In this current (and hopefully short-lived) period of economic uncertainty it is important for tenants to realise that the obligation to pay rent under a lease is tantamount.
If any tenant is experiencing economic hardship, or expects to experience those troubles, it is important to engage in communication with your landlord.  Under a lease a tenant is obligated to make rent payments and cannot unilaterally decide to reduce or halt rent payments.  Speak with your landlord.  Openly discuss the issues that you have and raise the possibility of a rent reduction, a pause on rental increases or a cap on outgoings contributions.
It is important to remember that not all landlords are large multinational corporations.  Your landlord may be heavily geared with large mortgage payments to its bank.  A reduction in payments will also seriously impact on your landlord.
As Scott Morrison said “We will get through this together”.  Tenants should not bunker down but contact their landlords now.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post COVID-19 and Lease Agreements appeared first on Bennett and Philp Lawyers.

A leading national legal body is putting its name to a push to protect Queensland’s Compulsory Third Party (CTP) from being changed to a no-fault system.

The Australian Lawyers Alliance (ALA) has come out to challenge a renewed campaign by RACQ and Suncorp to have Queensland’s Compulsory Third Party (CTP) changed to a no-fault system.
The ALA, a national association of lawyers, academics and other professionals striving to promote justice, freedom and the rights of the individual, states the insurers want to strip rights from Queensland’s CTP scheme, transforming it into a bare bones, ‘no-fault’ scheme similar to the scheme that operates in New South Wales.
The ALA’s stance is endorsed by Brisbane compensation law specialists Trent Johnson and Mark O’Connor, who have previously decried the insurer moves as another scaremongering campaign designed to boost insurer profits.
Late last year the insurers’ renewed a public lobby campaign to change the State’s CTP scheme, using accident victims’ stories to justify a change that would directly boost insurer profits.
RACQ launched its latest volley for a CTP change under the guise of informing Queenslanders what their CTP insurance covers (and does not cover) them for.
But Trent Johnson, an Accredited Specialist in Injury Compensation Law and a Director with Bennett & Philp Lawyers says the public should not be fooled by RACQ’s claims.
“In 2018 I noted RACQ’s 2018 profits of $64.4 million attributable in part to the premiums they collect from Queensland’s CTP scheme. That amount was more than double the $26.7 million profit RACQ made in 2017.
“During that same period the two of the three largest CTP Insurer’s in Queensland, RACQ and Suncorp, ran a campaign blaming Queensland lawyers for a spike in the State’s compulsory third party insurance claims,” he says.
In its rebuff the Australian Lawyers Alliance argues Queensland currently has virtually the lowest CTP premiums on the Australian mainland and is renowned for having a scheme that is fair for injured motorists.
“A no-fault scheme will mean higher prices for all drivers, less compensation for injured motorists and more profits for big insurance companies like RACQ and Suncorp,” it claims.
Bennett & Philp Director and compensation law specialist Mark O’Connor agrees with the ALA push and endorses the view that in every state in mainland Australia where no-fault schemes exist, drivers pay more.
“In NSW premiums are $533.38, compared to Queensland where premiums cost $359.20 and despite costing more for motorists, a no-fault scheme like that in NSW reduces the compensation to people hurt in accidents and requires injured people to prove their injury every six months.
“For some injured people that means dealing with an insurer all of their lives while paying premiums almost double what we pay in Queensland,” Mark says.
Trent Johnson says for several years now, both RACQ and Suncorp have been placing pressure on the Queensland Government to scrap the States fault-based CTP claim scheme and replace it with so-called ‘guaranteed defined benefits’.
“In other words, they want a no-fault-based scheme with reduced payments for injured claimants irrespective of whether they were at-fault. This has proved to be disastrous in other states such as New South Wales where those injured in motor vehicle accident under their capped scheme receive a pittance in compensation.
“This forces more injured claimants to rely upon the public purse as opposed to compensation from the CTP insurer of the at-fault vehicle, the same insurers that have been profiting from collecting CTP premiums over the years,” he says.
“Insurers have previously argued that the best way to disrupt claims farming for CTP claims (which is largely done by unscrupulous interstate and overseas agents who do so to escape regulation in Queensland) was to replace the existing fault-based CTP scheme in Queensland with a no-fault (i.e. capped payments) system,” he says.
Claims farming should cease to be a problem in the Queensland CTP industry due to recent significant legislative changes in Queensland which outlaws the practice and penalises parties involved in it.
“Now, those same two insurers (RACQ insurance and Suncorp insurance respectively), have launched a further scaremongering campaign warning Queensland motorists that if they are at-fault for a motor vehicle accident, they are not covered by the states CTP scheme for their injuries. I find that ironic given both Suncorp and RACQ already have voluntary at-fault driver cover that only applies to very serious injuries or death, but each have various exclusionary provisions,” Trent says.
“Queensland’s fault-based CTP scheme (like our common law workers’ compensation scheme) is in very good financial health, provides adequate (but not generous) damages to injured claimants and largely accords with other common law damages schemes in Queensland such as those for slips, trips and falls, work-related injuries, medical negligence etc.”
Mark says insurers are doing quite well but want to enhance profits by radical changes to CTP cover which will only benefit them.
“Imagine if your partner, child or relative were injured due to the negligence of another causing them to suffer significant pain and loss but they were significantly restricted in the damages they could claim and unable to claim their actual loss due to an insurer placing pressure upon the government to protect and increase its profits.
“That is what has happened in New South Wales and is what RACQ and Suncorp have again been proposing in Queensland. It’s just blatant scaremongering,” he says.
Trent says the ALA’s “Save Queensland’s CTP scheme” is a necessary reminder that Queenslanders should fight any moves to strip them of their legal entitlements.
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Law Body Pushes To Save Queensland’s CTP Scheme From Insurer Campaign For Change appeared first on Bennett and Philp Lawyers.

