Amy’s legal knowledge of planning, environment, Local Government, evidence and court procedure ensures she provides informed, quality advice on a broad range of issues including statutory interpretation, permissibility of development, and ancillary aspects of the development assessment process. Amy’s attention to detail and commitment in delivering quality work has earned her the trust and respect of her clients.
In addition to being a qualified lawyer, Amy is an experienced town planner, working in Local Government for over ten years specialising in development assessment which gives her a unique understanding of Local Government, planning, development and environmental matters.
Amy obtained her Bachelor of Planning degree from the University of New South Wales where she graduated with First Class Honours and the University Medal.
After completing her law degree which she obtained from Macquarie University with Honours, Amy was awarded the Hyman Tarlo Scholarship for academic merit which enabled her to complete her Masters in Laws at Trinity College Dublin (University of Dublin, Ireland), in which she achieved First Class Honours with Distinction.
Amy’s background in town planning together with her legal qualifications and experience enables her to assist and represent clients in a range of litigious matters, including prosecutions, merits appeals and judicial review proceedings, in both the NSW Land and Environment Court and Local Court. Amy prides herself on providing pragmatic advice and her ability to negotiate to achieve the best outcomes for her clients.
The post Amy Ryan appeared first on Nexus Lawyers.

The case below demonstrates an employer that ignored the complaints of an employee that they are overworked to its own demise.
Ravi Sathananthan v BT Financial [2019] FWC 5583
What is a constructive Dismissal?
The Fair Work Act s.386 definition of dismissal includes:
“the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.”
Commissioner Hampton considered that the failure of BT Financial to sufficiently address Mr Sathananthan’s complaints that he was working long hours and his health was suffering was conduct which forced Mr Sathananthan to resign.
The Facts
Mr Sathananthan worked for BT Financial as a Business Development Manager for seven years. His workload increased significantly while a colleague was on paternity leave, and whilst he picked up the workload of an employee he complained was underperforming. He claimed that BT did not offer him any proper support to help manage the workload, despite him flagging such concerns to BT on multiple occasions.
He resigned, served his notice and then made an application to the FWC for an unfair dismissal remedy.
The Finding
Commissioner Hampton accepted that Mr Sathananthan stated to his supervisor that he was working in excess of 70 hours per week and that this was taking a toll on his health. He had also expressed to HR that he had serious concerns that he may not be able to cope with the workload and that a major health episode could occur.
He said
“I consider that the combination of the excessive working hours and the absence of any real recognition of this issue or steps taken by BT to manage this, particularly influential in the assessment as to whether that resignation was forced.
Mr Sathananthan had no effective or real option but to resign his employment from BT.”
Remarkably, Mr Sathananthan did not present any independent medical evidence that his health had suffered as a result of the long hours that he worked.
The Result for the Applicant
Mr Sathananthan was able to prove that he had been constructively dismissed. He was awarded four months salary as compensation for an unfair dismissal.
Maeve Doyle is a senior employment lawyer with Nexus.  If you need further advice or support, she can be contacted on [email protected] or by telephone +612 9016 0141.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.
The post What is a Constructive Dismissal? appeared first on Nexus Lawyers.

Many discretionary trusts have wide pools of potential beneficiaries as to both income and capital of the trust.
Strictly speaking, the very nature of a discretionary trust means that no beneficiary has any fixed entitlement. State revenue offices treat these trusts differently with respect to both stamp or transfer duty and land tax.
South Australia
South Australia, for instance, applies a foreign duty surcharge to foreign persons or foreign trusts that acquire an interest in residential land within the state. A surcharge of 7% is applied to the value of said interest on certain transactions entered into on or after 1 January 2018. The surcharge payable is in addition to any stamp duty that would otherwise be payable on such acquisition of an interest in land.
A foreign natural person is any individual who is not:

an Australian citizen within the meaning of the Australian Citizenship Act 2007  (Cth);
the holder of a permanent visa within the meaning of s30(1) of the Migration Act 1958  (Cth); or
a New Zealand citizen who is the holder of a special category visa within in meaning of s32(1) of the Migration Act 1958  (Cth).

Under South Australian legislation, a discretionary trust would be a foreign trust with one or more of the following as a foreign person:

a trustee;
a person who has the power to appoint under the trust;
an identified object under the trust;
a person who takes capital of the trust property in default.

The rules as to who these provisions are interpreted are complex and specific advice is required in each circumstance.
New South Wales
In New South Wales similar provisions apply with respect to transfer duty.
Importantly, under the State Revenue Legislation Further Amendment Bill 2019 (NSW), increased surcharge land tax will be payable on residential land owned by “foreign persons”. Under certain amendments to the relevant laws, a trustee of a discretionary trust will be deemed to be a “foreign person” or “foreign trust” unless the terms of the trust specifically prevent such entities from being a beneficiary of that trust.
The “foreign trust” will pay a 2% surcharge in land tax from the 2018 land tax year onwards and an increase in transfer duty of up to 15% on the dutiable value of any residential land purchased in New South Wales.
A land tax surcharge exemption will be provided to the trustee if:

the terms of the trust deed prevent a foreign person from being a beneficiary of the trust; and
the clause preventing a foreign person becoming a beneficiary cannot be amended to allow a foreign person to be a beneficiary at a later time.

This transitional arrangement in New South Wales only applies if the terms of the discretionary trust are amended before midnight on 31 December 2019.
If you have already incurred surcharge land tax or surcharge purchaser duty on the basis that you are a foreign trustee, and the terms are amended before this time (where it is possible and appropriate to do so), then you may be eligible to seek a refund from Revenue New South Wales.
 
