Skip to content

Legal Watch

QLD Titles Registry: Changes to Witnessing Requirements

With the increase in digital communication and online transactions, practitioners may go through an entire transaction without ever seeing the face of their client.  The importance of verifying a person’s identity continues to grow in an age where people are faced with identity theft, fraud and elder abuse.
From 1 October 2019, the Queensland Land Titles Registry will introduce updated Verification of Identity (VOI) requirements relating to the signing and witnessing of documents and instruments. The changes come as a result of the amendments to the Land Act 1994 and the Land Title Act 1994.
The Registrar’s requirements for witnessing and execution of instruments will be set out in a new Part 61 of the Land Titles Practice Manual, of which a draft has been released.
An instrument is validly executed by an individual if it is executed in a way permitted by law and the execution is witnessed by a qualified witnessing officer (e.g. a Justice of the Peace, a Commissioner for Declarations or a lawyer).
The new Part 61 will provide guidance for witnesses and outline the obligations of witnesses including the requirement to –

take reasonable steps to verify the identity of the individual;
take reasonable steps to ensure that the individual is the person entitled to sign the instrument or document (for example, they are in fact the owner of the land); and
retain, for 7 years, either a written record of those steps taken or originals or copies of documents or other evidence obtained to verify the identity of the individual and their entitlement to sign.

There will not be a transitional period for these changes. Documents signed before 1 October 2019 will be examined under the old requirements and documents signed after 1 October will be examined under the new requirements.
As a general rule for practitioners, even when a client may or may not have to sign land registry documents, steps should be taken to verify his or her identity.  Where a client is remote or unable to attend a law office in person, there are various service providers, including Australia Post, who have introduced VOI services.
When in doubt, if something seems suspicious, it is better to be safe than sorry and make your own reasonable enquiries about a person’s identity.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post QLD Titles Registry: Changes to Witnessing Requirements appeared first on Bennett and Philp Lawyers.

ROADSHOW – Getting death benefit payment decisions right in SMSFs

Death benefit payments are an important part of SMSFs, and getting the money to the right hands is vital.
The last few years have seen the issues move on well past whether binding death benefit nominations are valid, with an increasing number of potential traps, including transfer balance caps, conflict issues and trustee good faith duties to derail a death benefit payment.
So how do we make sure the payment decision stands up?
In this workshop we will use examples drawn from our files so you can:

identify and manage conflicts of interest in the death benefit payment process
implement a death benefit payment process that cannot be successfully challenged
deal correctly with the trusteeship of the fund
determine which is better – binding death benefit nominations or reversionary pensions
be aware of the trust deed provisions and how to work with them
take steps at the planning stage to make death benefit payment decisions easier.

With increasing litigation in this area, being across these issues is more important than ever!
As this is such a hot topic, we are running this session in multiple locations.
Locations
Mackay – 16 October – Rydges Mackay Suites
Sydney – 22 October – The Grace Hotel
Sunshine Coast – 30 October – Twin Waters Golf Club
Townsville – 7 November – Rydges Southbank Townsville
Brisbane – 12 November – Cooper Grace Ward
Toowoomba – 19 November – Gips Restaurant
Rockhampton – 26 November – Empire Apartment Hotel
Cairns – 28 November – Pullman Cairns International
Gold Coast – 29 November – Southport Golf Club – 7.15 am for 7.30 am – 9.00 am
Register now

The post ROADSHOW – Getting death benefit payment decisions right in SMSFs appeared first on Cooper Grace Ward.

What is a Master Franchise?

A master franchise can take your business to the next level. Our article breaks down what a master franchise is, and whether it’s right for your business.
The post What is a Master Franchise? appeared first on Lawpath.

Can Casual Employees Take Sick Leave?

Are you a casual employee and wondering if you’re entitled to sick leave? Here is everything you need to know about your leave entitlements.
The post Can Casual Employees Take Sick Leave? appeared first on Lawpath.

What Does Insolvency Mean for Sole Traders?

Insolvency means different things for different business types. Find out how it will affect sole trader business structures in this article.
The post What Does Insolvency Mean for Sole Traders? appeared first on Lawpath.

How Long is Copyright Valid For?

Whether you are a creator or intending to use another person’s copyright protected materials, it is vital that you understand how long copyright is valid for to ensure your rights are being protected.
The post How Long is Copyright Valid For? appeared first on Lawpath.