Recent commentary on security of payment issues faced by some subcontractors is highly critical of alleged delays by Government in introducing Project Bank Accounts. The proposed vital legislation, which is likely to be complex, has yet to be drawn up and reviewed by industry operators.
The time table referred to in our past article on the issue, Building Industry Fairness Reforms: Report to Government and Government Response, in the circumstances, would seem sensible as there would be nothing worse than having such significant changes released on an industry ill-prepared.
While some contractors are critical of the changes, on the basis of compliance costs, there is no doubt that battle is over and PBA’s will no doubt, be rolled out in a new format prior to July 2020 but only applying to State Government projects valued above $1 million. It won’t be until 1 July 2021 that all projects above $10 million in value will require them.
The next stages that arguably will affect most contractors are as follows:

Phase 4 – 1 January 2022 – all projects above $3 million
Phase 5 – 1 July 2022 – all projects above $1 million

What attitude the LNP will bring to this, given this is an election year, is unknown. No doubt it will be tested over the next few months.
Pending those changes being introduced, subcontractors should not forget they may have available remedies under Chapter 4 of the Building Industry Fairness (Security of Payment Act) being the provisions of the old Subcontractors Charges Act.
If used correctly in a timely way, subcontractors can become secured creditors with a charge over monies owed from up the contractual chain. Using those provisions may put subcontractors in a much better position should there be an insolvency.
Quite often, the key to success in any recovery using these provisions is speed and timing. A reluctance to use, resulting in delay, can be fatal.
The provisions are particularly powerful should you be a sub-subcontractor where you may have an ability to charge monies at several levels of the chain.
If a contractor, principal or subcontractors have a query or concern, they shouldn’t hesitate to contact our Construction Litigation team on +61 7 3001 2999 or via our Contact page.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Addressing Subbies Concerns Regarding Delays to Project Bank Accounts appeared first on Bennett and Philp Lawyers.

A recent decision of the South Australian Supreme Court has opened up the potential of preventing a party relying on the adjudication process by seeking the court’s intervention at an early stage.
Whilst it is somewhat common place for a party to apply to stay an adjudication decision, pending a review by the court, on the basis of invalid payment claims, this case shows the potential to seek to avoid an adjudication altogether.
Summary of Decision
The matter proceeded as follows:

The applicant, CATCON, engaged the second respondent, Sarens, to erect 58 wind turbines for a total cost of approximately $10,193,500.00. Subsequent variations made the total claim $24,759,627.80;
Sarens issued a number of payment claims to CATCON, however, the payment claim in question was the second payment claim utilising the same reference date;
CATCON alleged that the payment claim was invalid on the basis that Sarens was only entitled to issue one payment claim per reference date;
Both payment claims were for significant sums of money (in excess of $10million);
CATCON filed an application in the Supreme Court of South Australia seeking a declaration that the second payment claim was invalid;
However, prior to determination of CATCON’s application, Sarens applied for an adjudication of the payment claim and the matter was referred to adjudication;
CATCON subsequently filed an interlocutory application seeking that the adjudication be stayed pending determination by the Court of the validity of the payment claim;
Sarens argued that the adjudication would deal with the issue of jurisdiction in any event (i.e. whether the payment claim was valid) and accordingly it should proceed to adjudication;
CATCON argued that given the quantum of the claim and the amount of documentation involved, to proceed to adjudication would be a lengthy and expensive process rather than dealing with the, in essence, simpler point of law as to the validity or otherwise of the payment claim;
The Court considered various High Court decisions, the relevant legislation and the terms of the contract between CATCON and Sarens and determined that it was arguable that the payment claim was invalid due to the inability of a contractor to issue payment claims with the same reference date; and
The Court ultimately held that given the quantum of the claim and the documentation that would need to be considered in an adjudication, it would be a more timely and cost-effective way to first resolve the issue regarding the validity of the payment claim, and in the circumstances and on the balance of convenience, the adjudication was stayed until such time as the validity of the payment claim had first been determined by the Court.

Whilst not necessarily key to any matters, it is important to note that although the matter was determined in the South Australian Supreme Court, it considered the Building and Construction Industry Security of Payment Act 1999 (NSW) as the contract between CATCON and Sarens provided that the laws of New South Wales would be the governing law.
Queensland Position
Whilst such a course of action has not been seen in Queensland (albeit there has been numerous cases where adjudication decisions have been stayed until the validity of a payment claim has been determined by the Court), it would seem that a similar application may be a viable option in Queensland. The New South Wales Act is, in many respects, similar in these terms to its Queensland counter-part, the Building Industry Fairness (Security of Payment) Act 2017. To that end, for example, section 75 of the Queensland Act only permits one payment claim to be made per refence date.
Lessons to be Learnt
Whilst the usual course of action would generally see an adjudicator make a decision in relation to the validity of a payment claim, there are often times where it can be more practical to determine more simplistic legal points rather than going to the time and expense of proceeding to adjudication where the matter can effectively be summarily dismissed. Adjudication can be, particularly in large construction projects, a lengthy and expensive exercise. Accordingly, if you have a significant or factually complex payment claim which you plan on attempting to set aside an adjudication decision on the basis of an invalid payment claim, you should consider seeking that the adjudication be stayed until the validity of the payment claim has been determined in the first instance by a Court.
If you’ve been served with a payment claim that you believe to be invalid and are facing the adjudication process, please get in touch and we will advise you on your options. You can contact Bennett & Philp Lawyers by calling +61 7 3001 2999 or sending us a message via our Contact Us page.
You can read the full judgement of this case here.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Court Intervention on the Adjudication Process: Determining the Validity of a Payment Claim appeared first on Bennett and Philp Lawyers.