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before acting in relation to any specific issues
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The Situation
Litigation funding (also known as legal financing or third-party litigation funding) has been a major driver of Australian class actions. It typically involves a funder advancing the costs or fees associated with litigation into a “common fund”. In exchange, the funder receives a cut of any proceeds recovered from a settlement or a court judgment.
Common fund orders require all members of a class action to contribute a percentage of any settlement or damages they receive to the litigation funder. This applies even if they have not personally signed any contract with the funder.
Challenges to common fund orders mounted in the Federal Court and Court of Appeal in the Supreme Court of New South Wales.
The Case
On Wednesday, the High Court of Australia determined that the Federal Court of Australia and the Court of Appeal in the Supreme Court of New South Wales do NOT have the power to make common fund orders in class actions.
This decision in BMW Australia Ltd v Brewster; Westpac Banking Corporation v Lenthall will have wide-ranging implications for all stakeholders in class actions in Australia.
Central to the case was whether section 33ZF of the Federal Court Act and section 183 of the Civil Procedure Act (NSW) empower the court, in representative proceedings, to make a common fund order. The court, by a 5:2 majority, said that the sections do not.
In the lead judgment, Chief Justice Susan Kiefel, Justice Virginia Bell and Justice Patrick Keane ruled that while both sections empower the courts to make any appropriate or necessary order “to ensure that justice is done,” the power does not extend to making common fund orders.
“These sections empower the making of orders as to how an action should proceed in order to do justice. They are not concerned with the radically different question as to whether an action can proceed at all,” the Justices said.
“It is not appropriate or necessary to ensure that justice is done in a representative proceeding for a court to promote the prosecution of the proceeding in order to enable it to be heard and determined by that court. The making of an order at the outset of a representative proceeding, in order to assure a potential funder of the litigation of a sufficient level of return upon its investment to secure its support for the proceeding, is beyond the purpose of the legislation.”
The lead judgment of Chief Justice Susan Kiefel and Justices Virginia Bell and Patrick Keane also said that when section 33ZF was enacted, “the Parliament could not have been understood to contemplate that [it] might be invoked to support a [common fund order] “.
The Ramifications
What are the key points to take from the decision?

There is likely to be a decrease in access to justice for claimants because of the need to book build.
Litigation will not be commenced as quickly because funders will need to book build.
Funding commissions will be higher. It will be more expensive to get cases off the ground due to wasted costs associated with building a book.
Book building could lead to more closed cases which excludes group members who don’t sign a funding retainer.

Should you have any questions, please do not hesitate to contact Philip Cowdery on 02 9016 0141 or [email protected]
 
This publication is © Nexus Law Group and is for general guidance only. Seek legal advice before taking action in relation to any specific issues.
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Since 1885 solicitors who represent themselves in Court have been able to recover professional costs for their time acting for themselves, assuming they “win”.
The entitlement to recover these costs is known as the Chorley exception or a solicitor’s privilege. It is an exception to the usual rule that self-represented litigants are not entitled to costs other than disbursements
On 4 September 2019, the High Court confirmed in Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 that the so-called Chorley exception is no longer part of the common law of Australia.
In the High Court, Gordon J posed three questions for determination:

Is the Chorley exception still good law?
Does it extend to barristers?
Does it extend to barristers who have retained a solicitor and counsel to appear for them?

All three questions were answered by the High Court in the negative – no, no and no!
The High Court therefore has abolished the controversial common law rule.
The general rule now applies consistently to solicitors and non-solicitors alike. The time and effort expended by all self-represented litigants is of equal value.
Despite the High Court’s rejection of the Chorley exception, in-house, government and employee lawyers appearing in litigation for their employers remain able to recover costs. Such situations are accepted as falling outside the general rule and being within the scope of costs capable of being awarded under the Civil Procedure Act 2005 (NSW).
All litigants (even where they are themselves solicitors) should consider obtaining independent legal advice and, where possible, legal representation.
So, “yes” a solicitor who represents themselves does indeed have a fool for a client!
 
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before acting in relation to any specific issues
The post Does a self-representing solicitor have a fool for a client? appeared first on Nexus Lawyers.

