We as family lawyers are, at times, faced with situations where there is a significant power imbalance or inequality of bargaining power between the parties to a financial settlement.  This is becoming increasingly prevalent with the rise of cases involving family and domestic violence, in most instances resultant from the separation, making it difficult for the parties to engage in effective negotiations.
To avoid finding oneself in a position of vulnerability, more and more parties’ are taking steps to enter into a Binding Financial Agreement (BFA).  This type of agreement provides individuals with some certainty as to their financial position moving forward and in particular, in the event of separation.  One of the main protective measures of a BFA is for both parties to obtain independent legal advice prior to signing the agreement, the purpose of which is to mitigate the risk of parties entering into an agreement which is perhaps not in their best interests.
The requirement provided under section 90G of the Family Law Act 1975 (Cth) (the ‘’Act”) requires that a party shall be provided with advice about:

The effect of the agreement upon the rights of the party; and
The advantages and disadvantages to the party at the time the advice is being given of signing the agreement.

If proper advice is not provided however, it can result in a party raising issue with the validity and binding nature of the agreement and this issue was considered in the in the recent case of Scott & Scott (No. 3) [2019] FamCA 936 (6 December 2019).
The background of the matter is as follows:

Relationship of approximately 10 years;
In December 2010, mid-way through the parties’ marriage they entered into a financial agreement made pursuant to section 90C of the Act. The agreement precluded financial claims by either party in the event of separation;
The parties separated in June 2015 and wife commenced proceedings in May 2016 seeking a declaration under Part VIIIA of the Act that the agreement is either not binding or ought be set aside.

The wife’s claim comprised the following alternative grounds:

The agreement is not binding upon the parties within the meaning of Part VIIA of the Act because:

The independent legal advice provided to the wife about the agreement was deficient for several reasons; and

Alternatively, if the agreement was found to be binding upon the parties, it should nonetheless be set aside because of among other things:

The agreement was signed by the wife under duress, since she was the victim of family violence perpetrated by the husband as early as 2006, therefore rendering the agreement void, voidable or unenforceable.

The first ground to be considered was whether or not the agreement was binding.
After finding that the husband had established the binding nature of the agreement (i.e. they both signed the agreement; they were each provided with a signed statement by their respective solicitor stating they were provided with the requisite independent advice and copies of those signed statements were exchanged, satisfying section 90G(1)(b)), the Court found that the onus was on the wife to establish that the advice provided to her was, in fact, deficient.
The wife met with her solicitor on two occasions for 20 – 30 minutes and amendments were procured to the agreement by her solicitor.
The wife asserted that her reluctance to sign the agreement related to her claims of duress, undue influence and unconscionable conduct of the husband.
The Court found that these claims did not reflect upon the quality or sufficiency of the independent legal advice provided to her for the purpose of meeting the requirements of section 90G of the Act.
The wife then asserted that, in the alternative, the agreement was signed by her under duress.
The Court referred to the notable case of Thorne & Kennedy which stated:
“To establish duress, the wife had to prove she was the subject of threatened or actual unlawful conduct, which applied illegitimate pressure upon her and caused her to capitulate and execute the agreement against her better judgment”.
The wife declared that the conduct of the husband resulting in her entering into the agreement was the threat of assault or intimidation if she did not do so.  Whilst there was no evidence of the husband making any express threat to assault or intimidate, this was not necessary since the threat of unlawful conduct may be implied, however, if implied the implication must be objectively reasonable.
The evidence provided by the wife was found to be merely an expression of her perceptions, which served her interests in the litigation and was therefore difficult to objectively test.
It was therefore found that the wife was unable to provide sufficient evidence to establish that the agreement was signed as a result of undue influence. Accordingly, the Application was dismissed and Orders for the enforcement of the Binding Financial Agreement were made.
Whilst a BFA is certainly a document that we would recommend it must be noted, that BFA’s are the subject of strict legislative requirements and it is therefore essential that parties obtain proper and informed advice prior to signing same to ensure there is no risk of the agreement’s validity being called into question.
BFA’s are beneficial for parties who are seeking to preserve their financial position.  It not only provides financial certainty for the parties moving forward and, in the event of separation, but it also negates the requirement for parties to be involved in ongoing litigation which is both emotionally and financially draining for them, particularly if one feels they are at a disadvantage.
At Marino Law, our family law team are highly experienced in the drafting of Binding Financial Agreements.  Not only do we take steps to meet with the parties prior to the signing of the Agreement to ensure detailed instructions are obtained, we also provide comprehensive written advice to ensure that the parties are fully informed of their rights and entitlements under the agreement.
All too often, we come across agreements that are poorly drafted and non-compliant with legislative requirements therefore effectively rendering them void, voidable or unenforceable.
We take a careful and considerate approach to ensure that the parties’ best interest are achieved and that all necessary requirements met.
If you are looking at entering into a BFA or would like some further information in relation to same contact one of our family lawyers today who will be able to assist you.
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If you are currently experiencing financial distress contact us on (07) 5526 0157 to arrange an appointment to discuss ways we might be able to assist you in facing those challenges.

As a consequence of the financial impact caused by COVID-19, Australia is expected to enter a recession for the first time in 29 years. Individuals and businesses are currently being subjected to significant financial distress. In many instances, these individuals and businesses may seriously have to consider bankruptcy and external administration where relevant. Marino Law can help individuals and businesses in a number of ways.
Government Assistance
In response to the financial impact COVID-19 is wreaking on the economy, the government has introduced a number of measures to assist businesses. A number of significant financial assistance packages have been introduced by the government and the banks that are designed to enable businesses to continue to trade through the coming months.  Marino Law can assist businesses in assessing whether they qualify for assistance and choosing the appropriate package given the circumstances of that business. Marino Law can also assist businesses in the various application processes.
The insolvent trading laws in the Corporations Act 2001 (Cth) have also been amended such that a director will not be personally liable for debts incurred during the next six (6) months where the company to which they are appointed is insolvent as long as those debts are incurred during ordinary course of the company’s business. Marino Law can provide advice to directors regarding these matters.
Restructuring
While companies benefit from the temporary financial assistance and relief from liability for insolvent trading, they are presented with an opportunity to restructure their operations so that their businesses can continue to operate solvently once the temporary assistance stops. Marino Law can work with businesses now to implement restructures that will enable business owners to downsize and simplify their business operations so that they can operate in the post COVID-19 economy.
Marino Law can also negotiate debt restructures with a businesses’ banks that could see interest payments waived or forbearance arrangements entered into. We can assist businesses in doing deals with other creditors. In particular, Marino Law can negotiate rent reductions or deferred rental arrangements with landlords to assist a business in trading through these difficult times.
 
We urge any individuals or businesses that are currently in financial distress to contact us to arrange an appointment to discuss the many challenges they are facing and to find ways to assist you in facing those challenges. Contact us today on (07) 5526 0157.
 
 
 
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As the effects of COVID-19 continue to manifest themselves in our economy, the legal landscape continues to change in response. In some circumstances, it is now even more important than ever to seek legal advice. Should you require assistance in any of the areas outlined below, please contact one of our highly experienced lawyers today on (07) 5526 0157.
COVID-19 is impacting Australia and the rest of the world in ways not seen since World War 2. The number of people contracting the virus and the number of fatalities is increasing on a daily basis. The financial impact of the virus is manifesting itself through significantly declining share values, job losses and declining property prices to name a few. As a consequence of the financial impact caused by COVID-19, Australia is expected to enter a recession for the first time in 29 years.
We at Marino Law are seeing first hand on a daily basis how COVID-19 is currently impacting commercial dealings in a number of areas including debt recovery, commercial litigation, contractual matters, employment matters, insolvency and property.
Debt Recovery
As COVID-19 continues to have a significant impact on businesses, we are being approached by clients to provide advice and act for clients with respect to the recovery of an increasing amount of unpaid debts.
Up until this week, generally the most expeditious and cost effective way to recover a debt or enforce a Court judgment was to issue a creditors statutory demand for debts owed by corporate entities for sums greater than $2,000.00 and a bankruptcy notice for debts owed by individuals for sums greater than $5,000.00. As a consequence of amendments to the Bankruptcy Regulations 1996 (Cth), the Bankruptcy Act 1966 (Cth), the Corporations Regulations 2001 (Cth) and the Corporations Act 2001 (Cth) that were passed by parliament on Monday 23 March 2020, for at least the next six (6) months, those methods of recovering a debt are now less attractive.
Pursuant to the amendments to the above legislation:

the time within which:

an individual debtor is required to comply with a bankruptcy notice; and
a corporate debtor is required to comply with a creditors statutory demand,

is temporarily extended from 21 days to six (6) months;

there are now temporary increases to the threshold at which creditors can issue a:

bankruptcy notice (from $5,000.00 to $20,000); and
creditors statutory demand (from $2,000.00 to $20,000.00).

