months from the date of separation, which starts on the day after one spouse considered the marriage to be broken down and imparts this fact to the other. At filing your Application for Divorce, you will be able to select a listing date for the Divorce Hearing from a range of available dates. Hearings are normally listed in 2 to 3 months’ time from the date of filing. The length of time can increase due to the other party’s opposition to a divorce application or issues with serving court documents to the other side.

Conclusion

Overall, applying for divorce is a lengthy and complex process with many issues to consider including the distribution of family assets and the children’s future. Over the past decade, the Court has streamlined the procedure and converted it online for ease and efficiency. If you are thinking about divorce and want to discuss your options, feel free to contact our team of family law lawyers for a consultation.

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.

Drink driving in NSW

On 20 May 2019, the NSW Government implemented tougher penalties for drink-driving offences to reduce the number of injuries and deaths from car crashes. One reason for this change is because a person is killed or hospitalised every 41 minutes due to a car crash on NSW roads. To ensure that drivers are obeying the law, you will find the Police conducting random breath tests on the road at different times of the day. This article will briefly explain to you the current drink-driving laws and how we can help you if you are tested positive to a high PCA (Prescribed Concentration of Alcohol in a person’s breath or blood). By reading the information below, you could potentially save your driver licence, prevent a fine and protect your criminal record.

The Law

The law governing drink-driving offences can be found in section 110 of the Road Transport Act 2013 NSW. There are five separate categories for this offence which vary in severity of punishment and PCA.

Novice range PCA: A person who holds a learner licence, provisional licence or interlock driver licence must not have more than a PCA of 0 grams when he/she is driving the motor vehicle.

Special range PCA: a special category driver (see s107 of the Road Transport Act 2013 NSW) must not have a PCA of 0.02 grams or more when he/she is driving the motor vehicle

Low range PCA: A person who holds a full driver licence must not have a PCA of 0.05 grams or more, but less than 0.08 grams, when he/she is driving the motor vehicle.

Middle range PCA: A person who holds a full driver licence must not have a PCA of 0.08 grams or more, but less than 0.15 grams, when he/she is driving the motor vehicle.

High range PCA: A person who holds a full driver licence must not have a PCA of 0.15 grams or more when he/she is driving the motor vehicle.

Penalties for the above categories include a suspension of driver licence, fines, a criminal record, a requirement to install an alcohol interlock device and even imprisonment. A higher PCA generally results in more significant penalties. If you are found guilty by the Police, your driver licence will be immediately suspended. Suspension means that you need to hand your licence to the Police and make alternative arrangement to return home. In the case of a first offence, the driver licence can be suspended for 3 months and an on-the-spot fine can also be issued.

How we can help?

If you have received a penalty notice or an immediate suspension for a drink driving offence from the Police, we can appeal the suspension for you in Court. Depending on your circumstances, we could rely on several defences to preserve your innocence such as ‘honest and reasonable mistake’ and arguing that the breath test was ‘unlawfully obtained’.

If it is your first drink-driving offence, we can help you persuade the Court to dismiss a conviction by means of a ‘section 10’. If we are successful, your licence would be returned to you and you will not be penalised. You can find out more information about a ‘section 10’ in our article here:

If it is your second drink driving offence within a 5-year period, we can help you reduce the severity of the punishment such as decreasing the length of your licence suspension; reducing your fine; and help you avoid imprisonment.

Therefore, drink driving laws in NSW should not be taken lightly because the penalties can be detrimental to your career and your future. Our drink driving solicitors have appealed many matters in Court with a high level of success and client satisfaction. If your driver licence has been suspended by the Police, you should obtain legal advice.

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.

Default judgments and how to enforce them in debt recovery matters

What is a default judgment?

A default judgment is a sanction of the court which effectively disposes court proceedings without a trial. You will often hear about this after the plaintiff has served a statement of claim or summons on the defendant, and the defendant failed to respond in time. A default judgment is available in the civil jurisdiction of the Local Court, District Court and Supreme Court.

In the context of debt recovery, obtaining a default judgment would order that the defendant must pay you money or return your goods. However, a default judgment is not the end of the story; it is merely the precondition for a range of court remedies. According to s 17 of the Limitation Act 1969 (NSW), you have 12 years, from the date the default judgment is entered, to enforce it. This article will briefly explore the three most popular remedies, namely bankruptcy, garnishee order and writ for levy of property.