Good News for Builders – the Section 18F defence has been expanded
In the Supreme Court case of Strata Plan 83572 v Jackson Teece and Ors [2019] NSWSC 942, in which Nexus Lawyers acted for the builder, a $2.3M defects claim was entirely dismissed and the builder was awarded a full costs order. At the same time, the Court significantly expanded the scope of the defence available under Section 18F of the Home Building Act.
Builders are always under pressure to do what owners and designers want and will often find themselves in a difficult position when being sued for defective works they did not agree with in the first place. The one and only clear defence in this situation is provided by section 18F.
Thanks to the work of the Nexus construction team over many months, there is now real strength in the old adage, ‘In my defence, I told you so’ when it comes to builders who have given a warning to owners when instructed to do works contrary to their advice
The Facts
The defendant was a sole operator builder who came into a large scale commercial and residential development when it was about 98% complete. The building had experienced multiple problems prior to this point, not the least of which was failing external facade panels installed by the previous builder (who had gone into liquidation).
Our client, as the new and final builder for the site, was engaged by the Project Manager to complete some minor finishing works in the sum of approximately $200,000, so that the building could obtain an Occupation Certificate. When new owners began moving into the building it was discovered that water was leaking into the building through the exterior ‘Exotec’ panels, installed by the original builder. It was considered at the time that the leakage was the result of the absence of a header flashing, which would have directed water away from the interior of the building.
The architect suggested the entire façade panels should be removed and proper flashings installed. It was understood this would require scaffolding and be very expensive.
The project manager had suggested that sealing the façade with a flexible sealant to prevent further leaking would be cheaper but not necessarily a complete or permanent solution. Significantly, a portion of the apartments were still owned by the mortgage company (in receivership), who was trying to sell off the remaining apartments as quickly as possible and looking to reduce costs.
Despite the advice provided by the architect, and particularly the new builder that, “it’s still best to replace the sheets with the correct head flashings as instructed in [James Hardie’s] manual” [1], the new builder was still asked to carry out the sealing works.
Even though it was understood by all that this method of ‘preventing’ further leaking was eventually going to fail, sealing the building was preferred by the project manager, as replacing the façade and installing flashings was exponentially more expensive. In fact, the director of the mortgage company, when presented with the cheaper option of sealing works wrote when referring to the sealing, “It is possible the problem could reappear, but the problem needs to be addressed.” [2]
The Proceedings
The Owners Corporation alleged that the new builder performed the sealing option as a method of rectification of the building and therefore provided an implied warranty the that façade would be ‘weatherproof’ or ‘waterproof’, and so should be liable for the full cost of replacement of the façade and other resultant defects in the building, totaling $2.3M.
There was no strict contract in place regarding these works, so the Owners Corporation argued that the sealing works were part of a broad ‘rectification engagement’, the scope of which was to discover the cause of the problem, find the solution and fix it. On that logic, in performing sealing only the builder therefore became liable for ‘weatherproofing’ the building, as the original facade, if installed correctly, would have done. The damages, it argued, was the cost of full replacement of the façade.
This would have made the new builder liable for the entire facade replacement cost of $1.6M when it was only ever engaged to do specifically instructed defect rectification and completion works totaling $200,000.
In other words, it was argued the new builder should be liable for the previous builder’s works, at a sum nearly 10 times its own contract value.
Believe it or not, this is not an unusual situation, as owners can use the system to inflate claims in their desire to get everything fixed and the builder is often the easiest first target, whether they are responsible for the underlying problems or not.
As absurd as this argument sounds, and despite every effort to resolve the matter on sensible terms, the Plaintiff rejected all offers by the new builder and pressed the matter to hearing for the entire sum, despite the having already settled for an undisclosed sum with the architect and project manager for the same defects.
The Plaintiff claimed that the sealant was applied without due care and skill, in breach of s18B of the Home Building Act 1989 but no actual evidence of this was ever presented. It was also accepted that sealing was never going to be a permanent solution and would have required resealing every 2 years, which was never done.
Because section 18F is a relatively new provision in the life of the Act, the Courts have not provided any significant guidance on what the builder’s advice under this section should entail in order to successfully rely on it. Fortunately, this case sheds light on how this is done.
Judgment – Case dismissed, and builder awarded costs
The Court found that despite the lack of a formal written agreement and defined scope of works with the new builder, it was clear that it was given instructions to seal joints only, not instructions to fix the façade of the building generally or remedy the issue of the missing flashings.
The Owner had contended firstly that it was the new builder’s responsibility to remediate all defects and the decision to seal the building to achieve this was its own. The Court held, in essence, that there was absolutely no evidence the new builder had actively suggested that sealing the building was the full solution or that it had been engaged under an open contract to ‘rectify all defects’.
It was also found that the architect and new builder had provided written advice, following the engagement of a James Hardie representative, that the building would need to be re-scaffolded and the sheets replaced.
This advice was given within a much larger email dealing with a number of issues and suggestions about sealants and sealing methodology. The Plaintiff argued that this email was evidence of the new builder’s positive driving of the sealing solution, whereas the Court found a particular line constituted a notice under section 18F.
Why is this significant? Because the builder had not given definitive statements that strictly met the wording of section 18F or even referenced the clause.
Even though it was arguably an ‘off the cuff’ statement as part of broader emails that could have been read in favour of the solution, the Court found that the builder was simply facilitating his instructions in the broader context of the matter and had in fact given “the clearest possible warning” [3] that the sealing of the building would not be appropriate by that single line.
Therefore, the Court has taken an expansive view that any statement that can reasonably be read in that light, should be. It follows that advice under Section 18F does not need to be formally stated or strictly accord with the requirements of 18F in order to be effective.
It should be noted that in the absence of the Court finding this particular evidence (which was only obtained under subpoena from the Receivers’ records) the builder could have easily found itself without the section 18F defence, and therefore responsible for a major defect it did not cause, simply because it inherited a poorly built site.
So you can understand how critical this email, from some 9 years ago became. Not every builder keeps such records for that length of time to call upon for such an occasion. In this case the builder was lucky these email correspondences were discovered under subpoena.
There was also no finding that the works conducted by the new builder were defective in any way or caused any actual loss or damage to the Plaintiff. To quote the Court “There is a further problem, and that is that there is no evidence of what damage, if any, the Owners Corporation has suffered as a result of any want of due care and diligence…” 
It held that even if the works were defective, there was “the clearest possible warning” that these works “were not ideal”, yet the new builder was instructed to carry out these works regardless. As such, the Court found that the defence under section 18F of the Home Building Act 1989 was available to the new builder.
As a result, the Owners Corporation’s Case was dismissed, and our client builder awarded costs.
Take-home points
This case can be cited as authority that the Court should take an expansive view on the applicability of Section 18F to statements made by a builder regarding instructions for works it does not agree with. There does not need to be a strict form of statement for it to be effective. It just needs to be made and ‘be clear’.
However, it is still vitally important that the advice by the builder:

is in writing (whatever form that may take); and
broadly states the builder’s contrary position to the proposed rectification method; and
that records be kept for as long as possible (at a minimum 7 years to accord with the statutory warranty period).

When a builder is faced with instructions for works that are not ideal, it is imperative to have the above in mind, and act on it immediately and issue a notice under section 18F, as it could be their only salvation in a dispute that may come years later.
Whenever taking over existing incomplete or defective sites a builder should make sure of the following:

Get a contract with a clearly defined scope.
Make sure that contract has specific exclusions and clearly states that:

there is no liability for underlying or preexisting defects; and
the builder is not engaged to perform any ‘rectification work’ that is not specifically included in the stated scope.

Have a standing and clear 18F statement template ready for any situation where it is instructed to perform ad-hoc works that the builder does not believe is using the correct or best methodology.
Don’t offer design solutions.
Keep good records of contracts and contract notices, especially under 18F – Courts will find in your favour if you give them the evidence they need to do so!

If you require any more information about the operation of section 18F or are involved in a civil or residential construction dispute, call us.
Nexus is one of the most experienced construction law and SOP practices in Australia. We operate a retainer service for its clients for ongoing contractual advice and contract management services, so they can get ahead of the curve on construction law issues and build successful businesses.
Footnotes
[1] The Owners – Strata Plan 83572 v Jackson Teece Chesterman Willis Pty Ltd & Ors [2019] NSWSC 942 [70].
[2] Ibid at [94].
[3] Ibid at [71].
The post Nexus Lawyers Strengthen S18F Defence Precedent for Home Builders in NSW appeared first on Nexus Lawyers.

Would you dismiss an employee for a single over-the-top reaction if you knew they had been a victim of domestic violence?
A recent unfair dismissal application in the Fair Work Commission looked at what consideration should be given to an employee who had experienced domestic violence.
Ms Murphy was dismissed from her job as a child care worker for serious conduct in October. She reacted inappropriately to a co-worker who was critical of her and with whom she did not have a good working relationship. Ms Murphy threatened her co-worker with violence by saying words to the effect of “Do you want to settle this outside?”
Earlier this year, Ms Murphy ended an abusive relationship with her ex-partner and was involved in court proceedings where personal safety intervention orders were made against both her and her ex-partner. She claimed that, as a result, she had suffered psychological injury and suffered from anxiety. This, in turn, had affected her ability to process and respond to confrontation.
Her application for unfair dismissal remedy was dismissed before a single commissioner in the FWC.
Ms Murphy was successful in appealing this decision before a full bench of the FWC on the basis that the Commissioner had not taken into account the effect of involvement in family violence had on her ability to manage conflict situations. The full court considered that it was in the public interest to grant the appeal because it raised a significant issue concerning the intersection between family and domestic violence and the workplace, and how to respond to employee conduct in circumstances where an employee has been subjected to family and domestic violence.
Ultimately, Ms Murphy was not successful in gaining any compensation because of the absence of any medical evidence regarding her mental health issues, limited evidence of her experience of domestic violence and limited evidence about medical consequences after she was dismissed.
While Ms Murphy was not successful, this case does raise issues about what an employer can reasonably do in the workplace if they are aware of mental health issues of an employee that have been caused by involvement in domestic violence.
Please contact us if you have any concerns about how to manage the conduct of employees in the workplace who have a mental health issue or have experienced domestic violence.
[Courtney Murphy v ECEC Management Pty Ltd T/A Mooroolbark Child Care Centre [2019] FWCFB 6914]]
Maeve Doyle is a senior employment lawyer with Nexus.  If you need further advice or support, she can be contacted on [email protected] or by telephone +612 9016 0141.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.
The post Domestic Violence and the Workplace appeared first on Nexus Lawyers.