The above measures will obviously make the process of debt recovery via the issuance of bankruptcy notices and statutory demands less expeditious.
Please note that debts can still be recovered by commencing Court proceedings, however those proceedings are significantly more costly and time consuming when compared to the previous processes associated with the issuance of bankruptcy notices and creditors statutory demands.
Commercial Litigation
The Courts are adopting various measures to try and contain and limit the spread of COVID-19. Those measures range from ensuring Court appearances are conducted by telephone where possible to the adjournment of trials altogether. Such measures will obviously have a significant impact on the expeditious conduct of Court proceedings in the foreseeable future.
At Marino Law we are also seeing a reluctance on the part of litigants and the Courts to order the mediation of disputes on a face to face basis. To limit the spread of COVID-19, parties and the Courts are looking to conduct mediations via video-link and telephone for instance. Parties looking to adopt such measures need to consider whether such measures will result in the conduct of an effective mediation.
Contractual Matters
As a consequence of the financial stresses that the spread of COVID-19 are causing in the economy, we are seeing a significant increase in enquiries from contracting parties requesting advice as to the circumstances in which commercial contracts can be terminated in response to the virus. As the government responds to COVID-19 through border lockdowns and business closures, the ability of contracting parties to meet their contractual obligations is being severely impacted.
Whether parties have the ability to terminate contracts in the above circumstances will depend on the wording of the contracts involved. Commercial contracts will often include force majeure clauses pursuant to which the contracting parties may have the ability to terminate the contract in various circumstances such as times of war and civil unrest for example. Depending on the wording of the contracts involved, the contract may be able to be terminated as a consequence of the impact of COVID-19.
In some circumstances, a supervening event may occur after a contract has been formed that renders performance of the contract impossible. In those circumstances, the contract is said to have been discharged by frustration and the parties are released form further obligations under the contract. Accordingly, it may be possible to terminate a commercial contract on the basis that the contract has been frustrated due to the impact of COVID-19.
A contract will be frustrated where, without default of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a circumstance radically different from that which was undertaken by contract. To determine whether a contract has been frustrated requires a consideration of the terms of the contract and the effect of the supervening event. Generally, a contract will only be frustrated by an event that was not foreseeable by the parties at the time the contract was entered into.
Employment Matters
The spread of COVID-19 and the financial impact it is having on the economy is leading to a significant number of businesses standing down and terminating employees. Employers should be mindful of the various obligations owed to their employees pursuant to the Fair Work Act 2009 (Cth) and any applicable awards. By way of example, before making decisions to make employees redundant, employers must ensure that they abide by any consultation requirements detailed in any applicable awards.
Employers must also take steps to ensure that they comply with workplace health and safety laws. Pursuant to these laws, employers are required to provide a safe workplace for employees. This would oblige employers to take appropriate steps through the introduction of policies for example regarding workplace hygiene to prevent the spread of COVID-19.
Employees, in particular causal employees, are being severely affected by COVID-19. Employees are losing their jobs as their employers react to the financial burden imposed upon them by COVID-19. There are a significant number of support packages that have been introduced by the government and the banks that can be drawn upon to assist employees who have lost their jobs or been stood down.
Casual employees who contract the virus or are in self-isolation are obviously unable to earn an income while in isolation. In this regard new legislation may soon be introduced to enable casual employees to have access to paid sick leave while in isolation for example.
Insolvency
Given the financial impact COVID-19 is causing in the economy, it is not surprising that we have seen an increase in the number of individuals and companies seeking advice with respect to personal and corporate insolvency. Individuals and companies under severe financial stress are considering bankruptcy and external administration where relevant. Advice with respect to personal liability of directors for insolvent trading is regularly sought.
In response to the financial impact COVID-19 is wreaking on the economy, the government has introduced a number of measures to assist businesses. A number of significant financial assistance packages have been introduced by the government and the banks that are designed to enable businesses to continue to trade through the coming months. The insolvent trading laws in the Corporations Act 2001 (Cth) have also been amended such that a director will not be personally liable for debts incurred during the next six (6) months where the company to which they are appointed is insolvent as long as those debts are incurred during ordinary course of the company’s business.
While companies benefit from the temporary financial assistance and relief from liability for insolvent trading, they are presented with an opportunity to restructure their operations so that their businesses can continue to operate solvently once the temporary assistance stops. Businesses should be seeking appropriate advice with respect to such restructures. Businesses should also consider taking the opportunity to do deals with their creditors so as to reduce their debt levels so that they come back in better financial shape when the current crisis ends.
Real Property Related Matters
We have seen a marked increase in enquiries from commercial tenants looking to exit leases of commercial properties as a consequence of the financial distress their businesses are encountering in response to COVID-19. In these circumstances, lease terms should be closely reviewed to determine whether the tenant has a right to terminate the lease in question. The existence of force majeure clauses and rights to terminate a frustrated construct as detailed earlier may also be relevant in these circumstances.
In the current uncertain economic climate, commercial landlords may be prepared to accept reduced rent from commercial tenants for a specified period if it means that the tenant may continue to trade and operate from the premises in the future.
We are also seeing an increase in the number of instances where purchasers of real property are trying to terminate purchase contracts where they no longer have the financial ability to complete such contracts or they have concerns with respect to the value of the property being purchased due to the financial impact on the economy caused by COVID-19. Obviously termination is possible pursuant to finance conditions for example, however, termination of unconditional contracts is a far more difficult proposition. In those circumstances advice needs to be sought with respect to any vitiating conduct such as misleading or deceptive conduct on the part of the seller or its agent that would entitle the purchaser to terminate the contract.
Parties to real property sale contracts should also consider including special conditions in their contracts that will enable settlement to be extended should one of the parties contract COVID-19 and be placed into self-isolation.
 
 As the effects of COVID-19 continue to manifest themselves in our economy, the legal landscape continues to change in response. In those circumstances, it is now even more important to seek legal advice with respect to the matters raised in the above paragraphs.
Should you require assistance in any of the above areas, please contact one of our highly experienced lawyers today on (07) 5526 0157.
 
 
 
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Do not wait until it is too late! To ensure that your hard-earned assets are, to the fullest extent possible, safeguarded against unexpected coronavirus attack, please contact one of our expert Estate Planning Lawyers to discuss your personal circumstances today. 

COVID-19 (“coronavirus”) is one of the most deadly viruses of the modern age. There is currently no vaccine, its outbreak has caused worldwide upheaval in health and welfare, the economy, the stock market and personal and business finances for all Australians. The current level of fear and uncertainty has not been experienced since before the Great Depression.
Our Estate Planning Lawyers are being inundated with questions from families and business owners about what they should be doing to better prepare themselves amidst this worldwide crisis. Our response to those questions is simple. If you do not have a tailored estate plan, now is time to get one. If you do have an estate plan, now is the time to review it, to ensure that it properly caters for your testamentary intentions, should the unimaginable happen.
The reasons are simple:-

If a key household member was to contract the coronavirus, it can often lead to bills not being paid, financial affairs not being set in order and significant and debilitating loss of health (particularly in persons that are over 60 years of age). Where an infected person needs hospitalisation and cannot speak for themselves. In this scenario:

Doctors and medical staff are reluctant or unwilling to take instructions about treatment from anyone other than a duly appointed Attorney for personal/health matters;
An Advanced Health Directive can also give those doctors and medical staff (as well as any appointed Attorneys) calculated directions about what the affected person requires or desires for treatment; and
A duly appointed Attorney for financial matters will also be able to manage finances, pay bills, assist businesses and keep financial affairs in order during such a time.

For most business owners, they are too focused on day-to-day operations to have ever considered the financial loss that could be suffered if they were incapacitated and not able to continue operations. Properly drafted business succession plans, including (without limitation) shareholder and/or unitholder agreements, partnership agreements, joint venture agreements and/or buy sell agreements with tailored provisions to deal with the death, total and permanent disablement, trauma or prolonged incapacity of a key member of the business are vital. These arrangements are often funded by insurance policies that, when triggered, allow an injection of funds that could mean the difference between continued operations and business failure until the owner is well enough to return or, in the event of their death, their affairs are set in order.
Business interruption, income protection and life insurance are other critical considerations for all employees, contractors and other workers to keep an income stream coming in each week to manage mortgages and other debts, where a person with the coronavirus is unable to continue to work for a prolonged period (especially where sick leave or other entitlements are exhausted or not applicable).
Wills, Powers of Attorney, Binding or Non-Binding Death Benefit Nominations and other estate planning documents that were made several years ago may name persons as executors, trustees, guardians of minor children, choice of beneficiaries or otherwise that were appropriate back then, but due to the passing of time, may not be so appropriate now. Contingency plans, even as far down as “Plan C”, which can often involve a will having testamentary bequests down two generations, are recommended.
Marriage, separation, children, property transactions, establishment of businesses, companies, trusts or otherwise will have an effect on a Will that was made prior to such an occurrence. In particular:-

In the context of marriage, section 14 of the Succession Act 1981 (Qld) (“Act”) provides that unless a Will is expressly made in its contemplation, then marriage automatically revokes a will.
In the context of divorce, section 15 of the Act provides that divorce or annulment of marriage:-
Revokes any appointment as executor, trustee or guardian or any power of appointment in favour of the former partner;
Revokes any beneficial interest under the Will;
Does not revoke the appointment of the former spouse as trustee of property left to beneficiaries that are also that former spouse’s children. It also does not revoke the power of any appointment in favour of the former partner that is exercisable in favour of children of whom the former spouse is also a parent.

In addition, where you were (or have been) unfortunate enough to contract the coronavirus, you need to make sure that your other family members know what to do and have all of the appropriate information that they require in the event of your incapacity or even death.
We often recommend to our clients that they should create a database that will assist any Attorney or Executor with managing or dealing with your affairs, including (without limitation):-

Critical passwords, email addresses, social media account information (personal and business) and other sensitive information;
The location of your estate planning documents (and copies);
Important contact information, such as your appointed solicitor, doctor, accountant and other professional advisors, immediate family and next of kin details (including names of Executors, appointed Attorneys);
Business or personal financial documents, such as bank statements, superannuation, taxation, Centrelink, Medicare, and private health insurance documentation;
A summary list of your monthly bills and expenditure and to whom regular payments of any mind are made.

This database can then be stored in a safe deposit box, or electronically encrypted and protected, with instructions given to your Executors and Attorneys as to how to access same.
As a nation, we have seen how rapidly the coronavirus has escalated in our country and around the world. At Marino Law, we are constantly reminding our clients to exercise forward thinking and prepare for the worst by remembering their business succession and personal estate planning.
To ensure that your hard-earned assets are, to the fullest extent possible, safeguarded against unexpected coronavirus attack, please contact one of our expert Estate Planning Lawyers to discuss your personal circumstances today. Do not wait until it is too late.
 
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Managing your Employees during COVID-19 Pandemic
Properly managing your workforce during this difficult time will help ensure that you emerge from the coronavirus crisis with your business and workforce intact.
If you are a business owner or employee that requires assistance during this difficult time, contact us today on (07) 5526 0157. 

The COVID-19 virus has caused upheaval across the globe and particularly for Employers. The challenge of managing a workforce in the midst of the crisis, has thrust many of them into uncharted waters.
There are a number of options available to employers depending on how a business has been affected by the coronavirus crisis.
Temporary Shut or Close Down of Business
A shut down is when a business temporarily closes during slow periods of the year, often during Christmas or other holiday periods. A shut down is not the same as a stand down.
Where due to the coronavirus, there is much less work available for a business, you may consider closing the business down for a period of time.
In order to do so, the relevant modern award must allow your employees to be forced to take annual leave, or unpaid leave, upon notice being given in writing.
In the case of the General Retail Industry Award 2010, clause 32.5 of the award titled ‘Close-down’ states that, “An employer may require an employee to take annual leave as part of a close-down of its operations, by giving at least four weeks’ notice”.
Alternatively, an Employer may reach an agreement with your employees to take annual leave (whether paid or unpaid) on less than four weeks’ notice, in which case an agreement should be entered into with your employees documenting their agreement.
Stand Downs
A stand down occurs when an employer sends employees home if there is no useful work for them to do. Reasons for stand down include events out of the employer’s control like a natural disaster.
Employers cannot generally stand down employees simply because of a deterioration of business conditions or because an employee has coronavirus.
Some examples of when employers may be able to stand down employees include:

if there was an enforceable government direction requiring the business to close (which means there is no work at all for the employees to do, even from another location);
if a large proportion of the workforce was required to self-quarantine with the result that the remaining employees/workforce cannot usefully be employed; and
if there was a stoppage of work due to lack of supply for which the employer could not be held responsible.