Resident Wills & Estates expert, Geoff Armstrong, regularly contributes to leading seniors publication, Starts at 60, answering readers’ questions about estate planning. The original article can be sourced here.
Reader:
I’ve remarried after my wife passed away seven years ago, and I would like my ‘new’ wife to inherit my total estate once I die. I’ll probably live another 10-plus years and I’m worried that my earlier children will want part of it. My estate will have appreciated substantially by then through investment and other things and it doesn’t seem just that they should benefit from my new wife’s hard work. How do I make sure this happens?
Geoff:
You are quite at liberty to leave your entire estate to your new wife. However, family provision legislation in each state allows the court to override a person’s will to make provision for certain family members and dependants. Whilst the law differs slightly in each jurisdiction, children are certainly within the category of ‘claimant’.
Your children would have a statutory right to claim provision from your estate, which they may or may not exercise. This is not to say that if they did claim they would necessarily be successful to any great extent or at all but all the circumstances would be considered by the court including, no doubt, contributions made by your new wife to the estate assets.
Whilst you may not be able to prevent a claim, you may be in a position to restructure your assets in order to limit the impact of a claim. For example can some assets be transferred to joint names and thus pass by survivorship rather than through the will? You should seek advice from a reputable estate planning lawyer.
 
 

Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post ‘How Can I Leave My Kids out of My Will to Make Sure My New Wife Gets It All?’ appeared first on Bennett and Philp Lawyers.

Resident Wills & Estates expert, Geoff Armstrong, regularly contributes to leading seniors publication, Starts at 60, answering readers’ questions about estate planning. The original article can be sourced here.
Reader:
My husband of 16 years left me the right of occupancy to his home when he passed away three -and-a-half years ago, with his son inheriting the property on my death. The property is held in trust in my name and that of my stepson and I pay all the expenses on the property.
My stepson no longer talks or communicates with me and is just waiting for me to go. Is it too late to explore my options regarding contesting the will? I put all my savings into the property when my husband was alive and he thought he was looking after both our interests in his will.
My stepson and myself were executors of the will but he took many months to sign for the will to go to probate. I was completely unaware of any rights I may have had at the time to contest.
Geoff:
Each state and territory in Australia has legislation enabling a will or the rules of intestacy to be challenged and whilst these laws differ slightly, the overall common idea is to provide certain eligible claimants with the right to be heard on the question of whether the will or the intestacy rules are fair to them given their circumstances at the time the death occurred.

Obviously the right to claim cannot exist forever and so certain time limits are imposed on potential claimants to give notice of their intention to claim and ultimately to commence proceedings.
In Queensland, for example, notice of an intention to claim has to be given to the executor or administrator within 6 months from the date of death, while in other states notice may be given within, say, 12 months of the date of a grant of probate or administration being issued by the court. It is important to check which time limit applies in your case.
You say that probate was delayed and so you may still be in time to give notice of a claim depending on which state or territory rules apply but I’m feeling from the facts you have put forward that three-and-a-half years since the date of death will probably mean that you are out of time.
There are some circumstances whereby the court may grant an extension to the time period for notices to be given but a strong and adequate argument would have to be put forward to obtain leave to apply out of time.

Unfortunately, simply being unaware of your rights will most likely not sway the court. The court will also be cautious if the estate has, in its view, been administered. I suggest you speak to an estate lawyer who may consider all the circumstances more fully.

Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post ‘Can I Contest My Late Husband’s Will, That Gave Our Home to My Stepson?’ appeared first on Bennett and Philp Lawyers.

Resident Wills & Estates expert, Geoff Armstrong, regularly contributes to leading seniors publication, Starts at 60, answering readers’ questions about estate planning. The original article can be sourced here.
Reader:
My husband and I bought our home in 1994. At the time, it was valued by the bank at $870,000 and there was $200,000 left to repay on the mortgage. Seven years ago my daughter and her husband moved in, took over the $200,000 mortgage and borrowed another $260,000 to extend onto our property.
We were happy at the time to be left with the front two bedrooms and one bathroom as it meant we could have our grandsons close by. But my husband died over three years ago and my daughter has not been kind to me and has not let me live my life, so I want out.
The title deed is in all our names, as is the mortgage. The agreement was that I pay nothing when my husband died as we all agreed if that if my daughter and her husband were to buy a block in our suburb it would cost a lot more than the $200,000 there was originally left on the mortgage.
Of course, though, there was nothing put in writing about this agreement.

I currently pay $300 a month from my account toward the mortgage. It is my equity in the home but I can’t access it. Meanwhile, my daughter and her husband have bought a new car and not paid much off the mortgage.
Sadly, the property market has slumped here in Western Australia. I’m almost 65 so starting to slow down, I want to travel and would like to access my money but don’t know how to go about it. I have said that I want out and want my own freedom in a small apartment. My son-in-law would be happy to move as long as they have no mortgage but that means I’ve lost out.
My husband would be very upset about this. Please tell me what can I do.
Geoff:
If I understand the position correctly the property is situated in WA and the legal title is registered in the joint names of yourself, your daughter and your son-in-law and is subject to a mortgage debt of approximately $460,000. The exact figures are not important but it seems that any equity there may be in the property belongs to you.

I assume that when your daughter and her husband moved in they did not pay you and your late husband for any part of the title. They simply raised a further loan of $260,000 using your and your late husband’s then-equity and they were added to the title because they were borrowers.