The Design and Building Practitioners Bill 2019 has been read for the third time and passed on 13 November 2019 by the New South Wales Government in response to the Building Confidence report. Nexus Lawyers review the Bill and advise on how the next stage of building regulation may affect you.
The Bill delivers on the NSW Government’s promise to introduce a suite of new obligations on design and building practitioners to ensure that each step of construction is well documented and compliant. The aim is to support the construction sector and provide a built environment where safety and quality is prioritised and consumer confidence is promoted.
Several new interesting requirements have been introduced to ensure that design and building practitioners are held accountable for their work across the sector. Practitioners are now required to issue a compliance declaration in accordance with the Building Code of Australia, and their work must fit into prescribed categories of regulated designs.
Major variations to designs must also be declared as compliant before being provided to the builder. Builders must rely upon and build in accordance with these declared designs, then issue a compliance declaration stating that the final building, including any variation, complies with the Building Code of Australia.
Any practitioner who makes a compliance declaration must be registered and qualified to do so. The Bill also enshrines in statute that a duty of care is owed to certain categories of owner for designs, or certifications of a design.
Increased duties of care will also be placed on building certifiers. Their duties are already high, as they are technically public officers who are obliged to put public interest first, but up until now have largely ‘flown under the radar’ in building disputes. This is also a positive reform.
The Bill introduces a series of new obligations on three categories of practitioner: design practitioners, principal design practitioners and building practitioners, who will play a critical role for prescribed classes of buildings under this new legislation.
In summary, the Bill provides the following key reforms, including:

Introducing the concept of ‘regulated designs’, which include designs for a building element and performance solutions for prescribed classes of building work or a building element (clause 5 of the Bill);
Requiring that design practitioners who prepare regulated designs issue a compliance declaration to declare that the designs comply with the Building Code of Australia (Part 2, Division 1 of the Bill).;
Requiring that building practitioners obtain, rely upon and build in accordance with declared designs, and issue a compliance declaration to declare they have complied with the Building Code of Australia (Part 2, Division 3 of the Bill);
Requiring that any variations to declared designs are re-prepared and declared by a design practitioner if they are in a building element or performance solution, or in any other case, documented by the building practitioner (clauses 9, 16 and 17 of the Bill);
Introducing the optional role of a ‘principal design practitioner’ (Part 2, Division 2 of the Bill);
Requiring any design, principal design or building practitioner who intends on making a compliance declaration to be registered under a new registration scheme set out under the Bill (Part 4 of the Bill); and
Clarifying the common law to ensure that a duty of care is owed for construction design work to certain categories of ‘owner’ (Part 3 of the Bill).

While this Bill introduces tough new powers, the aim is not to penalise compliant practitioners. Building practitioners will be required to take all reasonable steps to ensure compliance with the Building Code of Australia.
Critically, this Bill will offer a defence to building practitioners in situations where they reasonably rely on and build in accordance with a regulated design and its declaration.
This defence will apply if the designs and declarations were provided by a suitably registered and authorised design practitioner stating the design’s compliance with the code. The defence will ensure that builders are not penalised for properly complying with their obligations under the Bill and that NSW Fair Trading can act and hold the appropriate party responsible for any noncompliance. Disciplinary action may also be taken against a registered practitioner on several grounds.
New industry model
For those that think this Bill is a minor change, think again. This Bill introduces a significant industry reform.
There are several other, more subtle important elements to the new Bill. Aside from the need for developers to properly engage accredited designers and those designers having a clear duty of care, the second reading speech notes that the Bill requires both the declared designs and as-built drawings will be available in an easy to access electronic platform.
The way the NSW legislation has been drafted and will be implemented is a game changer and this entirely re-positions designers and certifiers in the construction engagement and delivery bargain.
We see that the industry will now need to enter a new period where collaborative digital technology will be applied in projects to ensure the design and construct interface if far more seamless than it has been in the past.
All of these reforms will mean easier redress by clients when these obligations are not met, so if you are a designer, certifier or a business it is time to think about how you may conduct your business in this new landscape (assuming the Bill is assented to in the near future).
Nexus Lawyers will be issuing periodic updates in relation to the progression and implementation of this new legislation
The post NSW Parliament Passes Tighter Building Regulations appeared first on Nexus Lawyers.

Time for a whistleblower policy?
Changes to the Corporations Act means that many companies will need to have a policy which outlines the protections that are available for whistleblowers by 1 January 2020.
Who must have a policy?
You must have a whistleblower policy if you are

A public company
A large proprietary company (characterised by having any two of the following: $50+ million in consolidated revenue; $25+ million or more in consolidated gross assets; or 100+ employees); or
A large proprietary company which is a registrable superannuation entity

Who can be a whistleblower?
An eligible whistleblower can be one of the following:

an officer of the company;
an employee of the company;
someone who supplies services or goods to the company or is employed by someone who supplies services or goods to the company
a relative of any of the above
a dependant of an any of the above or of that person’s spouse.

To Whom can a whistleblower make a disclosure?
A whistleblower may make a disclosure to

a person authorised by the company to receive disclosures;
a director, secretary or senior manager of the company;
any company external auditor (or a member of that audit team);
a registered tax agent or BAS agent who provides tax or BAS services to the company;
any other employee or officer of the company who has functions or duties relating to tax affairs of the company (e.g. an internal accountant);
the Commissioner of Taxation;
a legal practitioner – for the purpose of obtaining legal advice or legal representation in relation to the operation of the whistleblower provisions in the Corporations Act or the Taxation Administration Act; or
In certain circumstances, a journalist or member of parliament.

