Attwood Marshall Lawyers is taking legal action for a mining worker who suffered severe psychiatric injury as the first responder to the tragic fatality of his boiler-maker colleague at a Queensland mine in 2017.
Tweed Heads man Jesse Abbott, 28, was working with Daniel Springer, 30, on an excavator bucket at Goonyella Riverside Mine on 5 August 2017 when Mr Springer was fatally injured.
Shortly before 1am, Mr Springer was removing a large external wear plate by cutting it into smaller pieces when a section sprang back, striking him in the head and causing fatal injury.
Mr Abbott was working on the same bucket, and rushed to Mr Springer’s aid. Unfortunately, the father-of-one was critically injured and died later at Townsville Base Hospital.
Supported by Attwood Marshall Lawyers, Mr Abbott appeared at a Coronial Inquest in the incident, on March 2, 2020, and later told media the accident “should never have happened”.
“Today has been a long time coming; we need to get answers. I want Justice for Daniel and I want closure for his family,” Mr Abbott said.
READ the story – Compensation Law Accredited Specialist, Jeremy Roche, speaks to Daily Mercury
Since witnessing the horrific incident, Mr Abbott has been severely affected by psychiatric injury and remains unable to work.
“I had my whole life planned up there in Mackay and after this horrific incident I lost everything and the job I loved because I had to go home and live off my mum,” Mr Abbott said.
Attwood Marshall Lawyers acts on behalf of Mr Abbott to claim compensation for his injuries and to ensure he is able to regain some quality of life after witnessing the tragic and confronting workplace fatality. Our thoughts are with Mr Abbott and particularly the family and friends of Mr Springer at this difficult time.

‘Fatality cycle’ behind Queensland’s avoidable mining deaths: report
According to a review of the mining sector made public by the state government in February, avoidable mining deaths in Queensland are attributable to a ‘fatality cycle’. The fatality cycle is a pattern in which there is a cyclical increase then decrease in mining sector vigilance and safety measures following workplace mining deaths. It appears that heightened vigilance and safety measures are only observed for a short time after mining deaths before those measures again decrease.
The report, Review of all fatal accidents in Queensland mines and quarries from 2000 to 2019, by author and forensic structural engineer Dr Sean Brady, reviews a total of 47 deaths in Queensland’s mines and quarries from 2000 to 2019. It follows the deaths of eight mine and quarry workers in Queensland over the past two years.
The report offers 11 recommendations on what the mining industry should be doing to decrease fatalities, and they include: the industry recognising its fatality cycle and accepting that fatalities are avoidable, a focus on ensuring workers are efficiently trained and supervised in their tasks, more effectiveness in managing hazards, adopting principles of High-Reliability Organisational Theory (HRO), and new methods in reviewing and reporting safety hazards.
The report was commissioned last year by Queensland government mines minister Anthony Lynham, who in February proposed new laws which could see mine and quarry executives facing 20 years in jail if found guilty of industrial manslaughter.
Two government committees will take Brady’s review, alongside two University of Queensland reviews, into consideration before recommending industry changes to Lynham.
Read more: WorkCover rejected my claim: What should I do?
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Attwood Marshall Lawyers have warned that CTP payments for injured Queenslanders are under threat and call upon political parties to pledge they will protect the current compensation systems should they come into power at the October 2020 elections.
It is highly concerning for all Queenslanders that Suncorp and RACQ are rallying to change Queensland’s CTP insurance scheme to one that would further increase insurer profits whilst ripping the guts out of compensation to injured Queenslanders and their families.
Suncorp and RACQ seek to convince the QLD government to change the CTP compensation system to NSW’s ‘no-fault system’ where insurers like Suncorp and RACQ achieve even greater profits to the stark detriment of injured claimants and their families.
Other CTP insurers in Queensland recognise that there is no benefit to changing the scheme other than to increase insurer profits. These insurers refuse to support RACQ and Suncorp’s proposal, knowing that it will unnecessarily damage QLD’s feasible, stable, efficient CTP scheme.
Insurers in Queensland already make super profits each year under the QLD CTP compensation scheme. These avaricious, profit-driven calls by RACQ and Suncorp for the QLD government to change the CTP scheme must be called out for what they really are – appalling, self-serving, greedy and stonyhearted attempts to ensure that insurers become even richer off the backs of the many injured Queenslanders who will be denied fair compensation and benefits.
The CTP compensation scheme in Queensland is markedly superior to that of NSW
Attwood Marshall Lawyers’ Coolangatta head office straddles the northern side of the QLD-NSW state border and I have acted for injured claimants in QLD and NSW alike for 17 years.
We sometimes find ourselves out on the road with a measuring tape hoping to prove that a motor accident occurred on the QLD side of the border so that QLD’s CTP compensation scheme applies, rather than the dreaded NSW scheme.
As an expert in the disparities between the QLD and NSW CTP compensation systems, I offer the following personal insights from his years of experience:
a. The QLD scheme is not only fairer to injured people and their families, but it is run cheaply, efficiently and successfully. It is the best scheme for injured people, the government, businesses, employers, road-users, and other industry participants. The QLD scheme is a well-oiled machine that is balanced fairly to all parties.
b. Insurers under the QLD scheme already make money hand over fist – it is highly profitable for insurers such as RACQ and Suncorp.
c. Despite what some insurers allege, the QLD CTP scheme is the second cheapest scheme in the country. CTP premiums are cheaper in QLD than NSW and the scheme is more beneficial to injured claimants.
d. The current QLD CTP scheme should be revered for what it is: the fairest, most successful motor vehicle compensation scheme – not one to be abused or tinkered with at the behest of RACQ and Suncorp for the purpose of increasing insurer profit.
The current NSW CTP compensation scheme is dreadful compared to QLD
a. In NSW, injured claimants have terrible access to benefits and compensation compared to their QLD counterparts. The so-called ‘no-fault’ CTP scheme in NSW provides miserly benefits to injured claimants who face unreasonable thresholds, restrictions and preclusions throughout their claims.
b. Injured people even have their access to legal representation restricted under NSW law. By contrast, NSW CTP insurers do not have restriction on their own legal representation – which often leads to an unfair fight, favouring Goliath over David.
c. Injured claimants in NSW are forced to continually jump over unreasonable thresholds and hurdles to claim compensation. Their access to compensation is severely restricted.

For example:

In QLD, you can claim compensation for general damages/non-economic loss (ie. pain and suffering) if you have suffered a permanent injury or condition.
In NSW, you cannot make a claim for general damages/non-economic loss unless your permanent injury or condition has been assigned an 11% impairment or more – the majority of all claims do not breach that threshold.

The CTP system in NSW is largely about trying to wring out whatever an injured person can from a system where the scales of justice seem to be unfairly balanced against the injured person from the start.

For example, the NSW scheme dictates that if an insurer unfairly denies an injured claimant from access to compensation (which happens frequently), the injured person must appeal the decision to the very insurer who denied it in the first place! NSW insurers (rather than independent arbiters) are adjudicating their own unfair decisions – and, unsurprisingly, tend to agree with their initial unfair decisions. Claimants often take those insurer decisions at face value rather than proceeding any further with attempts to appeal – thereby losing their entitlements entirely.

The ‘no-fault system’ in NSW has proven disastrous in NSW and in many other jurisdictions around the world where that system has been trialled. Injured claimants in NSW often bemoan the lack of fair compensation for their losses under the NSW scheme despite those losses being entirely caused by the negligence of another (insured) driver.

