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Changes to bankruptcy notices and statutory demand procedures from 1 January 2021

Recent changes to bankruptcy regulations have again resulted in a movement in the goal posts for creditors and debtors.
The moratorium on bankruptcy measures ended on 31 December 2020 and as a result creditors were hopeful of a return to pre-Covid conditions to enable debt recovery processes to continue.
That is not the case. Whilst the time period to respond to bankruptcy notices has returned to the usual 21 days (which was temporarily 6 months during covid), the threshold amount to issue a bankruptcy notice has increased from the pre-Covid limit of $5,000 to $10,000. Meaning a creditor can only issue a bankruptcy notice for a judgment debt of equal to or exceeding the sum of $10,000. This has afforded more protection for debtors.
In relation to statutory demands the situation is a little more complex.
For a company that is eligible for temporary restructuring relief pursuant to the Corporations Amendment Act:
a) the statutory minimum amount for service of a statutory demand will remain at $20,000; and
b) the statutory period to respond to a statutory demand will remain at 6 months.
So in effect there will be temporary protection for debtor companies from the standard statutory demand procedures if they are eligible. There has been changes to the statutory demand form to take these changes into account.
That raises a question of when is a company eligible for temporary restructuring relief. The Corporations Amendment Act and Corporations Amendment Regulations suggest a company will be eligible for temporary restructuring relief where that relief has not been sought by the appointment of a small business restructuring practitioner. Also, the directors of the company must between 1 January 2021 and 31 March 2021 make a written declaration (Declaration) in the prescribed form and stating the required points set out in the form about its total liabilities and insolvency status amongst other matters including the non-appointment of a restructuring practitioner. The directors must publish notice of the Declaration on ASIC’s Published Notices website and give a copy to ASIC within 5 business days.
The Declaration will generally expire 3 months after publishing of the notice on ASIC’s Published Notices website. It may be extended for a further month if certain criteria are met including the directors have taken all reasonable steps to appoint a restructuring practitioner but have been unable to do so.
In relation to companies which have not made a Declaration, the statutory minimum and statutory period will revert to the pre-COVID-19 position from 1 January 2021, with the effect that:
1. The statutory minimum will revert to $2,000; and
2. The statutory period to respond to the demand will revert to 21 days after the date of service of the statutory demand.
It is important to note that a company will cease to be eligible for temporary restructuring relief if:
1) the Declaration expires;
2) the company fails to give ASIC a copy of the Declaration or Further Declaration within 5 business days of the notices publication;
3) an administrator is appointed, or a liquidator or provisional liquidator is appointed to wind up the company;
4) a small business restructuring practitioner is appointed to the company;
5) the company publishes a notice that it is not, or is not to be treated as, eligible for temporary restructuring relief; or
6) the Court orders that the company is not eligible for temporary restructuring relief.
If you require legal assistance please do not hesitate to contact McLaughlins Lawyers on (07) 5591 5099 and speak to one of our highly-skilled lawyers today.
 
Date: 11 January 2021
Author: Matt Kollrepp
Director: Ian Kennedy
The post Changes to bankruptcy notices and statutory demand procedures from 1 January 2021 appeared first on McLaughlins Lawyers.

New Enduring Power of Attorney Forms for Queensland November 2020

From 30 November 2020 new Enduring Power of Attorney Forms will take effect in Queensland. If you already have an Enduring Power of Attorney don’t panic these remain effective provided they are signed before 30 November 2020.
The new forms are more streamlined and allow for notification of important persons when the power is exercised. Much of the previous information and detail remains so it is important to be aware of the consequences of appointing a person as your enduring attorney.
So what is an Enduring Power of Attorney and why do you need one?
Every person has the right and power to make their own decisions and sign any legal documents dealing with their financial and personal and health matters provided they have the legal capacity.
Legal capacity can be lost through illness or accident. For example if you are in a coma following a car accident you lack capacity to deal with your needs. Also if a stroke or dementia robs you of the ability to manage your affairs it is important that someone can takeover. If there is no enduring power of attorney it can be a time consuming and costly process to have someone appointed through the Queensland Commercial and Administrative Tribunal (QCAT).
While you have capacity you have the opportunity to appoint someone you trust to make decisions, take necessary steps and sign documents if you lose capacity.  When a person is admitted to hospital or an aged care facility the first question is often who is the attorney for the person? And please provide a certified copy.
Because a power of attorney can be used to provide consent to medical procedures and sign contracts independent legal advice is always recommended and an Enduring Power of attorney can only be witnessed by a lawyer, justice of the peace commissioner for declarations or a notary public.
The original needs to be kept in a safe place and McLaughlins Lawyers offer to hold original powers of attorney in our safe custody.  We can also provide certified copies if and when required. A power of attorney only operates while you are alive so it is also important to ensure you have an up to date will. Remember if your circumstances change it is important to review and revoke any out of date powers and wills especially if you divorce or separate.
McLaughlins Lawyers have been helping people with powers of attorney and capacity issues for over 60 years. We understand how important it is to make sure your trusted family and friends can deal with your affairs if something happens – call Teresa Kearney or Dianne Ball on 07 5591 5099 or email [email protected] for  help.
 McLaughlins Lawyers, your experienced Gold Coast lawyers, we stand beside you and are here to help you and your family.
 
