Q & A

litigation

Q: What are the requirements for recognition of foreign judgments in Australia?
A:

Recognition of foreign judgments in Australia are governed by the Foreign Judgments Act 1991 (Cth). However, the details principles are varied on a case basis. In general, The following conditions must be satisfied:

  1. The foreign court must have exercised jurisdiction that Australian courts recognise under Foreign Judgments Act 1996 and the Regulation;
  2. The foreign judgment must be final and conclusive;
  3. The judgment must be for the payment of a debt or definite sum of money;
  4. The judgment debt has not been wholly paid by the debtor in the foreign country;
  5. The judgment must be enforceable in the country of the original court;
  6. The identity of the parties to the foreign judgment must be the same as the parties to the Australian enforcement proceedings.

Conveyancing & Property

Q: What is the requirement for First Home Owner Grant (New Home) Scheme?
A:

To be eligible for FHOGS, you must:

  1. Be an Australian citizen or permanent resident over 18 years old; and
  2. Have never owned or co-owned a home in Australia; and
  3. Have never received a FHOG in Australia; and
  4. Occupy the new home as your principal place of residence for a continuous period of at least 6 months commencing within 12 months of completion of the transaction; or
  5. Move in within 12 months after the construction is complete if you are building a new home.
Q: What is the cap for the Stamp Duty Exemption?
A:

For any existing homes, if its dutiable value is less than $650,000, the applicant is eligible for a full exemption from transfer duty. However, if the dutiable value is between $650,000 and $800,000, the applicant is eligible for a concession calculated based on the concession rate.

For any new homes, if its dutiable value is less than $800,000, the applicant is eligible for a full exemption from transfer duty. However, if the dutiable value is between $800,000 and $1,000,000, the applicant is eligible for a concession on transfer duty calculated based on the concession rate.


Commercial Law

Q: In what circumstance, the company is in ‘insolvent trading’?
A:

If there is any one of the circumstances happen, the company is in ‘insolvent trading’:

  1. a company incurs a debt when the company is insolvent; or
  2. a company becomes insolvent by incurring a debt.

Divorce & Family Law

Q: Can the Court enforce the terms of a Financial Agreement or party’s obligation to pay money under a Financial Agreement?
A:

Yes, however, you must first seek a Court Order in relation to the validity of the Financial Agreement.

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.

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

Q: If a Divorce Order has already been granted, what are the alternatives to entering into a Financial Agreement?
A:

Former Spouses can decide to enter into Consent Orders instead of a Financial Agreement. Each party must seek their own independent legal advice about each option and weigh the advantages and disadvantages of each alternative.

Unlike Financial Agreements, Consent Orders must be filed with the Court for its consideration, and will only be approved if it is satisfied that the proposed Consent Orders are “just and equitable” and will consider all matters disclosed in the accompanying Application for Consent Orders. An Application for Consent Orders will include all usual matters that form the “4-Step Approach” and will consider factors such as the asset pool of the parties, their liabilities, the proposed division as well as each party’s financial and non-financial contributions such provision of childcare and homemaker duties, during the relationship.

Importantly, an Application for Consent Orders must be filed within 12 months from the date that a Divorce Order becomes final, otherwise you will need to seek leave (permission) from the Court before the Application can be filed. Similarly, an Application for Consent Orders made by a former de facto couple must be filed within 24 months from the date of separation, otherwise you will need seek leave from the Court.


Immigration Law

Q: How can I check my visa staus?
A:

If you want to know whether your visa is valid or not, you can have a VEVO Check by using the information listed in your IMMI Grant Letter.


Notary Public

Q: Can you witness my signature upon the documents as a Notary Public Solicitor via video link?
A:

Sorry, we cannot do that. We note that there is new policy for witnessing signature during COVID 19, however, Notary Public Authority clarified to all Notary Public Solicitor that notary public service cannot be done via audio or video link.

Q: Do I need to understand the content and consequence of the document I am signing before I have an appointment?
A:

Yes, you must understand the content and legal effect of the document. Otherwise, you must obtain independent legal advice


Trade Mark

Q: How can registering a trade mark make a difference?
A:

A business may leave its marks unregistered. When an infringer uses an unregistered mark or similar ones to suggest a false connection to the business, the business may rely on the laws against ‘passing-off’ and ‘misleading or deceptive conduct’ to stop such use. However, the business will have to prove the reputation behind their marks. Evidence in this regard, sometimes even requiring market surveys, may be expensively to collect.

By registering the marks as trade marks, the business instead needs to prove that an infringer, without the business’ authorisation, has used the trade mark or similar marks on goods and services that the trade mark is registered with – a simpler, more cost effective process.

Q: How does a registered trade mark work?
A:
A business may have various marks such as bands, logos, slogans and packages etc. Such marks may be registered with a national register of trade marks in Australia. Each trade mark is registered in respect of certain classes of goods or services, so that the trade mark owner can use the registered trade mark on or in relation to those goods or services, such as affixing it to the package of goods, or using it in the promotion of the goods or services. A person may infringe a registered trade mark if he or she, without the trade mark owner’s authorisation, uses the trade mark or similar marks on the goods and services that the trade mark is registered with.

Wills and Estate

Q: What is the role of an executor of a will? If I’ve been appointed as an executor, what should I do?
A:

When someone dies, an executor is the person appointed by the will to administer the estate. Put simply, this involves making sure their debts are paid and that their assets and possessions go where the deceased wanted them to. As executor, the first thing you will need to do is to make a list of everything the deceased owned as well as any payments or assets they were entitled to. Then, you may need to do the following:

  1. Apply for probate;
  2. Pay fees and debts; then
  3. Distribute the assets.
Q: If my Wife or Husband passes away, do I get everything he owns?
A:

It depends on what is written in the Will. If there is no Will, then intestacy rules apply. Two of the rules are as follows:

  1. If the deceased leaves a spouse but no children, the spouse is entitled to the whole of the estate.
  2. If the deceased leaves a spouse and children and the children are all also children of the spouse, the spouse is entitled to the whole of the estate.

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