Q & A

Commercial Law

Q: What is a bank guarantee?

A bank guarantee is an unconditional promise by a bank, on behalf of the bank’s customer, to pay the recipient of the guarantee the amount of the guarantee on written demand. It is an alternative to providing a security deposit or bond to a supplier, vendor or landlord. Bank guarantees require security in the form of cash held on deposit held with the bank, or real estate.

Q: Who bears the cost of the commercial lease?

In the past, the general approach had been that the tenant was liable for the entire lease costs. However, the recent trend is that each party bears its own costs for the lease. When the premise are difficult to lease, the tenant may negotiate with the landlord and seek concessions such as the landlord should bear its own legal costs of preparation of the lease.

Divorce & Family Law

Q: My spouse and I have recently separated, can I now commence divorce proceedings?

No, spouses must have lived separately and apart for at least 12 months and 1 day before either party can file an Application for Divorce – this Application can be made either solely or jointly. It is noted that spouses can still live together in the same home post-separation, as they will still be considered to be separated.

Q: My spouse and I reconciled our relationship for a few months, but we have now ended the relationship again, do I have to restart “the 12-month waiting period” before commencing divorce proceedings?

If spouses reconcile their relationship or resume cohabitation for a period of less than 3 months and then separate a second time, the original period of separation can be included.

If spouses reconcile their relationship for a period of more than 3 months before separating again, the original period of separation cannot be included and the “12-month waiting period” must recommence from the more recent date of separation.

Wills and Estate

Q: Do I lose my rights after I have a Power of Attorney?

No. You can still exercise all the rights after appointing your Attorney(s). You can continue to operate your bank account and look after your property while you still have mental capacity.

Q: What can I do if there is a dispute involving in a Power of Attorney?

If the dispute in the Power of Attorney cannot be settled, you can go to either the Civil and Administrative Tribunal or the Supreme Court. They have the power to review enduring powers of attorney. The Supreme Court has the sole right to review certain types of general powers of attorney.

Criminal Law

Q: Will convictions stay on my criminal record for life?

Most convictions will become ‘spent’ after a certain period of time. ‘Spent’ means that the conviction will no longer be on your criminal record.

Q: Who can charge you?

Depends on the type of criminal offence you allegedly committed and where it happened. For example, you could be charged by: NSW Police, Federal Police; Transport for NSW (TfNSW)(formerly known as Roads and Maritime Services or RMS); Councils; Office of the Director of Public Prosecutions or Commonwealth Director of Public Prosecutions; and NSW Environment Protection Authority.

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