Author: Teresa Kearney
Director: Ian Kennedy
Date: 6 November 2020
The post New Enduring Power of Attorney Forms for Queensland November 2020 appeared first on McLaughlins Lawyers.

Costs – back to basics – what do I need to know

One aspect of litigation that deserves a little more attention than it gets is costs.
One of the common misconceptions around costs is that if you win you get your costs, being all of your legal costs.
The reality is somewhat different.
The first important point to note is that the Court has ultimate discretion in relation to whether to award costs.
The second point is that there is a rule in at least in relation to Queensland state court matters that costs in a proceeding follow the event, unless the Court orders otherwise.  This effectively means, if you are successful, the Court may award costs in your favour.  However, this is subject to a myriad of exceptions created by case law over time.
It is helpful to note that the Rules also permit settlement offers to be made throughout a proceeding which can improve a party’s position in the long run at least in relation to costs.
In the Magistrates Court jurisdiction for claims up to $50,000, the Rules set out prescribed amounts for what is known as standard costs.  The benefit of this is it creates some certainty about how much costs you may recover if you are successful.  These prescribed costs are sometimes significantly lower than the actual costs you will incur in a proceeding.  The issue this creates is if you are successful and costs are awarded on the standard basis in your favour, you may only recover a portion of your actual costs.
For successful claims above $50,000 in the Magistrates Court and claims in the District and Supreme Court of Queensland, costs on the standards basis may result in you recovering approximately 50% to 65% of your actual costs.
If you are unsuccessful with your claim or your defence of a claim, costs may be awarded against you.  So, in addition to you bearing your own legal costs, you may have to pay the other sides legal costs.
Courts have the power to award what are called indemnity costs in very exceptional circumstances, which means you may be able to recover the vast majority of your costs, providing you fall within an exceptional circumstance.  This usually only applies in cases where a claim has been dismissed and is an entirely frivolous or baseless claim or a party has unreasonably defended a claim without any proper basis.
An important take away here is if you are contemplating bringing a claim that you be prepared to ask your lawyers for some detailed advice about costs and that you properly consider their advice before going ahead as it can make the difference between a commercial outcome or otherwise.
If you have any questions about costs or litigation generally, please reach out to one of our litigation lawyers at McLaughlins Lawyers on 07 5591 5099; your gold coast premier law firm.
 
Author: Matt Kollrepp
Director: Ian Kennedy
Date: 27 October 2020
The post Costs – back to basics – what do I need to know appeared first on McLaughlins Lawyers.

Australia triples Global Talent visas

Last week the Australian government announced it would triple Global Talent visas from 5,000 places to 15,000 for individuals and businesses as part of the budget.
Global Talent visas are open to people and businesses overseas in targeted sectors:

Agricultural technologies including distribution
Space and advanced manufacturing
FinTech
Energy and mining technology
MedTech
Cyber security
Quantum information, advanced digital, data science and information communication technologies

The program is available to recent PhD or Master’s degree graduates in the above fields (in Australia or overseas) or those working in these fields that are paid more than A$153,600 (about US$111,000).
The program is also open for businesses (and key staff) in the above fields to relocate to Australia. The program builds on the announcement earlier this year on incentives for Hong Kong regional headquarter businesses to relocate to Australia.
The budget also included a one-off increase for family visas, which is mostly partner visas, from 47,732 to 77,300 visas. However, it announced new plans for an English test for sponsors and partner visa applicants. This is not law yet, but is likely to begin next year.
The government said it was prioritising employer-sponsored, global talent and business and investment visas as well onshore applicants and partner visas where the sponsor lives in a regional area (Gold Coast is regional).
To find out whether you are eligible to apply for the Global Talent program, contact us now on 07 5591 5099 and a member of our team will be happy to help.
 
Author: Sed Crest
Director: Ian Kennedy & Sophie Pearson
Date: 19 October 2020
 
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Family Law: “I love you, but… I want a Pre Nup”

Asking your partner for a pre-nup agreement does not mean that you are already looking at the exit door, rather it is often about creating certainty about what will happen to your assets if you do separate.
Raising this very delicate, and unromantic topic can be tricky. Choosing the right time and place, and the right words is important so that you can both have an honest and positive conversation about a subject many people wish to avoid – money.
Below are a few ideas about how you might start this conversation with your partner:

I have been reviewing my personal matters (eg. insurance and will) and it has been suggested to me it would be helpful if we had a prenup agreement.
Doing a prenup agreement now will protect both of us and save us from spending legal fees if we separate in the future.
We both have our own families and children and a prenup agreement can help us decide what we want to do with our money and property if we separate, which hopefully won’t happen.
We have both built-up the property and money that we now own, and I think it’s important that we should decide what will happen with it if we separate, we don’t want a judge telling us what to do.
If you think that this is a good idea for us to have a pre-nup then we can have a talk about what we want to happen with our property if we separate and we will each need to get our own lawyer to help us finalise the agreement.
We can sign a prenup agreement at any time we don’t have to wait for after the wedding.
I think this is an important step for both of us for our financial security for the future.

