The National Cabinet recently introduced a mandatory National Code of Conduct (Code) to govern commercial tenancies (including retail and industrial tenancies) suffering financial distress as a result of the COVID-19 pandemic.
Objective
The Code establishes a set of good faith leasing principles to be applied by owners/operators/landlords/tenants in negotiating amendments to current leasing arrangements, with the overall objective of the Code being to proportionately share the cash flow impact between the landlord and tenant during the COVID-19 pandemic.
The Code requires landlords and tenants to work together and negotiate appropriate and proportionate temporary leasing arrangements with regard to the tenant’s revenue, expenses and profitability.
Does the Code affect me?
The Code applies to all tenants that meet the eligibility criteria of the Commonwealth Government’s JobKeeper Programme (i.e. the business has lost more than 30% of its revenue in comparison to a comparable period a year ago) and has an annual turnover of up to $50 million.
Despite outlining this eligibility criteria, the Code also states that during the COVID-19 pandemic period, the principles of the Code should “apply in spirit” to all leasing arrangements for affected businesses.
Leasing Principles
The Code outlines a number of principles that should be applied on a case-by-case basis, including the following:

Landlords must not terminate leases due to non-payment of rent during the COVID-19 pandemic (or reasonable subsequent recovery period).
Landlords must offer tenants reductions in rent, in the form of waivers or deferrals, based on the reduction in the tenant’s trade during the COVID-19 pandemic (or reasonable subsequent recovery period).
In conjunction with paragraph 2 above, rental waivers must constitute no less than 50% of the total reduction in rent payable by the tenant.
If rent is deferred, payment of the deferred rent must be amortised over the balance of the lease term and for a period of no less than 24 months, whichever is greater (unless otherwise agreed between the parties).
No fees, interest or other charges may be applied with respect to rent waived and no fees, charges or punitive interest may be charged in relation to deferred rent.
Landlords must not draw on a tenant’s security (i.e. bank guarantee, cash bond or personal guarantee) for the non-payment of rent during the COVID-19 pandemic (or reasonable subsequent recovery period).
Landlords must freeze any rent increases until the pandemic is over (excluding retail tenancies where the rent is calculated pursuant to turnover rent).
Tenants should be provided with the opportunity to extend leases for an equivalent period of the rent waiver and/or deferral period to provide tenants with additional time to trade on existing lease terms.

McLaughlins Lawyers remains committed to assisting your business during the COVID-19 pandemic and we continue to monitor the application and implementation of the Code carefully.
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: 14 April 2020
The post UPDATE: CHANGES AFFECTING COMMERCIAL LEASES appeared first on McLaughlins Lawyers.

Growing concern over the Coronavirus has prompted a surge in people wishing to make or change their wills. Coming at a time when lawyers are moving out of their offices to self-isolate, the rising demand is being served by a cadre of tech-enabled lawyers.
Early warnings about Coronavirus have already led to a 20% spike in enquiries, according to Anna Hacker, national manager of estate planning with Australian Unity Trustees.
Settify is amongst a raft of online technologies that were popular before the virus, but are now becoming vital. An Australian invention that is used by nearly 250 law firms worldwide, Settify is an interactive system that can be accessed from a firm’s website or by emails sent to new clients. It uses Artificial Intelligence to ‘interview’ clients online, prompting them to consider their estate planning decisions, and compiling a brief of information for lawyers, who can then prepare a draft will before the first conversation with the client.
Traditional in-person follow-up meetings, where lawyers and clients finalise documents, are being replaced by Skype, Zoom and FaceTime video calls. Online appointment booking, secure document sharing platforms, and digital signing are also being put to use.
And as legislators struggle to keep pace with the changing landscape, moves are afoot in most states and territories to allow for remote witnessing of wills and powers of attorney during the COVID-19 pandemic. Currently, these documents must be witnessed in person in order to be valid.
Teresa Kearney of McLaughlins Lawyers on the Gold Coast said “because of the pandemic and the social distancing requirements of our federal and state governments and the fact that people may urgently need a will when they must legally isolate themselves, there are  now special rules to allow signing with only 1 witness or no witness in these exceptional circumstances only.
 In a procedure approved through our Queensland Law Society and the professional indemnity insurer we can prepare your will and send a copy to you with a letter of instructions and checklist electronically.”
About Settify: Settify is a legal tech company aiding law firms with engaging new clients online, by providing advanced technology solutions to support estate planning and family law practices. Clients engage with interactive, conversational online systems, helping them to understand where they stand, the issues they’ll face and how their lawyers can assist. Launched in 2017, Settify has been adopted by 250+ firms around Australia, New Zealand and the United Kingdom. To date, clients with legal matters worth over $44bn in aggregate have commenced their legal journeys via Settify. Settify has received multiple awards, including the Law Institute “Innovation Award”​ in both 2017 and 2018. It is their belief that technology will improve the power, efficiency and effectiveness of legal services. Their core philosophy is that the relationship of trust between lawyers and clients will always be paramount.
McLaughlins Lawyers are with you and your family especially now in difficult times, helping with emergency measures. We have been preparing succession plans for Queenslanders and helping with deceased estates for over 60 years.  Email  [email protected] or Call Teresa Kearney or Dianne Ball on 07 5591 5099 for help.
McLaughlins Lawyers, your experienced Gold Coast lawyers, we stand beside you and help out with practical advice and safe ways to look after you and your loved ones.
 