If an employer unlawfully stands down employees without pay, the employees will likely be able to recover unpaid wages.
A typical stand down situation exists with restaurants and cafes across Australia which have been ordered to close by the Government.
Pay Cuts
 As the law stands now, employers unilaterally cutting an employee’s wage or salary amounts to a dismissal of the employee and a subsequent re-hire, which can give rise to an unfair dismissal or general protections claim against the Employer and liability for redundancy pay.
Accordingly, the better way forward is to procure your employees’ agreement to any such pay cut and have the agreement properly documented in a deed of variation of employment wherein the employee agrees to the pay cut and indemnifies the employer against any claim.
Terminating Employees
 Unfortunately, it is inevitable that some employers will need to terminate staff during the period of the coronavirus crisis given falling revenues.
It is essential that any staff terminated are done so in accordance with the Fair Work Act 2009 (Cth) and any applicable modern award, failing which employers may unwittingly give rise to an unfair dismissal or general protections claim.
How we can Help
Marino Law has a team of expert employment lawyers that can assist you in finding the proper method to deal with your employees during this incredibly stressful time. As every business is different, it is essential to receive proper advice before terminating any employees or voluntarily shutting down any business. Properly managing your workforce during this difficult time will help ensure that you emerge from the coronavirus crisis with your business and workforce intact.
If you are a business owner or employee that requires assistance during this difficult time, contact us today on (07) 5526 0157.
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No two leases are the same and everyone’s situation is different. Our experienced team of property and commercial lawyers are able to provide prompt and tailored advice to the specific circumstances of Landlords and Tenants alike and can assist with any lease negotiations on their behalf. Please contact us today on (07) 5526 0157 to discuss how we can help you.

As the number of cases of COVID-19 in Australia begin to rise, so do the efforts and the restrictions to combat this malignant virus. Many businesses are suffering. At Marino Law, our Landlord and Tenant clients are turning to us for professional advice to minimise the financial consequences that stem from COVID-19. We have developed the following list of practical considerations for both Landlords and Tenants in regards to lease dealings:-

Infectious diseases or contamination: A Tenant is usually under an obligation to give written notice of any infectious disease within the premises. A confirmed (or even reasonably suspected) COVID-19 case would trigger this obligation, requiring the Tenant to report the event(s) to not only the Landlord, but perhaps also to a governmental, regulatory or health authority and to comply with any directions, business restrictions or closures, hygiene, sanitation or fumigation directions or procedures.
Premises closures: A lease will often prescribe the minimum hours a Tenant must open for trade. Where COVID-19 affects (or could potentially affect) trade, careful consideration must be given before any decision to close is made. For example:-

Closure by Landlord: A Landlord needs to carefully review the express wording in its lease before restricting or preventing access to the premises. Failure to do so places the Landlord at risk of breaching their legal obligation to provide quiet enjoyment for the term. If the Landlord is acting reasonably, or is acting in compliance with a Government law or directive, then the Landlord’s conduct would likely be excused. However, if a Landlord forces closure on a Tenant that would otherwise be able to trade (for example, as an essential service), then any unreasonable action taken by a Landlord to restrict access or customer flow past the premises or that causes significant trade disruption may, especially if the lease is governed by the Retail Shop Leases Act 1994 (Qld), expose the Landlord to a claim for compensation from an affected Tenant. Courts assess the reasonableness of a Landlord’s actions on a case-by-case basis, depending on the facts, matters and circumstances that exist in each lease transaction.
Closure by Tenant: Leases are usually tailored to suit the Landlord. The outbreak of a disease pandemic such as COVID-19 will not usually give a Tenant any legal or automatic right to close their premises or to seek compensation. It may even be a breach if the Tenant was to do so, where they were not directed to do so by the Landlord, the Government or by law. Tenants should not seek to rely on any actual or threatened COVID-19 cases in or around the premises to terminate the lease or close their premises indefinitely. Especially where there are sanitisation, fumigation or other treatment or cleaning options available to continue a Tenant’s trade.
Closure by Government / at law: Due to current Government restrictions, many Tenants have already been forced to close, or modify the permitted use initially granted under the Lease. ‘Force Majeure’ and ‘Frustration’, are legal doctrines that apply where an event outside the control of the Landlord of Tenant results in either party being unable to perform their obligations under the Lease. Any party so affected party may be afforded a termination right. There is currently no legal precedent to determine whether the COVID-19 pandemic would permit such a termination right and these matters are typically dealt with on a case-by-case basis. Tailored advice, particular to your own circumstances must be sought before any steps to terminate a lease should be taken by either party.

Insurance: Landlords and Tenants should immediately review the insurance provisions under the Lease, as well as their insurance policies to be fully aware of what is covered. Often insurers will seek to exclude a pandemic such as COVID-19 from cover, however this should not preclude a party from seeking legal advice as to the ability to make a claim. Especially where a Government mandated shut-down is a very real and imminent possibility. For a Tenant, business interruption or income protection insurance could mean the difference between failure and survival. For a Landlord, loss of rental insurance could prove to be just as vital.
General Lease provisions: most leases will contain other general clauses that may have application to the current COVID-19 pandemic, including (without limitation):-

Health and Safety: Most leases and particularly retail leases within large shopping centres will require compliance with general hygiene, sanitation, cleaning and workplace health and safety rules, as well as notification procedures for any incidents;
Avoidance of harm: A lease will usually contain an overarching a duty to ensure that a Tenant takes reasonable steps to avoid causing and minimise the risk of harm to patrons or other tenants, which could be breached inadvertently in a COVID-19 scenario;
Damage and destruction: Where the premises are damaged or destroyed to the extent that they are unusable (wholly or in part), a lease will often prescribe a procedure for termination or reinstatement and a rental abatement to the Tenant during the period in which they are affected. These clauses are typically worded to deal with physical damage or destruction, rather than in the context of an infectious disease which is usually dealt with separately (see para 1).

Code of Conduct
The Federal Government has, since the outbreak of the virus, been advising both Landlords and Tenants that help is on the way. The National Cabinet has now agreed that states and territories will implement a mandatory Code of Conduct setting out good faith leasing principles for application to retail, office and industrial leases between Landlords and Tenants. Amongst other things, it is anticipated the Code will deal with:

rent reductions to Tenants significantly impacted by COVID-19;
during the COVID-19 pandemic period and recovery period:

place restrictions on Landlords terminating leases due to non-payment of rent and or appropriating the tenant’s security; and or
imposing rental review increases;

obliging Landlords to pass on any relief received regarding statutory charges (land tax, rates etc) and any benefit received by their financial institution.

Landlords are being directed to seek relief from their own financial institutions through negotiation, which often sees a Landlord having to (amongst other things) defer its obligations, such as by capitalising its own repayments back onto the balance of the financier’s loan, to accrue interest at a later date.
There is a ninety billion dollar ($90,000,000,000.00) cash injection being supplied by the Reserve Bank of Australia to the banks, which, it is hoped will be passed on to small and medium sized businesses.
Our commercial and property lawyers are encouraging Landlords and Tenants alike that the starting point is to go back and thoroughly read their Leases. No two leases are the same and the wording of the lease can often have a significant impact on the position of the parties and the outcomes that can be negotiated for them. Our experienced team of property and commercial lawyers are able to provide prompt and tailored advice to the specific circumstances of Landlords and Tenants alike and can assist with any lease negotiations on their behalf. Please contact us today on (07) 5526 0157 to discuss how we can help you.
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We are very pleased to announce that Mark Steele has been promoted to the role of Special Counsel at Marino Law.
Mark joined the firm in January 2017 and has become an invaluable part of our Litigation team. In addition to excellence in legal technical and advocacy skills, Mark has a growing profile and presence as a Gold Coast litigator. Completing a Master of Laws last year, Mark is also undertaking QLS Specialist Accreditation in Commercial Litigation in 2020.
We congratulate Mark on his achievements to date and look forward to his continuing contributions to Marino Law in the coming years.
 
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In Queensland, it is common for leases to contain an option to renew, whereby upon expiry of the initial lease term, the Tenant may take up a pre-agreed further term to remain in the premises.
The procedure that a Tenant must follow is usually specified in the lease and involves giving a written notice to the Landlord within a set period prior to the lease expiry date.
The notice, if properly given is binding on the Landlord where:-

The Tenant has correctly followed the option procedure in the Lease; or
The Landlord has, by its conduct, impliedly accepted, granted or acknowledged the Tenant’s right to a further option period.

In addition, once the Tenant has given a valid notice of its option exercise, it can be quite difficult for that notice to be revoked, unless the Retail Shop Leases Act 1994 (Qld) and its regulations (“the Act”) applies to the lease (explained below).
Our lawyers act for both Landlords and Tenants and regularly deal with leasing disputes surrounding the exercise of options. The facts of each case are always very different, however we have set out below some common issues that arise in connection with the matters:-

The starting point is to carefully review the procedure set out in the Lease for the Tenant to exercise their option. In particular:-

Has the Tenant delivered the notice within the required timeframe?
Has the Tenant served the notice to the addresses as stipulated and required by the Lease and using the required methods (hand delivery, registered, express or ordinary mail, email, fax etc).

If the Tenant fails to provide notice within the required timeframe or fails to deliver by the prescribed methods of delivery, then arguments could be raised questioning the legitimacy of the exercise of the option and it being binding on the Landlord.

The content of the Tenant’s notice must also be carefully examined. For example:-

Has the Tenant used plain, unequivocal language confirming the option exercise?
Have any conditions been imposed on the exercise? For example, if the option states that it is subject to receipt of a discount in rent or other lease payments or the Landlord undertaking works or performing an action (or refraining from doing so), the notice could be invalid and not binding.

Often a lease will state that the option is only capable of being exercised by the Tenant if they are not (or have not been) in default. In Queensland, there is legislative relief afforded to a Tenant who is met with this response to an option exercise notice by their Landlord. Section 128 of the Property Law Act 1974 (Qld) provides that if the Landlord denies the Tenant the right to exercise an option due to default, the Landlord must, within fourteen (14) days from receipt of the Tenant’s notice, issue their own notice which specifies what the default is and that the Landlord intends not to allow the exercise of the option as a result. If the Landlord fails to issue its own notice within this fourteen (14) day timeframe, the right to deny the option exercise (assuming the formalities in the Lease for giving the exercise notice are complied with) will be lost, even where the Tenant remains in default. Where the Landlord does issue such a notice, the Tenant has one (1) month to apply to the Court for relief allowing the option exercise.

 

Where the Lease is subject to the Act, there are further issues that may arise. For example:-

Pursuant to section 21E of the Act, where a Landlord receives a valid option exercise notice from a Tenant, they must issue a Lessor Disclosure Statement to the Tenant within seven (7) days. It is important to note that:-

Within fourteen (14) days from receipt of the Lessor Disclosure Statement, the Tenant has the right to withdraw their notice exercising the option;
If a Landlord:-

Fails to issue a Lessor Disclosure Statement at all; or
Issues a Lessor Disclosure Statement that is defective; pursuant to section 21F of the Act, an aggrieved Tenant may be entitled to terminate the renewed lease within six (6) months of the commencement date and may also have a right to claim compensation for loss or damage suffered.