Bankruptcy

This is a term that appears in the media quite often. Particularly in 2020, we have heard a number of companies crumble under crippling debt including Virgin Australia. The purpose of bankruptcy is to liquidate most of the assets of the defendant and obtain some of the earnings of the defendant for up to 3 years after the date of bankruptcy. Bankruptcy proceedings can be started in the Federal Courts soon after default judgment is handed down, provided the total judgment debt amounts to at least $10,000.00. However, the method of bankruptcy can be costly, lengthy and very technical. Another disadvantage is that there may be other secured creditors, who rank ahead of you in priority, and thus full payment of the debt may not be received.

Garnishee order

As for the garnishee order, the third party (known as the “Garnishee”) will be compelled to pay their debt to you instead of the defendant. Examples of Garnishees include banks, employers, real estate agents, debtors and other financial institutions.  The debts have to be existing debts which are due at the time of serving the garnishee order. The debtor’s cheque accounts, term deposits in banks, saving accounts in banks, money held on fixed deposit are subject to a garnishee order. If the defendant’s bank account balance is too low, the bank does not have to comply with the order.

Writ for levy of property

To successfully execute the writ for the levy of property, you must know that the defendant has the relevant property which can be seized by the sheriff to satisfy the debt. The relevant properties may include any goods in which the judgment debtor has a beneficial interest, money belonging to the judgment debtor, cheques, bills of exchange, promissory notes, bonds or other securities.

Order for Examination

If you do not have enough information about the defendant’s income or assets, you could issue an order for examination which compels the defendant to appear in Court and present answers.

Take action now before it is too late. Contact Legal Point Lawyers today for a consultation. With over 15 years in the legal field, we can help you significantly boost your chances of recovering your debt quickly and smoothly.

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.

Negotiating with the Prosecution

In criminal law, negotiation is a mechanism of attempting to resolve competing interests between the Prosecution and the Defence. It is very important because the Defendant could secure the best outcome for himself/herself. In New South Wales, the Police Prosecutor deals with summary offences (e.g. drink-driving and common assault) while the Office of the Director of Public Prosecutions (DPP) deals with more serious offences (also known as indictable offences). Negotiation is not only prevalent in Australia, but also in other countries around the world including the United States of America, England and China.

What can be negotiated?

The most popular area for negotiation is that of which charges the Defendant might plead guilty to if the Defendant will admit certain allegations. Another popular area of negotiation is whether the Defendant will provide assistance to the authorities in the event that negotiation is successful. Examples of assistance include giving evidence against a co-accused at trial and assisting police in relation to different matters.

Why is negotiation important?

Firstly, it saves the Defendant and their friends and family a lot of stress in having the matter resolved earlier. The Prosecution process often takes years to finalise from the charge date to the sentencing date. Secondly, accepting a plea bargain could save the Defendant from a harsher punishment because they have a weak case at trial. For example, if the Defendant suffered significant memory loss and could not recall the alleged offence, then they would probably struggle to rebut the Prosecution’s arguments. Thirdly, an early guilty plea could lead to a sentencing discount because it shows the Judge that the Defendant is remorseful. Fourthly, it narrows down the issues to be dealt with at trial.

What the negotiation process could look like for summary offences:

Prior to the first court appearance, the Defendant writes to the Police to request a withdrawal of a charge(s). The Defendant could support their request with the following reasons:

– The Defendant has a good defence;
– The Police do not have enough evidence to prove the alleged offence; or
– The Defendant agrees to plead guilty to a less serious charge if the Police withdraws the more serious charge.

If the Police do not agree to withdraw the charge, then the Defendant will have to consider pleading guilty or not guilty at Court.

What the negotiation process could look like for indictable offences:

The DPP certifies the following charges:

No. Description Offence details Maximum imprisonment
1 Assault child with intention to have sexual intercourse with 13 years old child S66D Crimes Act 1900 16 years
2 Grooming 13 years old child for unlawful sexual activity S66EB(3) Crimes Act 1900 12 years
3 Intentionally sexually touches a child who is 13 years old S66DB(a) Crimes Act 1900 10 years

 

A week later, the Defence writes to the DPP and offers a plea of guilty to the following charge only.

No. Description Offence details Maximum imprisonment
3 Intentionally sexually touches a child who is 13 years old S66DB(a) Crimes Act 1900 10 years

 

Before deciding, the DPP will consider three factors, including:

1. Whether the evidence available can satisfy each element of the alleged offence;
2. Whether there is no reasonable prospect of conviction by a jury; and if not
3. Whether discretionary factors nevertheless determine the matter should not proceed in the public interest.

A lesser charge may be accepted if the Prosecution is satisfied it is in the public interest after considering the following matter:

– The alternative charge sufficiently reflects the criminality of the Defendant’s action and the plea provides enough scope for sentencing; and/or
– The Prosecution case is weak; and/or
– The saving of cost and time weighed against the likely outcome if it continued to trial is significant; and/or
– It will save a witness from the stress of testifying in a trial; and/or
– A victim has expressed a wish not to proceed with the charges.