It is abundantly clear that NSW should be changing their CTP system to the QLD system and not vice versa. NSW should also change their woeful workers’ compensation system to the QLD system for the same reasons – but that is a matter for another day.
How did the NSW CTP system come about?
The simple answer is that NSW governments repeatedly caved to incessant pressure from insurance companies to bring in a scheme that ripped the guts out of compensation to injured people, seemingly to increase insurer profits.
Insurers often use scaremongering tactics (eg blaming the lawyers of injured claimants or the claimants themselves) to sway the government and/or general public to make unnecessary changes in favour of insurers.
Insurers frequently allege that lawyers charge claimants too much, or that there are too many fraudulent claims, to convince the government and/or the public that an insurance scheme should be changed to the detriment of the injured person. Such allegations are not supportable.
Attwood Marshall Lawyers working with Australian Lawyers Alliance to protect Queenslanders
Working with the Australian Lawyers Alliance (ALA) our firm strongly criticise any departure from the current system, so that we can protect all workers and anyone injured on the roads.
On February 27, 2020, the ALA issued a statement which confirmed the Queensland’s CTP scheme was confirmed as the most affordable scheme in the country, following the release of the 2019 CTP Scheme Insights Report from the independent regulator the Motor Accident Insurance Commission (MAIC).
The MAIC 2019 Scheme Insights Report shows that the scheme is efficient with 61 per cent of premiums being spent on claimant benefits and 39 per cent spent on delivering the scheme last year.
In a statement, Greg Spinda, Queensland State President ALA, said the report “once again shows that Queensland has the most affordable CTP premiums in Australia, with the scheme renowned for being fair to injured motorists.”
“As this report shows, the Queensland CTP scheme is regularly reviewed and evaluated independently as it should be, with many groups – including those within the legal profession – continuing to participate and engage in these reviews to ensure that we have a fair and affordable scheme in Queensland,” he said.
Obviously, it would benefit insurers like RACQ and Suncorp to change the QLD CTP system to NSW’s system. In NSW, the injured person receives less compensation, road users pay more for their CTP premiums, and insurers make astonishing profits regardless.
The reality of the matter is simple – QLD already has the best CTP scheme in Australia for all industry participants and the scheme should be left alone.
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The Camp Hill murder-suicide is a wake up call for the judicial system to do more to protect families experiencing domestic violence, writes Family Law Special Counsel, Michael Twohill.
In my 36-years of practising as a lawyer, I will never forget the day when I was awoken by my wife to listen to a news report about a Gold Coast mother who had gone missing and her house burnt to the ground.
I had consulted with that mother only three days’ prior. She told me that she had broken up with her partner that Sunday evening and all he could say was “you have ruined my life, now I will ruin yours… I’ll start with your eldest daughter.” The mother went to the local police for help but was told she didn’t have enough evidence for them to take out a Police Protection Order, but if she wanted, she could file her own private application.
She did and she obtained a Temporary Protection Order against him the day after she consulted with me. Her partner snapped. He was served with the Order and on the same day his employment was terminated for an unrelated incident. He was waiting for her at her home when she returned from work and stabbed her to death. He burnt the house down and took her body with him, eventually being confronted and caught by the police the following day. As a lawyer, we never forget these cases.
Camp Hill murder-suicide a reminder we must do more
Last week, we witnessed another horrific act of violence on a suburban Brisbane street that left three children and their mother dead. The children, Aaliyah, 6, Laianah, 4, and Trey, 3, were on their way to school with their mother, Hannah Baxter, in their family car when they were ambushed by their father, Rowan Baxter, who had recently separated from his wife. Their white SUV was doused with petrol and set alight by Mr Baxter, 42, a former NZ Warriors NRL player, who died on the footpath after jumping in the passenger seat and stabbing himself. This case was heartbreaking to read. It opens all the old wounds. As lawyers, we say to ourselves: “could we have done more to prevent this?”
Local changes to protect families
At Attwood Marshall Lawyers, our renowned intent is to help people and to change people’s lives for the better when they are faced with their biggest challenges. For the past 21 years, I have practised in the domestic violence jurisdiction. As a member of the judicial system, I know I must act now to help to prevent further senseless acts of family violence. As a community, we also need to take action to identify persons at risk and do our bit to try to eliminate family violence.
Community Forum
We need to convene a Family Violence forum in the Tweed/Byron area to not only discuss but implement some positive initiatives to provide adequate support to members of our local community who are either suffering or have suffered family violence. We also need to find ways to educate those who are guilty of committing acts of family violence. I will be raising this issue with the Tweed/Byron Police Commander David Koptek and DCI Crime Manager Brendon Cullen, whom I had the pleasure of meeting at the recent Kingscliff Business Chamber of Commerce breakfast.
More sitting days, a bigger courthouse and a safe room
It is my intention to lobby our local MP, Geoff Provest, for funding to enable the re-introduction of the family violence support organisations in the area and more support for our judicial officers in our local courts so that the backlog of family violence cases can be eliminated. The current situation is not fair on our Magistrates and Police Prosecutors nor are our courts able to accommodate family violence parties in a safe environment. Other courts have a ‘safe room’.
The NSW Government could take a leaf out of the Queensland Government initiative in the Southport Magistrates Court when confronting the issue. Why not implement a Pilot Program in a new upgraded and more spacious Courthouse in Tweed Heads where there was the ability to handle these matters in a manner that was a blueprint for other towns and cities to follow? The current situation is just not good enough and my concern is that there is a major incident just waiting to happen.
Together we can all make a difference.
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The Camp Hill murder-suicide tragedy is a wake up call for all justice system to do more to stop domestic violence, writes Attwood Marshall Lawyers Family Law Special Counsel, Michael Twohill.
In my 36-years of practicing as a lawyer, I will never forget the day when I was awoken by my wife to listen to a national news report that Gold Coast woman was missing, and her house burnt to the ground.
I consulted with that woman 3 days prior to this regarding her separation.
She told the partner on the Sunday evening that their relationship was over and his reaction was to say coldly “you have ruined my life, now I will ruin your’s…I’ll start with your eldest daughter…”.
The woman had sought the assistance from the local police but was told there wasn’t enough in it to take out a protection order but if she wanted, she could file her own private application.
She did and she obtained a Temporary Protection Order against him the day after she consulted with me.
Her partner snapped. He was served with the order and on the same day his employment was terminated for an unrelated incident.
He was waiting for her at her home when she returned from work and stabbed her to death. He burnt the house down and took her body with him, eventually being confronted and caught by the police the following day.
There is often no reasoning in domestic violence of this horrific nature.
As a lawyer, we never forget these cases. It leaves us with a feeling of helplessness.
The pitch in family law would be ‘we help (and protect?) families when their lives are torn apart by separation or divorce’.
Last week, we witnessed another horrific act of violence on a suburban Brisbane street that left three children and their mother dead.
The children, Aaliyah, 6, Laianah, 4, and Trey, 3, were on their way to school with their mother, Hannah Baxter, in their family car when they were ambushed by their father, Rowan Baxter, who had recently separated from his wife.
Their white SUV was doused with petrol and set alight by Mr Baxter, 42, a former NZ Warriors NRL player, who died on the footpath after jumping in the passenger seat and stabbing himself.
This case was heartbreaking to read. It opens all the old wounds.
As lawyers we say to ourselves: “Could we have done more to prevent this?”
Action to reduce domestic violence locally
I was present at the first meeting in 1989 at Law Society House Brisbane when the initial Domestic Violence act was introduced where there was a forum of lawyers and other interested stakeholders.
For the past 21 years I have practised in the Domestic Violence jurisdiction.
To be honest – things haven’t changed for the better, they have only got worse.
I have seen many new initiatives brought into being however the stench of family violence has never been as apparent as it is today.
No one who had the unfortunate experience of witnessing the events of the Camp Hill massacre…and that it what it was…will ever forget the sight of those poor unfortunate children and their mother slaughtered by their father and her husband.
We, as members of the judicial system must act now to arrest the situation before we witness further senseless acts of Family Violence.
As a community, we need to take action to identify persons at risk and do our bit to try to eliminate family violence.
If you know of a person or persons at risk act now before things get out of hand.
If you are the person who is the victim of family violence do something about it, now, and if you are a perpetrator, do something about your behaviour now and before it gets out of your control.
We need to convene a Family Violence forum in the Tweed/Byron area to not only discuss but implement some positive initiatives to provide adequate support to members of our local community who are either suffering or have suffered family violence.
We also need to find ways to educate those who are guilty of committing acts of family violence.
Family Violence Support groups and more court sitting days
At Attwood Marshall Lawyers, our intent is to help people. It is to improve and change the lives of our client’s lives for the better in stressful situations or where your life has been turned upside down.
It is my intention to lobby our local MP for funding to enable the re-introduction of the family violence support organisations in the area and more support for our judicial officers in our local courts so that the backlog of family violence cases can be eliminated.
The current situation is not fair on our Magistrates and Police Prosecutors nor are our courts able to accommodate family violence parties in a safe environment. Other courts have a “safe room”.
The NSW government could take a leaf out of the Queensland Government initiative in the Southport Magistrates Court when confronting the issue.
Why not implement a Pilot Program in a new upgraded and more spacious Court house in Tweed Heads where the was the ability to handle these matters in a manner that was a blueprint for other towns and cities to follow?
I will be raising this issue with the new Tweed/Byron Police Commander David Koptek and DCI Crime Manager Brendon Cullen, whom I had the pleasure of meeting at the recent Kingscliff Business Chamber of Commerce breakfast.
Together we can all make a difference.
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Property & Commercial Department Manager Jess Kimpton lists the top eight basic mistakes made when an agent, buyer or seller, prepares a property sale contract, which may lead to a failed sale.
At Attwood Marshall Lawyers, we provide complimentary advice (subject to some exceptions) to a buyer or seller before they sign a contract. This is to ensure there are no errors or possible misinterpretation of the Contract. Unfortunately, most contracts which came our way contains errors and clauses which do not make any sense and are sometimes contradictory. Property sale contracts are legally binding documents which must be prepared and signed with the utmost diligence.
Without having taken the time to read and understand every line in a contract, and adjust each term as required, you run the risk of serious financial losses or a failed property transaction. This warning is especially pertinent to today’s market of ‘cheap conveyancers’ who can cause a lot of grief. Cheap conveyancers tend to overlook the details in a contract or legally lack the skills to comprehend its legalities. This can lead to a voidable contract.
Here are the top eight potential mistakes you must be aware of:

Writing down an incorrect name

That’s right, incorrect name. People get that wrong. Incorrect names, missing middle names, wrong addresses, can render the contract null and void. We often see “or nominee” in a contract. Such a description may have huge stamp duty implications and must be avoided at all costs. Get it right the first time with a quality law firm and prevent delays and in most cases voidable contracts.

The old ‘you can change that’ later statement

If a contract does not contain appropriate special conditions to protect the party’s rights and to reflect the agreement between them it is very difficult to add or change clauses after the Contract has been signed. Some buyers and agents believe they can ask for changes or an extension of dates specified in the contract after the contract has been signed. That is not the case. Any amendment to a contract after signing must be agreed to by all parties. Also keep in mind there are some amendments that are not allowed. The end result will be to terminate the contract and negotiate a new contract. If either party don’t agree you may end up with a contract to your detriment or no contract at all. It is always in the parties interest to agree on any special conditions before the contract is signed.