Author: Teresa Kearney
Director: Ian Kennedy
Date: 6 April 2020
The post Settify – Wills lawyers enlist tech to serve rising client demand during self-isolation appeared first on McLaughlins Lawyers.

On 6 April 2020 the new Titles office options for witnessing land title documents launched. Access the link.  “Effect of COVID-19 on the witnessing of Land Title Act, Land Act and Water Act Titles Registry instruments – New options for witnessing from 6 April 2020 until further notice”
If someone is in COVID-19 related quarantine or isolation, the witness can view the individual signing the document live with a video link (e.g. Zoom, Skype, facetime) then the document can be sent or delivered to the witness to be physically signed as witness.
This option is available only if:

The person signing is in quarantine or isolation for Covid-19;
The witness has taken reasonable steps to verify the identity of the person signing and that they are the legal owner or entitled to sign; and
The witness is a qualified Australian lawyer, commissioner for declarations or justice of the peace. (McLaughlins Lawyers have several fully qualified lawyers and a commissioner for declarations able to witness your signature).

Where you are a client of McLaughlins Lawyers our identification procedures at the commencement of our first file with you mean we can verify your identity.
If you are not yet our clients we can take reasonable steps to identify you through photograph and signature identity documents and check title records and rates records for confirmation of your entitlement to sign.
Please note this is a temporary measure and only available where there are quarantine or isolation requirements.
We will keep you posted on changes and make sure your interests are protected.
WARNING! Do not attempt to undertake this process without consulting one of our team to ensure you are taking the best path to make sure your titles office document and witnessing is valid and will be registered by the Registrar of Titles.
McLaughlins Lawyers are with you, your business and your family especially now in difficult times, helping with emergency measures and innovative ways with witnessing. We are still open for business and working harder than ever for Queenslanders and helping with real estate and titles office transactions for over 60 years.  Email  [email protected] or Call Teresa Kearney or Cassie Ross on 07 5591 5099 for help.
McLaughlins Lawyers, your experienced Gold Coast lawyers, we are an essential service, open for business, standing beside you to help with timely practical advice and safe ways to keep your sales, settlements and transactions on track.
 
Author: Teresa Kearney, Senior Associate
Director: Ian Kennedy
Date: 6 April 2020
The post NEW QUEENSLAND TITLES OFFICE WAYS FOR WITNESSING DURING THE COVID-19 PANDEMIC appeared first on McLaughlins Lawyers.

The Australian government has announced a new stream of the 408 Temporary activity visa as a result of the coronavirus with a nil visa application charge.
To be eligible for the new 408 visa, applicants must be in Australia and unable to depart due to the coronavirus pandemic. They must also hold a visa that will end in 28 days or less or have held a temporary visa that has expired no more than 28 days ago. Applicants also must not be able to apply for any other temporary visa besides the 408 visa. The new visa is designed to respond to workforce shortages in areas such as agriculture, aged care and public health. The new visa allows those with relevant skills to undertake critical work on the supply of essential goods and services.
Australian citizens that have lost their jobs due to the coronavirus have access to JobSeeker and JobKeeper payments. Most temporary visa holders are not so lucky. There is some help available however, depending on your visa type.
The JobKeeper payment allows eligible employers affected by the coronavirus to receive $750 a week to pay eligible employees for up to 6 months. Eligible employers are small businesses with less than $1 billion turnover whose revenue has dropped more than 30%. Large businesses with turnover more than $1 billion whose revenue has dropped more than 50% are also eligible.
Eligible employees for the JobKeeper payment are those that were employed on 1 March 2020 and includes employees that have been temporarily stood down. Eligible employees are full-time, part-time and causal employees that have been employed more than a year on 1 March 2020. Apart from citizens, the payment is also available for employees that are:

Permanent resident visa holders; and
New Zealand citizens in Australia holding a 444 special category visa.

Temporary visa holders are not eligible for JobKeeper payments. The Australian government has announced that temporary visa holders with work rights can access up to $10,000 of their superannuation. Temporary visa holders include 457, 482, 491, 494, 407,408 and 485 visas.
Holders of 457 or 482 visas that have been stood down, but not laid off, will still be able to maintain their visa validity. Businesses will able to reduce the hours of the visa holder without them being in breach of their visa conditions. Holders of a 457 or 482 visa that have been laid off and cannot find a new employer to nominate them will need to apply for another type of visa or leave the country. Their employment experience will still count under the temporary residence transition streams.
Working holiday visa holders (462 and 417 visas) working in critical sectors will be exempt from the six months work limitation with one employer. People in this group can also apply for another working holiday visa without doing regional work for 90 days. Critical sectors include health, aged and disability care, agriculture, food processing, food supply chains and childcare. The government said it will provide some flexibility on what is considered a critical sector.
The government wants working holiday visa holders that have lost their jobs to self-isolate for 14 days before relocating to help harvest food and produce. The government has threatened visa cancellation for people that do not follow the self-isolation rules. Guidelines are available for farmers in living and work arrangements to comply with social distancing. Interested working holiday visa holders will be able to register for this programme at www.australia.gov.au
Pacific and seasonal workers (403 visa holders) can extend their stay in Australia for up to 12 months to work with approved employers.
Student visa holders working in aged care and nursing can work more than 40 hours per fortnight without breaching their visa conditions. This also applies to student visa holders working in major supermarkets, but this will end on 1 May 2020. Students in financial hardship that have been in Australia for more than a year will be able to access up to $10,000 of their superannuation. The government has announced it will be flexible in cases where the coronavirus has prevented students from meeting their visa conditions – such as not being able to attend classes. For other students on a visa, the 40 hours per fortnight restriction will remain.
The government has advised visitor visa holders in Australia without family support to return to their home country as quickly as possible. Many people are unable to travel due to cancelled flights and travel bans in their home country. The immigration department has said it is taking a light-handed approach on granting visitor visas where a visa is about to expire and waiving no further stay conditions.
People on bridging visas that do not allow them to work can apply for work rights if they are in financial hardship.
Apart from the 408 visa, the above measures are policy at this stage. Parliament has not yet passed legislation to put the measures in place.
Stay safe. We will get through this. If you need further advice, please do not hesitate to get in contact McLaughlins Lawyers on (07) 5591 5099 and a member of our team will be happy to help.
 