Where a Lease provides for a market rent review upon the exercise of an option, section 27A of the Act allows a Tenant to issue an early determination notice to the Landlord, seeking determination within three (3) to six (6) months before the lease expiry for leases that are greater than 1 year in duration and for a lease that is less than 1 year, between one (1) to three (3) months prior to expiry. This section of the Act applies irrespective of any other timeframe contained in the Lease for the Landlord to provide their market rent determination. Once the Landlord has issued that determination, the Tenant will have another 21 days to exercise their option, irrespective of the timeframe for option exercise contained in the Lease. There are mechanisms by which this section may be contracted out of and further advice should be sought from Marino Law on a case by case basis in this regard.
Pursuant to section 46 of the Act, a Landlord must remind a Tenant in advance of when their option period is approaching. This must be done at least two (2) months and not later than six (6) months before the start of the Tenant’s option period. Failure to do so does not afford termination rights to the Tenant, but may attract monetary penalties on the Landlord of up to 40 penalty units (at the date of publication, up to $5,338.00).
Where there is no option attached to a Lease to which the Act applies, then section 46AA of the Act requires a Landlord to give a Tenant written notice at least three (3) months but not more than six (6) months prior to the Lease expiry, offering to either renew or extend the Lease (and propose the terms) or alternatively, advise the Tenant that no renewal is being offered and they must vacate. If the Landlord fails to do this, a Tenant may serve a notice asking for an extension prior to the lease expiry date. If the Tenant serves this notice, then the Act will apply so as to automatically extend the Lease for a further period until six (6) months after the Lessor gives the requisite notice. This additional period is also capable of being terminated by the Lessee on the giving of thirty (30) days’ notice.

As can be seen from the above, there can be a minefield of legislative and contractual provisions that can significantly impact the rights of Landlords and Tenants in so far as option periods are concerned. Further, not all leases are afforded the protection given to Tenants in the Act.
Irrespective of whether you are a Landlord or a Tenant, if an option is shortly approaching in your own Lease or you are presently engaged in a dispute regarding an option, you should obtain expert legal advice. For a no obligation discussion, please do not hesitate to contact one of our experienced property lawyers today.
The post Disputes between Landlords and Tenants when exercising options appeared first on Marino Law.

Parenting disputes, like any family law dispute, often involves high levels of entrenched conflict which can have the result of significant legal costs for parents, significant delays in the resolution of matters and be damaging for children.
“Repeat customers” who continually engage in the litigation process often over minor matters consume a disproportionately large amount of court resources, causing delays and limiting access to justice for other families.  Sadly, it appears as though highly conflictual parenting matters are on the rise.
Anecdotal evidence is abundant as to the effect on children of ongoing conflict.  Children who are exposed to ongoing and entrenched conflict can suffer significant detriment including emotional and behavioural problems, depression, anxiety and poor academic results.  Their emotional health suffers because of the uncertainty involved in their parents being involved in ongoing disputes.
Aside from the difficulties caused by those who are “litigation happy”, difficulties arise when there are disputes as to the living arrangements for very young children.
The needs of young children are very different to those of adolescents and early teenagers, meaning that the ability to reach “final” orders for children under two, is negligible at best.  These changing needs cause the Court to struggle with framing Orders which can appropriately accommodate the needs of children at their most vulnerable., whilst allowing flexibility to enable changes to occur as the children’s needs change.
The options which are currently available to the Court are to make long term interim Orders, allowing the matter to sit idle in the litigation process until it is time for the arrangements to be reviewed, or make final orders which may well be based on a best guess as to how children will cope with arrangements.  Neither of these options present as optimal for the children, parents or the lawyers assisting them in navigating the family law process.
So how do we fix this? Parenting coordination has been used in many jurisdictions in the United States of America and Canada and is now gaining traction in Australia as a method by which to reduce conflict between parents and limit ongoing engagement in litigation processes when parents need a pathway to change the arrangements for their children.
What is parenting coordination? It is a low to non-adversarial, quasi-legal, quasi-mental health process which involves assessment, education, management, conflict resolution and decision making.  The parenting coordinator can be either a legal or mental health professional.
A more formal definition of parenting coordination by the Association of Family and Conciliation Courts is as follows:
“a child-focussed alternative dispute resolution process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parents about children’s meeds, and with prior approval of the parties and/or the court, making decisions within the scope of the court order or appointment contract.”
The objectives of parenting coordination are:

To assist high conflict parents to make decision;
To resolve disputes in a timely manner as they arise;
To help the parents deal with unanticipated events and circumstances;
To assist the parents to develop effective dispute resolution strategies;
To assist the parents in making their own decisions;
To monitor implementation of and compliance with orders;
To reduce conflict;
To facilitate communication and information sharing and develop communication techniques;
To promote and encourage healthy and meaningful parent-child relationships; and
To maintain focus on children’s best interests.

How does it work? The coordinator is appointed to deal with specific issues identified in their appointment or for a specific period identified in their appointment.  Their role is to assist in dealing with day-to-day parenting issues such as clarification of what orders mean, give guidance about minor issues like disputes over changeovers, attending functions or when time might recommence after holidays.  They assist in developing protocols such as transition of belongings and monitor communications to ensure that the parents remain civil and polite with one another and their communication is productive.
It would not be unusual for a parenting co-ordinator to be appointed for a period of up to two years and meet with the parents individually (generally) or jointly if appropriate and to convene telephone or video conferences to assist in urgent issues.
The process can be agreed to be non-confidential and the coordinator can be asked to provide reports on their observations of family dynamics and sources of conflict.
The potential benefit for families to engage with a parenting co-ordinator include, amongst other things, limiting their legal costs. Whilst they are paying the co-ordinator, those costs will be significantly less than each of them engaging separately with a lawyer and engaging in possible litigation.
Families with very young children could also derive significant benefits from parenting co-ordination as it is the opportunity to engage in ongoing discussions about the implementation of developmentally appropriate arrangements which are tailored to the needs of their individual children.
Further, and in line with the principles of s60CC of the Family Law Act (“the Act”), engaging with a co-ordinator could be of considerable assistance in avoiding parents returning to a litigation process over any dispute arising from the implementation of their current orders or agreement (a relevant consideration pursuant to s60CC(3)(l) of the Act).
The team at Marino Law are recognised for their experience in high conflict and complex parenting matters and work closely with the small network of parenting coordinators who are accredited through Parenting Coordination Australia to assist clients to exit the litigation process as quickly as possible with the best interests of their children in mind.
Recently recognised for the third consecutive year as a leading Family Law firm on the Gold Coast by the Doyle’s Guide, if you have a parenting dispute then we are available to assist you to resolve your matter with as little conflict as possible, aiming to exit the family law system with an outcome that has longevity and the best interests of your children at heart.  Contact our family law team on 07 55260157 to discuss your parenting matter or any other aspect of family law.  We are available to provide you with cost effective, strategic and resolution focused advice in person or by phone.
The post Parenting Coordination in Australia – how can it help high conflict families? appeared first on Marino Law.

Following on from our article of last year titled ‘The Essence of Casual Employment’,  there have been some further developments in case law relating to casual employment since WorkPac Pty Ltd v Skene [2018] FCAFC 131.
WorkPac Pty Ltd v Skene [2018] FCAFC 131 (‘Skene’)
To refresh you, by way of background facts, WorkPac employed Mr Skene as a fly-in/fly-out casual employee from 17 April 2010 to 17 July 2010 and again from 20 July 2010 until 24 April 2012. He worked 7 days on, 7 days off varying between day and night shifts in accordance with his roster.
In summary, the Full Court of the Federal Court held that Mr Skene was not a casual for the purposes of either his enterprise agreement or the National Employment Standards because of the regularity of his work patterns even though his working hours varied on a day to day basis. Accordingly, Mr Skene was entitled to have been paid out his accrued annual leave on the termination of his employment with WorkPac – which is not unusual as detailed above – however the Court also decided that he was to be paid his annual leave at the loaded rate rather than at a base rate exclusive of casual loading.
The Court analysed the various lines of authority and determined that the consistent approach of the Courts was to find that the ‘essence of casualness’ was the “absence of a firm advance commitment as to the duration of the employee’s employment or the days (or hours) an employee will work” and that irrespective of the label an employer gave to the employee’s status, the common law factors (as detailed above in this article) are the relevant considerations to be weighed when determining the true status of an employee’s employment.
Accordingly, Skene was awarded back annual leave despite it in effect constituting ‘double dipping’ if an employee was back paid annual leave at their loaded casual rate. Whilst we expected the decision would be appealed to the High Court, it was ultimately allowed to stand.
Fair Work Amendment (Casual Loading Offset) Regulations 2018 (Cth)
In response to Skene, the Commonwealth Government introduced new regulations which allow employers, in certain circumstances, to offset the casual loading paid to an employee against certain entitlements that may otherwise be owed to the employee if they are found in the future to be a permanent employee. The new regulations are aimed at preventing casual employees from ‘double dipping’ and claiming permanent entitlements in addition to their casual loadings.
The regulations can be applied immediately by employers and in circumstances where all the following criteria are met:

an employee is employed by their employer on a casual basis;
the employee is paid a casual loading that is clearly identifiable as being paid to compensate the employee in lieu of receiving entitlements to which casual employees are not entitled under the National Employment Standards, such as personal or annual leave;
despite being classified by the employer as a casual, the employee was in fact a full-time or part-time employee for some or all their employment for the purposes of the NES; and
the employee has made a claim to be paid for one or more of the NES entitlements (that casual employees do not have) that they did not receive for all or some of the time that they were incorrectly classified as a casual.

Where the above criteria are satisfied, an employer can make a claim to have the casual loading payments made to the employee considered when determining the entitlements or amount payable to the employee.
Birner v Aircraft Turnaround Engineering Pty Ltd [2019] FCA 1085 (‘Birner’)
Further to the above action taken by the Government, a new case has emerged recently which while it does not overrule Skene, does depart from its principles.
In Birner, Justice Collier found that the following factors relating to the employee’s working arrangements were “not disturbed by the Full Court authority of Skene”:

The parties agreed the employee would be paid at the rate of $45.00 per hour;
Payroll and record keeping were done on the understanding the employee was a casual employee;
The hours available to the employee were set out in a roster available to him one month at a time, and seven or so days in advance;
The employee was at liberty to reject rostered shifts;
There was no requirement to complete a leave application form;
The employee on at least two occasions chose not to work rostered shifts;
The employee’s roster changed, and became more variable, after he suffered a workplace injury;
The employee’s shifts were sometimes seven hours, and other times nine hours in duration;
The employee was, on occasion, rostered to work for fewer than 40 hours in each week, and never more than 40 hours per week; and
The absence of specific reference to a casual loading is not, by itself, determinative that the employment relationship was not casual.