Incorrect property particulars and contract

The contract must be prepared to reflect the correct property particulars as it is noted on the title of the property and council records. In QLD REIQ contracts we commonly see contracts prepared for a House and Land Contract when the contract is to be prepared for Lots in a Community Titles Scheme for a Unit Contract. If this is the case and the Contract has been signed and dated, this will lead to the Contract being void and a correct contract will need to be entered into.

Title Search

The name of the seller should be the same as it appears on the title of the property. All encumbrances on a title of the property must be specified in the contract. It is not acceptable just to say “refer to title search”. This is wrong. The Seller is required to complete the contract accurately and failure may entitle the buyer to terminate the contract.

Finance

If subject to finance, in a QLD REIQ contract, all three sections of the finance clause in the reference schedule must be completed. If it is not properly completed it will not be subject to finance. Also, the stakeholder MUST sign the Contract as holder of the deposit.

Getting the timing all wrong

Contracts contains timeframes in which certain things should be attended to like the payment of a deposit, approval of finance or satisfactory pest and building reports. If these timeframes are unrealistic it causes all kind of headaches for specifically buyers. Banks are known for being slow in confirming finance and a timeframe for finance should be carefully considered. Special conditions must be inserted to allow for adequate time frames
In QLD, the cooling off termination timeframe and cost is often overlooked. Buyers must understand that the 5 business days cooling-off period commences on the first business day the Buyer or its lawyer receive the Contract. If the buyer terminates the contract under the cooling-off provisions the buyer may be liable for a penalty of 0.25% of the purchase price.
Time is of the essence in QLD which means if time limits are not strictly complied with you will be in breach of the contract

Ignoring statutory warranties

The REIQ contract contains certain Statutory Warranties. You must be aware of these warranties and if you are unable to provide any of the warranties, a special condition must be inserted to exclude the warranty. Any breach of a warranty may entitle the Buyer to terminate and or claim for damages.
The process in NSW
The process for buying a property is different in NSW. Lawyers or conveyancers usually prepare the contract and contracts are exchange after the parties had the opportunity to negotiate the terms of the contract in detail. The biggest mistake in NSW contracts is the attachment of statutory required documents. The Conveyancing Act provide for certain documents which must be attached to the contract and failure may lead to termination of the contract.
How Attwood Marshall Lawyers Can Help?
Whether prepared by a Real Estate Agent or a conveyancer, both parties must have the opportunity to obtain legal advise before signing the contract. We are located in several offices on the QLD-NSW border and offer premium property law services in both jurisdictions.
The post Eight basic mistakes in a Property Sale Contract which can lead to a failed sale – QLD and NSW appeared first on Attwood Marshall.

It is important to understand the issues relating to the purchase of a dental practice because a dental practice is a unique business with its own complexity, writes Property and Commercial Partner Barry van Herden.
What follows is a short summary of the more important issues any dentist must consider before buying a dental practice.

ZONING OF THE PREMISES

It is important to conduct Council searches to ensure it is lawful for a dental practice to be conducted from the premises.
It is also prudent to confirm whether there are any limitations on the number of practitioners allowed at any given time at the premises.  We were recently involved in a NSW practice which was a busy 3 chair practice only for the buyer to find out it was only approved for 1 practitioner.

RADIATION USE LICENCE

Any person who uses dental radiation equipment (e.g. x-ray equipment) for dental purposes must hold a licence under the Radiation Safety Act 1999 (Qld).
If a dentist is registered with the Australian Health Practitioner Regulation Agency, that dentist is considered to be a “prescribed licensee” and may not be required to apply for a licence to use intra-oral dental radiation equipment.

LEASE OF PREMISES

Whilst there is a number of things to consider in relation to the lease of the premises from where the dental practice is being conducted the following a crucial:

The last thing you want is for a big corporate to open a new dental practice next to your practice and offer huge incentives to patients.

If necessary, you should negotiate a clause which allows exclusivity for you to run a dental practice.

The rent payable and any increase in rent and associated outgoings must be considered. The business must be able to afford any rent, outgoings and increases in the future.
Terms of the lease. If you apply for finance by a dental practice your lender will most probably required a long term lease before approving finance if necessary additional options must be negotiated.

DUE DILIGENCE

Due diligence may cover a vast variety of issues to check.  Some of these issues are the following:-

Income of the business

You must obtain the advice from an accountant to verify the income of the business to ensure the income is not inflated, specifically if the seller owns other dental practices as well.

Potential issues with service providers

The seller must provide a warranty to the effect there are no issues with preferred service providers.

Employment

Where a buyer continues with the employees of a business, the buyer becomes the employer and liable for all entitlements due and payable to the employees.  Appropriate adjustments must be made to the entitlements on settlement. It is also recommended there is a warranty provided by the seller that there are no outstanding disputes with any employees.

Accounting advice

As previously mentioned, it is important to obtain advice from an accountant.  Most accountants do not have significant knowledge of dental practices and we always advise clients to contact an accountant with informed knowledge of dental practices.

Legal assistance

Please see our previous blog on the use of lawyers in the purchase of a dental practice.

ARRANGEMENTS AFTER SETTLEMENT

The continuing employment for a period of time after settlement by the seller is advisable and will benefit the buyer.  The buyer may use this “overlap time” to get to know the patients, operation of the business and the staff.

RETENTION FUND

It is recommended the parties agree on an amount to be kept in a retention fund (trust account of a lawyer) for a period of time after settlement to compensate the buyer for any remedial work that must be carried out on patients.

YOUR TEAM

In buying a dental practice you need to have a team of trusted advisors on your side and it is strongly advisable you have a dental accountant, dental solicitor, dental lender and dental practice broker to assist you in the process of due diligence, legal documentation and settlement of a dental practice.
Attwood Marshall Lawyers specialise in helping buyers and sellers of dental practices. Please do not hesitate to contact us should you require any assistance.
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Have you got a complaint about the way a bank or other lending institution has handled its lending or your investments, the time to make your complaint is now!
After 30 June 2020, all claims that fall outside the ordinary 6-year time limitation will not be considered.
The Royal Commission has been a hot topic for financial professions, politicians and journalists since its inception, but only in the past 6 months have the regulators turned to assist those who have lost money as a result of actions by lending institutions.
AFCA, the Australia Financial Complaints Authority, has taken over from the Financial Ombudsman Service (FOS), the Credit and Investments Ombudsman and the Superannuation Complaints Tribunal as the leading dispute resolution office for financial services complaints.
AFCA has obtained high praise from governments, industry professionals and legal professionals (including the team at Attwood Marshall Lawyers) in the service they are providing consumers whom have suffered financial loss at the hands of banks and lenders.
As an impartial and FREE service, they have assisted thousands of consumers in resolving their complaints.
Why do you need to hurry to make a legacy complaint?
Recently, AFCA took things a step further – it is now investigating complaints that would ordinarily be statute barred by the 6-year time limitation applicable when claiming for a breach by a financial institution by extending its services into investigating “legacy complaints” all the way back to 1 January 2008.
A legacy complaint is a complaint from a consumer against a bank or lender in respect of poor lending/financial practices as early as 1 January 2008, which, as we all know, was just prior to the GFC.
AFCA will take legacy complaints up to 30 June 2020. If you have a claim that you believe in respect of poor lending practices back to 1 January 2008, we advise that you should contact Attwood Marshall Lawyers now to seek advice about your claim.
How can Attwood Marshall Lawyers help?
If you would like more information or want to obtain the best possible chance of a successful outcome with a legacy complaint, please contact our Commercial Litigation Department Manager, Amanda Heather on direct line 07 5506 8245, email [email protected] or free call 1800 621 071.
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Attwood Marshall Lawyers can help you make a claim for compensation for a quad bike accident, writes Compensation Law Accredited Specialist, and firm Partner, Jeremy Roche.
Quad bikes are a major cause of death and serious injury in rural communities across Australia. In the past 8 years, there were 136 fatalities from quad bike accidents in Australia (ie. 17 quad bike deaths per year). Almost half of those fatalities were workers. There have been innumerable accidents where quad bike riders and passengers have suffered serious injury. Given the number and severity of quad bike accidents in Australia, it is imperative that we continue pushing for further quad bike safety regulation. Education is key.
Quad bikes are increasingly prevalent in Australia (particularly in Queensland) and are used for a variety of reasons:

For general transport around a property or farm;
For use in farm work and/or employment tasks on farms;
For private recreational use (eg riding for fun on a private property or purpose-built recreational quad bike tracks;
For transport on a road (if the quad bike is conditionally registered and insured to ride on a road in a limited capacity);
For recreation/tourism (whether individual or group) by way of paying a quad bike tour business;

Common Types of Quad Bike Accidents

Rollovers;
Collisions;
Crushing accidents;
‘Coathanger” accidents;
Falls and dislodgements;
Tipping accidents (eg. too much weight on one side).