What is a protected disclosure?
Information is considered to be a protected disclosure if a whistleblower has reasonable grounds to suspect misconduct, or an improper state of affairs or circumstances, in relation to the company by the company, or an officer or employee of the company, which is:

 a contravention or offence against a provision of

the Corporations Act
the ASIC Act;
the Banking Act 1959;
the Financial Sector (Collection of Data) Act 2001;
the Insurance Act 1973;
the Life Insurance Act 1995;
the National Consumer Credit Protection Act 2009;
the Superannuation Industry (Supervision) Act 1993;

conduct which is an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more; or
conduct which represents a danger to the public or the financial system.

A protected disclosure does not include information about personal work related grievances such as

an interpersonal conflict between the discloser and another employee;
a decision relating to the engagement, transfer or promotion of the discloser;
a decision relating to the terms and conditions of engagement of the discloser;
a decision to suspend or terminate the engagement of the discloser, or otherwise to discipline the discloser.

What protections does a whistleblower receive?
A whistleblower has the following protections:

confidentiality about their identity;
indemnity to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure; and
no remedy nor right, even if contractual, may be exercised against the person on the basis of the disclosure;
the information in the disclosure is not admissible in evidence against the whistleblower in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings in respect of the falsity of the information.
protection from detrimental action on the basis that they have made a protected disclosure.

What happens if the protections for whistleblowers are breached?
Severe civil and criminal penalties apply to employers who breach the protections, and courts are empowered to make orders for relief against a company if they fail to fulfil a duty of care to protect a whistleblowing employee from detriment.
The maximum civil penalties under the new Treasury Laws Amendment (Strengthening Corporate and Financial Sector Penalties) Act 2019 (Cth) for breaching confidentiality of an eligible whistleblower’s identity or causing or threatening detriment include:

for individuals, up to $1.05 million (5,000 penalty units); and
for companies, $10.5 million (50,000 penalty units), or 10% of the annual turnover (up to $525 million or 5 million penalty units).

What needs to be in the policy?
A whistleblower Policy must contain:

the protections available to whistleblowers;
how and to whom an individual can make a disclosure;
how the company will support and protect whistleblowers;
how investigations into a disclosure will proceed;
how the company will ensure fair treatment of employees who are mentioned in whistleblower disclosures; and
how the policy will be made available.

What is the penalty for not having a whistleblower policy?
It is an offence, with a fine up to $12,600 (60 penalty units), to not have a whistleblower policy which complies with the Corporations Act.
Next steps
We can provide bespoke solutions – including policies and training – that will help you confidently comply with your obligations under the Act. Contact us to discuss your needs.
Maeve Doyle is a senior employment lawyer with Nexus Law Group.  If you need further advice or support, he/she can be contacted on [email protected] or by telephone +612 9016 0141.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.
The post Do you have a Whistle? appeared first on Nexus Lawyers.

The present you don’t want to get – Dealing with SOPA payment claims over the holidays.
Unfortunately, the Christmas break poses as an opportunity for some to leverage the strict timeframes under the Building and Construction Industry Security of Payment Act 1999 (NSW) (the Act), in the hope the other party will miss the relevant deadlines.
Under SOPA, if a payment claim is not responded to within 10 business days, then the respondent is liable for the entire amount claimed. Given that it is parties can sometimes ‘load up’ progress claims, the consequence of missing a SOPA payment claim over the break are significant and, in some cases, has crippled a construction business.
The same goes in reverse for service of payment schedules and Adjudication Applications, given that parties only have 5 days to file in Adjudication Response. Often a party serves a Payment Claim, a Schedule or an Adjudication Application just before the break in order to deliberately force the other party to have to respond over the break or even better in the hope they miss it and do not respond at all.
Thankfully, the Act gives a small reprieve for this period, as it defines a business day as “any day other than:

a Saturday, Sunday or public holiday, or
27, 28, 29, 30 or 31 December.”

Nevertheless. Receiving service of a document under the Act during this period is still problematic, for the reasons outlined above.
Missing a Statutory Demand is a similar issue during the Christmas Break. Like SOPA Act matters, the consequences of missing a Stat Demand can be devastation on a business in that they are deemed insolvent at law. Unlike SOPA, there is no extension of time by the exclusion of certain ‘business days’ over the holiday period – it is strictly 21 days to have a Stat Demand set aside.
How do you protect yourself?

Ensure that someone is monitoring your address for service (your ASIC registered office and principal place of business) and emails during the holiday period.
Check your contract for any periods which exclude service of and response to payment claims.
Consider drafting an exclusion period for service of and response to SOPA Act payment claims over the holiday period (i.e. deletion of what would otherwise be a reference date under the contact.
If all else fails, you should always have an experienced construction law expert on call who is familiar with this extremely technical area of law (not all ‘construction lawyers’ have actual hard experience with SOPA).

If you are served with anything under the Act just before or during the Christmas break, contact Nick Achurch of our office on (02) 9016 0141 so we can help you manage the process.
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.
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It’s that time again. Getting your employees together for a work Christmas party is a great way to celebrate the end of the working year.
However, HR departments often see a spike in complaints after a Christmas party. The social atmosphere, fueled by alcohol, may lead to workplace injuries or inappropriate behavior such as sexual harassment, discrimination or bullying. You, as the employer, remain legally responsible for the conduct of employees at work related events.
There are a number of things that you can do to reduce:

the risk of any employee misconduct occurring; and
your vicarious liability for your employees’ misconduct if it does occur.

Some Tips to Reduce Your Risk

Before the event, remind employees that as the function is a work-related event and they are therefore expected to comply with your workplace policies. Suggest that they familiarize themselves with relevant policies such as the Code of Conduct, discrimination, sexual harassment, bullying and alcohol and drug use.
Warn employees about the consequences of unacceptable conduct.
Specify clear start and end times for the Christmas Party and ensure alcohol is not served after the end time.
Serve alcohol responsibly and limit the amount of alcohol available;
Ensure that non-alcoholic drinks and food are available.
Make sure that young employees below the legal drinking age do not drink.
Appoint a person or persons from the management team to keep an eye on the festivities and take appropriate action should any concerns arise
Ensure safe transportation home is available and advise employees that they should not drive if they are going to drink.
If an employee is behaving badly at the party, ‘nip it in the bud’ immediately.
Don’t organise, or pay for, drinks at alternative venues after the party is finished.
Ensure that everyone leaves the premises at the end of the party.
If a complaint arises about behaviour at the Christmas party, make sure that the complaint is dealt with promptly and that it is investigated if required.