Unit and Family Trusts: How Do They Differ?

Struggling to identify the difference between unit and family trusts? Our article breaks down what these types of trusts are, and how they differ.
The post Unit and Family Trusts: How Do They Differ? appeared first on Lawpath.

What Is An Unlisted Public Company?

Do you know the difference between an unlisted and listed public company? Here is everything you need to know.
The post What Is An Unlisted Public Company? appeared first on Lawpath.

The essential Estate Planning triad – Will, Power of Attorney and Enduring Guardianship.

When creating estate planning documents, most people think of a simple Last Will and Testament. However, there are two equally significant documents that all persons should consider drafting and entering into when taking care of their estate planning needs. These additional documents are an Enduring Power of Attorney and an Enduring Guardianship. While these documents sound similar, they have very distinct differences and serve different purposes.
An enduring power of attorney is a document that is entered into between a person and their legal delegate. The legal creation of an enduring power of attorney gives the designated person the right to make any necessary financial decisions on behalf of an incapacitated person. An enduring power of attorney has several attributes. These include:
Giving authorisation to the named person to act as the makers’ attorneyDefining the parameters of the enduring power of attorney’s rights and obligations to the incapacitated individualThe actions of an enduring power of attorney are legally bindingIt is revocable at any time by the makerIf you give your enduring power of attorney the right to make real estate decision, they must register the enduring power of attorney with the New South Wales Land Registry ServiceMust be 18 years of age or olderUpon regaining a capacity, the enduring power of attorney ceases and the marker resumes the right to make their own legal decisions
One of the most important considerations when appointing an enduring power of attorney is to consider if the person you are designating is trustworthy and financially intelligent. It is imperative to remember that this person, whom you are designating to handle your financial and legal affairs, will have the full legal authority to do so and you will be bound by their decisions. Hence, it is important to think carefully and choose wisely.
The second legal document to consider drafting is an Enduring Guardianship. Like the enduring power of attorney, you will need to designate someone you trust to act as your enduring guardian. However, the decisions of an enduring guardian are quite different in nature than that of a power of attorney. The attributes of an enduring guardianship include: 
The enduring guardian will be making decisions pertaining to your health and welfareThe power to make these decisions will only come into effect if you are incapacitated and unable to make your own health and welfare decisionAn enduring guardianship can be revoked at any timeUpon regaining your capacity, the right to make your own medical decisions reverts to youYour enduring guardianship papers do not need to be registered with any organisationThe person you choose must be over the age of 18You can direct the particular lifesaving or treatment options you prefer, requiring your designated enduring guardian to carry out your wishes with exactness
Again, one of the most important aspects of making this type of designation is to choose someone who will abide by your wishes for various aspects of your healthcare including; the insertion of a feeding tube, the use of extraordinary measures to prolong life, the decision to remove respirators or other lifesaving equipment and possible organ donation. Therefore, it is imperative to choose someone who can handle the emotional aspects of making all of these decisions in exact accordance with your instructions.
It is possible to designate the same person to act as both your enduring power of attorney and your enduring guardian. In addition, it is permissible to elect a secondary person in the event that the person you designate is unable to fulfil their obligations. However, in both instances, it is important to meet the legal requirement that the designee is over the age of 18 and the personal requirement of sound judgement and trustworthiness.
In the event that you are creating a Will or revising a Will, and you have not yet considered or completed either an enduring power of attorney or an enduring guardianship, you should consider researching and inquiring about doing so with your current attorney. By making these provisions you protect your right to choose which responsibilities and rights you would like to allow another individual to enact on your behalf, thereby protecting both your assets and your health care desires.
If you find yourself in need of assistance with this or any other legal issue, please contact the law offices of Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.
The post The essential Estate Planning triad – Will, Power of Attorney and Enduring Guardianship. appeared first on Owen Hodge Lawyers.

Should I file a trade mark if I have been using it for years?

Trade marks are everywhere in our world and any business needs to understand how to protect their intellectual property just as much locally as globally.
It has often been said that a trade mark can be your most important and valuable tool to market your business, your goods or services.
Trade marks can be misunderstood. The perception it is just “a logo” could not be further from the truth. Trade marks are not just ‘a logo’. It can be a letter, number, word, phrase, sound, smell, shape, logo, picture, movement, aspect of packaging, or a combination of any or all of these.
Business owners must also remember that different rules can apply in different countries to determine ownership and associated rights.
In Australia, the “use” of a trade mark play a significant part in determining such things as:

Ownership;
Distinctiveness;
Removal for non-use;
Any infringement.