Why are Quad Bike Injuries So Severe?
Quad bike accidents often cause serious injuries (such as broken bones, spinal cord injuries, severe head or brain injuries, crush injuries, quadriplegia/tetraplegia), and death.
Quad bike riders are not encapsulated in a vehicle (like the driver of a car or truck) and they do not have anywhere near the same physical safety protection around them.
Quad bike accidents often involve the heavy quad bike rolling onto the rider, crushing the rider, dislodging the rider into a ditch, ‘coat-hangering’ the rider (eg. when the rider rides into a wire fence at speed), tipping over the edge of a track/cliff, or a high impact collision with another vehicle or stationary object. The rider is largely unprotected and often unseatbelted!
Primary Causes of Quad Bike Accidents

Rider inexperience – few riders are properly trained;
Rough, steep, sloping, or obscure terrain where dangers such as big pot-holes, sudden drops, obstructions, mud, or similar hazards, are difficult for the rider to see and safely respond to.
Poor weather conditions (heat, rain, mud, etc);
Recreational quad bike riders often ‘push the limits’ and ride fast and/or dangerously in the pursuit of enjoyment. Quad bike riders often take more risks than drivers of other vehicles (eg a car or truck on the road);
Quad bike riders often feel that they are not bound by normal road rules or safety guidelines and are free to speed, attempt jumps/manoeuvres, drive dangerously, or drive whilst intoxicated, without any risk of penalty or police intervention.
Minors over 8 years old are permitted to ride quad bikes despite not always having the faculty, maturity or experience to ride safely.
Those working with quad bikes often tow a load behind them (eg material, chemicals) which increases the risk of tipping and rollovers.
Quad bike riders who carry passengers are at greater risk of having an accident;
Dangers associated with riding up or down slopes, near track edges/cliffs;
Poor quad bike maintenance;
Lack of pre-determined safety rules and a pre-ride safety inspection.

Compensation Claims for Quad Bike Injuries
Injured quad bike riders may be entitled to compensation depending on the cause of the accident.

Workers Compensation Claims;

For those injured at work in the course of their work duties;

Motor Vehicle Compensation Claims;

For those injured in a motor accident due to the negligence of another;

Public Liability Compensation Claims;

For those injured on someone else’s property, during a private/paid quad bike tour, on a public track, by a third party, or similar, due to the negligence of another;

Total and Permanent Disability (TPD) Claims;

For those with TPD insurance (inside or outside of the super) who are unable to return to work (or their pre-accident work) as a result of the injuries suffered;

Breach of contract claims;

For those who are injured whilst quad bike riding as part of a paid/ professional quad bike riding tour/recreation park due to that business’s negligence (eg. failing to reasonably provide safe quad bike tour services).

Product Liability Claims:

For those who are injured due to a faulty product (eg faulty quad bike, or mechanism on the quad bike).

Those injured in a quad bike accident due to a failure on the part of another to exercise reasonable care (ie. negligence) may be able to claim lump sum compensation for general damages (pain and suffering), past and future treatment costs, past and future income loss, past and future care and assistance costs, and past and future out of pocket expenses.
Time Limits for Claims
Claims must be made within 3 years of the accident (or for minors, within 3 years of their 18th birthday) or the claim will be statute-barred (extinguished).
There are earlier procedural time limits to comply with depending on the type of claim.
If you have been injured in a quad bike accident, we strongly recommend that you obtain legal advice as soon as possible so as to comply with strict time limits.
How to Improve Quad Bike Safety

Mount a crush protection guard (ie. a roll cage) on the quad bike;
Wear helmets (rider and any passengers) and protective clothing;
Wear seatbelts;
Operate the quad bike at a safe speed;
Undertake “active riding” techniques.
Take a beginner and an advanced quad bike safety riding course;
Do not overload the quad bike (with passengers/materials/towing attachments);
Before riding, ensure you have undertaken a risk assessment to identify potential hazards in the area you intend to use the quad bike;
Develop rules (eg pre-ride vehicle check, speed limits, no go areas, check-in times, etc);
Remain vigilant for hazards;
Consider the conditions (eg rain, mud, heat, etc) before riding;
Never take passengers (particularly children);
Undertake regular maintenance on the quad bike by a qualified person;
Never ride a quad bike under the influence of alcohol, drugs, or heavy medication;
Always let someone know where you are and carry a phone or two way radio.
Ensure rider complacency does not become an issue;
Strictly monitor and safely control recreational use (eg a group of people riding quad bikes together on a property).
Ensure quad bikes ridden by minors under 16 are not adult-sized quad bikes and are age appropriate and designed for that minor’s safe use.
Consider banning children under 16 from quad bike use altogether whether as a passenger or rider (despite the current quad bike age restriction in Queensland being a ban on children under 8).

How can Attwood Marshall Lawyers Help?
If you have been injured because of the actions or negligence of someone else, then you may be able to make a claim for compensation. Attwood Marshall Lawyers can help you every step of the way. Contact our Personal Injuries Legal Department on 1800 621 071 for free, no obligation legal advice about claiming benefits, compensation and our No Win, No Fee service.
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Missed one of our newsletters?
Check out our newsletter archive below to catch up.
GENERAL LEGAL NEWS

NOV 2019 – Gold Coast surprise winner of new Federal Home Loan Scheme – Issue 8
OCT 19 – MEDIA ALERT: ‘KING OF THE COAST’ CHASES 10th PREMIERSHIP AFTER HORRIFIC FALLS
AUG 19 – Special Report: Legal action over Earle Haven evacuation
JUN 2019 – News Flash: Call For e-Scooter Law Reform Following Fatality
MAY 2019 – Special edition: Attwood Marshall Lawyers new podcast series
APR 2019 – Call for NSW Trustee & Guardian inquiry backed by politicians
DEC 2018 – Exclusive: Dawson could lose estate over murder case

LEGAL NEWS FOR Real Estate Agents

OCT 19 – First home buyers in focus as rates cut – October Real Estate Agents News
AUG 19 – Ralan Group’s ‘Ponzi Scheme’ Collapse – Law News for Real Estate Agents – August 2019
JUN 19 – Law News for Real Estate Agents, June 2019
APR 19 – Real Estate News 2

LEGAL NEWS FOR FINANCIAL PLANNERS & ACCOUNTANTS

DEC 19 – FINANCIAL PLANNER NEWS 2
OCT 19 – LEGAL NEWS FOR ACCOUNTANTS & FINANCIAL PLANNERS

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Attwood Marshall Lawyers’ successful Radio 4CRB segment – ‘LawTalks’ – is here for another year, writes Wills & Estates Partner Angela Harry.
It’s been a busy start to the year for Attwood Marshall Lawyers, with our firm proud to announce a 2020 series of our successful community radio program ‘Law Talks’ for community radio station 4CRB, who cater to elder listeners located in Northern New South Wales and the Gold Coast. The weekly radio segment every Friday morning on 89.3FM in which lawyers are interviewed on a wide range of legal topics will be broadcast to listeners for a full 12-month weekly series to February 2021.
As a well-established local law firm with significant insight into the important legal issues for the elderly in our community, we consider that it is an important part of our contribution and service to the community to share the knowledge and experience we have in this ever-growing and complex area of law. In addition to our regular community Wills Days, where we provide our legal services for free to prepare a Will, in exchange for the Willmaker making a small donation to a charity, we have committed to a year-long schedule of Law Talks with 4CRB community radio.
On Law Talks, our experienced Wills and Estates team – the largest on the Tweed and Gold Coast – will be interviewed, giving audiences valuable insight into a range of legal topics including estate planning, superannuation, granny flat agreements, deceased estate administration and probate. We will also be focusing on some of the topical and more controversial issues that can arise in this area including elder abuse, financial exploitation, contesting wills and voluntary euthanasia.
We hope to help the listeners to understand the important issues that arise in the making of a Will or the appointment of an attorney as well as answer some of the sensitive legal questions surrounding dementia and end-of-life care. These are all pertinent legal issues, often overlooked or unaddressed because legal advice can be difficult to access or the process can seem overwhelming. We hope that by covering these important legal issues we can provide some education and insight to the local community.
The controversial topic of the role of government bodies, the New South Wales Trustee and Guardian and the Queensland Public Trustee, will be canvassed in Law Talks in 2020. There was a strong push by Attwood Marshall Lawyers in 2019 for a New South Wales Parliamentary Inquiry into the NSW Government organisation.

Law Talks will be Presented by Steve Stuttle – a senior broadcaster with a wealth of experience in elder issues which impact the community. He said the program was warmly welcomed for its significant community contribution and easy-to-understand format.
“4CRB is a flagship community radio station which reaches 75,000 listeners between Murwillumbah and the Gold Coast every week,” Mr Stuttle said. “Law Talks provides a unique offering to our dedicated listeners, helping them to learn about their legal rights. It is prepared to a high legal standard but presented in a way which the elderly can understand, which is why the series has been locked in to 2021.”
Law Talks can be heard every Friday morning from 9am QLD time by tuning in to 89.3FM and will also be made available to elders for free, online, in written format and can be downloaded on podcasts on a listen-back site.
Attwood Marshall Law Talks:

One-on-one interviews with leading Wills & Estates lawyers
4CRBFM 89.3FM, every Friday at 9:00am(QLD)/10:00am(NSW)
Over 40 topics, including: Wills, estate planning, aged care transition, Will contests, elder abuse and the dangers of public trustees
Listen live: http://4crb.com/listenlive/
Listen back: https://soundcloud.com/attwood-marshall

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The ‘lure of a free Will’ and blind trust in Government trustee bodies has left many of our clients forced to consider legal action against Public Trustees, writes Wills & Estates Senior Associate Lucy McPherson.