Author: Sed Crest
Director: Ian Kennedy and Sophie Pearson
Date: 6 April 2020
The post New coronavirus temporary activity visa announced today appeared first on McLaughlins Lawyers.

The Family Court of Australia and Federal Circuit Court of Australia have published a series of Questions and Answers for parents who may have concerns relating to parenting arrangements amid the COVID-19 pandemic.
The Q&As from the Family Court of Australia are available HERE.
The Q&As from the Federal Circuit Court of Australia are available HERE.
If you have any questions in relation to the above and/or need assistance on a family law matter, please do not hesitate to contact us on (07) 5591 5099 and a member of our team will be happy to help.
The post Family Law Important updates from the Courts: COVID-19 appeared first on McLaughlins Lawyers.

The COVID-19 virus is causing chaos for our families, jobs and businesses in Australia. Some employers, forced to close their doors temporarily, face difficult decisions on employees. Employers with visa-sponsored workers also need to be careful about their obligations and how their decisions will affect sponsored staff.
Under the current law, Working Holiday visa holders and temporary visa holders cannot access federal government benefits if they lost their job. The Migration Institute of Australia is now in discussions with Home Affairs and the Acting Minister for Immigration Tudge on measures to protect these people. Home Affairs is working with the Health and Social Security departments to develop strategies to protect this vulnerable group. The Migration Institute of Australia is also lobbying for a new COVID19-specific fee-free visa, which would mean holders have work rights and access to Medicare for the duration of this global emergency. We will advise as soon as we receive the outcomes of these discussions.
The Migration Institute of Australia has raised the issue of sponsoring employer obligations with Home Affairs. The immigration department is aware that sponsored employees without work due to forced business closures will need to be re-engaged when those businesses are permitted to reopen.
Workers holding a 457, 482 or 494 employer-sponsored visa will breach their visa conditions if they are not employed by their sponsoring employer for a period longer than 60 or 90 days, depending on the visa. There is also the problem they cannot work for another employer unless the new employer nominates them. If employers end employment of their sponsored staff, they have 28 days to notify Home Affairs. There is the option of paid leave in the short-term with the hope things will improve soon.
Employees holding a 187 employer-sponsored visa risk having their visa cancelled if they do not work in a regional location for two years from date of visa grant. Employers should notify Home Affairs as soon as possible if they end employment of a 186 or 187 sponsored employee. There is also the paid-leave short term option for this group.
For employers with staff that hold a student visa, Working Holiday visa or bridging visa, there are no notification requirements for these employees if their employment ends.
Visa holders and employers must remain lawful during this crisis. If you are not sure how to comply, contact us now for help on 07 5591 5099. We will keep you updated, when we receive any new information. Stay safe. We will get through this.
 
Author: Sed Crest
Date: 30 March 2020
The post When visa-sponsored employees end employment appeared first on McLaughlins Lawyers.

The short answer is yes for normal circumstances, the Succession Act 1981(Qld) still requires a will for Queenslanders to be signed by the will maker or testator and witnessed by and in the presence of 2 independent witnesses over the age of 18.
However because of the pandemic and the social distancing requirements of our federal and state governments and the fact that people may urgently need a will when they must legally isolate themselves, there are now special rules to allow signing with only 1 witness or no witness in these exceptional circumstances only.
In a procedure approved through our Queensland Law Society and the professional indemnity insurer we can prepare your will and send a copy to you with a letter of instructions and checklist electronically. You must print a copy of the Will one sided, carefully read and approve the terms of the will and if possible contact us through video conferencing, through facetime, zoom or skype or if not possible phone us so we can observe or be aware you are signing your will informally.
If possible video yourself with your mobile phone or have someone video you signing the bottom of every page and on the final page where indicated as testator, fill in the date and write the words in bold below in the witness details section on the final page:-
“I have signed this Will with the intention that it is to take effect immediately as my last Will and Testament. I understand and intend this document will operate to dispose of my property on my death although my signature has not been witnessed by two (2) independent witnesses. I do not require any changes to this document.”
Say in the video a brief explanation of attempts to arrange for and reasons why you were unable to locate 2 independent witnesses, confirm you don’t wish any changes and intend the document you signed to operate immediately as your Will.
If possible, scan, take a clear photo of each page and email a copy of the signed document and video to us. Then call us to let us know you have informally signed your will and where the original is located in a safe place if you cannot send it to us by registered post for safe custody. Staple or secure the pages in order and do not mark, clip or attach anything to the will.
This is an emergency measure and once the danger is passed all wills should be re-signed before 2 independent witnesses and we at McLaughlins Lawyers will be here to arrange this for you.
If a re-signing is not possible then executors need to apply to the court for a declaration that the will you signed is a valid will. We at McLaughlins Lawyers have experience in applications to the court and have successfully handled many deceased estates with complex and challenging issues.
WARNING! Do not attempt to undertake this process without consulting one of our team to ensure you are taking the best path to make sure your Will is valid.
McLaughlins Lawyers are with you and your family especially now in difficult times, helping with emergency measures. We have been preparing succession plans for Queenslanders and helping with deceased estates for over 60 years.  Email  [email protected] or Call Teresa Kearney or Dianne Ball on 07 5591 5099 for help.
McLaughlins Lawyers, your experienced Gold Coast lawyers, we stand beside you and help out with practical advice and safe ways to look after you and your loved ones.
 