Usually when loans are taken out over a property all owner/borrowers are jointly and severally liable for the debt and so, unfortunately, I think you will be as liable for the extra $260,000 debt as they are.
The relevant law applicable to real property in WA is the Property Law Act 1969. Section 126 of that Act allows the court to order a sale of a property upon the application of an interested party. This may be done notwithstanding the dissent of your daughter and her husband if it appears to the court that in the circumstances a sale would be a proper order to make.
Your daughter and her husband may be given the opportunity to purchase your interest and the court may make any other orders and directions as it sees fit.
So, there is a forceful way out of your current situation and I suggest you speak with a local solicitor to explore these options more fully. It may be possible for your daughter and son-in-law to purchase your share of the title without the need for court action but that sounds unlikely.
If the property is sold the mortgage debt must be cleared entirely and so depending on the outcome you may be unfairly out of pocket if your daughter and son-in-law are unable to repay what really is their share of the debt.

Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post ‘My Daughter Broke Her Promise to Pay off My Mortgage, so What Can I Do?’ appeared first on Bennett and Philp Lawyers.

Resident Wills & Estates expert, Geoff Armstrong, regularly contributes to leading seniors publication, Starts at 60, answering readers’ questions about estate planning. The original article can be sourced here.
Reader:

I’m considering buying a house for each of my four children, which I would leave to them as part of my estate. One of the houses would be in Australia, the others in New Zealand, and I expect to spend about $400,000 on each, with no mortgages required.
Each property would be owned by me until my death and my children would live in them rent-free but would take responsibility for all maintenance and utilities costs (I’d insure the houses myself but they would service the contents cover).
If any of my children failed to upkeep their home, they’d have to forfeit the property and the money from its sale would go back into my estate, to be distributed after my death. Are there any tax liabilities for me or any of my children individually or for my estate if I follow this plan?
Geoff:
Firstly, my firm does not offer taxation advice and you should consult an accountant on this particular matter for more detailed advice. However, my initial and general thoughts are as follows:

There are no death duties either in Australia or New Zealand and so the occurrence of your death will not actually trigger any tax consequences.

The Australian property will have a capital gains tax (CGT) base cost because if purchased in your name it will be treated as an investment property i.e. it is not your main residence. That CGT base cost and history will be passed on to the Australian beneficiary on your death and any subsequent sale by that beneficiary may attract CGT. If the property is deemed to be the beneficiary’s main residence, there will be some scope for CGT exemption. CGT is a complex matter, hence the need for specialist advice.
There is no CGT in New Zealand.
Due to the differing values of each property, including any increases or decreases between purchase and the date of death and the differing tax laws, the four beneficiaries will not receive gifts of equal value. If you think this is an issue and unfair, you may wish to include an equalisation clause in the will duly equalising the benefits between each of them using other assets in the estate.

The forfeiture situation would need careful thought and monitoring and if forfeiture was to occur because your child did not meet your expectations on a property’s upkeep, the will would need to be revised immediately in order to prevent the gift taking effect on death.

Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post ‘Are There Any Tax Pitfalls If I Buy Each of My Four Children a House?’ appeared first on Bennett and Philp Lawyers.

Resident Wills & Estates expert, Geoff Armstrong, regularly contributes to leading seniors publication, Starts at 60, answering readers’ questions about estate planning. The original article can be sourced here.
Reader:
Around 15 years ago my son asked my husband and I to be guarantor for an investment property in Karratha in Western Australia. He thought he could get a lot of rent money as mining was booming. I told him he didn’t have enough collateral in his home and hints were that his marriage was on the rocks.
We said, no, it was too risky. I got a barrage of emails telling me he wanted nothing to do with me plus lots more. I kept the emails and have had nothing to do with him since. My husband passed away 10 years ago (he was not my son’s father but he brought him up) and he never contacted me. I have not left anything to him in my will. Instead, it will be left to my other son who I am really close to.
What would I have to do to make sure he gets nothing? By the way, two months after the guarantor talk, his wife walked out on him. The family house had to be sold and they both still owed money on it.
Geoff:

Firstly, well done in resisting pressure to give the guarantees. Your refusal was absolutely correct and it seems well justified.

What’s called family provision legislation in each state allows the court to override a person’s will to make provision for certain family members and dependants. Whilst the law differs slightly in each jurisdiction children are certainly within the category of ‘claimant’. Your estranged son would have a statutory right to claim provision from your estate, which he may or may not exercise.
This is not to say that if he did claim he would necessarily be successful to any great extent or at all but all the circumstances would be considered by the court. The estrangement would be only one of the factors to be considered. Whatever the outcome, though, these types of claims can be very stressful for those having to deal with them and potentially very costly to the estate and in turn to your other son, the ultimate beneficiary.
Whilst you may not be able to prevent a claim, you may be in a position to restructure your assets in order to limit the impact of a claim. You should seek legal advice from a reputable estate planning lawyer.

Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post ‘How Do I Stop My Estranged Child From Making a Claim on My Estate?’ appeared first on Bennett and Philp Lawyers.

Resident Wills & Estates expert, Geoff Armstrong, regularly contributes to leading seniors publication, Starts at 60, answering readers’ questions about estate planning. The original article can be sourced here.
Reader:
I am 62 years old and have been retired since age 60 receiving a decent superannuation pension. My de facto is 56, and he is still working full time. He moved in with me about nine years ago. Ashamedly neither of us has a will. My de facto moved in with me bringing with him very little after a brutal divorce case saw his ex-wife take his children, most of the value of their house and an enormous amount of money which represented a percentage of his superannuation which of course couldn’t be accessed. My concern is that I want to protect my assets (particularly my house) to leave to my children.
I realise that the very fact that he lives with me now entitles him to a percentage of the house, and I want him to have what he would be entitled to, but I would like what is mine to go to my children. If I die first and everything is left to him, it is highly likely he will leave everything to his own children. I’m sure this sort of thing is not new – would a lawyer be able to help me craft a will addressing these issues?
Geoff:
The crucial point here is that you must keep control of your assets. You are absolutely correct in thinking that if you give all your estate to your de facto partner he may in turn prefer his children over yours. This would be quite legal. Your children may bring a claim to try to rectify the situation but this scenario is best avoided altogether.
You should leave your estate directly to your children through your Will. If you wish to make some provision for your de facto (for example that he may continue to reside in the house) that is your choice but if not he will have no direct claims on your estate as of right.