What do Public Trustees do?
Public Trustees are statutory, government bodies. There are Public Trustees in each state and territory in Australia. We predominately deal with the Public Trustees in Queensland and New South Wales.
The Public Trustee in each state primarily perform the role of trustee of deceased’s estates where no executor is appointed, or the executor declines to act (and no other person is appropriate). Some Public Trustees also provide a free or inexpensive service for drawing Wills, receiving significant remuneration upon administering the estate.
The Public Trustees also provide financial management services when individuals lose capacity or manage the estates of infants (such as in cases where they receive a damages settlement), prisoners, and others under a disability (legal or otherwise) when required.
Often the lure to the Public Trustee is a free or very affordable Will. In our experience, the Public Trustees entice people in with free or inexpensive Wills and charge exorbitant fees when the person dies and their estate is administered.
Our experience is that the trustee, once in control, can be problematic and in some cases, clients have been required to take legal action against them.
In recent times our firm has developed a reputation for fighting cases against the trustees.
When may a person want to take legal action against a Public Trustee?
It is our experience that some members in our society place a lot of blind trust in Public Trustees because they are government bodies. Some will fall into the trap because of the word “trust” in their title but just because these bodies are government run does not necessarily mean that they are to be trusted.
We have experience in cases where clients have been forced to bring legal action against the Public Trustee for mismanagement or poor investment of client money.
For example, where the Public Trustee has been entrusted to manage the funds of a vulnerable individual and then failed to invest significant funds resulting in substantial loss to the individual’s overall financial circumstances.
We have been involved in another recent case where an 87-year-old, who was suffering hallucinations and cognitive decline, went to see the New South Wales Trustee and Guardian (‘NSWTG’) and appointed the NSWTG as executor of her Will. After she died the NSWTG proposed to charge significant fees for acting in the role as executor of her estate.
When she went to see the NSWTG she had what we considered to be a well-measured and sensible Will – appointing her only two children as executors and dividing her estate between the two of them. There was nothing that required changing. The Will was entirely appropriate for her situation.
Just prior to her death, at a time when medical reports demonstrated that she was suffering cognitive decline, the NSWTG took instructions from her to make a Will appointing the NSWTG as executor and trustee and leaving her estate to her two children. The only material change between the effect of the prior Will and the updated Will was the appointment of the NSWTG as executor and trustee of the estate in circumstances where the NSWTG is permitted by legislation to charge exorbitant fees that are significantly greater than the fees other professionals are entitled to charge during the course of administering an estate.
After she died, the NSWTG provided a fee estimate to the family of over $24,000 for obtaining a grant of Probate and administering the estate (which was estimated to be valued at $1.1 million), plus monthly administration fees.
NSWTG has a grossly unfair fee structure when acting as executor of an estate. When we compare the excessive fee estimate set out in the above scenario to the professional fees a solicitor is entitled to charge to obtain a grant of Probate in New South Wales, the result is astounding. The professional fees a solicitor is entitled to charge to obtain a grant of Probate in New South Wales is set by legislation and is based on the value of the estate. For an estate of $1.1 million the costs for legal services for obtaining a grant of Probate are capped at $5,636.
It is clear that she did not have the capacity to understand the effect of the appointment of the NSWTG as executor in her Will (and in particular, the exorbitant costs that arise from this appointment). The NSWTG made only one material change to the Will when the NSWTG would have been aware that this change would have only benefited the NSWTG.
This situation caused the family significant heartache which was exacerbated when they asked the NSWTG to step down as executor of the estate, and their request was refused. The NSWTG was then entitled, under legislation, to move forward to obtain a grant of administration and administer the estate charging exorbitant fees in the process.
How Can Attwood Marshall Lawyers help?
Attwood Marshall Lawyers is a leading estate litigation firm, with experience in complex Public Trustee legal matters in all states. We can provide the following legal services for those experiencing problems with the Public Trustees:

Assisting in matters involving the mismanagement of affairs under financial management orders
Assisting in matters involving the mismanagement of estates where the Public Trustee has been appointed executor
Assisting in negotiating the exorbitant costs and fees charged by the Public Trustees
Applications to the Court to seek the Court appoint alternative trustees in the place of the Public Trustees

For all enquiries, contact Attwood Marshall Lawyer 24/7 call-back service on: 1800 621 071.
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Attwood Marshall Lawyers are proud to announce the appointment of a new and highly experienced Family Law Special Counsel to our Family Law department at the Kingscliff office, writes Legal Practice Director Jeff Garrett.
It has been a strong start to 2020 for Attwood Marshall Lawyers, with our firm continuing to extend our legal services at offices in Brisbane, Robina, Coolangatta, Kingscliff, Sydney and Melbourne.  In the most recent addition to the firm, we are proud to announce we are expanding the Kingscliff office, with the addition of a local ‘born and bred’ Family Law special counsel, who is a court room veteran and has built a strong reputation for the rare dual expertise of Family Law and dealing with domestic violence protection orders.
Michael Twohill, who was admitted as a solicitor in 1983, proudly traces his career roots to Murwillumbah, where he began his career in the legal profession as an articled clerk, working for Hynes & Elliott at their Kingscliff office in the late 1970’s. Mr Twohill has worked at some high-profile firms since his admission and founded his own law firm in 1999 at Southport. He sold his practice after more than 20 years working as a sole practitioner and is excited about joining the team at Attwood Marshall Lawyers, back in Kingscliff with 40 years legal experience.
Possible portrait of Murwillumbah Shire / Municipality Council members with a reporter (second on left – tall man). Left to right: R. Freeman, Reporter, W.L. Bresnett, Bothwell. Front – left to right: Murphy, Joshua Bray and A Twohill. Circa 1915.
Many Tweed Shire residents will know ‘Michael Twohill’ as their long-serving solicitor, while others will recognise the ‘Twohill’ name. Mr Twohill’s grandfather was Alexander Twohill, an early Tweed Shire President who served two terms in role (1916 and 1932) and was councillor-elect 11 times. The Alexander Twohill Bridge at Tumbulgum was opened in 1986, and Mr Twohill’s parents, Vince and Ollie, were well-respected members of the Tweed community.
Senior Associate and Head of the Family Law Department, Hayley Condon.
As a lawyer, Mr Twohill is skilled in handling complex Family Law matters, including property settlements, parenting agreements, protection orders, and frequently appears in the Local and Federal Circuit Courts, as well as the Family Court which deals with the most complex Family Law matters. Mr Twohill is an Attwood Marshall Lawyers match in expertise and values, and a rare purveyor of legal skill. His strong experience in complex family law matters is an asset, and his caring and personalised approach to clients resonates with us as a firm because we value exceptional client services.
Mr Twohill will join the Attwood Marshall Kingscliff team of resident lawyers, including Wills and Estates Senior Associate Debbie Sage, Personal Injuries Senior Associate, Lisa Robertson, Licenced Conveyancer Rachel Godden and the growing number of local junior lawyers and law graduates in the firm. He will also be a welcome support to Senior Associate Hayley Condon, who has practiced in family law since being admitted in 2009 and heads up the Family Law department.
A few words from Family Law Special Counsel, Michael Twohill:
“Over the years, a lot of my clients have grown old like me, so I’m now dealing with their children, and their grandchildren. Some of my clients have been with me for 40 years. In my 36 years working as a lawyer it has been a privilege to help so many families, and to now have the opportunity to come back to the Tweed and give something back to the region where I had my origins.
“I like helping people, particularly when they’re in a state of crisis. I see myself as the catalyst to assisting parties in a state of crisis to reach a resolution. I take my role very seriously for the benefit of my client. In my mind there are always three parties in a separation – the mother, the father, and the children – and I have always been able to achieve results with the minimum amount of friction between the parties. In any matter I undertake, I seek to achieve an excellent final result for the client, at a minimum cost to them financially and personally.
“Attwood Marshall Lawyers has a large team of young and vibrant lawyers who will benefit from mentoring, and that will be part of my presence within the firm. I also want to increase our presence in the Tweed community, letting people know we’re there at Kingscliff, and that we look after all aspects of the law. I believe in working “with” other members of the profession in the area who accept instructions from people in Family Law matters. I consider it imperative to have a good relationship with other practitioners for the benefit of your clients. In the end it’s not about the lawyers……it’s about the parties including the children.”
Special Counsel, Michael Twohill, qualifications:

Admitted to the Supreme Court of Queensland in 1983
Admitted to the High Court of Australia in 1983
Member of Law Council of Australia since 1991
Member of the Family Law Section of the Law Council of Australia since 1991
Foundation Member of the Family Law Practitioner’s Association (FLPA)
Member of Queensland Law Society since 1983

To book an appointment with special counsel Michael Twohill, phone: 1800 621 071 anytime.
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In this blog and podcast by Family Law Senior Associate Hayley Condon, we canvas the most common FAQs around property settlements, separation and divorce as we hear those questions in our office.
Divorce can be one of the most difficult times in a person’s life. Putting aside the grief over the breakdown of their relationship, divorce often involves a person’s first interaction with the court system. It can be intimidating and emotionally turbulent, with a myriad of legal issues to consider. At Attwood Marshall Lawyers, we often meet with family law clients shortly after they have separated with their spouse. This is a trying time, but one we are experienced in helping with. With the questions and answers below we hope to de-mystify divorce and property settlements so that if you are currently going through a separation, you can make informed decisions which lead to the best outcome for you, your family and your future.