Lesson for Employers
Prepare for the worst so that you can minimise the risk of employee misconduct. If you have any questions or concerns about the above information, we are happy to assist.
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Interim Occupation Certificates cease to exist from 1 December 2019 but what replaces them? More stringent certification processes perhaps makes builds safer, but at what cost?
An amendment to Part 6 of the Environmental Planning and Assessment Act 1979 (EPA) will end the use of Interim Occupation Certificates (IOC’s) from 1 December 2019.
After the ‘Lambert Review’ in 2015 It was identified that IOCs allowed a margin for problematic uncertified works, causing a number of disputes, lapses in process and unnecessary defects. In essence, an IOC allows the use of part of a building for staged occupation before critical stage inspections and final certifications were provided.
The logic follows that upon completion of the building these inspections and certifications would occur and a Final Occupation Certificate (OC) would be issued. However, this was not always the case in practice, and in the emerging climate of the industry and growing awareness around poor or delayed certification issues, it appears this was no longer acceptable. Further, the complexity and inconsistency of obtaining final certifications would often leave developments without an OC and just an IOC.
The object of doing away with IOCs is essentially to eliminate shortfalls in certification of builds that might otherwise be overlooked at the time of a staged completion (as that part of the building would be occupied).
Staged occupation of buildings remains
The good news is that staged occupation can continue as OCs will be issued for staged sections of in the IOC’s stead, only now each part of an incomplete building to be occupied must obtain the relevant certifications in order to meet full compliance with the BCA and other relevant laws. Only then will an OC be issued. Usage and occupation of the building will be restricted to the certified area until the entire building is complete and certified.
This process will be repeated for each stage with subsequent applications for each until completion. Obviously, this will add some cost to the construction process for staged builds.
Each OC obtained will have conditions and usage restrictions applicable to the portion of the building that is to be occupied. These restrictions will continue until the final OC is issued for all stages.
Implications for developments – more time, more money (but safer builds)
These changes provide a mechanism for the periodic enforcement of development consent conditions and certification standards by providing a mandatory framework under which works are to be certified to allow progressive occupation in larger developments. Whilst this is a positive in the sense that there are greater assurances of compliant work at completion of a development, it adds significant complexity in terms of time and cost for staged projects when seeking partial occupation of a site.
This is a more stringent regulatory framework for staged occupation of dwellings and as such, for any staged project or requirement to occupy a section of a building we suggest as follows:

Obtain the relevant final certifications as soon as practicable if you intend to clear a stage for occupation.
Always apply for an OC as soon as well prior to the completion of the stage, so as not to delay its usage or affect the progress of the remainder of the works.
Make sure your contracts contain proper provisions for certifications in staged builds and in particular, provide for relevant EOT’s for any delay in being able to obtain relevant certifications that are not caused by you.

An occupation certificate will not be issued unless the stage is fully compliant with the BCA for its relevant classification. It flows naturally that usage of the building will be restricted to the compliant stage only.
If you need any assistance with organising a staged build or partial occupation certification, contact the construction team at Nexus for more information.
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Construction law is an ever-changing landscape, which is why we work closely with our valued clients to stay ahead of the game. Below are some of the recent changes affecting the industry.
‘I told you so’ – the growing importance of the 18F defence
Section 18F of the Home Building Act 1989 (NSW) (the Act) provides a complete defence to builders from defects arising from instructions received from an owner or designer contrary to their written advice.
In many cases we deal with, this defence would have been available but the builder either failed to put something in writing or did so but was not very definitive about it, making them potentially liable for issues that were not their fault. This is especially dangerous in complex projects where the line between design and construction concepts get mixed.
Because section 18F is a relatively new provision, the Courts have not given much guidance on the meaning of the words ‘written advice’. Thankfully, a recent case of Owners Corporation v Jackson Teece, in which Nexus successfully defended a builder in the NSW Supreme Court, provides some much-needed clarification on what constitutes as ‘written advice’ to establish this defence.
In that case, it was established that the Defendant need not be very formal with its correspondence or write with ‘an extreme degree of specificity’. It seems the Court is willing to look holistically at the context of related correspondences at the critical time to see if they fall into this category and if they do, it may be enough to establish this very critical defence.
This is great news for builders in an area that has been plagued with uncertainty for some time, but it is still critical for builders to provide written notice if they believe a given instruction is incorrect.
Say Goodbye to Interim Occupation Certificates
Amendments to the Environmental Planning and Assessment Act mean that no more Interim Occupation Certificates will be issued from 1 December 2019.
This stems from the 2015 Lambert Review identifying problems in certification practices in NSW. It concluded current processes allowed staged occupation of parts of a building before critical inspections had occurred. Although there was some logic to this, the issue of a Final Occupation Certificate (OC) sometimes required retrospective certifications and these were not always easily obtained, leaving some developments struggling to obtain a Final OC.
With the growing awareness around poor or delayed certification practices in the media recently, the change is designed to ensure this problem does not occur and promote more fulsome inspection and certification procedures throughout stages.
Although IOC’s will disappear, there is a corresponding change to the definition of an OC, which will authorise the occupation of part of a building on certain conditions.
So, staged builds can continue but each stage will need undergo a certification process as if a Final OC was being sought for each stage, which will require a separate application for each stage until completion.
Unfortunately, this increases certification costs and may provide disincentive for staging developments but this new mechanism provides a stronger regulatory framework for staged developments.
New Security of Payment Laws
It wouldn’t be a proper construction update without a mention of the Building and Construction Industry Security of Payment Act. Significant amendments to this Act are commencing on 21 October 2019, introducing a new regulatory framework for enforcing proper contracting and certification procedures in the industry generally.
This is a material shift from the Act’s original narrow focus on enforcing progress claims. Nexus will be issuing a comprehensive summary of the changes and how to manage them in future articles.
If you would like more detail in relation to the above or any other contract or construction matters call 02 4961 0002 for a free initial consultation.
This article was first published in the Hunter Business Review magazine (page 38).
The post Construction Law Update 2020 appeared first on Nexus Lawyers.