If your de facto is aggrieved by your actions he may apply to the court under Family Provision legislation for your Will to be adjusted and he may or may not be successful depending upon all the relevant circumstances at the time. It is really important that you take full and proper advice from a reputable estate planning lawyer who will be able to make a sound Will and offer further advice.

Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post ‘How Do I Make Sure My Kids Get My Assets Instead of My De Facto Partner?’ appeared first on Bennett and Philp Lawyers.

Resident Wills & Estates expert, Geoff Armstrong, regularly contributes to leading seniors publication, Starts at 60, answering readers’ questions about estate planning. The original article can be sourced here.

Reader:
My mother died six months ago and while my brother and sister are the executors, I’m a beneficiary of the will, with her assets divided equally between me and my siblings. I have tried contacting the lawyer handling the estate to get any information but they refuse to even speak to me because I am not the executor.
The reason for not being an executor is that I’m in South Australia and they are in New South Wales, not for me to be excluded. My understanding is that probate has been done, so how do I move forward? Nobody has asked me for any information in order for me to receive the inheritance that I know I should.
Geoff:
It is not uncommon for the administration period of an estate to take at least several months, if not more than one or two years, and so given that your mother died about six months ago you should not be unduly concerned at this stage.
Only the executor is an actual client of the solicitor appointed to administer the estate and while some solicitors are happy to speak with beneficiaries to keep them informed, others are not.

I suggest you write to the solicitor confirming your full name, address, contact details and bank details just to put yourself on record. You should ask the solicitor to acknowledge receipt of your letter and details and you could ask for an update as to progress. Hopefully you will receive a favourable response.
If you are still concerned, you may yourself instruct a solicitor to represent and protect your interest in the estate and he or she would contact the estate solicitor on your behalf. Note, however, that this would be at your own expense.

Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post ‘How Do I Get Info About My Inheritance If I’m Not Executor of the Will?’ appeared first on Bennett and Philp Lawyers.

Resident Wills & Estates expert, Geoff Armstrong, regularly contributes to leading seniors publication, Starts at 60, answering readers’ questions about estate planning. The original article can be sourced here.

Reader:
How do we pass on our estates to our children but protect the assets from their partners if they are in relationships that could fizzle out?
Geoff:
Any inheritance passing to an adult child may be at risk if there is a subsequent breakdown of the child’s marriage or relationship. The reason for this is that assets passing directly under a will to a beneficiary personally will be owned by that beneficiary outright and so will form part of the “matrimonial assets” at the point of the breakdown and thus at risk of being lost in whole or part.
The way round this situation is not to leave gifts outright but to pass the benefit of the assets to the beneficiary by means of a trust created by the will. This quarantines the assets to some extent and the effect is to offer protection for the inheritance from third-party claims. In certain cases, there may also be tax-saving advantages.
This method of gifting is becoming more and more common and you should speak with a reputable estate planning lawyer for further detailed advice to suit your particular circumstances.

Reader:
I’d like to know if my husband and I move interstate from New South Wales to Queensland, will our NSW will be legal on either of our deaths or do we need to make a new will in Queensland?
Geoff:
Assuming your wills are valid according to law, they will be recognised and accepted in all states of Australia and indeed worldwide. There is no need to make new wills in Queensland.

Important information: The information provided on this website is of a general nature and for information purposes only. It does not take into account your objectives, financial situation or needs. It is not financial product advice and must not be relied upon as such. Before making any financial decision you should determine whether the information is appropriate in terms of your particular circumstances and seek advice from an independent licensed financial services professional.

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post ‘How Do I Pass My Estate on to My Children Without Including Their Partners?’ appeared first on Bennett and Philp Lawyers.

Yesterday afternoon, we celebrated the retirement of our beloved and much-appreciated colleague, Jim Byrne, after more than 60 years of legal practice.
Since 1958, Jim has practised as a lawyer in Brisbane and has been with Bennett & Philp since 2014, when he merged his firm with us.
Jim has played an integral role in the growth of our business since joining and is revered by his clients for his honest, practical and technically excellent advice.
Over 70 were in attendance with family, friends, clients and colleagues taking part in this important milestone.
Over 70 guests, with some travelling interstate, came along to celebrate this milestone with us. Jim was supported by his family, friends, current and past colleagues, and his loyal clients.
Jim Byrne, Barbara Houlihan, and Tony Bennett.
Bennett & Philp Founding Partner Tony Bennett, and one of Jim’s long-standing colleagues, Barbara Houlihan, shared some kind (and at times, hilarious), words about their experiences with Jim over the years.
Andrew Lambros, Michael Bigg, Jim Byrne, Lance Pollard and Mark O’Connor.
 
Thank you to everyone who attended, and congratulations to Jim on his incredible career. We’re looking forward to Jim continuing as a Bennett & Philp ambassador.
The post Retirement of Jim Byrne After More Than 60 Years of Legal Practice appeared first on Bennett and Philp Lawyers.