What is a divorce?
A divorce is simply the process of dissolving a marriage. It is a separate matter to property settlement. To apply for divorce, spouses need to be separated for 12 months. A question that we are often asked is whether spouses who have been living separately in the same home for 12 months can apply for a divorce. The answer is yes, however as part of the divorce process you will need to put evidence before the Court to satisfy the Court that during the 12-month period you were not living with your spouse as a couple in the home.
What’s the difference between divorce and property settlements?
Property settlement is the division of the assets after a separation whereas a divorce, as mentioned above, is dissolving the marriage. They are 2 separate processes. You do not have to wait until you are divorced before you can apply for a property settlement; you can seek a property settlement straight after separation.
What is a property settlement and what does it achieve?
A property settlement achieves financial separation. It involves spouses dividing up their assets so they can move on with their lives individually. In terms of the process for a property settlement, it really comes down to the parties in each case. If the parties separate and remain amicable they could reach their own agreement or through solicitors negotiate an agreement which is formalised in a legally binding way to protect them. If, however, there is a lot of acrimony between the parties after the breakdown of their marriage, the matter may need to be resolved by way of litigation.
READ MORE: 7 Mistakes Separating Couples Make When They Don’t Get a Lawyer
Even if it’s fairly amicable do you still need an agreement in place?
It is important that parties formalise any settlement they reach in a legally binding way under the Family Law Act. If this is not done what can happen is your spouse could pursue you again later on down the track and before the statutory limitation period expires for a further settlement (so another bite of cherry).  By formalising the settlement you are protecting yourself against this risk and you will also receive tax advantages such as the benefit of stamp duty exemptions where property is being transferred between spouses as part of the terms of the settlement.
What about if one party wants to keep things as smooth as possible because they are hoping that something can be reignited in the future?
If parties want to resolve property settlement matters without engaging in costly, lengthy and stressful litigation then it requires compromise on both sides. Some parties are prepared to compromise more in order to achieve a settlement for a variety of reasons, one of those being when children are involved to try and maintain a workable co-parenting relationship for the future. Another is sometimes the hope of a reconciliation in the future, which sadly is often misguided.
Senior Associate Hayley Condon in the studio at 4CRB Community radio with presenter Steve Stuttle recording this Law Talks podcast.
Are there Do-It-Yourself versions of property settlements?
Parties can prepare their own settlement documentation. Just like a Will, you can download an Application for Consent Orders from the Family Court website and can find Binding Financial Agreement precedents online, however it is not recommended that parties try and formalise property settlement agreements on their own. The reason for this is that family law can be a very complicated area when formalising agreements especially when it comes to the drafting of the settlement provisions when you are dealing with the transfer of property or tax issues.  If you get it wrong, you could end up spending more money trying to fix the problems that arise then what you would have spent in the first place having a lawyer prepare the documentation for you correctly. Settlement agreements under the Family Law Act can be formalised by way of an Application for Consent Orders filed with the Family Court or a Binding Financial Agreement which does not involve the Court.
What assets and financials does a property settlement include?
Settlement agreements reached between separating spouses are specific to each case based upon what property makes up their asset pool. The property that forms part of an asset pool includes assets and financial resources jointly owned by the spouses but also any assets or financial resources owned by the spouses individually.  If a spouse owns an asset with a third party such as a parent or other family member then the spouse’s interest in that asset would form part of the asset pool.
What about items where both parties might have an emotional attachment to something? 
Sentimental items can be very difficult to deal with in separations, especially where one party is aware that it is important to the other spouse and the item does not have a great monetary value.  Such items can be used as a tool of negotiation in property settlements.  As the value of the item is generally not significant, it is not financially viable for a party to pursue the issue by protracted negotiation or litigation. If you are going through a separation which is acrimonious or looks like it will end up that way you should strongly consider removing sentimental items from the home in particular if you are vacating the home, otherwise they may disappear.
READ MORE: Separating From Your Spouse or Partner? Ten Legal Tips 
How does superannuation get factored into property settlements?
Superannuation is included as part of the asset pool in a property settlement. There is a common misconception with superannuation that if a party brings an amount of superannuation into the relationship that this amount will be excluded from the pool if the parties separate in the future. This is not correct. The full value of the party’s superannuation will be included in the asset pool, however when a Court considers how the property and in particular how the superannuation is to be divided the value of the pre-relationship superannuation brought in by the relevant party will be taken into account.
How do courts decide who gets what in property settlements?
Judges have a wide discretion when making property settlement orders for separating spouses.  The Court must be satisfied firstly that it is just and equitable to make an Order, if not the Court does not have to make an Order. After this the Court applies a 4-step approach when determining what property orders to make which involves:

Step 1 – Identifying the asset pool and its value;
Step 2 – Considering the contributions made by the parties over the length of the relationship and post separation (including financial contributions, homemaking and parenting contributions and non-financial contributions) and ascribing a percentage value to those contributions;
Step 3 – Considering the future needs of the spouses and whether a percentage adjustment should be made in favour one party (i.e. due to one spouse having a greater income earning capacity or a spouse being the primary carer of young children);
Step 4 – Consider whether the percentage division reached under the preceding 3 steps is just and equitable or whether any further adjustment should be made in favour of a party. A further adjustment at this step is rare.

Once the Court decides how the asset pool will be divided between the parties in terms of a percentage division it then has the power to make Orders detailing what specific assets each party is to retain as part of their property settlement, if such issues are in dispute.
READ MORE: What Happens To Jointly Held Life Insurance After Separation? 
What is the impact of a separation or a divorce on other documents?
After a separation parties should turn their mind to the legal documents that they have in place such as their Will, Powers of Attorney, Appointment of Enduring Guardian or the Binding Death Benefit Nominations in place for superannuation accounts. It is not unusual when parties are married or in a de facto relationship that they put these documents in place while they are together nominating each other in the roles of Executor and Attorney and nominating each other to receive the benefit of superannuation entitlements upon death and their estate under their Will. It is therefore important that after a separation parties turn their mind to changing these documents to remove their spouse. If this does not happen and a party passes away their estranged spouse could end up with their estate under their Will and/or their superannuation death benefits.
This risk also applies to Powers of Attorney/Appointments of Enduring Guardian. If you do not change your documents after a separation your estranged spouse will still have power under those documents to make decisions for you.  These outcomes ordinarily do not reflect the wishes of separating spouses but is often a step which is forgotten after a separation as the focus is on the breakdown of the relationship.
How can Attwood Marshall Lawyers help?
At Attwood Marshall Lawyers in the first meeting we discuss the issues that need to be resolved arising from the breakdown of your relationship including property settlement, parenting matters and divorce but also deal with your estate planning issues so that you can take steps to prevent the undesirable outcomes set out above.
Unlike generalist or boutique firms, Attwood Marshall Lawyers offer a dedicated Family Law department who practices exclusively this complex field and can also deal with estate planning or structuring issues. We provide quality legal services, exceptional customer service, and are highly experienced in divorce, property settlements and parenting agreements. Our firm has a unique structure, where you are in direct contact with your lawyer, rather than being directed to secretaries. For an initial appointment to discuss your matter, please phone: 1800 621 071.
The post Most Common Questions about Property Settlements, Separation and Divorce – PODCAST appeared first on Attwood Marshall.

For most people, Christmas time is a time to relax and catch up with family and friends… for lawyers, it can be the busiest time of the year, writes Legal Practice Director, Jeffrey Garrett.
Death
It seems we all have family stories of elderly grandparents or aunts and uncles who defy time and illness to “hang on” until after Christmas. It is amazing how some terminally ill people can condition themselves to stay around for that one last Christmas with their loved ones! It is nice that families have that last memory of Xmas with their departed family member or friend.
Christmas can also be a time of unexpected accidents or illnesses that lead to someone passing away, leaving the family to deal with the arrangements during holiday time. The predicted heatwave conditions in Northern NSW and QLD over summer may also cause a spike in fatalities and there are studies which confirm this.
Law offices are usually very busy when they reopen after the Christmas break dealing with grieving families who have lost loved ones over the Christmas break. Many family members panic due to most services being closed over Christmas and are anxious about what they need to do when a family member passes away. Family members stress over bills that might be payable when in reality all companies and utilities are very understanding when it comes to someone passing away unexpectedly. This is one of the main reasons why we stay open during the Christmas period. For any urgent enquiries just ring our Freecall number 1800 621 071.