I often hear clients and/or their advisors say – “it is better to ask for forgiveness, than consent” – in the context of carrying on development that requires consent.  The thinking behind this is that a consent authority, such as a council, will take months to make a decision, so why not get ahead of the game.  Who knows, the council may never even find out and you get off scot free.
Whilst the time taken by government bodies to make decisions can seem overly lengthy, the legal implications of the “ask for forgiveness” path are worth detailed consideration before you instruct the excavator driver to start their engine.
In a recent case in the Land & Environment Court, a Sutherland Shire resident, Mr Perdikakis, had a large shed constructed in his backyard.  He knew at the time that he needed development consent, though decided not to obtain this approval.  In ordering that the shed be demolished, Justice Pepper noted that Mr Perikakis was the “author of his own misfortune.”
Adding to that misfortune, Justice Pepper ordered Mr Perdikakis to pay Council’s costs.  So, along with paying for the shed to be constructed, Mr Perikakis will have to pay for the shed to be demolished, the waste removed, his own costs and the Council’s legal costs which may run into the tens of thousands of dollars.
What could he have done differently?
Unlawful works can be regularised by way of a building certificate.  In this case, Justice Pepper noted that Mr Perdikakis lodged a building certificate application and that the Council refused that application.  However, he left that matter there.  He could have appealed that application to the Court and if it was subsequently approved, the Council’s case to have the shed demolished would have failed.
No doubt one of the key reasons he didn’t go down that path was of the shed’s “manifest breaches of the planning controls”.
So, is it better to ask for forgiveness than consent?  As a planning strategy it is fraught with risk.  For mine, too much risk to even consider it.
If you need advice on the type and form of consent you need before undertaking any development work or if you are looking to seek “forgiveness” for work already performed, contact Grant Long on [email protected] o r +61 2 4961 0002.
The post Issues of Consent – Is it better to ask forgiveness, than permission? appeared first on Nexus Lawyers.

The New South Wales government has announced that the latest round of security of payment reforms will commence on 21 October 2019. Those likely to have the greatest impact on civil contractors, include:

Subcontractors must be paid within 20 business days from when their claim is made instead of 30 business days. The obvious impact is cash flow for civil contractors. Failure to pay on time is not an offence, so does not attract personal liability for a fine or for the unpaid amount.
Bringing back the requirement for payment claims to state they are made under the Act
Increased penalties for corporations. Penalties have increased across the board for failure to comply with requirements of the Act. As an example, the penalty for failure by a head contractor to provide a supporting statement or to knowingly provide a false or misleading supporting statement has increased from $22,000 to $110,000.
Exposure to personal liability for executives knowingly involved in offences by corporations. The maximum penalties for executives knowingly involved in corporate offences is the same as the maximum penalty for corporations.
Executive liability for offences relating to supporting statements and trust accounts. For executive liability offences, if the company has committed the offence, an executive will be liable too (maximum $22,000 penalty), if they are knowingly involved or recklessly indifferent and fail to take reasonable steps to stop it. Reasonable steps are actions by the executive toward:

assessing compliance with the provision creating the offence;
staff training to enable compliance;
ensuring equipment, systems and process are appropriate;
creating and maintaining appropriate corporate culture.

Adjudication determinations may be overturned “in part” for jurisdictional error. This change will reduce the incidence of adjudication determinations being appealed in the Supreme Court on grounds of jurisdictional error.
Enforcement officers with rights of entry and to seize documents.
Enforcement officers can issue penalty notices. Enforcement officers will be able to issue on the spot penalty notices where it appears to the officer that the person has committed a penalty notice offence.

Penalty notice offences include failure by a head contractor to provide a supporting statement, failure to comply with administrative requirements in relation to payment withholding requests, and failures to comply with regulations relating to retention trust accounts.
The amount payable for penalty notice offences is specified in the regulation and is less than the maximum penalty if proceedings are commenced. For example, the maximum penalty for failure by a head contractor to provide a supporting statement is $11,000 for a corporation if a penalty notice is issued, but $110,000 for a prosecution.
You can find a copy of the Amendment Act here and the amendment regulation here.
To ensure your business is “SOP Ready” before 21 October, we have prepared a checklist to help you get organised. Click here to download our Civil contractor SOP ready checklist.
For further information on any of the issues raised in this alert please contact a member of our team below on +61 2 9016 0141:
Marcus McCarthy         [email protected]
Simon Fosterling         [email protected]
Kelvin Keane               [email protected]
 
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.
The post NSW Security of payment changes – what you need to know. appeared first on Nexus Lawyers.

Zabina joins Nexus Law Group after starting her career in suburban practice where she worked primarily in property law but found her passion for estate planning and administration. She now works mainly in the area of Wills and Estates.
Zabina loves working with clients to tailor an estate plan most suited to their objectives. She has recently commenced her Masters in Estate Planning to provide clients with an even greater specialised service.
The post Zabina Naem appeared first on Nexus Lawyers.

Philip is a partner in our Corporate and Commercial Group. He handles:
• a wide range of transactional work, civil disputes and proceedings
• domestic mediations and arbitrations
• investigations by ASIC and RMS
• the full range of statutory and regulatory inquiries and disciplinary proceedings
• criminal proceedings arising in transport law and corporate context
• a variety of administrative law matters often involving proceedings for judicial review; and
• the implementation of innovative litigation strategies relating to transactional work of the firm.
The post Philip Cowdery appeared first on Nexus Lawyers.

Leading innovative law firm Nexus Law Group has recorded another bumper year for senior appointments, making it one of the fastest growing law firms in the country over the past 4 years.
Over the past 12 months the firm has boosted its ranks with the addition of 12 senior lawyers, including lawyers from McCullough Robertson, Slater & Gordon, Lexvoco, Ashursts, and Sparke Helmore, representing a solid 20% growth rate.
Nexus is recognised as an industry trailblazer, being the only firm running an actual structural revision to the law firm in the market today.
Nexus Law Group CEO Marcus McCarthy says Nexus’s continued growth was an endorsement of the firm’s truly innovative model:

“We are not a chambers practice as many think we are. If anything, I can only say we are a ‘Nexus practice’ – as far as I can tell, we are the only structural revision to the law firm in the Australian market. We are not a recruiter masquerading as a law firm, a virtual firm or marketing a fee structure as NewLaw.  We are an alternative model law firm, with a common sense structure for the practice of modern law, reflecting what lawyers and clients really need to get things done”
Our structure appeals to senior experienced lawyers, who are increasingly seeking a credible alternative to the traditional partnership path. We are proud to be bringing positive change to the legal profession by offering great lawyers the opportunity to take control of their careers, in a firm that offers meaningful flexibility, real collaboration with other experts, control over their own practice, with al the support of a large national firm structure.”