A proposed law change in Queensland which would force priests to break the confessional seal if they knew of child sex abuse is doomed to failure.
That’s the view of prominent Brisbane compensation law specialist Mark O’Connor who says irrespective of what lawmakers may want, there’s no way priests would breach the sanctity of the confessional.
His comments follow remarks from the Archbishop of Brisbane who said the church has “existing practices” to manage sexual abuse allegations, and has rejected the Queensland proposed law that would break the confessional seal if a priest were to admit to assaulting children.
In his submission to the legal affairs community safety committee, Archbishop Mark Coleridge reportedly said the church has made “much progress” in the areas of child sex abuse, but acknowledged “we still have work to do”. However, he said the church is rejecting the state government’s proposed law on one fundamental point: confessional seals.
Mark O’Connor, an Accredited Specialist in compensation law and a director with Bennett & Philp Lawyers, says the legal move stems from The Royal Commission into Institutional Responses to Child Sexual Abuse. Its final report recommended that priests be required by law to report if a child is being abused if this information were to come out during a confession – either by a child or an abuser.
Mark, who was raised in a traditional Catholic family, says he cannot see how a priest would be willing to break the sanctity of the confessional.
Irrespective of what the lawmakers may want, I just don’t believe they would do it and so any law change that required a priest to break the confessional is doomed to failure”.
“I represent victims of historical sexual abuse, some of whom have had the most appalling abuse perpetrated upon them by priests and nuns. Although I would like to see all the perpetrators of abuse feel the full force of the law, I don’t believe that any Catholic priest, no matter what consequences he may face, would break the seal of the confessional,” he says.
Archbishop Coleridge said the legal move would only be “counterproductive” to the issue.
“The proposals to remove legal protections for the seal of confession have at the heart, laudable aim of safeguarding children and vulnerable adults,” he admitted. “However, safeguarding can be achieved while respecting the seal of confession.
Removing legal protections around seals of confession would not only be ineffective, it would be counterproductive because it would remove the very small chance that a perpetrator might seek out confession as a first step to taking responsibility.”
Mark O’Connor says Archbishop Coleridge has acknowledged that the secrecy provisions of the confessional seal has given a rise to the perceptions of “a culture of secrecy and cover-up in the Catholic Church.
“I can understand why there would be scepticism regarding the resistance of the Church to the proposed legislated changes, because the Church regrettably does have a sad history of putting the interests of the Church and offending priests before those of the unfortunate victims of abuse. Despite that, if the proposed legislation is introduced I would be surprised if it would lead to any convictions of perpetrators of abuse because priests will simply refuse to comply with the legislation, no matter what the consequences,” he says.
Archbishop Coleridge said the church already had procedures in place that would look at preventing abuse if children use the confession to speak of their assault. As such, the church is rejecting the claim that the seal will prevent true disclosure.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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It’s the start of a new decade and the year 2020 brings with it many things such as the discovery that 2019 doesn’t really turn into 2020 that easily when writing the date, and a spate of hilarious puns regarding one’s visual acuity.
But an important security concern is being highlighted by legal professionals regarding the dating of both personal and business documents that could save you a lot of time and trouble.
It’s been commonplace for many years to abbreviate the year to the last two digits when dating documents i.e. 25/03/85, meaning 25 March 1985.
However, as many people on the internet have pointed out, it can very easily be manipulated simply by writing two more digits to the end.

When writing the date in 2020, write the year in its entirety. It could possibly protect you and prevent legal issues on paperwork. Example: If you just write 1/1/20, one could easily change it to 1/1/2017 (for instance) and now your signature is on an incorrect document.
— Dusty Rhodes (@AuditorRhodes) December 31, 2019

If you are in the habit of abbreviating the date year, you run the risk of being defrauded by scammers as they can simply add two digits and now your signature is on an incorrect document.
16/05/20 can be changed to past or future dates merely by adding two digits to the end.
It is critical that you take the appropriate steps to protect yourself, therefore, when dating documents this year, we urged you not to shorten the year 2020 to ‘20’. 
When signing legal documents, you must always ensure the date year is entered in full to avoid any potential issues occurring, now and into the future. 
This generally only applies to handwritten dates, however, as a matter of principle, it may be beneficial to use the full date year for both physical and digital documents.
If you have any concerns over signing a document, please contact us on +61 7 3001 2999 or via our Contact page.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted). 
The post Save the Date: The Easiest Way to Protect Yourself in 2020 appeared first on Bennett and Philp Lawyers.