Accordingly, the employee’s employment status as a casual was upheld notwithstanding the fact that he consistently worked at least 40 hours a week for the same employer.
What’s Next
The Full Court of the Federal Court deliver judgment in another case relating to similar legal matters, in WorkPac Pty Ltd v Robert Rossato (QUD724/2018), later this year.
Until such time as the legal position on casual employees has been settled, employers are advised to undertake certain mitigating steps as follows:

Frequently evaluate all casual engagements to identify arrangements that may suggest permanent employment. Obtain advice about converting those employees to permanent full-time;
Review employment contracts and payslips to ensure casual loading amounts are separately identifiable and that contracts have effective off-set clauses;
Train managers, human resources and payroll staff to ensure there is an understanding of how and when a casual employee may merge into a permanent employee so that the nature of the relationship can be managed; and
Ensure casual arrangements reflect (at least) the types of distinguishing characteristics that were present in the Birner decision, such as variable rosters, no requirements to apply for leave and an ability to reject shifts.

How we can help?
At Marino Law, we can review your employment documentation and policies and audit your employment arrangements in order to advise you if any of your casual employees are at risk of being classified as permanent. In those cases, we may recommend that such employees have new contractual documentation issued clarifying their status (and offset provisions in respect of leave loading) or we may recommend that they be offered full time or part-time employment at a reduced rate of pay noting their associated entitlements. We can advise you in this event so that your employment arrangements are in proper order and you are not at risk of incurring significant liabilities on an employee’s application to the Court.
We can also prepare a suite of employment documentation for your business including employment agreements, deeds of employment, written warnings and policy documents. We offer reliable advice concerning the termination of employment on a variety of grounds including poor performance, serious misconduct and redundancy so that you do not inadvertently bring on an unfair dismissal or general protections (adverse action) claim under the Act. If any such claims are brought against you, we are able to defend you with a view towards resolving the matter commercially with the least possible time and expense.
Contact one of our expert employment lawyers today to commence the audit process and avoid finding yourself in financial distress as a result of utilising a system of employment potentially fraught with risk.
 
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Migration has continued to be a topical issue within the political sphere of Western countries. Managing and controlling immigration levels has become a vital consideration and an integral part of Governmental policy, with congestion, overcrowding and added pressure on resources and municipal services becomingly increasingly difficult to manage. Consequently, migration policies are frequently adapting and changing as Governments attempt to tackle the situation.
The size and composition of Australia’s migration program is set annually. Australia’s present policy aims to attract highly skilled migrants who do not displace Australian workers and support development in regional and low growth metropolitan areas. The program is designed to balance the needs of the Australian economy and ease pressures on major cities, infrastructure and the environment.
Recent data from the Department of Home Affairs (‘Department’) is a clear indication that it is becoming increasingly challenging to obtain permanent residency in Australia. The most recent figures reveal that the number of permanent residency visas granted for 2018-19 was the lowest in a decade, with a ceiling of 190,000 places allocated under the Permanent Migration Program and 269,162 applications finalised, only 160,323 visas were granted. As temporary visas tend to be ‘demand driven’ there is no cap placed on provisional visas, rather entry criteria and policy is employed to tighten or loosen a visa program as necessary. In 2018-19 there was a 1.4 percent increase in the number of temporary visas granted, being a total of 8,694,048. Nevertheless, with the Government’s current population planning objectives, it is anticipated that migrating to Australia will only become increasingly trying.  \
In Australia, the vast majority of visa applicants can prepare and lodge their application through the Department of Home Affairs’ online platform. Although the platform is intended to be accessible and user friendly, it is not recommended that all applicants submit an application without the consultation or assistance of a specialised migration lawyer.
Why use a migration Lawyer?
Complicated matters
Migrating to Australia can be met with many challenges, particularly where an applicant is subject to circumstances that categorise the application as ‘high risk’. Applications lodged by individuals with complex immigration histories, including extensive travel, prolonged periods of stay in Australia, previous unsuccessful visa applications and periods of being unlawful are subject to increased scrutiny from Departmental officers. Such applications may require more character and bond-fide checks to ensure that the Australian community is protected, and that policy has and is being complied with. Such matters require greater consideration and are generally required to be formally addressed during the application process, often involving supplementary supporting documentation.
In these circumstances, it is prudent to seek professional legal advice, as such issues should be addressed at the outset of the application as to avoid untimely delays and flagrant refusals. A migration lawyer can provide the necessary guidance and advice to ensure that your application has greater chance of success.
Expertise and access to information
Migration policies and legislation can be complex and are frequently changing to accommodate shifting political interests.  Australia’s migration laws prescribe the visa procedures and criteria that must be strictly complied with. Changes to the Migration Act 1958 (Cth) and the Migration Regulations 1994 (Cth) can be radical and where overlooked, are likely to jeopardise an application. Migration lawyers are well versed in interpreting and applying the law, which is of great benefit and advantage to a visa applicant.
Visa requirements are specific to each subclass and must be strictly observed. Failing to comply with a fundamental requirement may result in a direct refusal. The Department’s homepage provides limited information with respect to the criteria and supporting documentation necessary for the lodgement of a visa. Migration agents and lawyers are granted access to the Department’s policy manual which provides further insight and information in relation to each visa that is not accessible via the public domain.
A migration lawyer has the requisite skills to navigate through the frequently changing laws and the expertise to relay competent advice. This knowledge paired with industry experience offers a superior advantage to a visa applicant and effectively increases an applicant’s prospects of success. Consequently, this can assist to alleviate the stress and emotional turmoil that comes with the process of migrating.
Cost and time effective
At first glance it may appear that preparing and lodging a visa application without the assistance of a migration lawyer is more cost effective, however this is generally not the case. With the multitude of visa subclasses available in Australia, it can be difficult for a layperson to determine the appropriate visa. The information available on the Department’s website is limited and should the applicant fail to meet or address specific criteria the application will be refused. Not only will this result in lost time, but also money as a visa application charge alone can be costly with some fees in the vicinity of $8,000 or more and refunds are only provided in limited circumstances. The application process can also be time consuming and requires large data input and ongoing attention to detail, with many applications taking many hours to prepare.
A migration lawyer will be able to assist you to find an appropriate visa pathway and ensure that you meet the relevant criteria. This will reduce the pressure and frustrations of navigating through the various subclasses and increase overall success. Further, an experienced migration lawyer can provide you with the information necessary to put forward a decision ready application that can reduce lengthy processing periods and effectively streamline the overall process.
Migration to and within Australia requires both financial and emotional commitment. Using the professional services of an experienced migration lawyer can save you stress, time and money. Australia’s current Migration Program is set to reduce the number of permanent residency places over the next four years and the previous years’ figures suggest that the integrity of the Migration Program has become a leading political focus that could make the visa application process increasingly difficult. The Australian Government is seemingly employing enhanced vetting strategies and placing greater scrutiny on visa applicants, that is expected to create greater obstacles for applicants.
The migration team at Marino Law is highly experienced in all aspects of Migration Law. If you are unsure about your potential visa pathways, have concerns relating to your eligibility for a visa, or if you simply require assistance with the visa application process, our team can assist you. From detailed advice, through to the preparation and ongoing management of your application, we have extensive knowledge and experience across all Australian visa types that will provide you with the assistance you need to submit a strong application. Please do not hesitate to contact one of our immigration lawyers at Marino Law to organise a consultation.
 
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In KDV Sport Pty Ltd v Muggeridge Constructions Pty Ltd & Ors [2019] QSC 178 (“KDV”), the Queensland Supreme Court has held that a payment claim that failed to identify the construction work to which the progress claim related with sufficient particularity did not satisfy the requirements of the Building and Construction Industry Payments Act 2004 (Qld) (the “Act”) such that it could not be enforced through the Act’s adjudication process.
Readers should note that the Act was repealed on 17 December 2018 and replaced by Chapter 3 of the Building Industry Fairness (Security of Payment) Act 2017 (Qld). The Act now only applies to payment claims that were served prior to 17 December 2018. The conclusions with respect to the validity of a payment claim reached in KDV would be the same for either piece of legislation.
Facts
On or about 14 August 2017, KDV Sport Pty Ltd (“KDV Sport”) and Muggeridge Constructions Pty Ltd (“Muggeridge”) entered into a contract for the construction of student accommodation. The contract was a lump sum contract for $10.627 million pursuant to which Muggeridge was to provide the construction work.
Muggeridge issued a payment claim for the sum of $2.36 million on 20 August 2018. The payment claim served by Muggeridge was a one-page document comprising six (6) columns. The first column was titled “trade breakdown” and listed 51 categories of work that was contained in a trade breakdown schedule contained in the contract. A “total claim to date” column provided the percentage of each category of work that was alleged to have been completed. The payment claim was not supplemented by any particulars of the works within each trade breakdown that had been carried out or any supporting documentation.
KDV Sport’s solicitors wrote to Muggeridge contending that the payment claim did not meet the requirements of section 17(2) of the Act. Pursuant to section 17(2) of the Act, a payment claim must identify the construction work or related goods and services to which the progress payment relates. While reserving its rights, KDV Sport issued a payment schedule under the Act proposing no payment to Muggeridge.
Muggeridge subsequently applied for adjudication pursuant to section 21 of the Act. On 4 December 2018, the adjudicator issued a decision that an amount of $802,198.59 was payable to Muggeridge. KDV Sport applied to the Supreme Court of Queensland for orders that the adjudication decision be set aside on the basis that the decision was void and unenforceable by Muggeridge. KDV Sport argued that in circumstances where Muggeridge’s payment claim failed to comply with the requirements of section 17(2) of the Act, there was no payment claim pursuant to the Act that would enliven the adjudicator’s jurisdiction.
The decision in KDV
Her Honour Justice Brown held that for a payment claim to be valid pursuant to the Act, it must reasonably identify the construction work to which it relates, such that the basis of the claim is reasonably comprehensible to the applicant. Justice Brown did not consider Muggeridge’s payment claim met that relatively undemanding test.
Justice Brown made the following specific findings:

the payment claim contained no description of the work that was the subject of the claim;
references to the total percentages of work claimed to date and the amount the subject of the claim did not sufficiently identify the work done;
while the background knowledge of the parties is relevant in determining the sufficiency of a payment claim, in this case, KDV Sport’s knowledge of the trade breakdown schedule contained in the contract was not sufficient to shed light on the information set out in the payment claim to make that claim reasonably comprehensible;
while it may have been possible for KDV Sport to determine what part of the work was being claimed out of the percentage by engaging in a process of reconstruction based upon previous claims and amounts paid, such an exercise would be contrary to the Act in circumstances where the payment schedule is required to be provided within ten (10) days of receipt of the payment claim; and
a payment claim must at least be reasonably comprehensible so as to enable the respondent to respond within the time frame provided under the Act. Muggeridge’s payment claim failed to do so.