In Australia we give priority to people who are “first to use” and can demonstrate evidence of that use, even if another party has applied to register that mark as a trade mark in Australia first. The Full Court of the Federal Court considered this matter in the case of Anchorage Capital Partners Pty Limited v ACPA Pty Ltd [2018] FCAFC 6 (2 February 2018).
Other countries have a “first to file” system. This system gives rights to the party who first filed a trade mark application in that country for such mark, even if another party has used that trade mark in that country prior to the filed application.
Protecting your trade mark and intellectual property should not be taken lightly. You can be drawn into lengthy and costly disputes if you don’t get the right advice. At FC Lawyers our team has handled many successful registrations in Australia and throughout the world to protect our clients intellectual property.
Contact our team today to discuss your intellectual property legal needs.
The post Should I file a trade mark if I have been using it for years? appeared first on FC Lawyers.

How Do I Know When To Fight And When To Settle My Case?

Going to Court for your family law matter can be costly, time-consuming, and stressful. Therefore, it is usually beneficial to settle before commencing Court proceedings so you can move forward with your life sooner with clarity and certainty.
Settling Your Family Law Matter
There are various ways you can settle your family law matter. You may settle through negotiations with assistance from a mediator, a family lawyer, or by directly liaising with the other party yourself.
Engaging a family lawyer can help take the stress out of the negotiation process because you can remain at arm’s length and let them diffuse any intensity and strategise to achieve the best result for you.
Children’s Matters
If your family law matter involves children, it is compulsory for you and the other parent to attend mediation and obtain a certificate from a family dispute practitioner confirming both parents made a genuine effort to resolve the dispute. One reason for this is because the stress of Court proceedings runs contrary to the best interests of the child, which is the most important consideration in the Court’s eyes.
If you and/or your child is at risk of family violence or child abuse, or the matter is urgent, you may be exempt from attending mediation. You should contact your family lawyer to find out how to participate in mediation, or if you are unsure whether you fit into one of the exceptions or not.
Financial Matters
If your family law matter is for a property settlement only, mediation is not compulsory. However, it can certainly be a less expensive way of resolving the matter and prevent the property pool from becoming diminished through unnecessary legal fees.
Property and financial matters can often be complicated, especially when there is a large asset and liability pool, or if you are unsure of the value of any assets held by you or your partner. Engaging a family lawyer to stand in your corner during this process can make all the difference when trying to negotiate a fair and reasonable outcome for you.
Fighting Your Case
Despite genuine attempts to find solutions, sometimes it’s simply not possible to settle your family law matter. In these situations, parties have no choice but to go to Court.
Situations in which it may be more appropriate to commence Court proceedings include:

If the other party’s offers are unreasonable and would place you at a disadvantage;
If the other party is not co-operating or responding to your attempts to settle;
If the other party refuses to compromise and find a common ground for settlement;
In children’s matters, if the child is at risk of serious harm or neglect in the care of the other parent; or
In children’s matters, if the child is at risk of not benefiting from a meaningful relationship with both parents.

Instead of trying to navigate the Court system and draft Court material yourself, having a family law solicitor to handle your matter is the best way to ensure you achieve the best outcome.
The post How Do I Know When To Fight And When To Settle My Case? appeared first on Collective Family Law Group.

Upgrade to a Smarter Will

Why you should upgrade to a smarter Last Will & Testament I wanted to get in touch because we’ve been noticing that more and more Australian’s are considering Wills with Testamentary Trusts, and for good reason.
With a Testamentary Trust you could reduce the taxes on your estate by $155,000 or even more.
If you’ve recently become the owner of property, shares or other assets, you should consider upgrading to a more sophisticated will that properly protects your assets and reduces unnecessary tax.
To find out how, download our FREE guide

Comcare v Banerji – Another Piece in the Codes of Conduct Puzzle

Principal Lawyer Stephen Booth has written about the recent Comcare V Banerji case, involving a public servant who anonymously criticised the Government on migration policies and asylum seeker detention on Twitter. This case sheds some light on an employer’s rights to enforce a code of conduct with respect to conduct outside work.