Leading Brisbane law firm Bennett & Philp has today announced the promotion of Kerri Balaba, an integral member of the Property and Real Estate team.
Kerri commenced her new role as Associate at the Brisbane-based firm on January 1 2020.
“I have been working within the legal industry for almost five years now and, over that time, I have worked incredibly hard to get the best results for my clients in the areas of residential and commercial conveyancing, subdivisions, community title schemes and disputes,” Mrs Balaba said.
“I have been incredibly lucky throughout my career, having had the opportunity to be mentored by one of Brisbane’s best real estate and property lawyers, Bill Purcell. Since joining Bennett & Philp in early 2018, I have had found the team to be supportive and instrumental in my continued development as a legal professional.
 My time at Bennett & Philp to date has been personally and professionally rewarding. The firm is invested in my growth as a legal professional, and I have been given the opportunity to work on a diverse array of matters for a wide range of clients.”
Managing Director Lance Pollard said Mrs Balaba’s evolution as a legal professional since joining the firm has been rapid.
“Kerri has extensive residential, commercial and industrial real estate experience. Kerri is a trusted advisor to her clients, and her success at Bennett & Philp has been defined by her attitude and approach to practising the law.
“Kerri has played a major role in growing the real estate and property practice over the last 18 months and her promotion to Associate reflects her contribution to the firm. We are looking forward to Kerri’s ongoing success within the firm and her continuing to advance her legal career with us.”
Kerri was admitted as a Certified Practitioner of the Supreme Court of Queensland in 2015 and the High Court of Australia in 2018.
She is also a proud Queensland University of Technology alumnus and member of the Queensland Law Society.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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Attention business owners – we’ve entered a new decade, and the big question you need to ask is, when did you last take a close look at your business to see whether it is protected should any unforeseen employment issues arise?
The start of the year is always a good time to review your internal systems and processes to ensure they are reflective of your current business set-up and operational needs.
Taking the time to review these allows you to not only identify any incorrect or inadequate documentation, but also determine if you are missing any key documents that could come back to bite you throughout the year.
It is also essential to consider if you are across changes to a dynamic and rapidly evolving industrial relations and employment landscape. It’s quite easy to miss important updates and amendments to legislation when you’re busy running your business.
For example, have you got causal employees working in your business? How many hours are they working each month? It’s important you know this because if they come to you asking to be converted into part- or full-time employees, and are successful, your business will be liable for annual leave entitlements. 
This was a result of the WorkPac v Skene (Skene) decision where a new clause was added into modern awards giving casual employees the right to request conversion to full or part-time employment.
Why is this important? You should be assessing your current workforce, how many hours are being worked by team members, and determining whether any casual employees (if you have any) may request a conversion.
By doing so, you’ll be able to effectively forecast annual leave requirements which could prove to be significant liabilities if adequate planning does not take place.
Taking time to understand awards and to ensure you are paying employees their correct entitlements will minimise the chance of underpayment (wage theft) and dealing with the associated financial repercussions (fines and reimbursement) as well as reputational harm.
To get you started, we’ve prepared some short questions that you should consider. By answering them, you’ll get a better picture of your current workforce, and if your current approach to managing it is fit-for-purpose.

How many employees do you have now?
Is your workforce a mix of casual, part-time and full-time employees?
Have any casual employees requested conversion to a part-time or full-time employee?
Do you have formal employment contracts reflective of this mix?
Do you have required policies and procedures in place and are you actively communicating these and enacting them (including but not limited to):

Sexual harassment
Discrimination
Termination

Have you got performance management processes in place for underperforming employees?
Are you paying your employees in line with their legislated award rates?

Finding a few gaps when answering the above? If so, it might be time to talk to an experienced employment law practitioner who will take the time to understand your business and discuss strategies you can use to mitigate the risks of any employment-related matters.
This could include a review of existing contracts through to the drafting of new contracts, procedures and policies aimed at protecting your business, now and into the future.
If you’d like to learn more about workforce planning and human resource audits, contact Brian Smith or Lachlan Thorburn by calling 07 3001 2999.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
The post Attention Business Owners appeared first on Bennett and Philp Lawyers.