Divorce
Unfortunately for many families, the holiday period and extra time spent at home with your spouse and family members can be a recipe for disaster in terms of relationships!
The combination of everyone in the family being at home and in close quarters for several weeks, as well as the addition of the “in-laws” and other people coming to stay for the Christmas holidays can lead to unusual stress on relationships. If financial issues are bubbling away on the domestic front, this can also lead to some explosive outcomes.
Once again, legal offices and particularly Family Lawyers are in high demand following the Christmas break. Many Family Lawyers take extra time off over Christmas in order to have their own time off, but in reality the first two weeks after the Christmas break are some of the busiest times. Click here to connect to our Family Law website for further information.
Accidents
The combination of travel, excessive alcohol consumption and the usual Christmas traffic snarls often lead to higher numbers of car accidents and other misadventures causing serious injuries.
The most common accidents that people have at Christmas are car accidents or injuries sustained involving some kind of vehicle. The extra traffic and movement of people generally also leads to a higher rate of injuries to pedestrians and cyclists.
Outside of vehicle and road accidents, people also receive a multitude of serious injuries from various recreational activities which they would not normally undertake other than when they are on holidays! Some of these injuries may arise using new Xmas toys.
Personal Injury Lawyers also have a very busy post Christmas period when people return from holidays or are discharged from hospital after spending the majority of their festive season in an orthopaedic ward. Luckily for many people, they are covered by some form of insurance or have the ability to bring a claim for damages for the injuries that they have suffered. There are strict time limits in relation to some types of claims so it is best to consult one of our experienced personal injury lawyers as soon as possible to know where you stand. Just call the Injury Hotline on 1800 62 071 24/7! Click here to connect to our personal injuries website page for further information.
Arrests
Travelling to unfamiliar destinations and enjoying a little too much Christmas cheer can often lead to people behaving in a way that is most unusual for them.
It is quite common for people enjoying the festive season to find themselves on the wrong side of the law and facing an arrest by the Police. Most holiday destinations have a stepped up Police program in relation to revellers and there are many public offences which people find themselves committing which would not normally be the case had they been at home. The increased Police vigilance usually leads to arrests for common offences such as drinking alcohol in public, drunk and disorderly, urinating in a public place (indecent exposure), affray (getting involved in fights), assaults and failing to obey a Police direction. The excess intake of alcohol also usually leads to driving offences including driving under the influence of alcohol or drugs, dangerous driving, speeding offences and domestic violence breaches.
Christmas and New Year revellers also attend many concerts and music festivals which always attract the attention of police.
Criminal Lawyers are obviously kept very busy over the Christmas break and often find themselves appearing in Court at a time when most legal professionals have their offices closed. The Attwood Marshall Criminal Service operates 24/7 – just ring our Freecall number 1800 621 071 at any time and the operator will transfer you to a Criminal Lawyer or have them contact you urgently.
Alternatively, Special Counsel Richard Smith can be called directly on his mobile 0416 306 720.
Merry Xmas from Attwood Marshall Lawyers
We wish all of our clients and colleagues a very Happy and Safe Christmas. If you are caught up in any of the situations listed above, we are only a phone call or email away from helping you. Details of our office closures over Christmas are set out below but for any urgent matters, you simply need to free call 1800 621 071 and we will get back to you as soon as we can.
Attwood Marshall Lawyers are open over the Christmas holidays – find our office locations and hours here.
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When a couple go through a separation there are a myriad of legal aspects to consider. Separation can be difficult and tumultuous time. Many people overlook the very important aspect of jointly held life insurance policies, a simple mistake with catastrophe consequences, writes Senior Associate, Lucy McPherson.
Many of our clients find going through a separation not only emotionally draining but also overwhelming from a financial and legal point of view. We find that many people overlook their life insurance policies at a time of separation. Let’s face it, not many of us like to think about our impending demise. If you don’t like to think about your own death, you are not alone. Death is not a pleasant subject and life insurance raises issues relating to our own mortality. We have had many clients tell us that they “don’t want to think about those sorts of things” as they “may be manifesting the inevitable”.
The ramifications of not reviewing your life insurance policy at the time of separation can be disastrous to your overall estate plan and the loved ones you leave behind.
Let us set out an example for you to highlight just how catastrophic this sort of situation can become:

A man and woman meet. They fall in love. They purchase a property together in joint names. Upon acquisition of the property, the parties organise their financial and personal affairs by purchasing a jointly held life insurance policy and executing Wills to benefit each other.
The couple continue to live together harmoniously. They become financially dependent and mutually supported each other during difficult times like illness and unemployment. Each party make varying contributions to the household at different times including to mortgage repayments and premiums on the jointly held life insurance policy.
Twenty or so years pass, things become bitter and the couple separate. Upon separation the couple enter into an agreement to deal with their interests in the jointly held property and some bank accounts. No one thinks to consider the jointly held life insurance policy. The woman pays the man a sum of money pursuant to their agreement and she retains the real property. The couple go their separate ways.
The man meets another woman, enters into a relationship and updates his Will and superannuation nomination to include his new spouse as beneficiary. He marries his new spouse; they have a couple of kids and live happily for a few years. The man subsequently dies suddenly without assigning the jointly held life insurance policy, which is now worth over $1,000,000.
As the life insurance policy was jointly held by the couple who originally purchased the policy, and the policy was not transferred nor assigned prior to the date of death, the entitlement to the policy automatically reverts to the joint owner (the first spouse) on the death of the other, without reference to the Will or the estate.
The first spouse receives the entire life insurance payout, having the effect of completely disregarding the interests of the new spouse and children.

The above example can have disastrous ramifications for the spouse and children of the subsequent relationship, who are likely the parties in greatest need of protection. Whilst there is legislation in New South Wales that allows a spouse and children to bring a claim on the life insurance policy as the “notional estate” of the deceased person, this legislation does not exist in any other state or territory of Australia.  Further, the application involves protracted and expensive litigation in the Supreme Court which is best avoided, if possible.
Where a life insurance policy is held jointly between two parties, the ownership of the policy automatically reverts to the surviving owner on the death of the other.
How could this have been avoided? Usually the policy terms will clearly stipulate the steps required to be undertaken in order to transfer or assign ownership of the policy. The assignment of the ownership of the policy is not effective at law unless strict requirements are met, including:

the assignment must be by memorandum of transfer in the form prescribed by the regulations;
the memorandum must be endorsed on the policy document or in annexure to the policy document;
the memorandum must be signed by the transferor and transferee;
the assignment must be registered and dated;
the memorandum must be signed by the principal executive officer of the life company or a person authorised by the principal executive officer.

Essentially one party needs to sign over the policy to the other in a legal document, signed by both parties and the executive officer of the company which then needs to be filed with the company.
Amidst the messy time of a separation and the tasks that must be undertaken, sorting out a jointly held life insurance policy is a task that we find is often disregarded. Obtaining the right advice from an experienced lawyer is extremely important. A suitably qualified specialist lawyer will not overlook these important details. Life insurance is an important part of a person’s overall estate plan and should be thoughtfully considered.
You are welcome to contact our office with any enquiries concerning estate planning advice.  Please contact our Wills and Estates Department Manager, Donna Tolley on direct line 07 5506 8241, email [email protected] or free call 1800 621 071 to book your free 30 minutes estate planning review appointment with one of our dedicated Estate Planning lawyers.
The post What happens to a jointly held life insurance policy after separation? appeared first on Attwood Marshall.

You must review all your discretionary trust deeds and amend them satisfy that there is no foreign beneficiary requirement and no amendment requirement, by midnight on 31 December 2019. In Qld, similar laws now also apply, writes Property & Commercial Partner Barry van Heerden.
If you are a financial planner, advisor or accountant advising the trustee of a discretionary trust, and that trustee plans to hold (or holds) residential land in New South Wales, you must read this, as critical law reforms will kick into effect affecting all discretionary trust deeds at midnight on December 31, 2019.
Changes to dictionary trust deeds in NSW on New Years Eve
Discretionary trusts that own ‘residential land’ in New South Wales or hold an ownership interest in a company or unit trust that owns residential land in New South Wales must amend their trust deeds to exclude foreign persons as beneficiaries before midnight on 31 December 2019, otherwise foreign land tax and duty surcharges may apply.
The New South Wales Parliament has proposed changes that (if enacted) will deem discretionary trusts to be ‘foreign persons’, unless the trust deed is amended before midnight on 31 December 2019 to:

exclude all foreign persons as eligible beneficiaries
prevent any amendment to the exclusion of foreign persons as beneficiaries, so that the exclusion is permanent and irrevocable.

This is the case even if none of the eligible beneficiaries of a discretionary trust are foreign persons.
Effect of changes on surcharge duty and surcharge land tax
If a discretionary trust is deemed a ‘foreign person’, surcharge duty of 8% and surcharge land tax of 2% will be payable on any residential land in New South Wales acquired or owned by the trust since the surcharges were introduced in 2016.
The proposed changes will apply retrospectively, so that if a discretionary trust:

paid surcharge duty or land tax but amends its trust deed to permanently exclude foreign persons as beneficiaries before 31 December 2019, the trust may apply for a refund of the surcharge
owns residential land in New South Wales but does not amend its trust deed to permanently exclude foreign persons as beneficiaries before 31 December 2019, the surcharge duty and land tax may apply for prior years since the surcharges were initially introduced in 2016. Different transitional rules apply to testamentary trusts.

If you Land held in trust is generally liable for a surcharge and surcharge land tax applies to residential land owned by a foreign person. Discretionary trusts are considered to include foreign persons. If you have received a communication from the State Revenue Office or you believe you might be assessed with a surcharge land tax as a trust or a foreign person, act now and register your land status with the State Revenue office.
What Is Surcharge Land Tax?
Land tax is a tax on the land you own (excluding your primary place of residence) as at midnight of 31 December of the previous year (in the case of NSW and VIC, some states work on a financial year). If you are a foreign person or if the land you own is held by a trust, you will have to pay surcharge land tax in addition to any land tax you might be liable.
Again, a surcharge land tax is a tax for residential land owned by a foreign person at midnight on 31 December of the previous year. Trusts are classified as foreign. Special trusts also do not receive the benefit of a threshold which applies to naturalised persons or those holding a permanent residence visa.
What to do about Land Tax
If any of the following applies to you:

You do not meet the meaning of a foreign owner
You have amended your trust deed to exclude foreign beneficiaries
You do meet the meaning of foreign owner and would like to provide the residential land status and/or make amendments to your property ownership

You will have to lodge your land tax return before 31 December 2019. You may do it via your tax agent or if you don’t have one, you may visit your state’s revenue office website and search for “Land Tax” and report your land ownership details online.
How can Attwood Marshall Lawyers help in NSW?