Conclusion
As can be seen from the above decision, the consequences of not properly preparing a payment claim can be significant. Parties submitting payment claims for significant progress payments which may be disputed should consider engaging solicitors to assist in the preparation of such claims.
Marino Law has extensive experience in acting for parties to construction contracts. Our highly experienced lawyers regularly:

draft and review construction contracts;
assist parties with the preparation of payment claims and payment schedules;
provide advice as to what is required to comply with contractual obligations;
provide submissions for use in adjudication proceedings; and
act on behalf of parties involved in contractual disputes including the commencement and defence of breach of contract proceedings.

Should you require assistance in any of the above areas, please contact one of our highly experienced lawyers.
 
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At Marino Law, our thoughts and prayers are with all of those who have been tragically affected by the bushfires that are still raging across Australia. We cannot comprehend how difficult it is for those dealing with the loss of loved ones, homes, businesses, property or animals and we applaud the efforts of emergency services, charities and outreach services and the local communities for their combined and ongoing efforts in such harrowing circumstances.
In the wake of this devastation, we are receiving a number of inquiries for damaged properties that are subject to an ongoing contract of sale and whether it is the responsibility of the Buyer or the Seller to address such damage. We therefore consider it timely to provide an update as to the legal risk and insurance obligations of the parties to a contract in Queensland. Legal advice from a local lawyer should be sought as to the position in other Australian States or Territories.
There are typically two standard forms of contract used for buying and selling real estate in Queensland. These are issued by the Real Estate Institute of Queensland (“REIQ”) and Realworks ADL Software (“ADL”).
Pursuant to all forms of the REIQ and ADL contracts (eg houses and land, community titles scheme, commercial land and buildings etc) there is a standard provision that risk in the subject property passes to the Buyer on the first business day after the contract date. The rationale for this is that upon execution of the contract, a Buyer obtains an equitable interest in the property that it should protect by taking out appropriate insurance cover.
As a result of this passing of risk, if damage occurs between the contract date and the settlement date (except where the property is destroyed or damaged to the point where it is unfit for occupation), the Buyer does not have any rights to terminate the contract and is still required to purchase the damaged property, without a reduction in the purchase price.
It should be noted that where the damage is such that the property is no longer fit for occupation, there is some relief offered by virtue of section 64 of the Property Law Act 1974 (Qld) which may give the Buyer a right to rescind and receive a refund of their deposit.
If damage occurs and s.64 does not apply, it may be possible for the Buyer to gain the benefit of the Seller’s insurance.  We do not recommend that a Buyer rely upon this possibility because:

the Seller may not have insurance or may have cancelled same;
the event causing the damage may not be covered by the wording of the Seller’s policy; or
other factors may preclude a claim or recovery.

We therefore strongly recommend the Buyer take out their own insurance immediately following their signing of the contract. The types of insurance required are dependent on many factors including the type, location, age and improvements on the property and the advice of a specialist insurance broker should be sought.
Common examples for a typical house would include (but may not be limited to):-

Public liability insurance;
Contents and property (if the contract includes chattels or you have any items in the property);
Building insurance.

In a community titles scheme, some insurances (eg. building and common property areas) are maintained by the body corporate. Individual lot owners usually require contents and public liability insurance within their lot. Other insurances may apply, depending on the scheme in question.
For a property sold with tenancy, a Buyer should also hold a landlord’s insurance package against any tenant or occupant that suffers injury or damage between the contract date and settlement.
Any lenders that are financing the purchase will usually insist upon the Buyer taking out insurance and noting them on the policy as an interested party prior to funds being advanced.
The importance of a Buyer being aware of the time that risk passes under the contract and the requirement to take out insurance cannot be overstated. For further information in this regard, please contact one of our experienced property and commercial lawyers for a no obligation consultation.
The post Buying or selling a property affected by bushfire – what is your legal position? appeared first on Marino Law.

According to statistics, as reported on the Today Show on Channel 9 and the Sydney Morning Herald, tomorrow, December 11 is the most popular day for couples to break up.
The date is apparently so popular because people do not want to face the Christmas season with their current partner and their families.  Family, social and financial pressures also tend to increase during the festive season causing relationship stress, tension and often arguments.
Leading into the Christmas period, if you are already separated, here are some practical and sensible tips – Marino Law’s “12 tips for Family Law bliss this Christmas”:
 

Plan ahead. Whilst Christmas is bearing down upon us at the speed of light, there is still time to reach agreement about what is to happen over the Christmas period, both financially and in relation to the children’s arrangements.

There are still mediators who are available to assist urgently, and family lawyers are always available with flexibility in the lead up to Christmas.
Well respected and experienced family lawyers know that this period is the busiest and most stressful for families and understand that we may need to provide urgent assistance and advice including court attendances and mediation, in order to assist families to get through the festive season.
Whilst a Court Order may be hard to achieve with limited trading days before Christmas, a Parenting Plan may well be the best option for your family rather than formal Court orders.
 

When it comes to children’s arrangements for Christmas Day, focus always, always on what would make their day less stressful, interrupted and conflictual.

There are no hard and fast rules on what arrangements for Christmas Eve to Boxing Day should be.  Whatever works for your family is what is best.
Do not buy into what a friend’s uncle’s cousin’s sister did, focus on your family and your children.  Whilst there is likely to be sadness for one parent who does not wake with the children on Christmas Day, it is an opportunity to create new traditions and new memories.
At the end of the day, Christmas is for children and making the day as magical for them as possible ought to be your focus.
 

Have some perspective. Christmas Day is one  Yes, it would be nice to spend it as a family, but relationships end, and life doesn’t always go according to plan.  Be the adult and (where appropriate) speak with your children about what they would like for Christmas Day.

Don’t try to fit in seeing every single member of both parent’s immediate and extended family, you and the children will both be exhausted, and the day will not be enjoyable for anyone.  Part of being an adult is putting on that smile and keep it on, in front of the children at least.   Remember, when in doubt, be the bigger person, this will make your kids the happiest.
 

Surround yourself with your “tribe”. Whether this is your immediate family, extended family or friends that have become family, try to distract yourself from what may seem to be the loneliest of times by immersing yourself with your family.

They are there to support you, so don’t be afraid to take up those supports.
 

Don’t sweat the small stuff. If you find yourself getting caught up in the little things, stop and re-direct your attention instead to the important things and how you want to remember your day.

Rather than remembering whether your ex was five minutes late to changeover or that the kids went on and on about their cool new present at the other house, focus on the memories of spending time with loved ones, remember laughing, over indulging in food and the silly Christmas outfits!
 

Don’t be a grinch. If you are the parent who is in a superior financial position, Christmas time is not the time to put the squeeze on the other parent to achieve an aim (be it financially or with the children).

Be generous, support the person that you chose to have a family with to ensure that they and most importantly your children do not miss out.
 

Remember what Christmas is really about. Christmas is really about love, family, friendship and remembering how lucky we are.

It is not about winning the battle with your ex and being the parent who gives the best gifts or spends the most money or takes the kids to the best theme park or on the best holiday.  It is not a competition.   Kids know when you are competing for the title of “best parent ever” and deep down it just makes them feel sad.
 

Communication is key. If you have your children on Christmas Day, encourage them to have meaningful contact with the other parent through the course of the day via Skype, Facetime or by phone.

Also consider if there are Christmas plays, concerts or activities coming up which need to be communicated to both parents.
A communication book may be a helpful tool if you cannot communicate effectively. You could also communicate via text and email – whatever method is chosen; the aim is to shield your kids from the conflict between yourself and the other parent to prevent what sometimes can be irreversible harm caused to your child’s emotional and psychological wellbeing.
Alternatively, there are a fantastic range of co-parenting apps parents may use, such as 2Houses (Android, Apple), FamCal (Android, Apple) and Our Family Wizard (Android, Apple), that create a platform for parents to co-ordinate schedules, send requests to vary arrangements and communicate about all things in relation to the children.
 

Don’t focus on perfection. It’s easy to get caught up in the ideal family Christmas you see on TV, but it’s important to remind yourself there isn’t one ‘perfect’ way to spend Christmas day. Just because how you celebrate may be different, doesn’t make it any less special.

Children in separated households often enjoy two Christmas Days between 24 and 26 December, and if Santa knows where to leave his presents, the children often don’t mind at all.
Try to free yourself from unnecessary pressure.  There are unrealistic expectations, garnered by “influencers” and celebrities, making parents feel too much pressure for Christmas to be perfect.
Combine this with money worries, the logistics of you both wanting Christmas morning with your kids and the feelings of guilt and loneliness that can be overwhelming. Remove any expectations you may have of Christmas Day and try to think about want would make you truly happy.
 

Welcome new partners and spouses with care.  If you have a relatively new partner, the holidays are probably not the best time to introduce that person to your children.

However, if new partners are well established with your family already, the holidays can be a good time to create a blended family moving forward. Finding ways to welcome this person into your family’s traditions and incorporating some of their traditions can create a rich holiday experience for everyone.
If you know your children do not favour your new partner (not uncommon!) avoid using the holidays to try to force togetherness. If you see these feelings develop, try consulting a family therapist for guidance on handling the holiday season and helping your children become comfortable around your new partner.
 

Have a plan if things go wrong. However hard we try and make Christmas picture-book perfect, things can still go wrong, especially if you are co-parenting at Christmas.

If small issues arise, make a note of them for the following year, so you can prevent them happening again.
Unfortunately, high revelry, daytime drinking and the build-up of pressure can cause Christmas Day disasters, including ruined plans, breach of court orders or just terrible behaviour.
Should any of these things happen, do your very best to protect your children (and of course yourself) and do not hesitate to call 000 if you need police support. Family Lawyers are often closed for around two weeks over the Christmas and New Year period, so if you need legal help, keep a note of all the events with dates and time, and book a meeting for as soon as you can.
 

Finally, get advice before your lawyer closes! Most law firms close their doors for two weeks over Christmas, so that your trusted advisor can renew and refresh for the new year ahead.

If you have no formal arrangements for the Christmas period, then it is very sensible to meet with a lawyer prior to their last trading day to obtain some advice about how to deal with any curve balls the Christmas period throws at you.
If urgent issues arise for you over the Christmas period (either in respect of your parenting arrangements or financial matters) or you find yourself separated during this time and need to receive some urgent clarification or preliminary practical advice, reach out to Marino Law via telephone or email.  We will remain available over the Christmas break to assist you if the need arises.
Remember, if there are any issues arising which cause you to be fearful of your physical safety, then call 000 without delay.
From the Marino Law family to yours, we hope that these tips will help you through the Christmas period with as little stress as possible.   We are open until 12.00 noon on 20 December 2019 for appointments to discuss all aspects of your family law needs.  Contact us on 07 55260157 or via our website www.marinolaw.com.au to make an appointment.
The post Marino Law’s 12 tips for family law bliss this Christmas appeared first on Marino Law.