Compensation lawyers are sceptical about the assurances from Queensland Health Minister Steven Miles to compensate patients if an investigation finds a Redland Hospital surgeon failed to detect their cancers in a testing scandal.
Brisbane injury compensation lawyers say despite the assurance, the government’s lawyers are likely to push for enforcing the claims limitation period or argue that people whose cancer subsequently developed would have become ill anyway.
Queensland Health has banned a Redland Hospital doctor from performing endoscopies and colonoscopies. The ban arose from issues and examinations between 2012 and 2018
Media reports state the doctor performed scopes on about 1500 Redland Hospital patients between 2012 and 2018 but the Metro South Hospital and Health Service has so far only rescreened 450 people, identifying 14 with “a diagnosis of bowel cancer”.
Media reports state Queensland Health was only briefed by Metro South about the problems with the surgeon late last year and is in the process of contacting the other 1000 patients and offering rescreens by the end of March.
John Harvey, a Special Counsel with Bennett & Philp Lawyers and an expert in medical negligence matters, says questions should be asked on why it is only being reported some two years after problems with the examination came to Queensland Health’s notice.
He says anyone who has had the tests at the Redland Hospital during that period, and now fear they were misdiagnosed should insist on an urgent re-screening and also seek legal advice.
As a solicitor specialising in medical negligence law, I think patients need to know there is a strict time limitation of 3 years in which to commence a claim in Queensland. This may be extended in special circumstances but cannot be guaranteed,” he says.
John says even those patients whose examinations were undertaken in 2018 will have their limitation periods expire in 2021 which is not very far away as the procedures involved in medical negligence claims are complex and time-consuming.
“Those patients who had an earlier examination should still consult a solicitor urgently as there may be a valid basis to extend their limitation period.
“Potential claimants should not be too comforted by assertions that Queensland Health will behave as a model litigant as its lawyers are not likely to readily waive a defence of expiry of the limitation period,” John says.
His view is supported by injury compensation law Accredited Specialist and Bennett & Philp Director Mark O’Connor who says despite the Minister’s assurances, patients should expect a fight for redress.
“In a situation like this, if mistakes have been made, compensation should be offered without the usual lengthy adversarial claims process. However, with cancer, insurers will often argue that the end result would still be the same whether the cancer was detected in a test or not and earlier detection might not necessarily change the outcome.
“There should obviously be shock and outrage that a situation such as this could happen and go on undetected for so long. I would congratulate the Minister for his assurance of compensation, but from past experience, the fear is the insurers will want to fight any claim.
“What we need is an emphatic promise from the Minister that the government will make an early admission of liability in cases where there is fault and fast track a conciliatory, rather than adversarial, resolution process of victims’ claims stemming from this debacle,” Mark says.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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An alarming spike in victim numbers for the deadly dust disease of silicosis, driven by the demand for engineered stone kitchen benchtops, could dominate the injury compensation law landscape in 2020.
Prominent Brisbane compensation law specialist Trent Johnson says the latest reported estimate puts the number of silicosis cases at 350 nationwide — about 100 more than in September.
He says the estimate of 350 silicosis cases comes from a leading dust diseases clinician, Dr Graeme Edwards, who is also a member of the taskforce advising the Health Minister, Greg Hunt, on the crisis.
Trent Johnson, an Accredited Specialist in injury compensation and a Director with Bennett & Philp Lawyers, says Dr Edwards is a renowned respiratory expert and Mr Johnson endorses his views,
Thousands of workers have inadvertently inhaled dangerous quantities of silica during the engineered stone manufacture and installation process over the last decade. Dr Edwards is reported by the ABC as saying studies show the silica in some engineered stone benchtops can be significantly more toxic than asbestos”.
Because the silicosis reporting system is so varied around Australia, the reports of 350 cases nationwide are an estimate. In an ABC report, Dr Edwards concedes it’s impossible to know the true magnitude of the problem, but 350 is the best guess.
“From the first 35 that I saw, we were thinking in the order of one in three persons who were exposed for more than three years would develop the disease, so 30 per cent” he is quoted as saying.
Based on the new figure, the estimated level of toxicity has since been revised down to around 20-25 per cent, meaning between one in four and one in five people who have had extended exposure may become unwell.
Trent says injury rates of 20-25% for long term exposure are alarming and given current knowledge and the abundance of available PPE (personal protective equipment) there is no reason any worker should be exposed to silica dust whilst working.
Dr Edwards believes there is a safe way to handle silica, unlike asbestos, and that the problem lies with enforcement.
Trent says any employer exposing their workers to silica dust (or any other hazardous substance) should be mindful of the risk of not only injury to the workers but also prosecution under the relevant workplace health and safety laws within their state, some of which such as Queensland extend to industrial manslaughter for conduct contributing to death which may include a terminal illness such as progressive silicosis.
Dr Edwards notes that in a formed state, the product silica is safe and there is a law that prohibits the unsafe work practices that unfortunately we are still seeing today.
Trent agrees with Dr Edwards’ view that the problem lies with enforcement.
Regulation of the industry is being improved but has a way to go; a national code of practice is being developed but won’t be enacted before late 2020 at the earliest.
Trent says meanwhile any worker exposed to silica dust from formed/engineered stone products should consider lodging a notification only workers’ compensation claim so that there is a record of their exposure in the event they become unwell at a later time.
There’s growing awareness of just how serious silicosis has become and it could well be a major feature of the compensation law landscape in 2020,” he says.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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This year saw the Australian Financial Complaints Authority (AFCA) taking a very active role in addressing consumer complaints with regards to finance transactions and other areas the subject of its jurisdiction.
AFCA replaces the Financial Ombudsman Service, the Credit and Investments Ombudsman and the Superannuation Complaints Tribunal, to provide a new single dispute resolution service for banking, credit facilities, investments, financial advice and superannuation complaints.
AFCA was established in November 2018 and, over the past 12 months, has already heard a reported 73,000 complaints, with $185 million in compensation awarded.
Australian credit licensees and financial services licensees are required by law to be a member of AFCA and subscribe to its external resolution process.  On conclusion of the process, AFCA decisions accepted by the complainant are final and binding, and cannot be appealed by the financial institution.
AFCA will accept complaints where the complainant is an individual, a small business (with less than 100 employees), a strata body corporate or registered charity.  There are some time limits and monetary limits.  For example, AFCA will not generally hear complaints for a claim exceeding $1m or a credit facility exceeding $5m.
The remedies that AFCA can grant include release of the complainant from the obligation to repay the facility, the invalidation of security, as well as monetary damages.
AFCA’s decision-making powers have received some criticism for being based on a loosely defined concept of fairness and good industry practice.  AFCA does not strictly need to follow legal precedent or even its own prior decisions, which creates a lot of uncertainty for financial institutions.
Ms Sabaini is concerned that the non-appealable nature of the process raises a serious question of procedural fairness for credit licensees.  It could see more non-bank business lenders abandoning their credit licence and further alienating themselves from the regulatory system, rather than being encouraged to become part of it.
Ms Sabaini and Mr Young have the following recommendations for lenders seeking to avoid adverse findings by AFCA:

Never proceed without a legal advice certificate by the borrower or guarantor.
Simply following the letter of the law is not enough.  Consider upgrading your documentation and procedures to meet customer expectations.  Consider for example the standards expressed by the Consumer Code and the Banking Code of Practice.
Do not dismiss a customer complaint, and seek legal advice immediately if you receive an AFCA notification of complaint.
In responding to a complaint, don’t be limited to the law or the facts of the complaint, but consider any additional information and evidence, including that which is publicly available through searches and enquiries, that could support your claim.  AFCA is not restricted by the rules of evidence so anything that is relevant should be submitted.
Even if you are not a credit licensee or subject to AFCA’s external dispute resolution process, remember that the courts will still consider issues of misrepresentation and there are strict protocols for exercising security (particularly land mortgages) in each State and Territory that you will need to abide by.

Our finance directors Nadia Sabaini and Charlie Young gave a presentation on AFCA’s jurisdiction and its complaints process in relation to credit facility complaints as part of our Private Lenders Forum 2019 held in November this year.  A full copy of the paper by Ms Sabaini and Mr Young is available via the download link below this article.
If you are interested in knowing more about Bennett & Philp’s finance team or the next Private Lenders Forum, please contact us.
 
 

Individual liability limited by a scheme approved under professional standards legislation (personal injury work exempted).
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