Joelene Nel uses her legal knowledge and skill to help people who want to sign pre-nup Agreements. Joelene is an experienced family lawyer an Associate Director at McLaughlins Lawyers.
If you would like to understand more about what is involved in a pre-nup agreement you can contact Joelene on (07) 5591 5099.
 
Author: Joelene Nel
Director: Sophie Pearson
Date: 28 September 2020
The post Family Law: “I love you, but… I want a Pre Nup” appeared first on McLaughlins Lawyers.

Challenging a Will…

One of the more common types of estate disputes is where the deceased failed to make adequate provision in their will for a person or left them out of the will entirely.
What can you do in those circumstances?
If you are eligible you can apply to the Court to ask for further provision from the deceased estate, which is more commonly known as a family provision application.
When do I have to Claim?
The time periods are strict!  In Queensland, you have only 6 months from the date of the deceased’s death to notify of your intention to claim and then, 9 months from the date of the deceased’s death to bring the claim in Court.
Who is eligible to make that claim?
Generally, the following categories of people are eligible:

the spouses of the deceased (including de facto and former spouses);
the children of the deceased and that extends to stepchildren and adopted children;
other dependants who were in some way supported by the deceased (that may include grandchildren, parents of the deceased and members of the deceased’s household)

What will the Court do?
 The Court will need to determine the individual circumstances of the case and make an assessment of whether to vary the will of the deceased.  Each case is different and the Courts will objectively view the merits of the case and make a decision accordingly.  The Courts are guided by the previous decisions that have come before them but there are no hard and fast rules about the likelihood of receiving an entitlement.
The Courts will balance the interests of the person bringing the application with those interests of the other beneficiaries.
What will the Court consider?
The Courts will generally look at a variety of factors including:

the size of the estate;
the financial position and need of the person making the application (applicant);
the applicant’s contributions (financial or otherwise) (if any) to the estate of the deceased;
the competing interests for the estate;
the relationship of the applicant to the deceased;
whether adequate provision has been made for the maintenance and support of the applicant.

If you have any questions or wish to discuss whether you have a claim, please reach out to one of the lawyers in our estate litigation team on (07) 5591 5099 and they will be happy to help.
 
Author: Matt Kollrepp
Director: Ian Kennedy
Date: 7 September 2020
The post Challenging a Will… appeared first on McLaughlins Lawyers.

Australia opens for priority occupations

Yesterday the Australian government announced a new list of 17 priority occupations that will be able to enter the country to fill urgent needs in critical sectors to help rebuild the Australian economy. Visa holders that are sponsored by an Australian employer in one of the priority occupations will be exempt from the ban on most temporary visa holders entering Australia.
The 17 priority occupations include managing directors, construction project managers, mechanical engineers, developer programmers, software engineers, maintenance planners, doctors, psychiatrists, nurses and midwives. For the full list of occupations, see the end of this article.
Applicants can be sponsored by the employer on the permanent residence 186 visa or the 482 temporary skills shortage visa or the 494 skilled regional temporary visa. Both of the 482 and the 494 visas can lead to permanent residence in Australia.
Visa holders will still need to follow the 14-day hotel quarantine requirements at their own expense.
The full list of priority migration occupation:

Chief Executive or Managing Director
Construction Project Manager
Mechanical Engineer
Developer Programmer
Software Engineer
Maintenance Planner
General Practitioner
Resident Medical Officer
Psychiatrist
Medical Practitioner nec
Midwife
Registered Nurse (Aged Care)
Registered Nurse (Critical Care and Emergency)
Registered Nurse (Medical)
Registered Nurse (Mental Health)
Registered Nurse (Perioperative)
Registered Nurses nec

If you are skilled in one of the occupations above, please contact McLaughlins Lawyers or Crest Migration on (07) 5591 5099 to find out if you are eligible to enter Australia.
 
Author: Sed Crest
Directors: Ian Kennedy & Sophie Pearson
Date: 4 September 2020
The post Australia opens for priority occupations appeared first on McLaughlins Lawyers.

Can I recover a debt from a debtor in New Zealand?

The simple answer is yes, it is possible to recover a debt from an individual or company based in New Zealand.
The Trans-Tasman Proceedings Act 2010 (NZ) provides for the registration and enforcement of Australian judgments in New Zealand.
We recently achieved a positive outcome for a client that was owed money by a company registered in New Zealand by issuing proceedings in Queensland, obtaining judgment in Queensland and subsequently registering the judgment in the Queenstown District Court of New Zealand.  We thereafter issued a Creditor’s Statutory Demand to the debtor based in New Zealand which resulted in full payment of the debt to our client, including costs and interest.
Here at McLaughlins we specialise in debt recovery. If you or someone you know is owed money by an individual or company in Australia or overseas, please do not hesitate to get in touch with our litigation team today on 07 5591 5099 to discuss how we can assist you.
 