Author: Teresa Kearney
Director: Ian Kennedy
Date: 26 March 2020
The post SPECIAL RULES FOR SIGNING WILLS DURING THE COVID-19 PANDEMIC – DO I STILL NEED 2 INDEPENDENT WITNESSES? appeared first on McLaughlins Lawyers.

No-one likes uncertainty, least of all children. Corona virus is scary for all of us, and families will need to work together to make sure anxiety and worry don’t take over.
In families where children are moving between houses, with different rules and different styles of parenting, this time may prove extra tricky. Our wellbeing, health and safety should remain at the forefront of the decisions we make.
Here are some tips to consider:
Comfort
Your children may be scared and worried as we are preparing for dealing with this unknown illness. It is helpful for both parents to send the same message to their children and acknowledge their children’s feelings. Speaking to your children, in an age appropriate manner and with factual information may be one way to reduce your child’s concerns.
Communication
Parenting arrangements may need to change from the ordinary routine that everyone is used to, to different, more flexible arrangements.  Some parents may need to self isolate, where one parent has travelled overseas – parents will need to accommodate each other with these changes. It may also be helpful to look at other options to communicate with the children, such as video calls, telephone calls. Offering makeup time for the parent who had to self isolate could be an idea for a discussion and consideration.
Consent
Most families who are co-parenting still need the consent of both parents to make major decisions relating to their children. This can include issues of the children travelling overseas, and medical matters. Another major topic to be discussed will be schooling – should the children be staying home from school, if so, who will look after them. If your child’s school is already closed looking at how best to plan and arrange matters around the education and other commitments.
Parents must talk with each other and try and reach agreement on these important decisions. Working together and creating some certainty and stability, will no doubt reduce stress and worry for parents and children alike.
Joelene is a Collaborative Family Lawyer and Mediator at McLaughlins Lawyers. Joelene has been co-parenting her two children since she divorced in 2012. If you have queries or concerns about how the Coronavirus may affect your co-parenting arrangements,  you can call Joelene on (07) 5591 5099 to discuss your family law matter.
 
Author: Joelene Nel
Director: Sophie Pearson
Date: 26 March 2020
The post Co-parenting and Corona Virus appeared first on McLaughlins Lawyers.

To ensure the safety of our clients, our staff and our communities, McLaughlins Lawyers is now working remotely.
We continue to service clients and progress matters, and kindly ask all attending visitors to call or email us before coming to the office.
Our teams are well resourced to work remotely, our phones are manned and will ensure that we can continue to progress matters and provide high quality service to all clients.
We are available by phone, email and video calls via Zoom or Facetime; please do not hesitate to get in contact with us on 07 5591 5099.
Click here to watch our Vlog for more details.
 
Date: 26 March 2020
The post An Important Update from our Office appeared first on McLaughlins Lawyers.

