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Frequently asked questions

Commercial, Business & Property

Conveyancers are qualified to provide advice to clients in relation to certain aspects of property law only. Solicitors, on the other hand, have knowledge of not only property law, but other areas of the law which relate to your conveyancing transaction (such as tax/asset protection/family law and estate planning). Mullane and Lindsay have a specialist team who work in the area of property law, comprising of solicitors and a conveyancer.

This can be a critical issue for many reasons but particularly if legal action is commenced against the business. We can provide you with advice about how to tailor your business structure to best suit your needs.

Yes. The Real Property Act requires any interest in land to be recorded by way of a written agreement.

We are able to share our experience with you and to provide you with check-lists  to help you through the transition.

This is not necessarily a straightforward question to answer – it depends on the type of business you operate and your use of the premises. Scheduled 1 of the Retail Leases Act lists the type of “retail shop businesses” which the Retail Leases Act applies to.

Disputes, Claims & Litigation

If you have been served with a statement of claim you should act promptly.

You have 28 days from the date of service of the statement of claim to file a defence. If you do not file your defence within 28 days, the plaintiff can apply for default judgment. If default judgment is entered against you, the judgment will be recorded on your credit report and the plaintiff can take steps to enforce the judgment against you, unless it is set aside.

If you are owed money, prior to commencing proceedings you should first consider sending a letter of demand to the debtor requesting payment of the amount owing to you.

If after sending the letter of demand you are still not paid, you can commence legal proceedings to recover the amount owing. Legal proceedings are commenced by filing a statement of claim in either the Local Court, District Court or the Supreme Court, depending on the amount that is owing. You can also commence proceedings to recover a debt by filing an application in the New South Wales Civil and Administrative Tribunal (“NCAT”).

Different procedures apply in different Courts and Tribunals but generally, if the claim is disputed there will eventually be a hearing and a judicial officer will decide the case.

If the defendant does not file a Defence within 28 days of being served with the statement of claim, you can apply for default judgment to be entered against the defendant in Courts; but you may still have to prove the amount owed. In the NCAT there is no default judgment procedure.

Once judgment is entered against a defendant you can take steps to enforce it.

If a court or Tribunal has entered judgment ordering another party to pay money to you and the other party fails to do so, there are a number of ways of enforcing the judgment. Some common enforcement actions are as follows:

  1. Garnishee order: an order from the court to have money taken from the judgment debtor’s bank account or wages.
  2. Writ for the levy of property: this allows the sheriff to sell property belonging to the judgment debtor to pay back the debt.
  3. Examination notice/order: provides information about the other party’s financial situation

You can usually recover the costs of enforcement and any interest that has accrued since the judgment was entered.

You have 12 years from the date of the judgment to enforce it.

Separation, Family & Relationships

A divorce is the legal dissolution of a marriage by a court.  Parties need to be separated for 12 months before they can apply for a divorce.  Whilst it is important to get a divorce, you may need to be thinking about a property settlement, which is the severing of the financial relationship of the parties.  Dividing assets such as a house, car, superannuation or other monies is a property settlement.   The division of assets of the parties is determined on contributions made by each party throughout the relationship.  The length of a relationship can also be a significant factor.

Generally a defacto relationship is considered to be 2 years.  However, this may change depending on financial contributions or if there are children of the relationship.  Even if parties are found to be living in a defacto relationship, it does not automatically entitle them to a share of each other’s assets.

In order to be entitled to a share of the other’s assets, it is necessary for a party to establish that they:

  • Have been living together for a period of at least 2 years (either consecutively or accumulatively); OR
  • Have a child together; OR
  • Have made substantial ‘contributions’ (financial, non-financial or as homemaker / parent) to the acquisition, conservation or improvement of any property of the parties to the defacto relationship; OR
  • That a failure to make an order would result in serious injustice to the applicant.

A Binding Financial Agreement (BFA) is a legal agreement between a couple who are entering a relationship, in a relationship, or ending a relationship.  It relates to financial matters of the parties and is worthwhile entering into if you have assets of value that you wish to protect should the relationship end.  Both parties need to enter into the agreement willingly and receive independent advice – ie each party will need their own independent solicitor.

These are difficult situations but we can help you investigate the loss and raise concerns early.

Whether it is a property settlement division or arrangements for children and parenting, the first step is to speak with someone about your rights, entitlements and obligations.  Meeting with a lawyer is the first step.  In property matters, defining the assets and liabilities of the parties is most important.  In parenting matters, determining what is in the interests of the children is the primary consideration.

Superannuation, Succession & Retirement

We can provide you with advice to make sure that your parents understand what they are signing.    It is preferable to receive this advice early to keep all options open.

Many people tend to put off thinking about these issues.   It is wise to continually revise your estate planning documents and also to consider shareholder agreements or other legal documents to ensure the effective transfer of legal control over the business.

This is often a difficult time for families.  Most aged care facilities will require Mum to have a power of attorney and appointment of guardian in place.  However, this can be a critical time to have Mum consider all her future planning needs.  It is our experience that taking time to consider options saves regret later.    It may be important, for example, to consider how funds will be released to pay for aged care and legal advice on the sale or disposal of assets may be important.  Mum may need a new Will as well as appointing an attorney and guardian.   Important issues may arise such as whether Mum has mental capacity to instruct a solicitor and this needs careful assessment.

Wills, Estates & Trusts

If you satisfy the definition of an “eligible person” under the Succession Act you may bring a family provision claim against the estate.  Strict time limits apply and so it is wise to consult a solicitor as soon as possible.  To be successful in a family provision claim, you must prove that you have been left with inadequate provision under the will and whether you are likely to succeed is heavily dependent on the circumstances of your situation.

If you are the executor appointed under the last will, your first responsibility is to make the funeral arrangements. Once this is done, you should look to obtain legal advice regarding the estate and your obligations as executor. Depending on the assets of the estate, you may be required to obtain a grant of probate from the Supreme Court.

Generally speaking, the cost of having a will prepared very much depends on your circumstances and what you are looking to achieve when it comes to your estate planning. Mullane and Lindsay offers fixed fee and bundled pricing for general estate planning matters; complex estate planning matters are usually charged on a time basis.

When someone dies without a will the rules of intestacy apply. Dad’s assets will be distributed according to a statutory formula. Depending on the extent of the assets someone may need to apply for a grant of letters of administration from the Supreme Court. This is usually done by the beneficiary with the greatest interest in the estate. Legal advice should be obtained to determine who should apply.

Employment & Workplace

If a dismissal is found to be harsh, unjust or unreasonable, the grant of a remedy by the Fair Work Commission is discretionary and not automatic.

If the Fair Work Commission makes a finding that you have been an unfairly dismissed, it may make an order reinstating your employment or for your employer to pay you compensation.

An order for compensation will generally only be made where the Fair Work Commission considers it is not appropriate to make an order reinstating your employment.

If you think you have been unfairly dismissed, you should act promptly.

You may be able to make an application for unfair dismissal in the Industrial Relations Commission or the Fair Work Commission.

An application for unfair dismissal must be filed within 21 days of the date of dismissal. This is a strict time limit and will only be extended in limited circumstances.