Author: Alex Hamlyn
Directors: Ian Kennedy and Sophie Pearson
 Date: 2 September 2020
The post Can I recover a debt from a debtor in New Zealand? appeared first on McLaughlins Lawyers.

Buying property in Queensland – What do I need to know?

Now more than ever buying and living in safe environments is important. Regions and states with good health and safety records are top of the list and online marketing makes it easy to investigate.
Buying property in Queensland is different to other states of Australia so here’s a helpful need to know list.

Real estate agents generally prepare Real Estate Institute of Queensland (REIQ) and Queensland Law Society approved standard contracts.
The right buyer entity needs to be on the contract, so consult your accountant or financial adviser before signing or extra costs may apply.
Contracts are generally signed by both parties before searches are conducted which are the buyer’s responsibility. This differs from New South Wales and Victoria where lawyers or conveyancers generally prepare and exchange contracts with much search detail. Not all adverse search results allow you to pull out or receive compensation.
Cooling off is 5 business days from signing for residential, but if you pull out using cooling off a penalty of 0.25% of the purchase price can be imposed, so research values and the property carefully before you sign.
Most contracts are subject to building and pest inspections and finance within 14 days. Issues may arise, other conditions can be complex and so you may need legal advice.
Once contracts are unconditional both parties are bound to settle but there is a lot to organise to ensure you are ready to settle.
Electronic settlements can occur where both parties agree.
Stamp duty and transfer registration fees are payable to the Queensland government on a sliding scale depending on the price.
Time is of the essence in Queensland so all time limits are essential and consequences immediately flow once the time passes.

We offer a contract review before you sign which can help identify issues and smooth the process, so contact us early to protect your rights. Each property and transaction is unique and the above list does not cover the detail or legalities so getting the right advice can save you time, money and stress.
Buying property especially your home is exciting but can be complex in Queensland so call us for a quote to get expert advice and ensure you miss the pitfalls and move into your dream home or investment sooner.
McLaughlins Lawyers have been helping people buy and sell properties in Queensland for over 60 years. We understand how the Queensland property system works and can help you avoid the pitfalls and successfully become proud owners – call or email Teresa Kearney or Cassie Ross on 07 5591 5099 and they will be happy to help.
McLaughlins Lawyers, your experienced Gold Coast lawyers, we stand beside you and are here to help you navigate the property market.
 
Author: Teresa Kearney, Senior Associate
Director: Ian Kennedy
Date: 1 September 2020
The post Buying property in Queensland – What do I need to know? appeared first on McLaughlins Lawyers.

What if I have been left out of the will?

Losing a loved one is one of the hardest things to deal with and being left out of the will or not receiving your fair share can make the experience much worse.  Families can be complicated and sometimes favouritism or arguments can result in a will which cuts out those who may be entitled or in need of an inheritance.
Especially where there are blended families the gifts under a will can turn out to be an unfair result.
Sometimes a will can simply be out of date and so have unintended consequences.
A family provision application gives eligible people the right to seek a fairer share of the estate.
If you find out that you have been left out of a will or your share is less than is fair there are steps you can take to make sure you receive a fair share.

Ask for a copy of the will.
If you are a child, stepchild or spouse including de-facto spouse, or financial dependent you are likely to be entitled to make a claim.
See a lawyer as soon as possible or you may miss out because rights to claim may be lost by delay.

Remember there are strict time limits; in Queensland you need to give notice in writing that you intend to claim and dispute the will no later than 6 months after the date of death, so don’t delay.
McLaughlins Lawyers have been helping people with deceased estates for over 60 years. We understand how complicated families can be and sometimes you need help to make sure you receive a fair share – call Teresa Kearney or Matt Kollrepp on 07 5591 5099  or email [email protected] for  help.
McLaughlins Lawyers, your experienced Gold Coast lawyers, we stand beside you and are here to help you receive a fair share.
 
Author: Teresa Kearney, Senior Associate
Director: Ian Kennedy
Date: 25 August 2020
The post What if I have been left out of the will? appeared first on McLaughlins Lawyers.

Family Law: What can I do when COVID-19 has affected my parenting arrangements?