The Coronavirus Economic Response Package Omnibus Bill 2020 has passed both houses of parliament.
The new legislation was announced on Sunday, 22 March 2020 and was fast tracked through parliament as part of the Government’s response to the economic impact of COVID-19.
The Australian Government have released a Fact Sheet which sets out the changes in simple terms.  The steps taken by the Government are drastic, and they need to be.  The purpose of the new law is to lessen the economic impact caused by the cash flow constraints on Australian companies as a result of Covid-19 and give some relief from adverse creditor action in a bid to avoid businesses closing down.
Statutory Demands
1.         There will be an increase in the monetary threshold from $2,000 to $20,000 – being the minimum limit that a Creditor can issue a Statutory Demand to a company for.
2.         The compliance timeframe will be extended from 21 days to six (6) months – to avoid the presumption of insolvency arising where the debt is unpaid or no steps are taken to pay the debt.
3.         These changes apply to statutory demands issued post commencement of the law.
4.         The amendments apply for the next 6 months (subject to any extension).
Bankruptcy
1.         The monetary threshold for a creditor issuing bankruptcy proceedings has increased from $5,000 to $20,000.
2.         There will also be an extension of time for debtors to respond to a bankruptcy notices from 21 days to six (6) months.
Debtor’s Petitions
The usual moratorium period once a debtor presents a Notice of intention to a present a debtor’s petition has been extended from 21 days to six (6) months.
The purpose of the extensions to the timeframes is to give debtors more time to pay the debt or attempt to negotiate payment arrangements with creditors before being forced into insolvency or bankruptcy.
Company Directors
Directors will also receive some temporary relief from personal liability for insolvent trading. The new laws effectively provide for a six-month moratorium against directors having personal liability for trading a company whilst insolvent (i.e. it cannot pay its debts as and when they fall due).  The statutory provisions will not be enforceable for a period so that directors will not be liable for debts incurred by an insolvent company if the debt is incurred in the next six months.
Temporary relief from personal liability for insolvent trading will only apply with respect to debts incurred in the ordinary course of the company’s business however, dishonesty and fraud will still be subject to criminal penalties and debts will also still be payable by the company.
Such provisions will not apply retrospectively.
Moving forward
It should be noted that creditors still have the power to enforce debts via a demand letter or through court action as is usually the case.
It is important to note that the Courts in different states and jurisdictions are taking varied steps to deal with this crisis and we will advise you about any limitations that may apply to you in that respect as and when the need arises.
If you have any questions in relation to the above proposed changes, please do not hesitate to contact us on (07) 5591 5099 and a member of our team will be happy to help.
 
Author: Matt Kollrepp
Director: Ian Kennedy
Date: 26 March 2020
The post Covid-19 – Temporary reforms to insolvency laws appeared first on McLaughlins Lawyers.

Recently, I was joined by fellow workmates, Alexandra Hamlyn (Litigation Solicitor) and Allison Masal (Family Law para-legal), together with Macleay and Katie to climb and conquer Mt Warning, a 9km round trip which took just over 4 hours and approximately 17,000 steps.  This was in place of a Conquer Kozi (Mt Koziosko) climb which was cancelled due to the bushfires and less than expected numbers.
The challenge to climb was all for a good cause to raise funds and awareness for the organisation, R U OK?, who are bringing awareness to mental health in an effort to prevent suicide.  They want to encourage us all to start meaningful conversations between family, friends and colleagues to see if we are really okay – “A conversation can change a life”
They emphasise that you don’t need to be an expert to reach out – just a good friend and a great listener with four easy steps:

Ask R U OK?
Listen
Encourage action
Check in

This very important cause is something close to my heart.  I climbed in honour of my brother, Bryan, who devastatingly took his own life 20 years ago this March, and whose loss is still as painful today for myself, his children and my family.
One of my proudest moments was asking a friend “R U OK?” and being there to listen and offer support when I was told they were not. I feel like that simple yet important question was an instrumental part in helping my friend know it was okay to ask for help and made a difference to their life.
I am incredibly grateful and wish to thank Alex, Allison, Macleay and Katie for supporting me and my quest to raise funds and awareness for R U OK? and importantly, preventing suicide.
If you would like to find out more information please visit R U OK? or to donate.
Life is precious and your life is everything to you, your family and friends!
Suzanne Falzon is a Litigation para-legal at McLaughlin’s Lawyers where she has worked for almost 23 years. Suz enjoys spending time with her friends and family and supporting her two boys by cheering them on from the sideline at Rugby League, Oztag and AFL games.
 
Author: Suzanne Falzon
Date: 24 March 2020
The post Climbing for a cause “R U OK?” appeared first on McLaughlins Lawyers.

It’s business as usual for us.
We are mindful of the health & wellbeing of our clients and staff and our doing our bit to #flattenthecurve.
If you have concerns about attending our office or are experiencing flu like symptoms, you can still obtain legal advice about your matter by arranging a phone or video meeting instead of meeting in person – call us on (07) 5591 5099.

And of course you can always contact us via email.
 

Phone: (07) 5591 5099
Email: [email protected]
 

#mclaughlinslawyers #covid19 #goldcoastbusiness

 
Date: 16 March 2020
The post Important Office Notice: COVID-19 appeared first on McLaughlins Lawyers.

The Treasury Laws Amendment (Combatting Illegal Phoenixing) Bill 2019 (the Bill) recently received royal assent on 17 February 2020.
The Bill introduces new phoenixing offences in an attempt to crack down on illegal phoenix activity.
What is illegal phoenixing?
Illegal phoenixing refers to the deliberate liquidation of a company in order to avoid paying its debts (including taxes, creditors and employee entitlements), with the intention to continue the operation of the business post liquidation through another trading entity.
It can also include elements of intentional restructuring of a company in such a way that allows directors to evade their obligations to pay taxes, employee entitlements and other debts.
What are the key changes to the legislation?

Restriction of backdating of director resignations

Upon resignation, a director must notify the Australian Securities & Investments Commission (ASIC) of their resignation within 28 days. The Corporations Act 2001 now provides that any late resignation lodgements to ASIC will be deemed effective from the date that ASIC receives the relevant notice.
It is possible for a director or company to apply to ASIC or the court to backdate the resignation, however they must be able to satisfy ASIC or the court that the director did in fact resign on the alleged date.

Prevention of abandoned companies

In an attempt to prevent the abandonment of companies, the Corporations Act 2001 has been amended to provide that a director cannot resign in circumstances where the resignation would result in the company being left without a director.