Nexus’s highly credentialed team of 34 senior lawyers now advise clients across 12 practice areas from Sydney, Melbourne, Brisbane Adelaide, Newcastle, Canberra and Perth, with international alliance partners in the UK, US, Singapore and Hong Kong.
With our South Australian hub now up and running we are looking forward to making announcements about additional appointments soon.
But we are not done yet.  Far from it.  We are still seeking additional growth in strategic corporate and commercial practice areas in Melbourne, Sydney and Brisbane.  If you are interested in finding out more about what Nexus can offer you and your practice get in touch.
Jacqueline Keddie, COO
Email:  [email protected]
Phone:  +612 9016 0141
 
The post Starting the 2020 FY the right way appeared first on Nexus Lawyers.

An executor is a person appointed by another in a will to act in respect of the estate of the testator upon his or her death. An executor is the legal personal representative of a deceased person.
THE WILL

Locate and examine the original Will – consider whether it appears properly executed.
Ensure you have been appointed Executor and have authority to take control of the estate.
Check for funeral instructions in the Will that should be followed as far as possible. The first job of an executor is to arrange the funeral.
Check the Will for information that will help you identify any assets that need to be protected.

THE FUNERAL

The Executor is responsible for arranging the funeral and should confer with family
Ensure the Funeral Director orders a Death Certificate
In most cases, a funeral account can be paid from the deceased bank account. Noting that banks will often freeze the account of the deceased pending a grant of probate & administration.

ASSETS AND LIABILITIES

Obtain details of assets and liabilities of the estate
Conduct a search of the deceased’s home and belongings if appropriate to locate bank account and investment details, as well as accounts for rates and utility bills, credit cards and possibly title deeds and any other important documents that might be applicable.
Secure the property and notify insurer of the death.
Centrelink or Veterans Affairs may need to be notified (If not, overpayments of benefits might be made that will need to be repaid).

SEEK PROFESSIONAL ADVICE
You may be personally liable if you get it wrong! Consult a solicitor and if relevant, meet with the deceased’s accountant to determine tax liabilities and tax requirements.
VALUE ASSETS
Prepare detailed inventory of assets and if relevant obtain values of assets.
PROBATE
Depending on the value of the assets an Application for Probate may have to be made to the Supreme Court. If no will exists, it may be necessary to obtain a grant of Letters of Administration. Probate involves: Preparing Court forms and lodging them in Court.
BENEFICIARIES

Formally verify estate beneficiaries through statutory declarations or birth certificates.
Obtain their instructions regarding the sale or transfer of assets when appropriate.
Pay any legacies and release specific bequests as per the terms of the will.
Make interim partial distributions to beneficiaries, if necessary.
Obtain income tax clearance to date of death from the ATO. The deceased’s accountant can usually assist with this.

DEAL WITH THE ASSETS

Open an estate bank account or you can use a Solicitor’s Trust Account
Close the deceased’s bank accounts and deposit to the estate account. That may need to await probate.
Pay debts from the asset proceeds
Sell or transfer assets to the beneficiaries. Depending on the assets this could involve share transfers, contracts with brokers, titles office forms and selling real estate

OTHER CONSIDERATIONS

Getting paid – you may be entitled to Executor’s commission
Ongoing estates: life interests, testamentary trusts, challenges or claims against the estate. Proceed carefully and obtain legal advice ASAP.

The role of an Executor of someone’s Will is an important and responsible one. It can also be complex and time consuming particularly at a time of often great emotional distress.
An executor of a Will should know what needs to be done and act quickly to get the deceased persons affairs in order.
You do not need to go through this alone.  The team at Nexus can help you work through your responsibilities to ensure that the wishes of the deceased are fulfilled as quickly and painlessly as possible.

Joel Siepmann
Lawyer, Donlan Lawyers (a member of Nexus Law Group)
[email protected]
 
 
 
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.
The post Checklist for Executors appeared first on Nexus Lawyers.

1.  Everything will go to my Spouse so I don’t need a Will
Wrong! This depends on the existence of other relatives. If you do not have a Will, other relatives may be entitled to benefit legally.
2.  My Superannuation death benefits will follow my Will
Not necessarily! It depends on the rules of your fund and the arrangements you have with your superannuation fund for payment of your death benefits.
3.  My Power of Attorney can divide up my Estate on my death
Wrong! A Power of Attorney enables someone to manage your financial affairs during your lifetime but the appointment of Power of Attorney dies with you. Your estate will be administered according to your Last Will or if you do not have one, then in accordance with the Laws of Intestacy. They are usually not what you would want as your estate distribution.
4.  If I give a person that I do not want to benefit from my estate a gift of $1.00 then they cannot contest my estate
Wrong! It may work in the movies but not in Australia. There are better ways to manage your estate planning.
5.  A Will is only for old people
Wrong! While a minor cannot usually make a Will without court approval, anyone over the age of 18 who owns any assets (or even if they don’t) should have a Will in place. A Will enables you to appoint an executor and to distribute any assets in your estate which could include superannuation death benefits and accidental death insurance, unpaid wages, digital assets etc.
6.  It will be valid if I put a clause in my Will stipulating that if anyone contests my Will, they will get nothing.
Wrong! These types of provisions can generally be void for public policy reasons.
7.  My family will agree on how to divide things up
Maybe, but this cannot be assured. No matter how functional your family is, conflicts can always arise. Having a Will will at least reflect your wishes.
8.  My Power of Attorney can make medical and/or lifestyle decisions for me if I can’t make them for myself.
Wrong! A Power of Attorney can make financial decisions. He or she cannot make medical, health or lifestyle decisions. You should have an Advanced Care Directive in place for these matters.
9.  I can gift my family trust assets in my Will
Wrong! Family trusts generally exist outside of your Will. You do not own those assets, the trust does. You may be able to transition control of the trusts through your Will but you cannot directly gift the assets of the trust.
10.  There is no point having a Will because anyone can contest it anyway
Wrong! There are of course significant benefits in having a Will. It is you having your say as to how you want your estate to be distributed and who you want to manage it. While a Will can be contested, it is not that simple.
Get professional advice – it is too important not to.

Joel Siepmann
Lawyer, Donlan Lawyers (a member of Nexus Law Group)
[email protected]
 
 
 
This publication is © Nexus Law Group and is for general guidance only. Legal advice should be sought before taking action in relation to any specific issues.
The post Estate Planning – 10 Misconceptions appeared first on Nexus Lawyers.