Review all discretionary trust deeds and amend it to satisfy the no foreign beneficiary requirement and no amendment requirement.
Do this before midnight on 31 December 2019.
Submit the trust deed and all variations to Revenue NSW for confirmation that the trust is not a ‘foreign person’ (although this does not have to occur before 31 December 2019).

Attwood Marshall Lawyers can assist your client to ensure they satisfy the ‘foreign person’ exclusion requirements. Legal help is recommended for this process.
Foreign discretionary trust law in Queensland
The government announced a number of State tax measures in their budget on 11 June 2019.  These were swiftly introduced into law with the relevant legislation passing on 17 June 2019.  One of these measures was an amendment to the land tax rules, which came into effect almost immediately (at midnight on 30 June 2019),
The changes were:

If a person owns land in Queensland – they need to determine if they are foreign and if so, seek advice on the land tax implications;
If a person is the buyer of land under a contract –  they need to ensure that they will not be liable to for additional land tax if the seller is foreign; and
If a person is a tenant – they need to review the terms of thier lease to ensure there are not paying more because their landlord is foreign.

Different types of discretionary trusts
Foreign company or unit trust:
A company or unit trust will be ‘foreign’ if foreign persons hold an interest (together with associates) of 50% or more.
Foreign discretionary trust
A discretionary trust will be foreign if the default beneficiaries that are entitled to a distribution of 50% or more of the income or capital of the trust are foreign persons.
Absentee individual
An absentee individual is also subject to the land tax surcharge (although this is not a new rule – the surcharge for absentee individuals has increased from 1.5% to 2%).  A person is an absentee if they are not ordinarily resident in Australia, but the recent changes to the rules now ensure that Australian citizens and permanent resident visa holders are not absentees for land tax purposes.
What must property buyers and tenants do?
Following these changes, it is more important than ever to ensure that the ownership structure is properly identified so that the appropriate amount of land tax is being paid.
For buyers and tenants, any contract or lease for property in Queensland should appropriately address liability for land tax, particularly where the landholder is foreign (or suspected to be).  In contracts for sale, the contract typically (except in residential sales) requires an adjustment at settlement for land tax.  In leases, land tax may form part of the outgoings that are recoverable from a tenant (except in residential or retail leases).  It is open to the parties to negotiate how land tax liability will be apportioned, which could be:

not adjusting or re-allocating land tax liability at all (more common in residential property sales, and mandated in retail leases – this favours the buyer or tenant);
on the amount actually assessed, including any surcharge (this favours the seller or landlord); or
on some notional or deemed assessment, which could be determined based on some combination of the below criteria (each of which favours the buyer or tenant):

as if the seller or landlord was a natural person (reducing the rates to the individual rates);
as if the seller or landlord was resident in Queensland (avoiding any absentee surcharge); and
as if the land was the seller or landlord’s only land (avoiding aggregation).

How can Attwood Marshall Lawyers help in QLD?
The Office of State Revenue (OSR) is currently contacting all landholders asking that they confirm their status.  It is important to ensure that this question is answered correctly with legal advice as without it there could be a myriad of signifcant complications.
Parties currently negotiating contracts or leases should give very careful consideration to how the land tax adjustments or allocation are intended to operate and ensure that the lease documents are negotiated and reflect that accordingly.  Please contact a member of our team if you would like to discuss this further.
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Charging dead people, fees for no service – now money laundering and child exploitation are the latest revelations to emerge from Westpac. As the dishevelled banking sector continues its meltdown, it’s important you check in on your investments to stay vigilant about bad financial advice, writes Attwood Marshall Commercial Litigation Senior Associate, Charles Lethbridge.
Westpac’s CEO Brian Hartzer resigned last week as the bank faces sensational claims of money laundering and illegal transactions linked to live child sex shows in the Philippines.
The accusations have been levelled in a lawsuit against the well-established lender by Australia’s anti money-laundering and terrorism financing regulator, AUSTRAC, who claim Westpac has breached counter-terrorism finance laws 23 million times.
It is alleged the bank failed to properly vet 19.5 million international transactions worth $11 billion, from the period from November 2013 to September 2018, and that those transactions are potentially linked to child exploitation rings in South-East Asia and the Philippines and South East Asia.
AUSTRAC CEO Nicole Rose said that AUSTRAC’s decision to commence civil penalty proceedings was made following a detailed investigation into Westpac’s non-compliance.
“Serious and systemic non-compliance leaves our financial system open to being exploited by criminals,” Ms Rose said.
Bank executives initially backed their CEO but an emergency board meeting last week saw him quit along with Westpac Chairman Lindsay Maxstead, who is set to from the embattled bank next year.
Maxstead told media the bank was “unbelievably repulsed” by its alleged failure to properly vet transactions. He also defended the payment system at the heart of child exploitation allegations.
“Please don’t think that this bank has sat on its hands and had no attention to these matters. The actual evidence is that it’s the exact opposite,” he said.
Maxsted and head of investor relations Andrew Bowden have been meeting major investors ahead of a potential board spill at its annual general meeting on Thursday, where shareholders will have their first chance to express anger at the board’s handling of the Austrac scandal.
ComBank and NAB admit Hawking
The Westpac scandal comes as ASIC takes three wins via its post-Banking Royal Commission strategy to pursue litigation over negotiation, successfully forcing NAB and CBA into guilty pleas and admissions of wrongdoing.
Last week, CommInsure was convicted of 87 counts of offering to sell insurance products in the course of unlawful and unsolicited telephone calls, commonly known as “hawking”.
CommInsure pleaded guilty to the offences and has agreed to refund 30,000 customers approximately $12m, and fined $700,000.
In a separate matter in the NSW Local Court on Tuesday, former NAB employee Mathew Alwan was sentenced to a 12-month intensive corrections order and 200 hours of community service over his role in operating a fraud ring out a bank branch in Western Sydney.
The two developments follow NABs admission to 255 breaches of the Credit Act relating to its no defuct “introducer” referral program.
AUSTRAC investigations have seen the departures of CEOs of two of the big four banks, while the Banking Royal Commission holds the scalps of NAB’s CEO Andrew Thorburn and its chairman Ken Henry.
More heads could roll from the big four banks as media report several senior staff have been called in for compulsory interviews with the Australian Securities and Investments Commission in the wake of Westpac’s money laundering claims.
It’s extremely important that you regularly check in on your investments and stay vigilant to detect bad financial advice or mismanagement.
If necessary, get some independent advice from an alternative reputable financial planner or forensic accountant.
Warning signs you are the victim of bad financial planning advice
Often, it can be difficult to identify when you have received bad financial advice before the losses are incurred. The damages flowing from financial advice often don’t quantify for at least 12 months (for example, at the end of a financial year), and sometimes longer. Through our experience, we have identified the following ways to identify bad financial advice:
Sudden loss in your investment
No doubt the most obvious way to identify bad financial advice is when you suddenly incur a financial loss on the net value of your investment portfolio. The greatest indicator of ‘sudden’ financial loss is a drastic turn in your investments. If you have seen your investment continue to drop at a rapid rate, we urge you to seek immediate advice.
Unexpected bills
If your financial planner has provided you with bad advice regarding your income, superannuation, tax or investments, the most likely time the losses would be realised is at the end of the financial year in an unexpected or unusually high bill.
Your financial planner provided you legal advice
While financial planners have general knowledge of the effect legislation has on your investments, estate planning and/or company arrangements and they are required to identify the potential legal implications of the arrangements with their clients, however, they are not qualified to provide you with legal advice.
Taking legal action for bad financial planning advice
There are two pathways to taking legal action against bad financial advice and the path you take depends on where you received the advisory service.
Bad financial planner advice from a bank
Some large banks who gave many customers poor financial advice have set up compensation review programs—including the CBA, Macquarie and NAB. We understand how these programs work, and we can guide you through every step of the process.
Bad financial planner advice from an independent planner
AFCA have opened a ‘legacy claim’ scheme that allows AFCA to determine claims dating back to 1 January 2008 up until 30 June 2020. Legacy claims allow those who received bad advice before the GFC and the RC to have their claim reviewed when it would ordinarily be time barred after 6 years.
How Attwood Marshall Lawyers can help
Established in 1946, Attwood Marshall Lawyers is a leading banking and finance litigation law firm. Our experienced Commercial Litigation team lawyers are experts in all aspects of professional negligence claims against major lenders and individual financial planners.  We are dedicated to delivering exceptional client services and ready to assist you get the compensation you deserve today. For a complimentary, obligation-free phone assessment of whether you are eligible for a No Win, No Fee appointment please contact: Commercial Litigation Department Manager and Senior Paralegal, Amanda Heather, on direct line 07 5506 8245, email [email protected].
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