The impact of the COVID-19 pandemic has affected all areas of our day to day life, our professional life, our social life and our family life.  However, for some separated families the impact of COVID-19 on parenting arrangements has caused an extra level of stress for, not only the parents, but also the children.
In all parenting matters, it is important to be child focused and try and reach a positive outcome as quickly as possible. Negotiation and mediation are always the preferred options however, sometimes the intervention of the Court is required.
In order to meet these unusual and unique parenting issues arising from the Family Court System has created a special COVID-19 Court List.  This List is designed to deal exclusively with urgent family law disputes that have arisen as a direct result of the COVID-19 pandemic.
How is this COVID-19 Court List different from the usual court process?
This list only relates to parenting matters that must have arisen as a direct result of the COVID‑19 pandemic (e.g. where children are interstate and due to restrictions are unable to see the parents and trying to agree about arrangements have failed).
The matter must also be urgent.  You will have to explain to the Court what your particular circumstances around urgency are.
Does the COVID-19 Court List use the same court documents as for an ordinary parenting matter?
Yes, largely the documents are the same however, your affidavit needs to follow a certain COVID-19 template and deal with specific  criteria including, urgency, the direct result of COVID-19, risk to the children, attempts to resolve the matter and service of the Court documents on the other party.
Is the Court filing fee cost in the COVID-19 Court List the same as an ordinary parenting matter?
Yes, the costs to pay the Court for filing your matter are the same. Depending on what kind of orders you are asking for, the costs can vary from $360 to $485 (depending on if you are asking for interim and / or final orders); there are certain exemptions for payment of those fees.
What are the benefits of filing in the COVID-19 Court List?
Your matter will be assessed promptly to decide if it meets the criteria for the COVID-19 Court List and if it does, you will receive a first court date within 3 business days of your application being assessed by the Court.
If your application does not meet the criteria for the COVID-19 Court List, then the matter will be transferred to your nearest Court Registry to be allocated a date, which maybe 4 to 6 weeks from the date of filing. By way of example: if you file your court documents on 1 September 2020 asking for the matter to be heard in the COVID-19 Court List, and if it meets the COVID-19 Court List criteria it can then be heard on 4 September 2020.  If it does not meet the criteria, then it might be heard on 22 September 2020 – 6 October 2020 in your local Court Registry (e.g. Brisbane or Sydney).
Generally, all hearings continue to be a virtual court hearing by telephone or other electronic means (e.g. Microsoft Teams).
Do I need a lawyer?
As with all Family Court matters, you do not have to have a lawyer however, given the often complex nature of parenting matters, it is recommended to get legal advice. Our office has recently conducted a matter on the COVID-19 list which was heard by way of Microsoft Teams. Our office is set up with the latest technology to enable our clients and their support people to attend at the office, practising social distancing requirements and be present for the hearing.
If you have a parenting or family law matter which is affected by COVID-19 and you want more information about this process, here is a link to the Court website.  Otherwise, please feel free to contact one of our family lawyers on (07) 5591 5099 who are assisting parties in dealing with parenting matters during the COVID-19 pandemic.
 
Author: Joelene Nel
Director: Sophie Pearson
Date: 13 August 2020
The post Family Law: What can I do when COVID-19 has affected my parenting arrangements? appeared first on McLaughlins Lawyers.

Are verbal agreements legally binding?

The short answer to the above question is yes, but subject to a few formalities being met.
In its simplest form, a contract is an agreement between two or more parties that is intended to be enforceable at law.  Just because an agreement is not in writing does not mean that it will not be enforceable by a party to it.
There are only a number of contracts that must be in writing in order for them to be valid and enforceable and those include, contracts for the sale of land and contracts for the sale of a motor vehicle from a licenced dealer or trader, and guarantees.
When will a verbal agreement be binding?
In order for any contract to be binding at law there are a few essential elements which must be satisfied in that respect and they include:

An offer and acceptance;
Consideration – being the exchange of something of value for a promise;
An intention by the parties to create a legally binding agreement; and
Capacity – in that parties must have legal capacity to enter into a contract (i.e. a minor or someone not of sound mind will generally not be bound by a contract)

What problems will I have with a verbal contract?
Whilst verbal agreements are enforceable at law, a common problem that surrounds them and the enforceability of those contracts is proving the existence of the agreement and identifying the terms of the agreement.  In the absence of a written agreement, it is easier for a party to deny the existence of a verbal agreement and/or dispute the terms of the agreement and it generally will be one party’s word versus another party’s word, which can lead to a high level of uncertainty and doubt and thus lead to issues with enforceability of a contract.  Issues of credit become relevant and ultimately a court will need to make a determination about who is the more trustworthy witness.
Whilst “handshake deals” used to be the norm in business transactions, not just to limit the spread of Covid-19, but with a rise in contractual disputes, it is sensible for parties to, at the very least, confirm the agreement writing or enter into a written contract at the outset setting out the terms and conditions in detail to limit the prospects of a dispute.
Final takeaways
In summary, whilst a verbal agreement is enforceable provided the relevant formalities are met, it makes much more sense to properly document an agreement between parties.  When drafting more complex agreements, it is sensible to seek some legal advice or assistance in drafting the agreement to ensure the agreement covers all bases.
In the event that you are uncertain around the meaning of a term or the contract in general, it is important to seek legal advice in those circumstances. Please contact one of our lawyers in our property commercial and/or litigation teams to discuss the drafting and/or enforceability of contracts.
Call us on (07) 5591 5099 and a member of our team will be happy to help.
 