Extension of the director penalty regime

If a company fails to meet its pay as you go (PAYG) withholding amounts and/or superannuation guarantee charges (SGC), the Australian Taxation Office may recover those amounts personally from the director of the company (through the Director Penalty Notice regime).
The Bill has extended the power of the Commissioner of Taxation to make directors personally liable for their company’s outstanding GST liabilities, luxury car tax and wine equalisation tax, in certain circumstances.

Introduction of new offences and civil penalties

New provisions have been introduced to target and penalise company officers that fail to prevent the company from making creditor-defeating dispositions and other persons, such as professional advisors, who facilitate a company making a creditor-defeating disposition.
If you require further advice in relation to this new legislation, please do not hesitate to contact McLaughlins Lawyers on (07) 5591 5099 and speak to one of our litigation lawyers today.
 
Author: Alex Hamlyn
Directors: Ian Kennedy and Sophie Pearson
 Date: 12 March 2020
The post UPDATE: New Legislation concerning Illegal Phoenixing appeared first on McLaughlins Lawyers.

FAMILY LAW UPDATE
 Recently Separated ?
Own $500,000k or less in property ?
Can’t agree how to divide it and may need to go to Court ?
 Read on, this article is for you
Even if your assets are modest, or you don’t think you own anything at all, it is still important to properly document how you divide assets.
It is always best to try and agree matters with the other party about how your property is going to be divided and then sign Consent Orders or a Financial Agreement (if you choose a Financial Agreement each person will need to get their own lawyer).
However, for people who can’t agree on how to divide their assets (or debt) and need to start proceedings in court, a new streamline system is in place in some Family Courts, called the ‘Priority Property Pools’.
Is your case a Priority Property Pool matter?
To be part of this new system, your matter must meet the following criteria:
1.         You must file documents after 1 March 2020 (the ‘Priority Property Pool’ does not apply to matters filed before this date);
2.         The net property of both parties (including superannuation) is $500,000 or less;
3.         There are no business entities or trusts (e.g. companies, self-managed superannuation funds or family trusts)  which may need to be formally valued;
4.         There is no need to ask the Court to make an order for:
(a)       Parenting matters;
(b)       Child support matters;
(c)       Enforcement for parenting or financial issues.
This system will be managed by a Registrar who will ensure that both parties exchange documents and then move to a mediation (or other form of dispute resolution).  The aim is to give the parties an opportunity to settle at an early stage and try to ensure that unnecessary court appearances are done away with.
Joelene is a family lawyer and mediator at McLaughlins Lawyers. If you have recently separated and cannot agree on a property settlement and the total assets to be divided is $500,000 or less, speak to Joelene and she can help guide you through this new court process. You can call Joelene on (07) 5591 5099 to discuss your family law matter.
 
Author: Joelene Nel
Director: Sophie Pearson
Date: 10 March 2020
The post Family Law Update: ‘Priority Property Pools’ appeared first on McLaughlins Lawyers.

Ian and Sophie were delighted to attend the 52nd Gold Coast Sports Star Awards on 27 February 2020. McLaughlins has been proud sponsors of Sports Gold Coast and this event for a number of years.
We were honoured to have Millie Boyle and Jake Fehlberg and their families at our table for the night.
Millie was nominated for the 2019 Sports Star of the year award. Millie has played for Australia Wallaroos & Queensland Reds Rugby Union, played for Australia Jillaroos Rugby League, NSW State of Origin winning team, NRLW premiership with the Broncos and Australian Team Rugby League Nines.
Jake was nominated for the 2019 Para Sports Star of the year Award. Jake is a vision impaired bowler. He is one of the most outstanding bowlers in the Commonwealth winning all four national titles and both Queensland titles./ Jake has played 50 games representing his Country.
We were entertained by the Aussie Bruno Mars Show Band with Pat Welsh as MC.
Congratulations to Geoff Smith, Consultant with our Firm and Chairman of Sports Gold Coast on organising another inspirational event supporting our local community sports stars.
The post McLaughlins Sponsors 52nd Sports Gold Coast Awards appeared first on McLaughlins Lawyers.

So what are they?
Restraints of trade clauses are generally found in employment contracts and are used to safeguard relationships between employers and employees about a variety of different matters, but generally to protect the interests of the employer.
The types of restrictions found in employment contracts include the following:

The non-solicitation of customers or employees of the former employer
The period of time in which the former employee cannot work for a competitor
The non-disclosure or use of confidential information or trade secrets obtained by the employee during their employment
Where the former employee works in terms of the location

What is the general position in relation to restraints of trade?
It is commonly accepted that restraints of trade clauses in an employment contract that impose an obligation on an employee following the ending or termination of that employment are void or unenforceable.  It is a matter for the employer to convince the Court that the clause is reasonable.  If it is found that the restraint is unreasonable, the Court will have no choice but to strike out the restraint and find it unenforceable at law.
A restraint clause will not be void if it imposes no greater restraint than what is reasonably necessary for the protection of the legitimate business interests of the employer seeking to enforce it.  The emphasis will usually be on the employer to prove that the restraint is reasonable and necessary to protect the interests of the employer.
What are common restraint clauses?
The usual restraints of trade found in employment contracts are non-competition and non-solicitation clauses.
Non-competition clauses simply attempt to prevent a former employee from working for a competitor in a particular area for a particular length of time.
Non-solicitation clauses are about preventing an employee from soliciting the former employer’s clients, customers or other employees to following them to their new role or the business.
What can I do as an employer?
An employer can seek an injunction from the Court against the former employee to limit any further breach of the restraint.  The employer can also seek an order for damages against the employee or an account of profits together with costs.  A useful first step is a cease and desist letter drafted as quickly as evidence of the breach comes to light.
What factors are relevant to reasonableness of the restraint?
The Court will consider a number of different matters to determine whether a restraint is reasonable in the circumstances and therefore enforceable.  These include:

The negotiation process and what was said between the parties regarding the negotiation of the restraint terms
The period of the restraint (if the period is too long it will not be enforceable)
The location or area of the restraint (if the area is too wide or large then it is likely to be found unenforceable on the basis that it is unreasonable)
The characteristics of the employer’s business and whether the employee is in frequent contact with the customers/clients and whether the employee has specialised knowledge
The certainty of terms of the restraint or otherwise

Final takeaways
If you are an employer you should consider the following important steps:

Ensure that all of your contracts of employment are up to date and have restraint clauses that are reasonably necessary to protect your business interests, taking into consideration when the contracts are entered into and the particular individual employee’s position
Write to employees who have been recently terminated, particularly those who are at risk to the employer, reminding them of their post-employment obligations which survive termination.
Take urgent steps to deal with any employees if there is any evidence of the employee breaching the restraint clauses.
Seek urgent legal advice in relation to contacting that employee and what steps should be considered before seeking relief from a court.

If you require legal assistance in relation the above please do not hesitate to contact McLaughlins Lawyers on (07) 5591 5099 and speak to one of our litigation lawyers today.
 
Author: Matt Kollrepp
Director: Ian Kennedy
Date: 2 March 2020
The post Restraints of Trade – what do I need to know? appeared first on McLaughlins Lawyers.

Temporary visa holders in Australia now have a new pathway to permanent residence through Queensland’s small-business-owner stream of the 491 state-nominated visa. Applicants need to have purchased a business in regional Queensland (includes Gold Coast but excludes Brisbane) for at least $100,000 and hire at least one employee that has work rights on their visa that is not a family member. The employee can be part-time, but must be employed for at least 20 hours each week.
Applicants need to have owned (100%) and operated the business for at least six months before lodging the nomination application. The business can be completely unrelated to their occupation and qualifications. Applicants also need to show that have at least $10,000 of available funds to settle in Queensland.
The 491 visa is a temporary visa that can lead to permanent residence after three years as long as the applicant lives and works and studies (if relevant) in a regional location (all of Queensland except most Brisbane postcodes) and has a taxable income of at least $53,900 each year.
The 491 visa is open to applicants who are under 45, have competent English and have a positive skill assessment from the relevant skills assessing body in their nominated occupation and their occupation is on the lengthy 491 visa occupation list.
For example a cook with a Certificate IV in Commercial Cookery and at least 3 years full-time employment experience would be eligible to apply for a skill assessment in that occupation as long as the cook was employed for 12 months full-time in the last 3 years. The qualifications and experience requirements differ for each occupation.
The applicant must also have an occupation on the Queensland occupation list and meet the Queensland requirements. Our cook, for example, must have at least one year of employment experience after completing their studies, of which 3 months must be in a regional location in Queensland. The cook could then buy a yoga business in a regional location (Burleigh Heads for example). After operating the yoga business for 6 months and employing at least 1 part-time employee at the time of application, our cook could apply for Queensland nomination through the 491 small-business-owner stream.
The 491 visa is a points-based visa where applicants receive points for their age, employment experience, English level and other factors. The minimum points required for the 491 visa is 65 points. Due to demand, different occupations have different points thresholds. Queensland does not assess by points for the small business stream pathway, but applicants need to have at least 65 points.
The 491 visa is a two-stage visa. For the small business owner stream of the 491 visa, the first stage is to apply for nomination from the Queensland government. The second stage, after receiving the Queensland nomination, is to apply for the 491 visa with the federal government.
For temporary visa holders in other states, it is time to come to our sunny state and explore small business opportunities. Queensland has a limited number of allocations this financial year for the 491 visa, which will likely be exhausted quickly. It is best to get in early.
To find out more about this exciting and competitive new Queensland pathway to permanent residence, contact McLaughlins Lawyers on (07) 5591 5099.
 
Author: Sed Crest
Directors: Ian Kennedy & Sophie Pearson
Date: 7 February 2020
The post Queensland opens small-business-owner pathway to permanent residence appeared first on McLaughlins Lawyers.

 The Queensland Civil and Administrative Tribunal (QCAT) is an independent tribunal that aims to resolve disputes in an efficient and cost-effective manner. It deals with a wide range of disputes, including debt disputes, building disputes, minor civil disputes and tree disputes, just to name a few.
 If you are considering filing an application in QCAT or if you have been served with QCAT documents, there are several things you should keep in mind:

The QCAT forum is intended to be more informal than the court process. The matter will be handled by a Member or Senior Member (as opposed to a Registrar or a Judge) and parties are not necessarily bound by the rules and processes that exist in the court system (for example, the rules of evidence).
QCAT is generally a lawyer-free jurisdiction and parties are encouraged to resolve disputes themselves, which also contributes to the element of informality.