If the DPP accepts the offer, then the matter would progress to sentencing before the Court. If the DPP rejects the offer, then negotiations will either continue or progress to Court for a trial date.

Guilty plea discounts for offences in NSW

The following sentencing discounts are prescribed for indictable offences based on the timing of the plea (Part 3, Division 1A, Crimes (Sentencing Procedure) Act 1999 (NSW)).

Timing of guilty plea 

 Discount

Before committal in the Local Court

25%
Up to 14 days before the first day of trial in the District or Supreme Court (for plea or notice of plea)

10%
In any other circumstances

5%

Conclusion

Overall, negotiation is an important aspect of the Prosecution process as it can lead to the best outcome for the Defence and for the community. If you have been charged with a serious offence, our experienced criminal law team at Legal Point Lawyers are able to assist.

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.

Your rights when flights are cancelled

The lifting of border restrictions between New South Wales and Victoria recently is a step-forward in reviving the airline industry. However, borders can also close very quickly if there is a sudden spike in Covid-19 infections, meaning flights may have to be cancelled or postponed. Last year, many Australian consumers waited over six months to obtain a refund on their plane tickets. Thus, it is no surprise that the pandemic resulted in 24,210 complaints to the Australian Competition and Consumer Commission (ACCC), which is an increase of 497 per cent compared to the same period in 2019. This article will share recommendations on what you need to be aware of before purchasing a flight ticket and what you can do when flights are cancelled.

Before purchasing a ticket

Paying attention to the terms and conditions of your booking is very important because they will determine whether you are entitled to a refund for cancelled bookings due to government restrictions. In some cases, consumers might not be entitled to a full, or any, refund of their booking. Some travel providers offer travel credits rather than refunds. If you receive travel credits, you should check when the expiration date is.

Terms and conditions will vary between travel providers (e.g. Qantas, Jetstar and Virgin). Terms and Conditions can also vary between different time periods. If you purchased a ticket via a travel agent, you should also read the travel agent’s terms and conditions.

When flights are cancelled

When cancellations occur due to government restrictions, consumers are not automatically entitled to a refund as they would be in normal circumstances under the consumer guarantees of the Australian Consumer Law (ACL). However, the pandemic does not permit business to engage in misleading, deceptive or unconscionable conduct.

If you paid by credit or debit card and you selected credit, you can ask your bank for a credit card charge back. Sometimes your bank reverses the disputed transaction with the merchant’s bank in accordance with the rules set by Visa, Mastercard and American Express.

Conclusion

Therefore, it is prudent for consumers to look closely at the terms and conditions of their booking before making payment. If you think you have been treated unfairly by a travel provider, we are available to help you.

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.

Victorian Court Arrangements during the Second Lockdown

Due an unfortunate surge of COVID-19 cases, Victoria is now under a second lockdown with metropolitan Melbourne facing the strictest stay-at-home and curfew restrictions which will last for at least 6 weeks from the beginning of August. In this context, how the Victorian judiciary, which traditionally relies heavy on face-to-face hearings, adapt to the second lock-down deserves special attention. This article will take a brief look at such adaptive measures.

Courts operating protocols

In general, Victorian courts and tribunals remain accessible, but they now only hear urgent and priority matters. Most non-urgent matters are either postponed to a later hearing date or scheduled to be heard via video conferencing instead. For those who are required to attend the county court physically, they must adhere to the face covering rules inside the court.

Supreme Court of Victoria

The Supreme Court of Victoria normally deals with the most significant cases. Currently, most hearings at the Supreme Court are being heard remotely. If you are unable to attend court due to COVID-19, you must notify the Prothonotary by email as soon as possible.

County Court of Victoria

In the second lockdown, the County Court will only grant permission for matters to be conducted in person at court on a case-by-case basis where such physical attendances are necessary and urgent with no reasonable alternative. Examples of such cases include those concerning the liberty of a person, or cases involving highly vulnerable participants or dying litigants.

Other hearings are conducted via video conferencing (eHearings) where participants will be able join remotely.

Magistrates’ Court

Like the County Court, the Magistrates’ Court is managing many of its matters remotely and you should not attend court unless otherwise instructed by prior arrangement. A range of non-urgent matters have been adjourned and most matters are now being heard in the Online Magistrate Court ( OMC) premises. The Courts are now also utilising “webex” that allows certain matters to proceed remotely. 