Author: Matt Kollrepp
Director: Ian Kennedy
Date: 28 July 2020
The post Are verbal agreements legally binding? appeared first on McLaughlins Lawyers.

Visa options expand for Hong Kong businesses and citizens

Last week the Australian government said it will expand visa programs to allow businesses in Hong Kong and their staff relocate to Australia. It also announced visa extensions for Hong Kong citizens in Australia.
The government said new incentives are planned to attract export-oriented Hong Kong-based businesses to move to Australia. Permanent visa pathways are planned for all critical Hong Kong staff. Regional headquarter businesses in Hong Kong will be targeted to relocate to democratic Australia.
Business and investment visa applications already lodged in Hong Kong will be processed faster when the visa processing centre re-opens in the next few days.
Hong Kong citizens in Australia will receive a further five-year stay on top of their current visa for 485 graduate visas, 457 and 482 visa holders. Students from Hong Kong can also apply for a five-year graduate visa after they study in Australia. There will also be a pathway to permanent residence at the end of the five-year period.
Hong Kong students that study in a regional location like the Gold Coast will have access to a pathway to permanent residence after three years. Future successful skilled visa applicants from Hong Kong will receive the additional 5 years and a pathway to permanent residence after that.
To find out more about visa options expanding for Hong Kong businesses and citizens, contact us now on (07) 5591 5099 and a member of our team will be happy to help.
 
Author: Sed Crest
Directors: Ian Kennedy and Sophie Pearson
Date: 16 July 2020
The post Visa options expand for Hong Kong businesses and citizens appeared first on McLaughlins Lawyers.

What Can I Do If The Other Parent Moves Away With My Child, and I have not agreed?

If you are a parent who is not spending time with your child(ren), this can be sad, disappointing and frustrating.  Often it can be concerning and frightening, especially if the other parent has made a decision to move away without telling you, or without you agreeing, and taken your child(ren) with them.
Before you can go to court and ask the Court to make orders for you to spend time with your child(ren) or for your child(ren) to live with you or to move back, both parties are required to attempt mediation (also known as family dispute resolution).  If that mediation does not resolve the matter you are then provided a certificate (known as a Section 60I Certificate) which you then have to give to court to show them that you have tried to mediate before you start court proceedings.
There are some circumstances where you are exempt from having to go to which includes, urgency, issues of safety or harm, and domestic or family violence.
In a recent court case, a Father went straight to court to get court orders to have his child returned to the town where he lived, without going to mediation first. The Mother had moved away from the town, with the child, without the Father’s knowledge and agreement.
The Father was asked by the Court why he hadn’t tried mediation and why he had not obtained a Section 60I Certificate.
The Court decided that the Father should have tried mediation before coming to Court and that generally the parents should always be given an opportunity to try and reach agreement about arrangements for their children before the Court gets involved.
Not attending mediation first cost this father time, money and further stress by having to deal with this matter again.
As clichéd as it sounds, rules are there for a reason.  Seldom would you want to take the chance of not following the rules, especially when it has to do with your children.
Whilst you may feel like it is unfair, or it could take too long, or it is too complicated to follow the rules – if you don’t do this, you may risk the Court making a decision that means you have to go back and start again.
Joelene Nel is an Associate Director Family Lawyer at McLaughlins Lawyers. She is also a Collaborative Lawyer, Nationally Accredited Mediator and Family Dispute Resolution Practitioner.
If you would like advice about your family law matter, you can contact Joelene on (07) 5591 5099.
McLaughlins Lawyers, your experienced Gold Coast lawyers, we stand beside you and are here to help you when you need us.
 
Author: Joelene Nel
Director: Sophie Pearson
Date: 2 July 2020
The post What Can I Do If The Other Parent Moves Away With My Child, and I have not agreed? appeared first on McLaughlins Lawyers.

Zoom – The New Way To Do Business

This article is not sponsored by Zoom and maybe I should really say “video-conferencing or face-time or Skype or (Insert your preferred video-conferencing tool here) – the new way to do business”.
The reality is that Zoom has become McLaughlins Lawyers’ video-conferencing tool of choice and I am unapologetic about that bias.
When the Covid restrictions and guidelines were imposed months ago now, the majority of our staff very quickly moved to remote working from home.
We quickly set up remote computer access for all our staff to our dedicated servers and with our phone system were able to seamlessly handle telephone calls with no impediment to our clients contacting us.
We continued to be available and to work without a hitch.
What became quickly apparent, because we were initially all working from our individual homes, was the need to collaborate face to face with colleagues and to socialise face to face.
Zoom has enabled us to meet those needs. We have a daily morning social catch up by Zoom for whoever wants to check in – you know – the water cooler, or first morning coffee, catch up on what people watched on TV the night before.
We have zoom meetings between staff during the day whenever there is a need to collaborate. The screen sharing capability makes that collaboration on documents probably better than standing over someone’s shoulder in the office as they discuss a document.
As we have now started to transition back into the office we are discovering a great balance that enables the staff to work from home or the office depending on what works best at the time for them, their team, and their family.
We have permanently set up video conferencing facilities in the McLaughlins office on a large interactive screen that enables large zoom meetings to easily be held.
We will continue to use Zoom video conferencing even as the restrictions lift. It enables us to more easily and conveniently interact with clients giving them advice and taking them through documents without the need for them to leave their home or work. That can be a huge saving of time and avoiding unnecessary interruption in a clients day.
See our earlier articles below during March and April about ways we have adapted to enable witnessing of documents and Wills and taking instructions for Wills. Some of these changes are temporary during the Covid crisis but some will be here to stay and will become part of the new way we do business for the convenience of everyone involved.