Despite this, it is common for parties to obtain legal advice and seek guidance throughout the QCAT process and in some circumstances, an application can be made to seek leave to be legally represented. The tribunal will consider a number of factors, including whether or not the case involves a complex question of law or fact, in deciding whether or not a party should be permitted to have legal representation.

Parties involved in a QCAT proceeding are usually required to pay their own legal costs and QCAT rarely makes orders about adverse costs.

This is in contrast to the Courts, whereby a plaintiff that is awarded default judgment or is successful with a claim will likely be able to recover a percentage of their legal costs from the defendant in accordance with a scale of fees.
If you require legal assistance in relation to a QCAT dispute please do not hesitate to contact McLaughlins Lawyers on (07) 5591 5099 and speak to one of our litigation lawyers today.
 
Author: Alex Hamlyn
Directors: Ian Kennedy and Sophie Pearson
 Date:   5 February 2020
The post WHAT TO EXPECT AT QCAT appeared first on McLaughlins Lawyers.

Our very own AFL superstar Alex Hamlyn attended an information session for The AFL project for Women in Sport sponsorship program.
We are delighted to support this Sports Gold Coast initiative and have committed to sponsoring a player.
 
Author: Sophie Pearson
Date: 16 January 2020
The post McLaughlins supporting Sports Gold Coasts ‘Women in Sport’ initiative appeared first on McLaughlins Lawyers.

TWO Parents. TWO places. Many possible problems.
The A-Z of day-to-day issues parents may face when children live in two households.
The A-Z topics discussed are for families where there is shared parenting [not necessarily equal time arrangements], where the parents are working together and want to minimise the challenges and conflicts that they [and their children] may face.
This information is not meant to cover the big ticket items – like who your child will live with or arrangements for spending time with your child. This is about the everyday issues that all parents deal with, but, when you are parenting children who live in two households, can become more of an issue.
This week we look at the first 8 topics covered in A to H.
A – Animals. If your kids are pet lovers or you have pets you may need to discuss with the children that each house may have different pets, or one house may not have pets at all. You may also want to talk about who will look after the pets when one parent is away and if the other parent [and children] can help out with that.
B – Birthday parties. Yours and theirs. As your children get older arrangements for birthday parties will change. Having your children at your birthday is something you can arrange and hopefully co-ordinate with the other parent.  Your children’s birthday celebrations can hopefully be an event planned jointly. From the theme, to the venue, to the invites, to the cost and the present – there is often a lot to consider. The earlier the better to start the planning, and don’t forget to involve the birthday child they usually have some fixed ideas of their own !
C – Changeover . We all know this should be as seamless and stress free as possible. Over time it may be that the changeover location or time will need to change. Always consider these arrangements from the children’s point of view. Whilst changeover at McDonalds might be ok when they are 5 years old, it may not be quite so great when they are 15 years old.
D – Documents. Birth certificates, passports and any other form of original and important document. If one parent keeps them, the other parent should have a copy; or maybe each parent keeps some of the documents. It is important that both parents know where the original documents are and how they can be accessed if needed.
E – Exercise. Being healthy and active isn’t only something to consider as you get older. Young children should be encouraged to be involved in sports, organisations and clubs. Parents should discuss what is available locally for  their children to enrol in as well as the cost and how they can arrange for the children to get to the practise, games, matches and other events, so that the children are truly included in the activity.
F – Food. This is always going to be different in each house from the type of food, to the timing of meals and what goes into the school lunch box. If the children have certain intolerances or preferences it is helpful if both houses have suitable foods [eg.  gluten free or lactose free]. If your children struggle with eating dinner later in the evening then this should be discussed to see if generally a meal time can be set eg, between 6pm – 7pm.
G – Grandparents and other family members. Ensuring the children have relationships with both extended families is important. To facilitate this, parents may need to be flexible with changing the time they have the children to enable them to attend an important family gathering. Cultural, religious and traditional occasions should be accommodated wherever possible with make up time offered to the parent who is not spending that time with the children.
H – Heart to heart talks. As children get older the conversations you have with them will become a little bit more complicated and perhaps [for the children] a bit embarrassing. Don’t shy away from having these awkward conversations. If both parents are raising these issues with the children then they will hopefully feel comfortable continuing these conversations as they get older. Keep the channels of communication open. If you are not engaging in conversation with the children about the day to day stuff that is going on in their lives, there is little chance they will talk to you about the big stuff.
 Consistency. Consideration. Communication. These are the keys to successful co-parenting.
Joelene Nel is a family lawyer and mediator at McLaughlins lawyers with more than 15 years experience helping parties resolve matters after separation. As a mother of two children,  and after her divorce, she used these tips to co-parent with the children’s father.
If you are finding it difficult to reach agreement with the other parent about arrangements with your children, Joelene can act as a mediator and help parents reach agreement about family matters.  You can call Joelene on (07) 5591 5099 to discuss your family law matter.
Keep an eye out for our next blog featuring further tips for Post Separation Parenting.
 
Author: Joelene Nel
Director: Sophie Pearson
Date: 13 January 2020
The post The A-Z of Post Separation Parenting Tips appeared first on McLaughlins Lawyers.