VCAT

VCAT, which mainly deals with small claims, is still accepting new cases and you can still apply for matters that fall within the VCAT’s jurisdiction for determination. However, VCAT is able to issue summons at your request. VCAT is conducting hearings via telephone and video conferencing. Most cases that require face to face contact have been adjourned and rescheduled for hearing for a later date. Parties will be informed of how to attend their scheduled hearing by the tribunal.

Federal Circuit Court

The Federal Circuit Court has suspended all face-to-face hearings in the Melbourne and Dandenong registries for the next six weeks unless exempted by the Chief Justice. The court will conduct all trials and hearings electronically via telephone or Microsoft Teams. Regarding family law cases in particular, the court has asked parties to cooperate and ensure that the best interests of the child are being addressed by complying with court orders. If strict adherence to parenting orders are not possible, all amended arrangements must reflect the essence of the orders.

To sum up, thanks to remote conferencing technology today, Victorian courts are able to maintain public access to the court system while safeguarding public health and safety during the COVID-19 pandemic. It is notable, however, that specific arrangements vary depending on the type of court and the case they deal with. If you are involved in a court case or plans to initial legal proceedings, it is advisable to look at the arrangement of the applicable court and keep in close contact with your lawyer.

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.

A Liquidator’s Rights to the Books of a Subject Company under External Administration

Undoubtedly, recent news about big company entering into external administration attracts a lot of public attention. As part of the winding up process of a subject company placed under external administration, an appointed liquidator (or a “provisional liquidator”) may serve a formal Notice pursuant to s530B of the Corporations Act 2001 (Cth) upon a person who is in control of the subject company’s books, requiring that person to deliver such “books of the company” to the liquidator within a limited timeframe.

Unlike other rights conferred upon the liquidator by other parts of the Corporations Act 2001, s530B imposes an obligation on persons generally, rather than just upon officers of the subject company, and may include or third parties / unrelated entities of the subject company, or various professional groups such as accountants, financial advisers or solicitors that may have previously acted for, or given advice to the officers of the subject company.

As a person who is served with a Notice is not entitled, as against the liquidator, to retain possession of the “books of the company” or claim or enforce a lien on such books, they must give careful consideration to their response, as a failure to comply with a Notice is a strict liability offence.

How to respond to a Notice issued pursuant to s530B of the Corporations Act 2001?

Firstly, ensure that the Notice complies with the formal requirements of s530B, including that the Notice must:

  1. be in writing;
  2. specify the “books of the company” that are in the person’s possession; and
  3. specify a period of at least 3 days as the period in which the Notice must be complied with.

Secondly, carefully review the specified list of “books of the company” requested to determine what books have been correctly captured by the Notice.

What documents and/or records constitute “books of the company”?

Although s9 of the Corporations Act 2001 broadly defines the term “books” to include a register, any other record of information, financial reports or financial records (however complied, recorded or stored), and a document, the Courts have narrowly interpreted the meaning of “books of the company”. The Courts have limited the scope of what “books” can be captured under a Notice issued pursuant to s530B, and interpreted the expression “books of the company” to refer to books which are owned or belong to subject company under external administration, or those books which it can claim a proprietary interest in.

In the matter of Cromwell Corporation Limited [2019] NSWSC 1608, Her Honour, Lees J set out the relevant authorities at [20] to [33] in relation to the interpretation of “books of the company”. In particular, at [23], Her Honour stated:

His Honour referred to consideration of the expression “books of company” in different sections of the Corporations Act in Hall v Sherman (2001) 40 ACSR 40; [2001] NSWSC 810 and Caratti v Harris & Kirman as Joint Liquidators of GH1 Pty Ltd [2019] FCAFC 124. Pausing to examine those authorities, in Hall v Sherman, Austin J considered the meaning of “books of the corporation” under section 431 (rights of a controller of property of a corporation to inspect books of the corporation that relate to that property) and “books of the company” under section 530B  (the liquidator’s entitlement to the books of the company). In respect of  section 530B , his Honour held at [47]: (emphasis added)

… The liquidator’s right to obtain or retain possession of books, as against other persons, is confined to “books of the company”. As a matter of natural meaning, those words refer to books which belong to the company, and may extend to books to which the company has some lesser but proprietary interest. …

Given the narrow interpretation of “books of the company” by the Courts, a person is therefore only obligated to deliver to the liquidator books which can be identified as belonging to, or which the subject company can claim a proprietary interest.

If you have been issued with a Notice pursuant to s530B of the Corporations Act 2001 by a liquidator or via its solicitor, you should seek legal advice about your obligations on an urgent basis and before delivering any documents and/or records to the liquidator and/or its solicitor.

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.