Special rules for signing wills during the Covid-19 pandemic – do i still need 2 independent witnesses?
Settify – Wills Lawyers enlist tech to serve rising client demand during self-isolation.
New Queensland titles office ways for witnessing during the Covid-19 pandemic.

If you need assistance on a legal matter contact our team on (07) 5591 5099 and a member of our team will be happy to help.  McLaughlins Lawyers, your experienced Gold Coast lawyers, we stand beside you and are here to help you when you need us.
 
Author: Ian Kennedy
Director: Ian Kennedy and Sophie Pearson
Date: 26 June 2020
The post Zoom – The New Way To Do Business appeared first on McLaughlins Lawyers.

Investing in Australia – What you need to know

FIRB Changes
Foreign Investment Review Board
As a result of the Covid-29 pandemic at the end of March 2020 the Australian government announced significant changes to the Foreign Investment Review Board (FIRB) regime.
$NIL threshold
From 29 March 2020 to 1 January 2021, all monetary thresholds for previous exemptions to seek FIRB approval for foreign investment have been reduced to $0 for all countries and all types of investment. The concern apparently is that economic restrictions and the resulting downturn may result in distressed assets and businesses looking to sell at discounted prices to cashed up foreign interests.  This is considered to not be in Australia’s national interest under the current circumstances.
Now a foreign person requires FIRB approval before:

optioning or contracting for any interest in land in Australia;
entering into a commercial lease of five years or more; and
acquiring an interest of 20% or more of the shares in any Australian company.

Certain Exemptions remain
Acquisitions in Australian companies and businesses of less than 20%, provided no Australian land is held, remain exempt.
Applications that protect and support Australian business and Australian jobs are to be given priority.
Time frames have been extended from 30 days to 6 months so any contracts subject to FIRB approval need to allow a reasonable time with a right to extend up to 6 months.
On 5 June 2020 the Australian government announced these new rules will cease on 1 January 2021 and in the meantime new laws are intended to be passed to commence on 1 January 2021, proposing a new national security test for sensitive businesses. Sensitive businesses have been flagged as those which have access to data critical to Australia’s national security and defence.
The Foreign Acquisitions and Takeovers Act 1975 and the FIRB Policy are complex laws and the changes will mean it is critical to get the right advice where foreign aspects are contemplated in business or land transactions.
McLaughlins Lawyers have advised local and foreign businesses and individuals concerning foreign interests for over 60 years, are experienced and understand the times and changes so are able to help you plan investments and business ventures – Call one of our experienced solicitors today on (07) 5591 5099 and a member of our team will be happy to help.
McLaughlins Lawyers, your experienced Gold Coast lawyers, we stand beside you and are here to help you when you need us.

Author: Teresa Kearney & Sed Crest
Director: Ian Kennedy
Date: 18 June 2020
The post Investing in Australia – What you need to know appeared first on McLaughlins Lawyers.

BE CAREFUL WHAT YOU POST!

In a controversial and interesting District Court case, a Judge has recently awarded a plaintiff the sum of $35,000 in damages after a Judge found the plaintiff was defamed by a single Facebook post in a Sydney community Facebook group.
The plaintiff successfully argued that the post in the Rose Bay Group by the defendant in November 2018, conveyed imputations that the plaintiff was a danger to women and a stalker.
The online dispute came about when the plaintiff started a rival community Facebook group a year before the post after being banned from the official Rose Bay Group page.
Following the defamatory post, the plaintiff filed a statement of claim in the District Court alleging he was defamed by the post.  As is more common these days, the defendant set up a ‘Go Fund Me’ campaign to assist in payment of her legal fees, but that backfired when the ‘Go Fund Me’ page got her in further trouble as the page made further reference to the defamatory material.
The plaintiff was forced to bring an application for an injunction against the defendant to prevent her from further posting defamatory material about the plaintiff.
Whilst the award of damages was not overly significant, when coupled with the potential legal costs consequences that follow, the overall financial detriment can be significant.
Given the viral nature of social media, it is unsurprising that online comments have formed the basis of some recent defamation proceedings. It is important to remember that social media platforms are public domains, and the comments you make can lead to litigation and expensive consequences.
The prevalence of online trolls keen to post their unfiltered views about everything has led to an influx of cease and desist letters and defamation cases in the courts.
You should proceed with caution before posting inflammatory or unkind words about another person, or even a small business online.  Given the potentially huge audience for your post, the level of damages grows exponentially because of the number of people that view the defamatory material.  As a general rule, if you’re not prepared to say something to the person’s face, it’s generally not something that’s appropriate to be posted on social media.  If you are expressing an opinion about someone, you should identify that it is an opinion and you should ensure it is based upon facts that you know to be true and where you can verify those facts.
If you find yourself on the receiving end of a cease and desist letter, don’t ignore it.  Seek legal advice immediately and contact us on (07) 5591 5099 as you may have a small window to stave off legal proceedings.
McLaughlins Lawyers, your experienced Gold Coast Lawyers, we stand beside you.
 