Family Law Partner, Abbi Golightly, has been named on the prestigious Doyles’ Guide for the fifth year in a row.
Ms Golightly was recommended in both the Leading Family & Divorce Lawyers, Gold Coast 2020 and the Leading Parenting & Children’s Matters Lawyers – Regional Queensland 2020 categories.
Marino Law has also appeared as a recommended firm in Doyles’ Leading Family & Divorce Law Firms – Gold Coast 2020 for the third year running.
Released at the beginning of December each year, the Doyles Guide is Australia’s most comprehensive guide to Australia’s leading lawyers, law firms and barristers.
Marino Law managing partner Rob Marino said the achievement is testament to how hard Abbi and the Family Law team work to ensure the highest quality outcomes for their clients.
“Abbi is one of the leading family lawyers on the Gold Coast and we are honoured that her and the entire team has retained its listing on the Doyle’s guide,” he said.
Ms Golightly said she was once again honoured to be recognised for her hard work and passion for the profession.
“It’s always such an honour to be named on this list and we are always so appreciative that the hard work we undertake for our clients is recognised,” she said.
With 15+ years of experience working in family law, Ms Golightly is one of only a handful of lawyers on the Gold Coast who have attained the Queensland Law Society Accredited Specialist (Family Law) status.
The Doyles Guide is based on online peer-based surveys, as well as interviews with clients, peers and relevant industry bodies.
The achievement follows another year of expansion for the Family Law team, with Rachel Rowlands recently appointed as an Associate with the team.
Growing up and studying locally on the Gold Coast, Rachel has been practising exclusively in the area of Family Law since her admission in 2011 and is passionate about helping separating couples work out their parenting and property disputes quickly.
For more information on Marino Law visit www.marinolaw.com.au. For more information on the Doyles list visit http://doylesguide.com/.
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Recently, Uber Eats was the subject of an investigation by the Australian Competition and Consumer Commission (ACCC) following complaints being made by certain restaurants regarding unfair contract terms (UCT) contained within their contracts with the multi-national delivery company.
What is an Unfair Contract Term?
The UCT regime is legislated within the Australian Consumer Law, contained within schedule 2 of the Consumer and Competition Act 2010 (Cth) (‘ACL’). Examples of terms that may be unfair, include:

terms that enable one party (but not another) to avoid or limit their obligations under the contract;
terms that enable one party (but not another) to terminate the contract;
terms that penalise one party (but not another) for breaching or terminating the contract; and
terms that enable one party (but not another) to vary the terms of the contract.

Ultimately, only a court or tribunal (not the ACCC) can decide that a term is unfair.
What Contracts are Covered by the UCT Regime?
The law applies to standard form contracts entered into or renewed on or after 12 November 2016, where:

it is for the supply of goods or services or the sale or grant of an interest in land;
at least one of the parties is a small business (employs less than 20 people, including casual employees employed on a regular and systematic basis); and
the upfront price payable under the contract is no more than $300,000 or $1 million if the contract is for more than 12 months.

If a contract is varied on or after 12 November 2016, the law applies to the varied terms.
A standard form contract is one that has been prepared by one party to the contract and where the other party has little or no opportunity to negotiate the terms – that is, it is offered on a ‘take it or leave it’ basis.
Effect of Including an Unfair Contract Term
If a court or tribunal finds that a term is ‘unfair’, the term will be void – this means it is not binding on the parties. The rest of the contract will continue to bind the parties to the extent it is capable of operating without the unfair term.
What happened in the case of Uber Eats?
From at least 2016, Uber Eats’ contract terms made restaurants responsible for the delivery of meal orders, in circumstances where they had no control over that delivery process once the food left their restaurant.
Uber Eats’ contract terms give it the right to refund consumers and deduct that amount from the restaurant even when the problem with the meal may not have been the fault of the restaurant.
Following investigation by the ACCC, Uber Eats agreed to change its contract to remove the offending provision and clarify that restaurants will only be responsible for matters within their control such as incorrect food items or incorrect and missing orders.
Government-Review of the UCT Regime
Prior to election held last May, the Federal Government announced that if re-elected, it would introduce amendments strengthening the current protections to all small businesses from UCTs, subject to the outcomes of a Regulation Impact Statement (RIS) consultation process.
The announcement followed the 2018 review of the existing UCT laws which found the UCT regime wanting of a strong deterrence for businesses not to use UCTs, therefore failing to provide appropriate protections to many small businesses.
One recommendation of the 2018 review was for the Government to consult on making UCTs illegal and introduce financial penalties for breaches of the UCT laws. Labor’s pre-election stance on the UCT laws was a more definitive commitment to make UCTs illegal and introduce penalties of up to $10 million for contracts that contain UCTs.
Making unfair contract terms illegal and introducing appropriate financial penalties will:

allow the ACCC to seek financial penalties and issue infringement notices when a business is found to have imposed UCTs;
provide an effective deterrent for large corporates who are knowingly including UCTs in their contracts;
provide an incentive for large corporates to proactively review and amend current contracts, rather than sitting on their hands until they are forced to do so after a term is found unfair by a court or tribunal;
where a UCT is found illegal, provide precedents for other contracts which will inevitably have the flow-on effect of reducing UCTs;
improve the confidence of small businesses to do business with large corporates; and
provide greater incentive for small businesses to bring claims against large corporates who are using UCTs to their advantage.

Given the Federal Government’s election promise, it is anticipated that the RIS consultation process will commence near the end of this year with a view towards strengthening the UCT regime in 2020. As the Labour party has taken an even stronger position on strengthening the UCT regime, we expect that there will be bi-partisan support for recommendations arising out of the RIS consultation process.
How Marino Law can Help?
At Marino Law, our experienced commercial and corporate lawyers are able to review existing or proposed standard term contracts and advise whether the contacts fall foul of the current UCT regime or if they are likely to breach any revised UCT regime that may be introduced in the future.  Given that it looks increasingly likely that financial penalties will be imposed on companies using UCTs moving forward, having such contracts reviewed stands to save proactive companies from litigious proceedings and, subject to changes being legislated, significant fines.
Additionally, if you are a small business and you believe that a standard from contract contains an UCT, we are able to write to the other party and demand that the term be severed from the contract, failing which we are equipped with a team of expert litigators that can take the party to court to compel it to comply with the UCT regime.
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In Cremin, in the matter of Brimson Pty Ltd (In Liquidation) [2019] FCA 1023 (“Cremin”), the Federal Court clarified the steps that a liquidator must take to deal with the trust assets beneficially held by a corporate trustee to which the liquidator has been appointed.
Background
The relevant facts, commonly confronted by liquidators when appointed to a corporate trustee, were as follows:

the liquidator was appointed to three (3) companies that operated three (3) “Snooze” franchises in Melbourne;
the franchises were operated exclusively by each of the three (3) companies in their capacity as trustee of a trading trust;
the companies to which the liquidator was appointed to did not operate any business in their own right. Accordingly, the corporate trustees held the assets of the franchises on trust;
pursuant to the trust deeds of the trading trusts, each corporate trustee:
was automatically removed upon the liquidator’s appointment;
was indemnified out of the assets of each of the trusts for liabilities incurred by the company as trustee; and
did not have the power to sell trust assets except for the benefit of the trust’s beneficiaries; and
none of the three (3) corporate trustees had been replaced as trustee of their respective trusts. In those circumstances, each of the corporate trustees had no power to deal with the assets of the trading trusts.

The Decision
Given the above factual background, to enable the liquidator to deal with the assets of each of the trading trusts, the liquidator applied to the Federal Court of Australia pursuant to sections 90-15 and 90-20 of the Insolvency Practice Schedule and the Trustee Act 1958 (Vic) for orders that he:

could, pursuant to the powers detailed at section 477 of the Corporations Act 2001 (Cth), wind up the trading trusts and pay the creditors of those trusts from the assets of the trusts; or
be appointed as receiver and managed to the assets of the trading trusts.

In Cremin, the Federal Court confirmed the following:

a company that is a trustee of a trading trust that has been automatically removed as trustee as a consequence of the appointment of a liquidator, holds the assets of the trust as bare trustee;
as a bare trustee, the corporate trustee does not have the power to deal with the assets of a trading trust to which it was previously appointed. In those circumstances, the liquidator appointed to the corporate trustee cannot deal with the trust’s assets without an order from the Court giving him power to deal with those assets or appointing him as receiver over the trust’s assets;
despite the removal of the corporate trustee as trustee of the trading trusts, the corporate trustee’s right to be indemnified out of the assets of the trust for liabilities incurred by the company as trustee, and the equitable lien that arises as a consequence, is still available to that corporate trustee; and
any proceeds realised by the liquidator pursuant to the exercise of the corporate trustee’s right of exoneration, could only be used to satisfy trust liabilities or trust creditors.

Impact of the Decision
Before Cremin, there had been uncertainty as to how liquidators could deal with trust assets and whether the power to sell the property of a company enables a liquidator to sell the assets of a trust of which the company acts as trustee. That uncertainty has now effectively been resolved. Cremin confirms that before dealing with trust assets, liquidators must first approach the Court either for orders allowing the sale of trust property or orders appointing the liquidator as receiver over the trust’s assets.
Further Information
Marino Law has extensive experience acting for insolvency practitioners, lenders, financiers, directors and trustees in the administration of all corporate insolvency appointments. Our highly experienced lawyers regularly advise clients in the following areas of corporate insolvency:

voluntary administrations;
liquidations;
enforcement of securities; and
statutory demands.

We also regularly provide advice to liquidators, lenders and financiers regarding the registration of security interests on the PPSR, the validity of those registrations and their enforceability.
Should you require assistance in any of the above areas, please contact one of our highly experienced lawyers.
 
 
 
 
 
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Not all of a person’s assets are automatically captured and dealt with by the terms of a Will.
The below are examples of assets that need to be carefully considered by a person making a Will (“Testator”) as well as the Testator’s advisors, as improper planning can result in these assets falling outside of the Will and being unavailable for the Testator’s intended beneficiaries.

Jointly owned real property

In Queensland, if a jointly owned house or investment property is held between the owners “as joint tenants” then their interest in it will not be an estate asset that is dealt with through the provisions of a Testator’s Will. Instead, their interest in the property will pass to the surviving property owner, under the rules of survivorship.
Only if the property is held between the persons “as tenants in common” will their interest in the property form part of the Testator’s estate and be dealt with in accordance with the provisions of their Will.

Cash in jointly owned bank accounts

Joint bank accounts are a common and efficient way for spouses, defactos and others to manage joint finances.
On the death of one account holder, the rules of survivorship apply to vest ownership of the joint account and its balance to the surviving account holder. It is common for the financial institution to transfer ownership of such an account and its balance to the survivor on receipt of the Testator’s death certificate, before probate or letters of administration are granted.
In a spousal or defacto relationship, it is common for the Testator to intend the balance of the account to pass to the surviving account holder anyway. If that is the case, then there is often no issue that arises.
However, the Testator may not always intend for the account holder to receive the entire account balance. For example, in a blended family, the child or children of a Testator could miss out on the proceeds of an account that is held jointly with the Testator’s spouse or defacto, where that surviving account holder is not also the parent of that child or those children.
Another example is where an elderly and immobile Testator has opened an account with a child that lives closest to home and has contributed significant sums to assist with payment of the Testator’s bills, groceries, medical care or everyday living. Such funds could potentially be retained solely by the child whose name appears on the account and lost to the Testator’s other children or intended beneficiaries under the Will.