Author: Matt Kollrepp
Director: Ian Kennedy
Date: 12 June 2020
 
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Queensland flexible on 491 small business owner visa pathway

Queensland government officials announced on Wednesday they are taking a flexible approach for the 491 small business owner visa pathway to permanent residence. They advised applicants could include marketing, refit, working capital and other expenses to make up the purchase price of $100,000 of a business in regional Queensland.
This means a cook could buy a bakery on the Gold Coast for $80,000 and make up the balance to $100,000 through working capital and planned marketing expenses and still qualify under the program.
Applicants need to have bought and operated a business in regional Queensland (anywhere but Brisbane) for at least 6 months and have employed at least one Australian resident under the program. Queensland clarified that the employee does not need to be employed for the entire 6 month period, but needs to be employed at least 20 hours per week at the time of application.
Queensland also clarified that the Australian resident employee does not need to be an Australian citizen or permanent resident. They could even be an international student.
Queensland also advised they were taking a flexible approach on the 6-month rule due to business closures due to covid-19.
The 491 visa leads to permanent residence after three years through the 191 visa as long as the applicant lives and works in a regional location and has a taxable income of at least $53,900 each year.
The 491 visa is open to applicants under 45 with competent English and a positive skill assessment from a skills assessing body on the long 491 occupation list. Queensland has a limited number of 491 visa allocations. Find out now whether you are eligible before the allocation runs out.
To find out more about this very attractive Queensland pathway to permanent residence, contact us now on (07) 5591 5099 and a member of our team will be happy to help.
 
Author: Sed Crest
Directors: Ian Kennedy and Sophie Pearson
Date: 5 June 2020
The post Queensland flexible on 491 small business owner visa pathway appeared first on McLaughlins Lawyers.

UPDATE: Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld)

The Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) (the Regulation) was recently passed on 28 May 2020.
The Regulation gives legal effect to the National Cabinet Mandatory Code of Conduct – SME Commercial Leasing Principles (the Code) concerning commercial tenancies (including retail and industrial tenancies) suffering financial distress as a result of the COVID-19 pandemic.
The Regulation will apply to affected tenancies until the end of the “response period,” which is defined as the period from 29 March 2020 to 30 September 2020.
McLaughlins Lawyers recently published a blog outlining the good faith leasing principles prescribed by the Code, which can be accessed via the following link.
Since the introduction of the Code, we have assisted several clients (including both landlords and tenants) to negotiate their current leasing arrangements in light of the financial impact of the COVID-19 pandemic.
If you are a commercial landlord or tenant that has been affected by the COVID-19 pandemic, please contact our office on (07) 5591 5099 and speak to one of our commercial lawyers today.
 
Author: Alex Hamlyn
Directors: Ian Kennedy and Sophie Pearson
 Date: 2 June 2020
The post UPDATE: Retail Shop Leases and Other Commercial Leases (COVID-19 Emergency Response) Regulation 2020 (Qld) appeared first on McLaughlins Lawyers.

McLaughlins Lawyers made the move to work from home

Here are 5 ways McLaughlins Lawyer have made the move to Work from Home:

Continuity – we have kept our weekly Wednesday team meetings going, we continue to share information about professional developments and latest court updates, but we now do this via an online platform.
Comedy  – we have created a WhatsApp group for staff to share humorous jokes and funny anecdotes for a laugh during the day.
Clients – we have kept clients up-to-date about the changes in our offices and have made sure that they know they can still trust us and that we are working hard to meet their legal needs, in a safe way.
Connected – We have a daily  9:30 am online catch up for those who are free or wish to check and see how everyone else’s and touch base no legal talk here. This makes us feel connected the way we might do if we were in the office and having a quick chat whilst making a cuppa.
Comfort – we have checked in with each of our staff members to make sure that their work from home arrangement is suitable and made any changes that need to be made so they are able to be productive and efficient whilst working at home.

McLaughlins lawyers are still able to offer the full range of service we always have and whilst most of our work is done from home, where necessary we go to the office for a limited time to be able to do certain functions that cannot happen whilst working from home e.g. settlements.
If you need assistance on a legal matter contact our team on (07) 5591 5099 and a member of our team will be happy to help.
The post McLaughlins Lawyers made the move to work from home appeared first on McLaughlins Lawyers.