Company and Trust interests

An asset that is not owned by the Will maker personally, but instead through a separate legal entity such as a company or a trust will not form part of the Will maker’s estate and will instead continue to be owned by that company or trust, after the Testator’s death.
Having said this, shares in a company or units in a unit trust that are owned by the Testator personally do form part of the estate and will be dealt with in accordance with the Will. For this reason, the structure of these corporate or trust entities (and their governing documents) needs to be carefully examined as part of the Testator’s personal estate plan.

Superannuation and Life Insurance

Superannuation is dealt with under separate legislation and is not an estate asset that is dealt with by a Will.
Under the relevant legislation, a superannuation account holder can nominate specific beneficiaries to receive the account proceeds by making binding or non-binding superannuation death benefit nominations. These are usually the account holder’s dependents (spouse, children or financial dependents).
Life insurance is similarly dealt with in that a policy holder may nominate a specific beneficiary to receive the proceeds of the policy.
Forgetting to review, renew or update such nominations (which can lapse) as a Testator’s circumstances change is a common occurrence, often having unintended consequences for the estate. For example a young person may initially nominate parents or family members to receive such superannuation or life insurance policies and forget to update those nominations upon marriage or entry into a defacto relationship.
In the case of both superannuation and life insurance, it is permissible for a nomination to be made in favour of a legal personal representative or an estate (rather than an individual). This is often a favoured approach as it allows any payments of superannuation or life insurance proceeds to form part of the residuary estate under the Will, from which the legal personal representative can pay estate debts before distributing the residuary estate to the intended beneficiaries.
Where an individual is nominated, they are paid the proceeds absolutely. This occurs outside of the purview of the Will, and the individual concerned may use such proceeds as they see fit, without being under any obligation (save for perhaps a moral one) to use same for the benefit of the Testator’s estate.
Conclusion
The loss of a jointly owned property, the proceeds of a jointly owned bank account or superannuation or life insurance proceeds due to incorrect nominations can have dire consequences for an estate.
Not only does a legal personal representative need to consider whether any debts or gifts can be made from other estate assets (and if not, then it is common for the estate to be forced to declare bankruptcy), but the legal personal representative is also left in an unenviable position of having to try and determine what the testamentary intentions of the Testator were at the time of their death and whether sufficient evidence can be obtained so that the estate can commence proceedings to try and recover any assets that have been lost through the improper application of the rules of survivorship or poor estate planning.
Obtaining such evidence and running such proceedings is a difficult, lengthy and highly costly exercise, given that the breadth of such evidence can span years or decades and the quality of such evidence deteriorates over time.
Unless a Court grants injunctive relief to stop the asset being dealt with until the proceeding is decided, the legal personal representative is often faced with an additional hurdle that by the time the evidence is gathered, the property may be sold or the bank account, superannuation or life insurance proceeds spent, making the prospects of recovery limited, at best.
The importance of retaining an experienced solicitor to assist a Testator to make a proper estate plan cannot be overstated. Our estate planning solicitors have years of experience in expertly advising clients regarding their specific personal circumstances and preparing carefully tailored estate plans that accords with their testamentary wishes and intentions.
For a no obligation quotation, please do not hesitate to contact one of our experienced estate solicitors today.
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The modern gift for reaching your tenth anniversary is a diamond and after 10 years of successful growth, Marino Law has earnt a few carats.
Brothers and business partners, Rob and Ben Marino have grown the firm from its humble beginnings in Robina to the landmark office it occupies in Mermaid Beach today.
“When we initially purchased the firm in 2009 it was just us and two staff in our little office in Robina,” Managing Partner, Rob Marino said.
“Since then we have strategically grown our firm to a team of over 20 staff and four senior associates, which comprises accredited law specialists and a third partner, Abbi Golightly who heads our Family Law division.”
The firm, which specialises in most areas of law, has also considerably increased revenue over this period, nearly six-fold since its first year of operation.
“Our unprecedented growth in such economically uncertain times and through the midst of the GFC has arisen due to a few factors, but credit most certainly has to be given to the loyalty of our hardworking team and our team’s dedication to offering great service and meeting our client’s expectations,” Mr Marino said.
Whilst the boutique firm officially relocated to Mermaid Beach in 2011, the rapid expansion it has experienced led them to move next door earlier this year into a brand new 330 sqm space.
“We realised that to continue our growth, we needed to invest in the business with new offices and a significant top end fitout,” Mr Marino said.
“The new space is modern and spacious and was designed to provide our staff a comfortable and productive work area, with large offices and modern breakout areas.
“The goal was that this would result in an even better service being delivered to our clients and so far, it is working.”
The larger office also allows for future expansion as the firm continues to grow its skill base with the appointment of specialist legal practitioners.
“It’s one thing to keep adding staff, but we want to ensure that our lawyers are the best of the best, offering our clients technical advice and service that can’t be found elsewhere on the Gold Coast.”
The growth and expertise within Marino has been recognised over the past decade, with  accolades including being named on the prestigious Doyle’s Guide several years running and this year being a finalist in the Suburban/Regional category of the Australian Law Awards.
Marino Law specialises in family law, litigation and dispute resolution, commercial and business law, property and real estate law, corporate law, personal and corporate insolvency, migration law and estate and succession planning law.
Both Rob and Ben agree that while the past ten years have had their challenges at times, the success and good times have made it all worthwhile.
“It’s pretty amazing to sit back and look at what we’ve created,” Mr Marino said.
“We’re extremely proud of what Marino Law stands for and we are excited to see where the next decade takes us.”
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Earlier this year, the Migration Amendment (New Skilled Regional Visas) Regulations (‘Regulations’) 2019 was enacted. From 16 November 2019, the Regulations will introduce two new provisional visas aimed at assisting regional Australia and a permanent visa pathway that will be available from November 2022. The Regulations will further introduce changes to the points test, awarding a greater number of points to those whose skills will make the greatest economic contribution.
Introduction of New Regional Provisional visas
The aim of the skilled migration program is to maximise the benefits of skilled entrants to the Australian economy and to stimulate regional areas. The regional provisional visas will be valid for five years.
Skilled Work Regional (Provisional) visa subclass 491
The subclass 491 visa will supersede the existing Skilled Regional (Provisional) subclass 489 visa. This is a points tested visa and will similarly require applicants to be nominated by a State or Territory government agency, or to be sponsored by an eligible family member residing in a designated regional area. To be eligible, applicants must not have turned 45 years of age at the time of their invitation to apply and must nominate an occupation on the prescribed list and have had their skills successfully assessed by the relevant assessing authority for their occupation.
The Department of Home Affairs has allocated 14,000 places per annum to this visa subclass.
Skilled Employer Work Regional (Provisional) visa subclass 494
The subclass 494 visa is a new and enhanced employer-sponsored visa intended to assist regional Australia within both the employer sponsored and labour agreement streams. The introduction of the subclass 494 visa will supersede the current Regional Sponsored Migration Scheme (RSMS) visa under subclass 187. It will require the applicant to obtain sponsorship from an employer and the position must be likely to exist for five years. To be eligible, applicants must be under 45 years of age, have competent English, their position must be on the prescribed list and they must be paid market salary rates. Further, the applicant must have undertaken the suitable skills assessment and have at least three years’ skilled experience in their nominated occupation, unless exempt.
The Department of Home Affairs has allocated 9,000 places per annum to this visa subclass.
Conditions on Provisional Visas
Conditions will be imposed on the above visas which will enforce the government’s intentions that visa holders live, work and study only in regional areas (condition 8579) and if employer sponsored, only in the nominated position for the duration of their provisional visa.
Introduction of New Regional Permanent residency pathway
The related permanent residency visa will be introduced from November 2022. Applicants will be required to have held either a subclass 491 or 494 for at least three years and have complied with their visa conditions and the income requirement must have been met for three out of the five years.  The income requirement is the minimum taxable income that an applicant must have earned for three of the five years whilst being on the temporary visa. This amount will be determined by the Department of Home Affairs and is yet to be confirmed. It is anticipated that the income threshold will be released closer to the introduction of the permanent residency visas in 2022.
Skilled Visa Points Test 
The amendments introduce a revised points system for the Skilled Migration visas. The Regulations will take effect from 16 November 2019, except for changes to the points test that apply to existing applications, but only insofar that it is beneficial for the applicant by providing additional points.
The changes to the points test are to introduce:

additional points for having a skilled spouse or de facto partner (10 points);
more points for applicants nominated by a State or Territory government or sponsored by a family member residing in regional Australia (15 points);
more points for having certain science, technology, engineering and mathematics (‘STEM’) qualifications (10 points);
additional points for applicants who do not have a spouse or de facto partner (10 points); and
additional points for applicants with a spouse or de facto partner who has competent English (5 points).

Where all other points claims are equal, invitations to apply for points tested visas will be ranked by the Migration Points Test as described below:

First – primary applicants with a skilled spouse or de facto partner;
Equal First – primary applicants without a spouse or de facto partner;
Second – primary applicants with a spouse or de facto partner who can demonstrate competent English but does not have the skills for skilled partner points (age and skills); then
Third – primary applicants with a partner who is ineligible for either competent English or Skilled partner points. These applicants will be ranked below all other cohorts, if all other points claims are equal.

The new ranking regime seeks to reward applicants with skilled partners or no partners and allocates those applicants with unskilled partners at the lowest level of priority. This is due to concerns that many unskilled immigrants are ‘piggy backing’ onto their skilled partner’s applications.
Visa Conditions
The purpose of the regional visa is to promote economic development in regional communities. Accordingly, holders of the new regional provisional visas will be subject to visa condition 8579, requiring the visa holder to live, work and study in regional Australia. If a visa holder chooses not to reside in regional Australia, this may result in cancellation of their visa.
The amendment also limits regional provisional visa holders from being granted any permanent skilled migration visa unless they have held their regional provisional visa for at least three years.
Designated Regional Areas
At the commencement of the new regional provisional visas it is intended that the designated regional areas will include all of Australia except for Sydney, Melbourne, Perth, Brisbane and the Gold Coast. Unlike the existing regime, the regions of Newcastle, Wollongong and the NSW Central Coast will be designated regional areas.
Marino Law is highly experienced in all aspects of migration law and can provide assistance for any matters relating to your visa or potential visa pathways. If you are unsure how these new changes may affect you, or if you need help with calculating your points tests and would like further advice regarding the visa application process, our team can assist you. Please do not hesitate to contact Marino Law to organise a consultation.
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